&EPA Toxic Substances Control Ac:t.
Compliance/Enforcement
Guidance Manual
Policy Compendium
U.S. Environmental Protection Agency
Washington DC 20460
Issued by
Pesticides and Toxic Substances
Compliance Monitoring Staff
and
Office of Enforcement and Compliance Monitoring

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       \
       S    UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
                        WASHINGTON. D.C. 20460
                            APR  9«7
                                                          OFFICE OF
                                                   PESTICIDES AND TOXIC SUBSTANCES
MEMORANDUM
SUBJECT:  TSCA Compliance/Enforcement
          Guidance Manual Policy Compendium

FROM:     A. E. Conroy  II, Director
          Office of Compliance Monitoring

TO:       Addressees

    Attached 1s an updated listing of the TSCA guidelines,
strategies .and policies Issued by the Office of Compliance
Monitoring.  MOSt Of these docmnpnts pan ho found in tJifL
TSCA Compliance/Enforcement Guidance Manual.  Documents
dated after the 1984 publication or tne guidance Manual were
sent to the Regional Division Directors and Branch Chiefs as
they were Issued.

     This updated Index has been provided to Special Liti-
gation Division (LE-134P), which Is responsible for distribution
of the Index to persons on the TSCA Compliance/Enforcement
Guidance Manual mailing list.

     If you discover any errors or omissions in the index,
please forward this information to the Policy and Analysis
Branch, Office of Compliance Monitoring.
Attachment

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TSCA Mailing List
Charles Elkins
Fred Stiehi
Stan Abramson
Charles Auer
Ken Shiroishi
John J. Neylan III
Dexter Goldman
Phyllis Flaherty
John Martin
Ralph Turpin
Mike Wood
(IS- 792 )
(LE-130M)
(LE-132A)
(EN—342)
II
U
II
II
Is
II
John Mackenzie
Western Regional Compliance Director
A. Charles Lincoln
Eastern Regional Compliance Director
I Louis F. Gitto, Director
Air Management Division
II Barbara Metzger
Environmental Services Div.
II Stephen R. Wasserbug, Director
Hazardous Waste Man?gement Div.
IV Winston A. Smith, Director
Air, Pest. & Toxic Mgmt Div.
V William H. Sanders III, Director
Environmental Services Div.
Vi William B. Hathaway, Director
Air, Pesticides & Toxics Div.
VII William A. Spratlin, Director
Air & Toxics Division
VIII Irwin L. Dlcksteln, Director
Air & Toxic Substances Div.
IX Jeffrey Zelikson, Acting Director
Toxic & Waste Management Dlv.
X Gary O’Neal , Director
Air & Toxic Division
Gerald M. Levy, Chief
Office of Pesticides & Toxic Sub.
Ernest Regna, Chief
Pesticides & Toxic Sub. Branch
Larry Miller, Chief
Pesticides & Toxic Sub. Branch
H. Kirk Lucius, Chief
Pesticides & Toxic Sub. Branch
Phyllis Reed, Chief
Pesticides & Toxic Sub. Branch
Norman E. Dyer, Chief
Pesticides & Toxic Sub. Branch
Leo Alderman, Chief
Toxics & Pesticides Branch
Alvin Yorke, Chief
Toxic Substances Branch
Richard Value, Chief
Pesticides & Toxics Branch
Anita Frankel, Chief
Pesticides & Toxic Sub. Branch

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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
MAR. 5 84
MEMORANDUM -
SUBJECT: FIFRA and TSCA Compliaitce/Enforcement
Guidance Manual Policy Compendiums
FROM: A. E. Conroy II, Director
Compliance Monitoring Staff
Office of Pesticides and Toxic Substances
Glenn Unterberger, Director & 4fL.
Off ice of Legal and Enforcement Policy
Office of Enforcement and Compliance Monitoring
TO: AddresseLes
As part of our eft ort to produce guidance manuals for
personnel involved in case development activities for the
United States Environmental Protection Agency, we are -trans-
mitting to you the Compendium of Operative Enforcement Policies.
for the Federal Insectjcide, Fungici e,. an Rodenticide Act
(FIFRA) and the Toxic Substances Control Act (TSCA). The
Compendiums- not only identify those FIFRA and TSCA compliance/
enforcement guidances-and policies that are currently in effect ,,
but they also provide a mechanism for organizing such memoranda..
We intend to update. the Compendiums periodically and
we welcome comments on them or on policy issues that might.
be addressed in the future. Questions or comments on the
contents of the Compendiums can be addressed to Ted Firetog
(FTS 426—7503) or Barbara Paul (FTS 382—7826).

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—2—
Add sseeS:
Reg tonal Counsels
Associate Enforcement Counsel for Pesticides
and Toxic Substances
Director, Office of Criminal Investigations
Director, NEIC
Director, Air Management Division — Region I
Director, Air and Waste Management Division — Regions II,
IV, VI, VII, VIII, and X
Director, Environmental Services Division — Region III
Director, Waste Management Division — Region V
Director, Toxics and Waste Management Division — Region IX
Attachments
cc: Assistant Administrator for Pesticides
and Toxic Substances
Assistant Administrator for Enforcement
and Compliance Monitoring
General Counsel
Senior Enforcement Counsel

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TABLE OF CONTENTS
)

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TABLE OF CONTENTS
)

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TSCA Compliance/Enforcement Compendium - Listing by Tab
KF 3958 Compliance Assistance Guidelines for the Asbestos-in- 24-June- 1982
.A55C6 Schools Rule
AS-
KF 3958 Compliance Strategy for the Friable Asbestos- 6/24/1982
.A55C6 Containing Materials in Schools: IdentificaLion and
AS-I Notification Regulation
KF 3958 Model Asbestos in Schools; Cooperative Compliance 2 1-Sep- 1982
.A55C6 Program
AS-2
KF 3958 Compliance Strategy for the Friable Asbestos-Containing
.A55C6 Materials in Schools: Identification and Notification
AS-3 Regulation
KF 3958 Enforcement Response Policy for the Friable Asbestos- 6-Jul-I 983
.A55C6 Containing Materials in Schools: Identification and
AS-4 Notification Regulation
KF 3958 Revised Asbestos-in-Schools Rule Enforcement Response 22-Jun-I 984
.A55C6 Policy (ALSO: Proposed Amendment, dated 26-Aug-I 985) 26-Aug-I 985
AS-5
KF 3958 Reductions and Remittances of Penalties for Violations of 15-Apr- 1985
.A55C6 the TSCA Asbestos-in-Schools Rule
AS-6
KF 3958 Answers to the Most Fequently Asked Questions About 1991 -May-01
.A55C6 Reinspections : Under the AHERA Asbestos-In-Schools
AS-7 Rule
KF 3958 Asbestos Reporting Rule Compliance Strategy 30-Aug-I 983
.A55C6
AS-8
KF 3958 6,8-Asbestos-I: When to Wear Protective Clothing and 15-Jul-i 983
.A55C6 Equipment for Asbestos Regulations Compliance
AS-9 Monitoring Inspections
KF 3958 6-Asbestos-2: Treatment of Catholic Dioceses as Local 2-Jul-I 984
.A55C6 Education Agencies
AS-lO
KF 3958 6-Asbestos-3. Qualification for Exemption from the 3/03/1982
.A55C6 Asbestos-in Schools Rule
AS-Il
KF 3958 6-Asbestos-4: For-Profit Schools 21-May-I 985
.A55C6
AS-l2
KF 3958 6-Asbestos-5: Enforcement Response for Small Local lO-Sep- 1985
.A55C6 Education Agencies Without Friable Material
7/15/2009

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TSCA Compliance/Enforcement Compendium - Listing by Tab
AS- 13
KF 3958 6-Asbestos-6: Recordkeeping Requirements for Schools I 0-Sep- 1985
.A55C6 with Friable Asbestos-Containing Material
AS- 14
KF 3958 Enforcement Facts and Strategy: Chlorofluorocarbons 0-Nov-I 979
.A55C6
CH- I
KF 3958 6-CFC-l: Product Labeling for Both Essential and Non- 30-Aug-1982
.A55C6 Essential CFC Aerosal Propellant Uses
CH-02
KF 3958 Dioxin Contaminated Waste Compliance Strategy 0-Jan- 1982
A55C6
DI- I
KF 3958 Dioxin Contaminated Waste Enforcement Response Policy 6-Jul- 1983
.A55C6
DI-2
KF 3958 Consolidated Rules of Practice Governing the 9-Apr- 1980
.A55C6 Administrative Assessment of Civil Penalties and the
GE-I Revocation or Suspension of Permits (45 Federal Register
24360)
KF 3958 Guidelines for Assessment of Civil Penalties under I0-Sep-I980
.A55C6 Section 16 of the Toxic Substances Control Act; PCB
GE-2 Penalty Policy (45 Federal Register 59770)
KF 3958 Settlement with Conditions 15-Nov-l983
.A55C6
KF 3958 Procedures for Handling Business Confidentiality Claims I 985-Aug-30
.A55C6 Asserted on Documents in TSCA/FIFRA Enforcement
GE-4 Actions or Investigations
KF Regional pesticides and toxic substances case settlements. 29-March- 1985
3958.A55
C6 GE-5
KF 3958 Scope of TSCA investigative subpoena use. 25-January- 1985
.A55
C6 GE-6
KF 3958 Product Labeling for both essential and non-essential CFC 30-Aug-I 982
.A55C6 aerosol propellant uses
GE-i
KF 3958 Permitting of government-related PCB disposal activities 2 I-February-I 989
.A55 C6
PCB-l
7/15/2009 2

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TSCA Compliance/Enforcement Compendium - Listing by Tab
KF 3958 6-PCB-1: Responsibility for Compliance with PCB Rule 4-Mar .1982
.A55C6
PCB-02
KF 3958 6-PCB-2: Distillation, Solvent Extraction, Filtration, and 16-Aug- 1983
.A55C6 Other Physical Separation Methods for PCBs
PCB-03
KF 3958 6-PCB-3 Residual PCBs in Processed Liquids and Solids 16-Aug- 1983
.A55C6
PCB-04
KF 3958 6-PCB-6: Allocation of Enforcement Liability for 16-Aug-I 983
.A55C6 Violation of the One-Year Disposal Deadline for PCB
PCB-06 Articles or PCB Containers
KF 3958 6-PCB-7: Reference Date for Violations of the One-Year 16-Aug-I 983
.A55C6 Storage for Disposal Deadline for PCB Waste Resulting
PCB-07 from Physical Separation
KF 3958 6-PCB- 10: FIrst In/First Out Standard for Meeting the Aug 13, 1985
.A55C6 PCB One YEar-Storage for Disposal Requirement
PCB-8
KF 3958 Final PCB Penalty Policy 30-Mar- 1990
.A55C6
PCB-9
KF 3958 Disposal Requirements for PCB Small Capacitors March 4, 1985
.A55C6
PCB- 10
KF 3958 Final PCB Disposal & Marking Regulations May 22, 1979
.A55C6
PCB-l I
KF 3958 Applicability of PCB Regulations to spills which occurred 3-Aug- 1979
.A55C6 prior to the effective date of the 1978 regulation
PCB- 12
KF 3958 Enforcement Facts and Strategy: Premanufacture 0-Aug-I 980
.A55C6 Notification (PMN)
PMN- I
KF 3958 Inventory Enforcement Strategy 25-Apr- 1979
.A55C6
PMN-2
KF 3958 Inventory Penalty Policy 29-Jun-I 980
.A55C6
PMN-3
KF 3958 Compliance Strategy for Preliminary Assessment 22-Jul- 1982
.A55C6 Information Reporting Rule (Level A Rule)
7/15/2009 3

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TSCA Compliance/Enforcement Compendium - Listing by Tab
PMN-4
KF 3958 Compliance Strategy for TSCA Section 8(d) 21-Nov-I 983
.A55C6
PMN-5
KF 3958 Compliance Strategy for TSCA Section 5(h)(4) 15-Nov-I983
.A55C6 Premanufacture Notice Exemption for Chemicals Used in
PMN-6 or for Instant Photographic or Peel-Apart Film Articles
KF 3958 Enforcement Facts and Strategy: Polychlorinated 0-Feb-I 980
.A55C6 Biphenyls (PCBs)
P0-i
KF 3958 Amendment to the Compliance Monitoring Strategy for 13-Jun-I 986
.A55C6 TSCA 6(e) - Polychlorinated Biphenyls (PCBs)
P0-Ia
KF 3958 PCB Enforcement Policy Subsequent to Appellate Court lI-Nov-I 980
.A55C6 Opinion Remanding Portions of the PCB Regulation
P0-2
KF 3958 New Requirements for PCB Transformers Pursuant to 9-Mar- 1981
.A55C6 Appellate Court Order
P0-3
KF 3958 Enforcement Facts and Strategy PCB Interim Measures 0-Aug-I 981
.A55C6 Program
P0-4
KF 3958 Civil Penalty Cases Involving use of PCBs in Hydraulic 14-Sept- 198?
.A55C6 systems
P0- S
KF 3958 Final Enforcement Response Policy for Recordkeeping 15-May-I 987
.A55C6 and Reporting TSCA Sections 8, 12, and 13
RE-I
KF 3958 Penalty Policy supplements pursuant to the Civil Penalty 4-18-1997
.A55C6 Inflation Adjustment Rule
RE-2
KF 3958 Guidance for Pilot TSCA Cooperative Enforcement 31 -Dec-I 980
.A55C6 Agreements
ST-I
KF 3958 Supplemental Guidance Procedures for State Inspectors 19-Jun-I 981
.A55C6 Acting under the Authority of TSCA Section II
ST-2
KF 3958 Neutral Administrative Inspection Schemes for TSCA 7-Nov-1979
.A55C6 Enforcement
TE- I
4-Dec-I 979
7/15/2009 4

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TSCA Compliance/Enforcement Compendium - Listing by Tab
KF 3958 Use of TSCA Section 11(c) Subpoenas
.A55C6
TE-2
KF 3959 Routine Use of SEC “I 0-K’ Statements in TSCA and 17-Oct-I 980
.A55C I FIFRA Civil Penalty Actions
F20
K F 3959 Penalty Policy supplements pursuant to the Civil Penalty 4-18-1997
.A55C I Inflation Adjustment Rule
F52.l
KF Memorandum authorizing Regions to negotiate settlements 3/29/1985
3959.A55 for enforcement actions issued by it under Section 16 (a)
Cl F54 of TSCA and Section 14(a) of FIFRA without prior HQ
consultation
7/15/2009 5

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TSAC Compliance/Enforcement Compendium — Listing by Date
0-Aug-I 980
0-Aug-1981
0-Feb-I 980
0-ian- 1982
0-Nov- 1979
1 4-Sept- 198?
25-Apr- 1979
May 22, 1979
- - ug-l979
7-Nov-I 979
4-Dec- 1979
9-Apr- 1980
29-Jun-I 980
lO-Sep- 1980
17-Oct-I 980
I l -Nov-I980
31-Dec- 1980
vlar- 1981
Compliance Strategy for the Friable Asbestos-Containing Materials in
Schools: identification and Notification Regulation
Enforcement Facts and Strategy: Premanufacture Notification (PMN)
Enforcement Facts and Strategy PCB Interim Measures Program
Enforcement Facts and Strategy: Polychlorinated Biphenyls (PCBs)
Dioxin Contaminated Waste Compliance Strategy
Enforcement Facts and Strategy: Chlorofluorocarbons
Civil Penalty Cases Involving use of PCBs in Hydraulic systems
inventory Enforcement Strategy
Final PCB Disposal & Marking Regulations
Applicability of PCB Regulations to spills which occurred prior to the
effective date of the 1978 regulation
Neutral Administrative Inspection Schemes for TSCA Enforcement
Use of TSCA Section 11(c) Subpoenas
Consolidated Rules of Practice Governing the Administrative
Assessment of Civil Penalties and the Revocation or Suspension of
Permits (45 Federal Register 24360)
Inventory Penalty Policy
Guidelines for Assessment of Civil Penalties under Section 16 of the
Toxic Substances Control Act; PCB Penalty Policy (45 Federal
Register 59770)
Routine Use of SEC “I 0-K Statements in TSCA and FIFRA Civil
Penalty Actions
PCB Enforcement Policy Subsequent to Appellate Court Opinion
Remanding Portions of the PCB Regulation
Guidance for Pilot TSCA Cooperative Enforcement Agreements
New Requirements for PCB Transformers Pursuant to Appellate
Court Order
KF3958
.A55C6 AS-3
KF3958
.A55C6 PMN-l
KF3958
.A55C6 P0-4
KF3958
.A55C6 P0-I
KF3958
.A55C6 DI-l
KF3958
.A55C6 CH- I
KF3958
.A55C6 P0-5
KF3958
.A55C6 PMN-2
KF3958
.A55C6 PCB- II
KF3958
.A55C6 PCB-12
KF3958
.A55C6 TE- I
KF3958
.A55C6 TE-2
KF3958
.A55C6 GE-i
KF3958
.A55C6 PMN-3
KF3958
.A55C6 GE-2
KF 3959
.A55C 1 F20
KF3958
.A55C6 P0-2
KF3958
.A55C6 ST-I
KF3958
.A55C6 P0-3
7/15/2009

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TSAC Compliance/Enforcement Compendium — Listing by Date
Jun-I 981 Supplemental Guidance Procedures for State Inspectors Acting under KJ 3958
the Authority of TSCA Section Ii .A55C6 ST-2
3/03/1982 6-Asbestos-3: Qualification for Exemption from the Asbestos-in KF 3958
Schools Rule .A55C6 AS-Il
4-Mar- 1982 6-PCB- I. Responsibility for Compliance with PCB Rule KF 3958
.A55C6 PCB-02
24-June-1982 Compliance Assistance Guidelines for the Asbestos-in-Schools Rule KF 3958
.A55C6 AS-
6/24/1982 Compliance Strategy for the Friable Asbestos- Containing Materials KF 3958
in Schools: Identification and Notification Regulation .A55C6 AS-I
22-Jul- 1982 Compliance Strategy for Preliminary Assessment Information KF 3958
Reporting Rule (Level A Rule) .A55C6 PMN-4
30-Aug-I 982 6-CFC- I: Product Labeling for Both Essential and Non-Essential KF 3958
CFC Aerosal Propellant Uses .A55C6 CH-02
30-Aug-I 982 Product Labeling for both essential and non-essential CFC aerosol KF 3958
propellant uses .A55C6 GE-7
21-Sep-I 982 Model Asbestos in Schools; Cooperative Compliance Program KF 3958
.A55C6 AS-2
- u1- 1983 Dioxin Contaminated Waste Enforcement Response Policy KF 3958
.A55C6 DI-2
6-Jul- 1983 Enforcement Response Policy for the Friable Asbestos-Containing KF 3958
Materials in Schools: Identification and Notification Regulation .A55C6 AS-4
15-Jul-I 983 6,8-Asbestos-I: When to Wear Protective Clothing and Equipment KF 3958
for Asbestos Regulations Compliance Monitoring Inspections .A55C6 AS-9
16-Aug-I 983 6-PCB-2. Distillation, Solvent Extraction, Filtration, and Other K F 3958
Physical Separation Methods for PCBs .A55C6 PCB-03
I6-Aug-1983 6-PCB-3: Residual PCBs in Processed Liquids and Solids KF 3958
.A55C6 PCB-04
16-Aug-1983 6-PCB-6: Allocation of Enforcement Liability for Violation of the KF 3958
One-Year Disposal Deadline for PCB Articles or PCB Containers .A55C6 PCB-06
16-Aug-I 983 6-PCB-7: Reference Date for Violations of the One-Year Storage for KF 3958
Disposal Deadline for PCB Waste Resulting from Physical Separation .A55C6 PCB-07
30-Aug-I 983 Asbestos Reporting Rule Compliance Strategy KF 3958
.A55C6 AS-8
15-Nov-I 983 Compliance Strategy for TSCA Section 5(h)(4) Premanufacture KF 3958
Notice Exemption for Chemicals Used in or for Instant Photographic A55C6 PMN-6
or Peel-Apart Film Articles
Nov-1983 Settlement with Conditions KF 3958
.A55C6 GE-3
7/15/2009 2

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TSAC Compliance/Enforcement Compendium — Listing by Date
•Nov- 1983 Compliance Strategy for TSCA Section 8(d) KF 3958
.A55C6 PMN-5
22-Jun- 1984 Revised Asbestos-in-Schools Rule Enforcement Response Policy KF 3958
26-Aug-1985 (ALSO: Proposed Amendment, dated 26-Aug-l985) .A55C6 AS-5
2-Jul-I 984 6-Asbestos-2: Treatment of Catholic Dioceses as Local Education KF 3958
Agencies .A55C6 AS-b
25-January- Scope of TSCA investigative subpoena use. KF 3958 .A55
1985 C6 GE-6
March 4, 1985 Disposal Requirements for PCB Small Capacitors KF 3958
.A55C6 PCB- 10
3/29/1985 Memorandum authorizing Regions to negotiate settlements for KF
enforcement actions issued by it under Section 16 (a) of TSCA and 3959 A55C I F54
Section 14 (a) of FIFRA without prior HQ consultation
29-March- Regional pesticides and toxic substances case settlements. KF 3958.A55
1985 C6GE-5
15-Apr-I 985 Reductions and Remittances of Penalties for Violations of the TSCA KF 3958
Asbestos-in-Schools Rule .A55C6 AS-6
21-May-I 985 6-Asbestos-4: For-Profit Schools KF 3958
.A55C6 AS-12
ig 13, 1985 6-PCB- 10: FIrst In/First Out Standard for Meeting the PCB One KY 3958
YEar-Storage for Disposal Requirement .A55C6 PCB-8
I 985-Aug-30 Procedures for Handling Business Confidentiality Claims Asserted KY 3958
on Documents in TSCA/FIFRA Enforcement Actions or Investigations .A55C6 GE-4
10-Sep-I 985 6-Asbestos-5: Enforcement Response for Small Local Education KF 3958
Agencies Without Friable Material .A55C6 AS- 13
10-Sep-I 985 6-Asbestos-6: Recordkeeping Requirements for Schools with Friable KY 3958
Asbestos-Containing Material .A55C6 AS- 14
I 3-Jun- 1986 Amendment to the Compliance Monitoring Strategy for TSCA 6(e) - KY 3958
Polychlorinated Biphenyls (PCBs) .A55C6 P0-Ia
15-May- 1987 Final Enforcement Response Policy for Recordkeeping and Reporting KF 3958
TSCA Sections 8, 12, and 13 A55C6 RE-I
21-February- Permitting of government-related PCI3 disposal activities KY 3958 .A55
1989 C6PCB-I
30-Mar-l990 Final PCB Penalty Policy KY 3958
.A55C6 PCB-9
1991 -May-01 Answers to the Most Fequently Asked Questions About Reinspections KY 3958
Under the AHERA Asbestos-In-Schools Rule .A55C6 AS-7
8-1997 Penalty Policy supplements pursuant to the Civil Penalty Inflation KY 3958
Adjustment Rule .A55C6 RE-2
7/15/2009 3

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TSAC Compliance/Enforcement Compendium — Listing by Date
8-1997 Penalty Policy supplements pursuant to the Civil Penalty Inflation KJ 3959
Adjustment Rule .AS5C I F52. I
7/1512009 4

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TSCA GUIDELINES, STRATEGIES AND ENFORCEMENT RESPONSE POLICIES
DOCUMENT DATE ISSU!D
GENERAL TSCA PENALTY GUIDANCE
Consolidated Rules of Practice GovernIng 04/09/80
the Administrative Assessment of Civil
Penalties and the Revocation or Suspension
of Permits [ 45 FR 24360]
Guidelines for Assessment of Civil Penalties 09/10/80
under Section 16 of the Toxic Substances
Control Act; PCB Penalty Policy
[ 45 FR 59770)
Memorandum: Routine Use of SEC ‘10-K’ Statements in
TSCA and FIFRA Civil Penalty Actions
TSCA Settlement with Conditions 11/16/83
TSCA Compliance/Enforcement Strategy
Memorandum: Settlement With Conditions (SWC) 12/20/85
TSCA TECHNICAL GUIDANCE
General
Neutral Administrative Inspection Schemes 11/07/79
for TSCA Enforcement 7Z
Use of TSCA Section 11(c) Subpoenas 12/04/79
TSCA §4
Strategy for the Enforcement of the Good 01/15/85
Laboratory Practice Regulations under TSCA
and FIFRA
TSCA Good Laboratory Practice Enforcement 04/09/85 k”
Response Policy
TSCA §4 Test Rules Enforcement Response Policy 05/28/86
05/01/99

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-2-
TSCA S5: PPemanufacture Notices
Enforcement Facts and Strategy: Premanufacture 08/80
Notification (PMN) (ERP portion is Obsolete).
Compliance Strategy for TSCA S5(h)(4) Preinanufacture 11/15/83
Notice Exemption for Chemicals Used in or for Instant
Photographic or Peel-Apart Film Articles
TSCA S5 Enforcement Response Policy O8/O5/88 ,_.
TSCA S6: Asbestos
Memorandum from A. E. Conroy to Regions: Asbestos 11/25/86
in Schools Rule
Transmits Two Legal Opinions from the Office of
General Counsel Re:
1) Enforcement under Title I of TSCA after
Title II was in Effect, and
2) Enforcement of the Title I Asbestos in Schools
Rule for schools which opened or commenced
operation after June 28, 1983
Worker Protection
TSCA S6 Interim Strategy and Enforcement Response 07/09/85
Policy for the Asbestos Worker Protection Rule
(Strategy replaced 09/09/86)
OSHA Interpretations for the Asbestos Abatement 10/03/85 _p’ ’
Projects Rule 1 ’
Asbestos Abatement Projects Rule Compliance 09/09/86
Monitoring Strategy (modifies Strategy for Asbestos
Worker Protection Rule of 07/09/85)
Asbestos A. atement Projects; Worker Protection; 02/25/87 pr ”
Final Ri& $ (52 FR 5618]
Final Compliance Monitoring Strategy for the Asbestos 11/14/88 br”
Abatement Projects; Worker Protection Final Rule
AHERA: Asbestos
Enforcement Policy for the Transition from AIS to AHERA O1/29/.38,4 ’
Amendment to the Enforcement Policy for the Transition 09/02/88 jo—
from AIS to AHERA
35/O1/S9

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—3—
Memorandum: Integration of Agency Asbestos Activities
(Can be found in the appendix to the Compliance
Monitoring Strategy for AHERA
Compliance Monitoring Strategy for AHERA
Interim Final Enforcement Policy for the Asbestos Hazard
Emergency Response Act
AHERA May 9th Deferral Deadline
TSCA §6: Chiorofluorocarbons
Enforcement Facts and Strategy:
Chlorofl uorocarbons
09/29/88
f I
10/05/88
0 1 / 3 1 / 89
- - -
05/09/89
11/15/79
‘ i-/-/ -I
TSCA §6: Polychiorinated Biphenyls (PCBs )
Guidelines for Assessment of Civil Penalittes
Under Section 16 of the Toxic Substances
Control Act; PCB Penalty Policy [ 45 FR 59770]
(Document found under “TSCA Penalty Guidance” Section)
Memorandum: Civil Penalty Cases Involving Use of
PCBs in Hydraulic Systems
Compliance Monitoring Strategy for TSCA S6(e) - PCBs
Amendment to the Compliance Monitoring Strategy
for TSCA §6(e) Polychiorinated Biphenyls (PCBs)
Final Second Compliance Monitoring Amendment for TSCA
Section 6(e) Polychlorinated Biphenyls and TSCA Section
6 PCB Enforcement Response Policy Clarification
09/10/80
09 / 14 / 81
05/23/85
06/13/86
05/02/88
TSCA SS8, 12, and 13: Reporting Requirements
Inventory Enforcement Strategy
Compliance Strategy for Preli ninary Assessment
Information Reporting Rule (Level A)
Asbestos Reporting Rule Compliance Strategy
Compliance Strategy for TSCA §8(d)
Compliance Monitoring Strategy for TSCA §8(c) Rule
7 ’.
04/25/79 Pft1kiT -
07/2 2/82
08/30/8
12/12/83
05/18/84
05/01/39

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-4-
TSCA §13 C p1lance Monitoring Strategy
Evaluation of the Pilot Program for Monitoring 01/18/85 J.ie
Compliance with §13
Recordkeeping and Reporting Rules for TSCA SS8, 05/15/87 Q—/
12, and 13; Final Enforcement Response Policy
Final Compliance Strategy for the TSCA §8(a) 06/09/87
Inventory Update Rule
TSCA §S8, 12, and 13 Enforcement Policy Clarification 07/13/87
TSCA STATE RELATED GUIDANCE
Memorandum: Maryland’s Application for a TSCA Pilot
Cooperative Enforcement Agreement: Issues of Preemption
Memorandum: Supplemental Guidance Procedures for State 06/19/81 i.
Inspectors Acting Under the Authority of TSCA §11
Memorandum: Preemption Provisions Under the 04/05/85
Toxic Substances Control Act (TSCA) ,4tAi
Final TSCA Cooperative Agreement Guidance for FY89 03/10/88 d-
Guidance for the FY89 State/EPA Enforcement Agreement 06/20/88
Process
TSCA COMPLIANCE PROGRAM POLICY COMPENDIUM
6-ASB-1: When to Wear Protective Clothing and 07/15/83
Equi pment for Asbestos Regulations Compliance ft
Monitoring Inspections

6-ASB—2: tr4atment of Catholic Dioceses as Local O7/O2/84 5 —/O
Education Agencies
6-ASB-3: Qualification for Exemption from the 07/02/84 .
Asbestos in Schools Rule Based on the Asbestos
Abatement Programs
6-ASB-4: Asbestos In Schools: “For Profit Schools” 05/21/85
6-ASB—5: Enforcement Response for Small Local
Education Agencies Without Friable Materials
5-ASB—6: Recordkeeping Requirements for Schools 09/10/95
with Friable Asbestos Containing Materials IY

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—5—
6-WPR-1: V rker Protection Requirement During Asbestos O4/O1/88, 1 i jc 1 ’
Abatement Projects Using Glove Bag Procedures
6-CFC-1: Product Labeling for Both Essential and 08/30/32
Non—Essential CFC Aerosol Propellent Uses
6-PCB-1: Responsibility for Compliance with 03/04/82 -8-2
PCB Rule
6-PCB-2 : Distil lation, Solvent Extraction, 08/16/83
Filtration, and Other Physical Separation
Methods for PCBs
6-PCB-3: Residual PCBs in Processed Liquid 08/16/83 j # —’-/
and Solids
6-PCB-4: Disposal Methods for PCBs in Sludge 08/13/85
4
6—PCB-6: Allocation of Enforcement Liability for 08/16/83
Violations of the One—Year Disposal Deadline for
PCB Articles or PCB Containers
6-PCB-7: Reference Date for Violations of the 08/16/83
One-Year Storage for Disposal Deadline for PCB
Waste Resulting from Physical Separation
6-PCB-1O: First In/First Out Standard for Meeting 08/13/85 , d” ’
the PCB One—Year-Storage-for-Disposal Requirement
ADDITIONAL SOURCES OF ISCA COMPLIANCE ENFORCEMENT INFORMATION
General Enforcement Policy Compendium
See page 4 of this listing for Table of Contents
05 /0 1/89

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—6—
TSCA MISCELLANEOUS SOURCES
(These sources are not in the TSCA Compendium but may be
obtained from Headquarters.)
State and Local Assistance [ 47 FR 44946] 10/12/82
(40 CFR Part 35)
EPA Policy on Performance-Based Assistance 05/31/85
OECM ;lemorandum: Issuance of Enforcement 08/15/85
Considerations for Drafting and Reviewing
Regulations and Guidelines for Developing
New or Revised Compliance and Enforcement
Strategies
OECM Memorandum: Policy on Publicizing 11/21/85
Enforcement Activities
TSCA §4 Data Self Auditing Program Events 11/22/85
Final Policy Statement on Environmental 06/13/86
Audi ti ng
Uniform Administrative Requirements for Grants 03/11/88
and Cooperative Agreements with State and (Effective 10/01/88)
Local Governments [ 53 FR 8075] (40 CFR Part 31)
MANUALS
Multi-Media Compliance Audit Inspection Procedures
ISCA Compliance/Enforcement Guidance Manual
ISCA Compliance/Enforcement Guidance Manual-Policy Compendium
05/01 /89

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LETE DOCUMENTS
Enforcement Facts and Strategy: Polychiorinated 02/80
Biphenyls (PCBs)
Inventory Penalty Policy 06/23/80 piiiA/ 3
PCB Enforcement Policy Subsequent to Appellate 11/11/80v’
Court Opinion Remanding Portions of the PCB
Regulation
Guidance for Pilot TSCA Cooperative Enforcement 12/31/80
Agreements
New Requirements for PCB Transformers Persuant 03/09/81
to Appellate Court Order
Enforcement Facts and Strategy: PCB Interim 08/81
Measures Program
Dioxin Contaminated Waste Compliance Strategy O1/82pi 4
Compliance Strategy for the Submission of Notices 03/30/82
of ilanufacture or Importation of Polybrominated
Biphenyls (PBB) and Iris
Compi lance Strategy for the Friable Asbestos- 06/24/82
Containing Materials in Schools: Identification
and Notification Regulation
Model Asbestos In Schools; Cooperative 09/21/82
Compliance Program
Compliance Assi stance Guidelines for the 12/15/82
Asbestos-In-Schools Rule ce, -. /H ;r5—
Compliance.Asslstance Guidelines: Friable Asbestos
contaln1n4 .iOterlals In Schools; Identification and
NotIf1catf a Rule
Dioxin Contaminated Waste Enforcement Response 07/O6/83 . . .
Policy
Enforcement Response Policy for the Friable
Asbestos Containing Materials in Schools
Identi fication and Noti fication Rule
General Regulation for Assistance Programs 09/30/83
[ 48 FR 45056] (40 CFR Part 30)
Revised Asbestos-in-Schools Enforcement esponse 07/02/84
Policy (see 10/18/85 amendment)

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-8-
OBSOLETE DOCUMENTS (Page 2)
TSCA 5S8, 12, and 13 Recordkeeping and Reporting
Rules Enforcement Response Policy (Replaces the
May 23, 1980 Inventory Penalty Policy)
TSCA §5 Enforcement Response Policy Supplement
Amendment to the Revised Asbestos-in-Schools
Enforcement Response Policy
Memorandum to Regions: Reductions and Remittances
of Penalties for Violations of the ISCA Asbestos—
in-Schools Rule
Interim Final Amendments to the Enforcement Response
Policy for TSCA §13 and Interim Final Amendments
to the Enforcement Response Policy for ISCA §8(a)
Violations Invol ving Falsification
Interim Compliance Monitoring Strategy for the
Asbestos Abatement Projects Rule
Final TSCA Cooperative Agreement Guidance for FY86/87
Final TSCA Cooperative Agreement Guidance for FY88
Memorandum: Clarification of Section 5 Penalty
Policy on Notice of Commencement Violations
Interim Final Enforcement Policy for Violations of the
Immediately Enforceable Provisions of AHERA
07/30/84
01/09/85
10/18/85
/ ve
04/15/85
4 P 1H
05/28/86
05/30/86
02/8 , uti
O3/12/87,, L; z 1frf
04/02 /8 7
—
0 1/29/88
05/01/89

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Table of Contents
This Compendium contains the following TSCA Compliance/Enforcement—related
policies and guidances currently in effect. -
Any questions or comments concerning these documents should be addressed
to:
Director of Compliance Monitoring Staff
Office of Pesticides and Toxic Substances (EN—342)
U.S. Environmental Protection Agency
401 N Street, S.W.
Washington, D.C. 20460
TITLE OF DOCUMENT ____ _____ DATE OF DOCUMENT
General Guidance
Consolidated Rules of Practice Governing the 4/9/80
Administrative Assessment of Civil Penalties
and the Revocation or Suspension of Permits
(45 Fed. Rag. 24,360)
Guidelines for Assessment of Civil Penalties 9/10/80
under Section 16 of the Toxic Substances
Control Act; PCB Penalty Policy (45 Fed. Rag.
59,770)
Settlement with Conditions 11/15/83
LJ 1 J Pce t J 03] 3oJ )
Technical Guidance
General
“Neutral Administrative Inspection Schemes for 11/7/79
TSCA Enforcement”
Use of TSCA Section 11(c) Subpoenas 12/4/79
— — : • :;. ; , ,

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Policy Compendium
Table of Contents
Asbestos
Compliance Strategy for the Friable Asbestos— 6/24/82
Containing Materials in Schools:
ldentifica ion and Notification Regulation
“Model Asbestos in Schools; Cooperative 9/21/82
Compliance Program”
•Compllance Assistance iidelines for the 12/15/82
Asbestos—In—Schools Rule”
Enforcement Response Policy for the Friable 7/6/83
Asbestos—Containing Materials in Schools:
Identification and Notification Regulation
Dioxin Contaminated Waste Compliance Strategy January 1982
Dioxin Contaminated Waste Enforcement 7/6/83
Response Policy
Chiorofluorocarbons
Enforcement Facts and Strategy: November 1979
Chlo ro fluorocarbons
Polychlorinated Biphenyls
Enforcement Facts and Strategy: February 1980
Polychlorinated Biphenyls (PCBs)
PCB Enforcement Policy Subsequent to J# /1l/80
Appellate Court Opinion Remanding Portions of
the PCB Regulation”
“New Requirements for PCB Transformers 3/9/81
Pursuant to Appellate Court Order”
Enforcement Facts and Strategy PCB Interim August 1981
Mea’sures Program
Rtw

A R ; frf c i
ci’c a, e -a’ - & & (Ltt
Dioxin
TSCA Ccu 1
Qildance Maou 1984

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Policy Compendium
Table of Coutents$
August1980
• E
11/15/83.
Premanufacture Notices
Enforcement Facts and Strategy: Premanufacture
Notification (NN) (Includes strategy, neutral
administrative inspection scheme, and penalty
policy. Document will be revised in response to
final RIN regulation.)
Compliance Strategy for TSCA §5(h)(4) Premanufacture
Notice Exemption for Chemicals Used in or for
Instant Photographic or Peel—Apart Film Articles
Reporting Policies
Inventory Enforcement Strategy 4/25/79 :
“Inventory Penalty Policy” 5/23/80.
Compliance Strategy for Preliminary Assessment 7/22/82
Information Reporting Rule (Level A) -
Asbestos Reporting Rule Compliance Strategy 8/30/83
Compliance Strategy for TSCA Section 8(d)
, L3 4
“Guidance for Pilot TSCA Cooperative Enforcement
Agreements”
“Supplemental Guidance Procedures for State 6/19/81
Inspectors Acting Under the Authority of TSCA
Section 11”
TSCA Program Compendium —
w - A ecras -, 7/,
/ 6—PCB—l: Responsibility for Compliance with PCB 3/4/82
/ Rule l? -fe1YCQ -,
6—PCB—2: Distillation, Solvent Extraction, ‘ 1’ ’” 8/16/ 8 ,
Filtration, and Other Physical Separation Methods
for PCBs
6—PCB—3: Residual PCBs in Processed Liquids and 8/16/83
Solids
Allocation of Enforcement Liability for 8/16/83
Violation of the One—Year Disposal Deadline for PCB
Articles or PCB Containers
( - Si S / ?/
£a oZ - -
T C J y - 5& &’ £ j t
UI 21/83
5/ 1 5 1(7:
12/31/80
• • L -’

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Policy Compendium _ Table of Contents
6—PCB—7: Reference Date for Violations of the 8/16/83
One—Year Storage for Disposal Deadline for PCB
Waste Resulting from Physical Separation
i6-CFC--1: Product Labeling for Both EssentIal and 8/30/82
‘ Non—Essential CFC Aerosol Propeilent Uses
Additional Sources of Compliance/Enforcement Information
G neral Enforcement Policy Compendium 4
Titles Contained Within Compendium:
G4—1: “Visitor’s Releases and Hold Harmless Agreements as 11/8/72
a Condition to Entry to EPA Employees on Industrial
Facilities”
Q —2: “Professional Obligations of Government Attorneys” 4/19/76
Gt—3: “Memorandum of Understanding Between the Department 6/15/77
of Justice and the Environmental Protection Agency”
Q1—4: “‘Ex Parte ’ Contacts in EPA Rulemaking” 8/4/77
G1—5: “Conduct of Inspections After the Barlow’s Decision” 4/11/79
Qi—6: “Contacts with Defendants and Potential Defendants 10/7/81
in Enforcenent Litigation”
Qt—7: “‘Ex Parte ’ Rules Covering Communication Which are 12/10/81
the Subject of Formal Adjudicatory Hearings”
Q1—8: “Quantico Guidelines for Participation Litigation” 4/8/82
1—9: “Agency Guidelines for Participation in Grand Jury 4/30/82
Investigations”
Q4—lO: “Reorganization of the Office of Regional Counsel 5/7/82
(includes Administrator’s memorandum of September
15, 1981)”
Q(—1I: “Coordination of Policy Development and Review” 6/23/82
G1—12: “General Operating Procedures for EPA’s Civil 7/6/52
Enforcement Program”
Qf—13: “Case Referrals for Civil Litigation” 9/7/82
G(—14: “Criminal Enforcement Priorities for the 10/12/82
Environmental Protection Agency”
TSCAc0RJ, liance(Fnforce,!,nt iv Qjid e Manual 1984

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Policy Compendium Table of Contents
Q4—15: “General Operating Procedures for the Criminal 10/27/82
Enforcement Program”
Q’1—16: “Regional Counsel Reporting Relationship” 8/3/83
Gi—17: “Guidance for Drafting Judicial Consent Decrees” 10/19/83
cN—18: “Implementation of Direct Referrals for Civil Cases” 11/28/83
Q1—19: “Consent Decree Tracking Guidance” 12/16/83
Q1—20: Guidance on Evidence Audit of Case Files” 12130/83
Miscellaneous Sources (These sources are not contained in this Compendium
but may be obtained from Headquarters.)
EPA Delegations of Authority Manual
Multi-Media Compliance Audit Inspection Procedures
NEIC Policies and Procedures Manual (Multi-Media)
TSCA Confidential Business Information Security
Manual 1—30
TSCA Inspection Manual (Including Supplement: Volume Four: Section Five
Inspection Manual)
TFC,ç n.’ fFnf r’:.ent “‘ ‘ 1914

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GENERAL GUIDANCE
)

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GENERAL GUIDANCE

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Wednesday
April 9, iaeo
Part III
Exhibit 1
Environmental
Protection Agency
Consolidated Rules of Practices
Governing the Administrative Assessment
of CM I Penalties and the Revocation or
Suspension of Permfts
51

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— ——a
r weral J p3IVrq VUL iO, NO. 713 w80nes ay. April L 1 O , Rules and Regulations
ENVIRONMENTAL PROTECT)QN
AGENCY
40 CFR Pv , $0, 1U 1 S
‘t j
Msolldat.d Rules of Practice
Governiri the £dmtnIs itive
Au.ssmertt of Civil Penalties and the
Revocation or S4 .spen&oit of Penni
*QLNCY Envirocmsntal Protection
Agency ( AI.
*cnosc Final rules of practice .
—Iu MMr. Tha document sets forth
consolidated rules of practice to be
followed by parties litigating
admirustieuvely assessed dv i i penalties
and revocations or suspensions of
permits under certain statutes
1d Ln1!tered by A. These statutes axe
listed in 22.01(a) of the consolidated
rules. The consolidated rules axe
designed to acco p!ish two purpo.es.
The fist is the development of a
common set of procedural rule. for
several programs in order to reduce
paperwork. inconsistency, and the
bw en on peraons regulated. The
second is the improvement of formal
ad.mixilitrative adiudicatory procedures
through substantive revisions.
DATT These rules govern all
adjudicatory proceedings des ibed in
01(a) for which a compLaint is filed
Apr.! 9. 1980.
r IURThE* lNFOaMA7 Qe C0WT&CT
Steve L.eder (EN-342). Pesticides and
Toxic Substances Enforcement Thvi.s.on,
E wnronmectal Protection Agency. 401 H
Stieet SW.. Washington. P.C. 20480.
W2— 55—09 ’G.
•SIJPOUUEWTARV INFORMAT100C These
consolida ted rules of practice govern all
adiudicatory proceeding, for the
assessment of a civil penalty or for the
revocation or suspension of. permit
suthornzed by the statutory provisions
listed in § 22 01(a)(I)—(5). The
consolidated rules replace existing rules
of practice promulgated under .ection 14
of the Federal Insecticide, Fungicide.
and Rodenticide Act (FWRA), 40 CTR
Pa n i . section 212 of the Clean Air
Act, 40 CPR Part 80.301—332. and section
105 of the Marine Protection. Research.
and Sanctuaries Act (Ocean Dumping
Act). 40 CFR Part 228. They are the
initial rules of practice promulgated
na1 form under section 3008 of the
So&id Waste Disposal Act (SWDA) as
amended by the Resource Conservation
and Recovery Act (RCRAI and secton
16 of the Toxic Substances Conuol Act
Hw . the rules In their final form
so longer cover revocation of permits
Issued under R .A. This does not
reflect any change in ‘A’s position that
a formal evidentiary bearing Is tequired
for such revocation. However, since
these rules were proposed for comment.
Ahu poposed for comment and Is
now preparing for final promulgation.
consolidated permit regulations under
which the permit procedures for four
‘A permit programs. Including RCRA.
will be coordinated as much as possible.
One of the permit programs covered, the
NPDES program under the Clean Water
Act, already provide, for revocation of
permits through a formal evidentiary
D As current intention Is to use the
NPDES hearing procedure with any
necessary changes. for revocation of
RCRA permits as well. Comment. on
these regulations will be reconsidered in
that context This will allow all the
procedures for ch ngi g RC .A permits
to be contained In the consolidated
permit regulations. In addition, the
consolidated permit hearing procedures
are more adapted to deal with major
policy problems than these regulation
and RCRA revocation proceedings
appear likely to raise such issues. A
will make. final decision on this point
when the consolidated permit
regulations axe promulgated.
RCRA vll penaltie. will still be
uses.ed through the Part 22 procedures.
The consolidated rule. of practice
were published in inte r im and proposed
form on August 4.1978(43 FR 34730).
The rules Were interim with regard to
TSCA. since there were no rules of
practice in place to guide p oce.din
which were arising under the toxica
program. The enhlig programs either
bad rules of practice in place or did not
expect to conduct administrstive
adjudications In the near future. Thu.
the consolidated rules were proposed
with respect to the FIFU. RCRA,
Mobile Sources. and Ocean Dumping
programs.
Numerous romments to the August 4
proposal were received from Industiy.
‘ade associations, and governmental
agencies. Responses to the more
significant comments are set forth at the
end of this preamble.
The consolidated rules are designed to
accomplish two purposes. The first is
the development of a common sat of
procedural rules for several programs in
order to reduce paperwork.
Inconsisteney. and the burden on
persons regulated. The second is the
Improvement of formal admimst atve
adjudicatory procedures through
substantive revisions.
Th, rules proposed here axe simi to
lb. rules which currendy guide
proceedings under section 14 of FWPJ .
section 221(d) of the Clean Air Act, and
section 105(a) of the Ocean Dumping
Act. The major substantive revision to
these rules Is a shift in appellate
uriadiction. The responaibthty for
bearing appeals from initial decisions.
default orders, and accelerated
decisions has been shifted from the
Regional Administiator to the
Administistor. This change was made ut
order to foster consistency in Agency
dedsion•making nationwide. In
addition, consolidating sppellate
responsibility into a single othce will
facilitate the assembly and publication
of civil penalty hearings decisions. The
Regional Administi’ator. however, will
retain the authority to issue consent
orders Rnatinng agreements between
parties.
Hearings under all but one of the four
statutory provisions covered by these
rule, will be held In conformity with the
adjudicatory hearing provisions of the
A4 th i atlve Procedure Act (APA).
The only exception is hearings to assess
penalties for violating regulations on
fuels or fuel additives under section 221
of the Clean Air Act. The reasons for
concluding that the formal A bearing
requirements do not apply to this
section wese set forth at 40 FR 39963,
August . 1975. when the original
bearing rules under that section were
promulgated.
Similarly, the rules providing for a
formal hearing in connection with the
anessmenf of penalties for violating
FffRA and for assessing penalties and
revoking permits under the Ocean
Dumping Act follow the previous A
position on thes questons in 39 FR
p857. July 31, 1974, and 42 FR 60702.
November 28. 1977, except that the
Ocean Dumping Procedures have been
rewritten to conform literally to the
APA
For a further exposition of the
reasoning underlying the approach
taken In these final rulea see the
responses to significant comments
Responses to Significant Cnmments
Quilificotiorj of ce
1. Comment Several commenters
suggested that the Judicial O cer be
subject to the same resthctona
concerning conflicts of interest as ‘ii a
Regional Judicial Officer.
Response: The Agency agrees with
this comment Section 22.04(bJ(2J has
been rewritten to provide that the
Judicial Officer and the ten Regional
Judiaal O cars must all conform to the
52

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federal Register f VoL 46, No. P0 (Wednesday. April L 1960 I Rules and Regulation.
24361
A uthO1 ve Procedure Act se cn
dJ prohlb on against blending the
p .eCUt011i and decision .cealdng
ccon
der ent The pounds for panUng
a m000n for an accelerated dectaicc
ceder ZZ. are unclear. 1 r- ”
omfuses s” ”” ’y Jud ent and
ovoluntary diizniual situations, and
rentains the vague 1teiiou of “mach
ether reasons u ate just”
Response: The Agency apee. with
th a comment. end ha.. rewritten the
er ou accordingly. .epsrattng an
. elerated de aion from a dec ainn to
as. A pa ty will be entitled to an
sinelereted de aiou upon a showing
thai there e ats nd genuine Issue of
material fact and that the party is
cetitled to jud ent as a mafter of law.
The Presiding O cer may dionisa the
onceplalot on the basis of failure to
sstablaaba palm. fadecaseorother
pounds which show an right torsliaf an
the part of the ___
ffieialNotka
3. Co eut Several commenters took
exception to the pro’.isicn In I 2 2 . 2 2 (f)
t ch authorized the uter of fact to take
otZaal oob ce of facts “within the
spenalazed owledge and experience
of the Agency”. The commentere argued
th ‘ onsolidated rules should
cc o the more resttictive Federal
Ru. Evidence defln uon of judiaal
notice (Rule 1).
Response: The Agency believes that
o ai notice under the M”r’i’trative
Procedw ’, Act was Intended to be
broader than judadal notice. The
Attorney Generals Manual on the
Mm!usttatave Procedwe Act (1547).
dting the legislative hIstory of the AM.
states at pages -10. that
The ui.ss of a al ae should not be
Itad to the oud toaal matte ,, of judidal
nones but extends properly to all matter, as
which the agency by reason of its fenctions
presumed to be expert. cech as tacbnmai or
enti& facts within Its spenalized
—S.
There isv severe! cases upholding this
interpretation of the AM. particula y
within the context of Federal Trade
Co i aaon proceedings. (See, for
example. Bnte Manufacturing Ca. v.
F7C. 347 F.2d 477 (D.C. Ci ,. 1985)).
Respondents should not be prejudiced
by Agency notice of facts within its
pecahzed knowledge since they will be
pveu sdeqi ata opportunity to show that
such facts are stvoneoualy noticed.
thdedRvid.nce
4. Cntnm. t Several comm”ters
objected to the following language in
I 2 2. 2 2 (b) of the August 4 Proposal.
Where the M”( ” .ter desides that the
iüng of the Presiding O cer In excluding
evidence was both erroneous and
stud1dal. the basting may be reopened to
powit the taimg of each sildence or, where
appropnata. the A 1 uii 4 .t,tor may evaluate
such evidence to preparing his final ardor. If
the A4minfrtsatar In the preparation of has
bal order relies upon any evidence excluded
at the hearing by be Presiding Officer. he
shell bcltIy identify to the final o.der any
each excluded .,ldonce relied upon and baa
reasons therifar.
The commentate argued that rellsnce
by the Mi i.tsator on excluded
eridence would violate section 558 of
the APA , since (1)spartywovld not
have the opportunity to explore andlor
abut the excluded evidence, and (2) the
Administrator would be relying on
evidence outside the record.
Response: The Agency socepta this
i m. iL The language In *2223(b)
following”’ • ‘pezmitthe’ 4’tgof
ch evidence • “ baa been deleted.
SlandwG’ of Pmof
I Comment One commenter took
leone with the “preponderance of the
evidence” standard presctibed for
Agency adjudications in 122.34 of the
Consolidated Rules. The commenter
offered that the proper standard is the
APA section 556 d) requirement that a
sanction be supported by ‘reliable.
probative, and substantial evidence.”
Response. The Agency disagrees with
this commenL The language in section
558(d) quoted above goes to the scope of
judicial review rather than to the degree
of proof required at the hearing level.
(See Woadby v. lnwzigrntion and
NaturuJizolion Service, 385 US. 5
(1968), interpreting similar language In
the I migrstion and Nationality Act).
The preponderance of the evidence
standard Is the proper yardstick ln ost
non-eriminal proceedings. and indeed.
the Agency could require no lesser
standard here (such as “substantial
.vldence ” ).” • InAmerlcanlawa
preponderance of the evidence is rock
bottom at the factflnding level of civil
litigation • that the proceeding is
a 1 ””tiatfve rather than judicial does
not Ia, nrii.h this wholesome demand.”
Char/ t on v. FTC. 543 F. 3d 903, 907—8
(D.C. dr. 1$76). reviewing an order of
the Fit suspending an attorney from
practice before the Commission.
Amount of a Civil hnaIt ’
8, Commenr Coinmenters argued. on
pound of due process, that the Presiding
Officer should not be allowed to raise a
dvi ! penalty front the amount
iscomniended to be assessed in a
complaint. Further, the Administrator
chould not be allowed to raise a penalty
bent the amount recommended to be
assessed by the Presiding Officer.
Response: For the most part. the
Agency disagrees with these positions.
The Agency does agree, however, that
aefther the Presiding Officer nor the
Mministrator should raise any penalty
an action where the respondent has
defaulted, and the Consolidated Rules
have been modified accordingly.
In a contested avil penalty action. the
dollar amounts contained in both the
plaint and the initial declsion are
m.rely recommendations of penalties to
be assessed. After an appeal. only the
M,v lniati.ator has the authority to
actually aueu a penalty.
A respondent
Does not have any vested right to go to
$sI en the specific charge menuoned in the
sitotien ar tabs free bum exposure to.
penalty to excess of that ceiganally p . sed ,
Long Manufoatwing Co. N.C bar.
C cupaLion01 Safety and Health Review
Commiuioj,, 554 F. 3d , 907(8th Cit.
“Ziang as the penalty Imposed by the
Mmi it.n.ato, Is within limits desoribed
by the statute and supported by -
substantial evidence, the penalty may
onceed the amount proposed by the
Presiding Officer. (See Nees v. SEC. 414
P. 3d 211.217(9th Cii ’. 1969))
One commenter suggested that
language in several of the statutes
covered by the Consolidated Rules
authorizing the Administrator to
prontase. modify, remit, or mitigate
penaities allowed the Administrator to
only deorease penalties upon review of
an Initial decision. The Agency believes.
however, that such language was
intended to authorize the Administrator
to assess a penalty less than the
statutory maximum through settlement
proceedings. Moreover, other federal
agencies (e.g. the FCC and the CAB),
have interpreted the mitigation clauses,
such as that contained in TSCA section
* 5 1(2 1(C ), to apply only to collection of
those penalties which have already been
assessed. Thus the Agency sees no legal
obstacle barring either the Presiding
Officer or the Admi .t ’ato, from ralsir.g
a penalty recommended to be assessed
at a previous stage in the adjudicatory
process.
. C”minent Numerous commenters
objected to the requirement. contained
to the Solid Waste Disposal Act
Supplemental Rules of Practice
(I 22.36(h) of the August 4 proposal).
that Presiding Officers must follow any
dvii penalty assessment guidelines
53

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Federal Register I VoL 45. No. 70 j’ Wednesday. Apr 5. 19 F Rule, and Regulatlc.ia
promulgated by the A lnlitreto The
commenters argued that the amoaut ala
pen y should rest in the d lsaedce of
the Presiding O icsz. The commenters
also felt that the penalty assessment
‘ wdeline. should be made aveflable
iefore they submit to a provision auth
as that contained in 2 2.38 (h ).
Re.ponsr Section 22.36(h) has been
deleted from the final Consolidated
Rules. The Agency may. however.
resubmzt such. prevision for comment
after penaity assessment guide e.
hrnve been pubb.bed.
Issues on Appeal
& Comme Two comments s e.t.d
-that the language th 2L3 c) ed to
allow the Mmisia s to me .poota
order argument on appeal with rp.d
to issues entirety new to the oceedlng.
Response: Secl3ou 22.30(n) has been
rewritten to more accurately reflect the
intent of the Agency. Under the final
Consolidated Rules. the A’ stci.
an appeal. may sue sponte ceder
argument only with respect to thou
issues raised at the haaru . Tb.
Mm ’ .. ator will have the aiif nr4ty to
remand the case to receive evidence
relating to iuiiu naw to the proceeding.
Appello e Juri,dictioa
V. Comment Two comm.?taa
contested the shift In appellate
Jurisdiction from the Regional
to th. Admia ator.
They felt that such a change from
isting civil penairy procedures would
- ..sult in delay and would cot allow the
appellate decis oo to adequately re d
the needs of the region.
Response; The AOC) dlaapees with
this comment. The change In Jurindi an
(1) Foster consistency in agency
decsion .m .a g.
(2) Cen aflna appellate responsIbilIty.
so that a small number of A personnel
become profinent in hearing appeals
from a 4 ? mstiatve adjudications. The
cen alization should result In a net
savings of time and effort to all parties.
and
(3) Bring • greater degiee of
separation of functions to the
•div mi.U.atIve proceu.
Tb, in eased quality and e ency
of the appellate process should outweigh
any small delay, which may result from
this change. Moreover. parties have
ample opportunity to bring issues of.
re onal nanoe to the attention of the
Admm is etor.
Stoyzng the Pine! Order
10 Comment Two co enter.
argued that a final order should
automaocaliy be stayed upon the filing
at a modon to reconsider under I 22.32.
The ‘ ent.e ausss onad a scenario
In which a respondent would be leiced
to comply with a final cider. aid then
would later prevail on his motion to
Respoeser Althouj cng.I wit of Lb.
avblem raised by the “ m the
Agency be. elected ant to puvvld. icr
automatic stays. The Agency is
cononned over the possibility that
motions to reconsider w be aed to
bring about nwiI .wa,y delay. The
Mm i trnk,r a awhocned. however, to
cider stays in order to avoid any
hardship to the respondent which may
result from what proves to be premature
compliaica.
11. Comment Several comments wam
received which objected to the beevity
of the time petiods pres ’ibed in the
Consolidated Rule..
Reeponse A baa speed to expand
thedbn m l5daysto30day.
(1) Far sing en answer to an
amended complaint under I 22.14(d):
(2) For filing an answer to the original
complaint under 0 22.13(a): and
(3) Fm notifying the parties of a
hearing prior to the date set for the
hearing undsr 22. .(b).
The times for fllli responses to
motions under I 2L1 b) (10 day.).
proponed idirig . ci fact under 22.25
(30 deys) ud motium to reconsider the
final ar I (ii dey,) have
remained aoged. These time
periods have been found to be
saticiactciy to case. s& under A
and erfederaJ agencies’ rules of
jaac and under the Fideza ! les of
Civd Proudme.
hi Iaaonr
12. Comment Two mmenters look
lame with langeage Ii the Aupet 4
preamble which . ested that formal
bearing proce es are not reqaired for
initial permit issuance under the
Resoerce C----.- .tion Recovery
Act (R A).
Respoune A ma ,, detailed analysis of
the prxedurul rm ufreaenta for RCRA
pet t isseance can be found is the
proposed Conso da ted Permit
Regulations. 44 FR 34244. 34254. June 14.
1979. Comments on the RCRA permit
Issuance proçom will be adcfreued ii
the final Consolidated Parmft
Regulations.
Discover ,
leced !anguge contained in
I 22Jl(c)( ).
Reeponun The Agency ie s wfth
this ‘ ominent. and has set forth rule,
geverning discovery in 2 2 .19( 1). The
section Is taken from the discovery
, .IMrl.iace prvvlonely operable ider
the Ceen Afr Act sectIon 211 regulation
of fuels progesm (40 CPR Pert 80.319(f)
(1978)).
Miacdlaneo.ia
14. Comment and iuponw The
Agency apses with the following
mmento and has mo led the
Conaofldeted Rule, aeco! giy
Section 22.0 6 (h ). The deflztition of
‘Seal order should be mate specific.
Section 22.05(c)(5J. A patty submitting
a document which l refused for filing
should be allowed to amend and
resubmit th. document. The notice of
refusal should set forth the pound
therefer.
Section 22.14(4 The comptli?isIit
should be allowed to im the
complaint as a matter of right only once
before the answer is flIed
S ctic 22.23(c). The respondent
should be the oniy party who
permitted to re sest a hawing.
Section 22.37. A party should be veo
an opportunity to show good case why
he or she wn’nitied action w h
led to ault. (me 122.17(d)).
5a l 22.19(b$. A sheuld clarify
whether witoesses ci documenb can be
lnbvduced at trial wtthai a piev w of
evidence at pr eas
S.c . 2 2. 1 9 (c). Piebearing
confermees th relate to tt erit
should never be umemibet
22.22 d). A5davits should
aely be at ssibk in lieu of testimony
In cases where the witeess is
unavailable under the ippliceble mitena
sat forth in Rn!. 804(a) of di i Federal
ho of
Nsta.— A has d.tominsd that this
11jrumsat doss not metain a ma}ar propos.,J
requiting piepars5aa of. Regulatory
Aaalyus tinder £zomtve Otder No. 12044.
Accordingly, the new Part set forth
below is hereby added to 40 ‘R under
the authority of section 16 of the To c
Substance, Contvl Act. sections 211
and 302 of the Cean Air Act, sections 14
and 25 of the Federal Insecfl de ,
Fungicide. and Rodenticide Act. sections
1 and 108 of the Marine Protection.
Research. end Sanctuaries Act, and
aectiths 2002 and 3 8 of the Solid
Waste Dlspoui Act.
13. Comment Several commenterl
svege,ted that the Consolidated Rules
spell ant proceàze. for .bta ig
discovery, rather than relymg an the
54

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?tVoL4INo/Wedne,day,APrliu19 /Rue.andRec118tiOflS 24363
Mate 1
ai M. “ 1k
r $0—REGULATION OF FUELS
J FUEl. ADO VES
i .Xt- .= ( ±pwt S t
PART ISZ—.RULES OF PRACTICE
GOVERNING PROCEEDINGS
CONDUCTED IN THE ASSESSMENT OF
CIVIL PENALTIES UNDER THE
FEDERAL INSECTICIDE. FUNGICIDE,
AND RODENTICIDE ACT, AS
AMENDED (REVOKED]
PART 226—ASSESSMENT OF CIVIL
PENALTiES AND REVOCATiON AND
SUSPENSION OF PERMITS UNDER
SECTiON 105 OF THE ACT (REVOKED)
1.40 R .3O1-40.332 (Subpart D)
and 40 R Part.s 1M and 2.Z are
revoked.
2.40 R Part 22 Ii added to read u
follows:
PART V—. OUDATED RULES OF
PRACTICE GOVERNING THE
ADMINISTRATIVE A S S 51ENT OF
CIVIL PENALTiES AND THE
REVOCATION OR SUSPENSION OF
PERMITS
Scope of the., nile..
Use of ounber and eoder.
Dsfiei oci
Power, and dude. of the
Adiiu’w .tor. Reg ooal A utiab.tor.
Juth al O cer. R. io aI Juthdai OE cer.
and Presiding Othcer diiqun1ifi uon.
33.06 FIling. servtce. and form of pleading.
and documents.
3306 FUi g SOd $si Ie. of ruling.. orderi
sad de aiooa
33.0? Cenputa oe s ad atensice of me.
33. Re pans discussion of pvccseding.
33. ‘- “ - lion of d ‘.‘ta sled.
&*pwt I- as orid A &u
.1O Appearanco..
33.11 t.en’ecton.
p.12 Censolidaflan aed sevmnce.
P Irvt C— sfie&i1 g Preosdw.s
33.13 Issuanor of complaint.
33.14 Content and ‘‘“ t of the
pla int.
g.is Answer to tbe essiplaint.
33.16 Mobaua.
33.17 Default order
33.Th informal .enkment omsent
apeemsul and order.
33.15 Prehsanng onnieienon.
33.. Acoaleratad dension d.Caloa to
p ,,o ,,
33 31 kheduliagth.bsaring.
‘ Evidecca
Obpecflona and o ei, of pvooL
33.24 ithe of pmantadcsi daa of
p.suaaloe.
33-33 Pthagth.oioaó pt
33.33 Thu flndi omalusion.. sad
tport £-.# si D.c6ioi and tool n To
Rc_1 5IL .. it.g
33Z initial d.dslas.
33.33 Motion to reopen a bearing.
and Adn* flth4
33.25 Appeal from or review of toterlocutory
aider. orruluigi.
33.30 Appeal from or reviw ahaltial
dec is io
at dvii penalas. and the revocanon or
onspension of permits under the Marine
Pivtecdoa. Research. and Sanctuaries
Act.
33.37 Supplemental rule. of practice
governing the admini. . ve assessment
of nyu penalties under the Solid Waste
Disposal Act.
Appendix—Mdreue. of A Regional
O ces.
Anthcrily See. is of the Tonc Sub.tsneea
Conn’oI Act sacs. ni sod sat of the Clean
Air Act lice. 14 and 38 of ths Federal
luectinde. Fungicide, and Rodenucide Act
sacs. 106 sad 108 of the Marine Protecto
Research, and Senctuarue. Act sad sacs.
30 sad 3008 of ths Solid Waste Disposal
Mt
Subpart A—G.nsrnl
33.O1 othsmsnduL
(a) These nile. of practice govern all
adludicatory proceedings for
(1) The asseSsment of any dv i i
penalty conducted under section 14(a) of
the Federal Insecticede. Pungicide and
Rodenticede Act as amended (7 US.C.
1361(a)):
(2] The assessment of any dvii
penalty conducted under section 211 of
the Clean Act Act as amended (42
U.S.C. 7545);
(3) The auessmeut of any civil
penalty or for the revocation or
suspension of any permit conducted
under section 105 (a) and (1) of the
Marine Protection. Research, and
Sanctuaries Act as amended (33 U.S.C.
1415(a));
(4) The limuance of a compliance
order or the assessment of any nyu
penalty conducted under section 3006 of
the Solid Waste Disposal Act as
amended (42 U.S.C 0028);
(5) The assessment of any mvii
penalty conducted under section 16(a) of
the Toxic Substance. Con o1 Act (15
U.S.C. 3315(a)).
(bJ The Supplemental rules of practice
t forth in subpart H establish rules
governing those aspects of the
proceeding in question which are riot
covered in Subparts A through C. and
also specify procedures which -
supersede any
forth In those subparts.
(c) Questions arising at any stage of
the proceeding which are not addressed
In these rules or in the relevant
supplementary procedures shall be
resolved at the disnetion of the
Mv i iiu ’ator, Regional M ,nrnist ator.
or Presiding O cer. as appropriate.
I 33.03 Th’JUwta. .
• (a) The following definitions appl to
Part 22
“Act” means the particular statute
authori ng the institution of the
proceeding at issue.
“Administiative Law Judge means an
Administiative Law )udge appointed
under 5 U.S.C. 3105 (see also Pub. L. 95-.
251. 92 Stat. 133).
NAdminiiti.ator means the
Mt,u .tiutor of the United States
Environmental Protection Agency or his
delegate.
“Agency means the United States
Environmental Protection Agency.
“Complhi rIt ” means any person
authorized to issue a complaint on
behalf of the Agency to persons alleged
to be in violation of the Act. The
complainant shall not be the Judicial
O cer. Regional Judidal Officer. or any
oTher person who will participate or
advise in the decision.
“Complainr means a written
communication, alleging one or more
violations of specific provision. of the
Act, or regulations or a permit
promulgated thereunder. issued by the
complainant to a person under II 22.13
sad 22.14.
“Consent Açeement” means any
written document signed by the parties
containing stipulation, or conclusions a!
cnnflie na roeedurea set
SuPpail G-Fbusi cm Appeal
32.31 Final order on appeal.
33.32 Motion to reconsider s final ceder. -
$l thpai1 N 4igiptemsn Rides
32.33 Supplemental rules of practice
governing the .dmlnun’.ov. assessment
of dvi i penalties under the Toxic
Substances Contivl Act.
33.34 Supplemental rules of practice
governing the a iIll.tii ve sasesimset
of dvii penalties under Title U of the
Osan Air Act __
33.35 Supplemental rules at practice 135.02 line of tacither aid g...4or .
goveming the . i . ative amassment As used in these rules of practice.
of dv9 penalties under the Federal words in the singular also include the
eetinde, Fungidde. and Rodentinds plural and words in the masculine
ACt . gender also include the feminihe and
32.36 Supplemental rules of practice——— vice yprsa. as the case may require.
— s th lenitive as.. .......t
55

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24364 Fe erti Register 1 VoL , No 70 I Wednesday. Apr 9 aO f Rile, and Regtal.tforu
fact or law and I pWyvP.rd penilty Cr
proposed revocabai or serpensia .
acceptable to both complainant
respondent.
Final Order aetna (a) an order
tuned by the Ad iuOator after in
appeal of an bi al decision. accelers fed
decision. decision to dismiss. or default
order. dispomeg of. matter hi
connoversy between the parties. or (b)
an irutial decision which beo Ei•
a1 order under j
“Hea.ring means a bearing ce the
record open to the pub c and conducted
under these rules of prsc ce.
“Heanng aerk means the
Clerk. A-no, United &s
En ironinental Prutecbco Agency. 401 M
St. SW.. Washington. DC 46O
In it ial Decision” meana the decision
issued by the Ptessding Officer baied
epon the record of pr ethigs o
of whi . h It an,ea.
“Judicial 0r me ts the sen
designated by the M” ’ ’ator aider
I 22.04(b) to ve u the J ui3 i.u..l
Officer. -
Party” means any person that
par c ipates hi a hearing as coaplainant.
respondent. or interve n er.
“Permit” means a permit issued andor
Sec on 102 of the Marine Prvtec on.
Research. and Sanctuaries Act.
Person” include, any individual.
partership. asaocia on. corpora ao.
and any ti ustee. assignee, receiver or
legal successor thrieof any orgeni d
pvup of persons whether incorporated
or not and any officer, employee, agent
depar ent. agency or Inefrumentality of
the Federal Covernaent. of any Stat, or
local unit of government, or of any
foreign government.
Presding Officer means the
Adniin.isti -ative Law Ju e deei a4ed by
the Chief Adminis ative Law Judge to
serve as Presiding Officer. unless
otherwise specified by any
Supplemental Rules.
“Regional Adnninistretor means the
Admuiis ’aior of any Regional Office of
the Agency or any officer or oaployee
thereof to whoa his authorfly Is duly
delegated. Where the Regional
Adminisfrstar has authorized the
Regional Judicial Officer to act the term
“Reg,onal Ad stator shall include
the Regional Judicial Officer. In s case
where the complainant Is the Assistant
Administrator for Enforcement or hi.
delegate. the term Regzoaal
Ad stretar” as used in hue rele,
shall mean the Administrator.
“Regional Hearing Clerk” an
Individual duly authorized by the
Regional Administrator to ser er
hearing clerk for. given legi
Correspondence may be addressed to
the Regional Hearing Clerk. United
Stat.. Environmental Protection Agency
(address of Regional Offlco—.ee
Appendix). In a cu . whir. tb.
co.pZ.’— Is the Aii ”
Mi ’ in.b ’ator for Enlorcenient or hi.
delegate. ha term “R ona1 Hasiing
Clerk” as used In these nile. shall mum
the Hearing Clerk.
“Regional Jn 1i al Officer” maine a
person designated by the Regional
A’ ” trztor der I Z.0I(b) to serve
u a Regional Judicial Officer.
“ Re.po dent me any person
prsceeded against in complaint.
(b) Terms defined hi the Act and not
defined in these riles of practice are
need c nilitsot wtt me g’ glean
in the Act
I Pn.js duOs.ofOis
Aán1nIs ’atsr. R. oná A nI 1 J.1..tul ,
ad cLa1 OfAcer, Reg st . b 0 ,
- - Omce
(a) AdniniQ’&,r cad Rqio
Administwior. The A ith , etor and
the Regional Ahi iul-trator shall
exercise all power. and duties as
prescribed 0? delegated under the Act
and theis rules of practice.
(bi JudAciDi Off’co, cad ReioeaI
JudicIoJ ..—41) co. One or
more Judicial Officers may be
designated by the Mmlnisbator to
perform the functions described below.
One or more Regisnal Judicial Officers
may he designated by the Regional
to perform. within the
region of their designation. the fuactiona
described belous.
(2) iolificuti A Ji 1 Officer
or a Re ial Judicial Officer sbe be an
attorney who is a permanent Cr
temporary employee of the Agency or
some other Federal agency and who
may p rf other detl wtt the
Agency. A Regional Judicial Officer
shall nat be employed by the R on’s
Enforcement Diviaion or by the Regional
Division directly associated with the
type of eloL.bce at Ima, is the
proceeding. A Judicial Officer shall not
b . employed by the Office of
Enforcement or by any rO ir . offlos
directly associated with the type of
violatio, at mane hi the ptoc..diz
Neither the Judicial “ the
Regional Judicial Officer shall have
performed jiruseottorlal or Investigative
functions it coanaction with any hearing
In which he serves as judimal cer or
any factually related hearing.
(3) The M_.uaba usgy
d.legsts to the Judicial O or . or the
Regional i’ stor may del ta to
the Regional Judicial Officet ill or part
of ha honey to a aa
proceeding. This delegaXn dora ant
preant the J 4I-NI1 Q r or Regional
Judicial Officer from rden a
motion or ci i. to the A inua*re1nror
Regional Ai4,vdnl.trator when
appropriate. The Judicial Offl an
Regional Judicial Officer shall exercise
all P’ ’ d duties prescribed or
delegated under the Act or thus. miss
ca.
(cJ P?esidhr Officer. Tb, Presid
Offlcss’ shell duct a fatr and
Impartial proceeding, aw that the
are fully elicited. .d uthcaia all
Iuueu aid avoid delay. The Presiding
Officer shall have authority to:
(1) Condict .A ,.thi ..trativ. hiari g
under these rules of prac&&
(2) Rile upon motions. requests. and
offers at prooL diapo.e of procedural
requests and issue all necessary ordern
(5) &d_ ‘ni t& oaths aid ifflmiabo a
and take aff idavftE
• (4) Examine witoesses and receive
docoasetary or other evr ion
(5) For good causa. epon L or
sua sponte. order a party. or an officer
or a t thereof, to pru1 ce t oOy.
documents. or other nonpilviieged
avidence. and failing the producuon
niof without good cause bem4
shown. dr aJr w adezsecea against
that party
(6) Admit or exclude se4dencm
(7J Han and decide quas ona of facts.
law. or dlecetion -
(B) Require parties to attend
conferences for the settlement or
sImplification of the issues. or the
expedition of the prooredl
(9) Issue enb ” ”’ anthonsed by the
Act and
(10) Do .11 other acte hike all
in necessary he the maintenance
olordar and for the efficient. f* and
Importil ad ilon of i ssues arising
in proceedings governed by these rules.
(thfice ce wst wel. 11)
The Administrator. Regional
A nirtrator. JiirL sI Officer. Regional
judicial Office, or Piesiduig Officer may
ot p. 1 1 . functioce provided for Is
these riles of pettice regarding any
matter in which they (I) have a financial
interest or (II) have any relationship
with a party or with the snb ect mafler
which would make It Inapproptiate for
them to act. Any party may it any e
by motion made to the Regional
Mmtii1 t .tar request that the Regional
Judicial Officer be disqualified from the
proceeding. Any party may at any time
by motion to the Ad atrs*ne teqimet
that the Regional Mi i .tratar. Judicial
Officer. or Presld Office, be
disqualified or request that the
Afmhf _ 1 _ (ijr disqualify ie1f from
the proceeding. The A ’ ” ’ ’tator.
Regional Admimstretas Judicial Officer.
R onal Judicial Officer or r ”
Officer may at any time wuththaw boa
any proceedIng In whIch they deem
56

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!aderal Z a I . , D if Wedi y. Apr 1. J nlei end Re tfla au 24365
themselves Jqu ed ‘toi
f awy JØO
lii Regiund
stor , Reg ond ludidui O .
Othcer, or Ptul ng O osrIs
Lflcd or wtt±iw, fr
pr th . a Jthed ±vWsel wh
gi onneof the ted M
pa.raçapb (dXlJof this ttinâa ha
asa ed to inpisor b1m Ani orof
a r . at for the R ona1
Ad nii s4ar erJithc ai orler
the Regrnoal Judidal O c shall be
made by the nLztatororthe
Regional iior. respe vm2y.
The __ “O’atce , shoe he withdrew
or disqua1i him.elL shall urngn the
Regiocai AMiirniatrs t ar from the z toi
where the case originated to z ,1ace
him. If that Re onal Afrthi itar
would h se1f be d.h ed. the
M atraWr shall wlgo • Regional
A ” ” etor from another r oo to
replace the M ’ ’atar. The Regional
A iniseetor shall um a a — -
Presiding Offi If the P!esi g
Officer was not an A le ’a ve Law
Jud e The ief / i 4 . e ve Law
Ju.ige shall aui anew Prestd
O cer from emo available
A1aims ve Law Jodges if the
an nal Presiding Officer wes on
Low J ge .
(3) The ef M i4a jaw
1w’ ‘any sage thlhaprainiuiding.
the cue to an
b .ra ve Law Judge other than ihe
o. ,lzalJ) asai ed w the eveo of
the .aavailab Wry of the M t”- ’ ve
Law Judge or where reassigomant will
res ilt in . ency in the scheduling of
hearings and would not prejudice the
parses.
M W1or,s5l
w domaesn
(a) FL1m of pI.adJx s and dxnmants.
(1) Except as otherwise provided, the
original and one copy of the complaint.
and the o, tgina l of the answer e nd of ill
other documents served In the
proceeding iha be filed with the
Regional Hearing Clerk.
(2)A om ficatedservion gail
sonompany each de ”i t fluid or
served, Except as otherwise provided. a
paa y filing docement. wIth the Regicoal
Hork.aflersffltogofthe
answer. sh4E serve copies thereof upon
other pa and the Presiding
Officer. The Presiding Officer shall
maintain a duplicate file duzingihe
onarse of the proceeding.
(3) When the Preildmg Offl er
corresponds threc y wlth par es.
the ortgtnal of the correspondence diafl
be sent to the Regional Hearing h. a
on,’ ‘lbemasnta edbythe
P r Officer in the dup4 ate !)e.
and $ py ho iant’to p rt1.5 .
Perfiss who IM spuni dizscfly with
Presiding Offl shall in addition to
on’vtng ufi o ’pai .s omd a
all. such i pozalencs to the Regional
Nearing Clerk. A nertificats of service
ihe! aommpa udi document served
anderthls sdb..ctlon .
(bJ S rr ofpbacftp and
•th Service of xmplobt m
S on of a copy of the utgesd original
of the complaint. together with a sopy of
these rules of practice. may be made
.personally or by certified mail. wt
receipt r.quuin on thesspondent(w
his representative).
(II) Service ademestic orIar go
corporation or upon sparutersblp or
other un ncorporaIed aa .tion which
is subject to suit under a — ‘““
shall be made by personal servine or
certified mall. as ea bsd by
psraçaph (b) 1)(lJ of this
directed to an officer, panther. a
managing or general agent. or to any
other person authorized by Imt
by Federalor Stat. law to ,s ve
‘service of prcfrsa
(W)Servlo upce an moor or onq
cftbeUltedSlalaathall be made by
delivering a copy of the complaint to the
‘officer or agency, aria any manner’
presaf bed for service by appH h1
wegulabon if the agoncy is a
corporation, the complaint shall be
.served as prua ed i n porsçapb
,(b)(1)(li ) of this IsOt iolL
( lv) Service upon a State or local salt
of government. era a*e or local
officer. egenc i. depar ent. corporttion
‘or other Ins me.otal y shall be made
by serving a copy of the compla lnt m the
nner pres ib.d by the law of the
State for the service of process on any
vcb persona, r
( pm a Slate orlacal unit of
era Slate or local
‘department. agency. coi’pcrnflon or
other nao ’umantajj ,, by delivering a
copy of the complaint to the thief
uecutive officer tbereo
(B]UcpcnaStataerlocal efficerby
delivering a copy to seth officer.
(v) Proof of svtco of the complaint
ahall be made by affldavlt.of the person
k4ng personal service, or by properly
executed return zoceipt. Such proof of
marvin shall be flied with the complaint
lmaediately upon completion of service.
(2) rvzce of doonmenb other than
cemploinL azthzg& rdera. and
ieczsio,u. All documents other than the
LomplaLat rulings , orders. and
4ecisions. may be served personally or
by certified or first class mail.
fc) Form ofpleodings cod domwrws
(1) ccept as provided herein, or by
order of the Presiding Officer or
Mw i daO’atar, than are no specific
n l ento u’m the bna of
dommente.
(2) The first page of every pleading,
latter. or other’ document shall contain a
caption IdentIfying the respondent end
the docbet number which Is exhibited on
the complaint
(3) The original of any pleading. letter
or other document (other than exhibits)
sh be aiped by the party filing or by
his counsel or other representative. The
signature cons Ututes a representation by
the signer that he baa read the pleathog
latter or other document, that to the beet
of his latowledge. Information and
belief, the statements made therein are
rue, sod that It isost Inte rposed for
(4) The Initial document filed by any
•person sbafl contain his mi.. address
.and telephone number. Any changes in
this ‘Information shall be communicated
•prompdy to the Regional Heanng Clerk.
Presiding Officer, and all parties to the
proceeding. A party who f ili to furnish
auth Information and any changes
thereto shall ha deemed to have waived
âls rIght 1. noton and service under
these rules.
(5) The !nl atmtor. Regional
Adnilni*etor. eelding Officer, or
‘Ropana) Hearing Clerk may refusi to
61e any document which doss not
‘comply with this parageaph. Written
aotice of such refusal, stating the
ireaaona therefar. shall be promptly
given to the person submitting the
‘document, Such person may amend and
ie,shmlt any doQaneot refused for filing
upon motion noted by the
Adminievetor. Raponal Adminis ator,
‘or Presiding cer, as appropriate.
, ,OS P ganducvlceofn s s.
uteri , sod : ns
All rulings, orders. de aiona. and
.other documents issued by the Regional
,M! ,th is .atøt. Regional Judicial Officer.
.er Presiding Officer, as appropriate.
1 ahafl be filed wtth the Regional Hearing
‘Clerk. All such documents issued by the
___ or Judicial Officer shall
be flied with the Nearing Clerk. Copies
f such ruling. orders, deosians . ci
ther documents shall be served
5 penonally. or by certified mail. return
leceipt requested, upon all parSes by
the M inittotor, Regional
At 1 min atiatar, Judicial Officer. Regional
Judicial Officer. erPreaiA r g Officer, as
appropriate.
1 .O7 Compumoem sod aIla.l. ,. . of
(a) Cootputoilan, hi computing any
period of time presc’zbed or allowed
these nile. of practice, except as
,otherwi,e provided, the day of the event
‘from which the designated period begins
57

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24366 Federal Register I VoL 45. No. 70 I Wednesday, April 9. 1980 1 Rules and R gulatloni
to run shall not be Included. Saturdays,
Sundays. and Federal legal holidays
shall be included. When a stated time
expire. on a Saturday. Sunday or legal
holiday, the stated time period shall be
sxieadad to Include the next business
day.
(b) Zxsensions of Lime. The
Admuusn ’a tar. Regional Administi’ator,
or Presiding Officer, as appropriate, may
grant an extension of time for the filing
of any pleading. document, or motion (1)
upon timely motion of a party to the
proceeding. for good cause shown, and
after considerition of prejudice to other
parties. or (2) upon his own motion.
— Such a motion by a party may only be
made after notice to all other parties,
wiles. the movant can show good cause
why serving notice is impracticable. The
motion shall be filed in advance of the
date on which the pleading. document or
motion is due to be flied, u 1ess the
failure of a party to make timely motion
for extension of time was the result of
excusable neglect.
(c) Sernce by ma(i Service of the
complau it is complete when the return
receipt is signed. Service of all other
pleadings and documents Is complete
upon mailing. Where a pleading or
document ii served by mail, five (5)
days shall be added to the time allowed
by these rules for the filing of a
responsive pleading or document.
Es perts 1sprc: g.
At no time after the issuance of the
omplaint shall the Adinis ator.
Regional Administrator. Judicial Officet
Regional Judicial Officer, Presiding
Officer, or any other person who is
likely to advise these officials in the
decision on the case, discuss en parte
the merits of the proceeding with any
interested person outside the Agency.
with any Agency staff member who
performs a prosecutorial or Investigative
function In such proceeding or a
factually related proceeding. or with any
representative of such person. Any en
parte memorandum or other
communication addressed to the
Administrator. Regional Ad ivii.’,U’ator,
Judicial Officer. Regional Judicial
Officer. or the Presiding Officer durIng
the pendency of the proceeding sad
relating to the merits thereof. by or on
behalf of any party shall be regarded as
argument made in the proceeding and
shall be served upon all other parties.
The other parties shall be given an
opportunity to reply to such
memorandum or communication.
I v.0 5 ! nVi,tion SI donan.rts
(a) Subject to the provision. of law
restricting the public disclosure of
con dential information, any person
py. during Agency business hour..
Inspect and copy any document filed In
any proceeding. Such documents shall
be made available by the Regional
Hearing Clerk or Hiaring Clerk, as
appropriate.
(b) The cost of duplicating documents
filed In any proceeding shall be borne
by the person seebog copies of such
documents. The Agency may waive this
cost ip appropriate cases.
Subpart 8-Pi,fl.. and Appsarsneee
•m io
Any party may appearln person or by
counsel or other representative. A
paa’tue? may appear on behalf of a
partuership and an officer may appear
on behalf of a corporation. Person. who
appear as counsel or other
representative must conform to the
standards of conduct and ethice
required of practitioners before the
courts of the United States.
Idr ... ..U. ,a ,
(a) Motion. A motion for save to
intervene In any proceeding conducted
under these rules àf practice must set
forth the grounds for the proposed
intervention, the position and interest of
the movant and the likely impact that
Intervention will hay, on the
expeditious progies. of the proceeding.
Any person already a party to the
proceeding may file an answer to a
motion to intervene, making specific
reference to the factor, set forth in the
foregoing sentence and paragraph (c) of
this secoon. within ten (10) days after
service of the motion for leave to
i sLerve ne,
(b) Whea Amotionfwleiveto
intervene In a proceeding must
ordinarily be filed before the first
prebeari g conference or. In the absence
of a prehearirig conference, before the
Initiation of correspondence under
I .19(e), orffthare tine such
correspondence, prior to the setting of.
time and place for. hearing. Any
motion filed after that time must Include,
In addition to the Information set forth
In paragraph (a) of this section. a
statement of good cause for the failur.
to file me timely . ...r .vi.r.The
toterveoor shall be bound by any
agreements, arrangements and other
matters previously made in the
proceeding.
(cJ Disposition. Leave to Intervene
may be granted only If the mcvant
demonstrates that (1) his presence In the
proceeding would not unduly prolong or
otherwise prejudice the adjudication of
the righu of the original partieL () the
movant will be adversely affected by a
final order, and (3] the Interests of the
movant are not being adequately
represented by the original parties. The
Intervener shall become a full party to
the proceeding upon the granting of
leave to Intervene.
(d) Athicua curios. Persons not parties
to the proceeding who wish to file bnefs
may so move. The motion shall identify
the interest of the applicant and shall
state the reasons why the proposed
amicus brief Is desIrable. 11 the motion is
granted. the Presiding Officer or
Adt, .t ,.ti ,tor shall issue an order
setting the time for filing such bnef. An
amicus curiae Is eligible to participate in
any briefing after his motion is granted.
and shall be served with all briefs, reply
briefs, motions. and order. relating to
Issues to be briefed.
•V.12 CcneoldaOor arid uvsrww.a .
(a) Consolidation. The Presiding
Officer lay, by motion or an. spouts.
consolidate any or all matters at issue in
two or more proceedings docketed
under these rules of practice where (1)
there exists common parties or common
questions of fact or law. (2)
consolidation would expedite and
simplify consideration of the issues, and
(3) consolidation would not adversely
affect the rights of parties engaged in
otherwise separate proceedings.
(b) Seveznnce. The Presiding Officer
may, by motion or sue spools, for good
cause shown order any proceedings’
severed with respect to any or all
partie. or issues.
kdif 1 C—Prehswlng Proc.duree
I .l3 moceSIssmplUit.
If the complainant has reason to
believe that a person baa violated any
provision of the Act. or regulations
prcmulg ed or a permit issued under
the Act, he me Institute a proceeding
for ib, assessment of a civil penalty by
Isaning • complaint under the Act and
these rules of practice. If the
complainant has reason to believe that
(a) A psrmfttes violated any term or
condition of the permit, or,
(b) A permlttse misrepresented or
rorately described any material fact
In the permit application or failed to
disclose all relevant facts In the permit
application, or
(c) Other good cause exists for such
action. he may Institute a proceeding for
the revocation or suspension of a permit
by Issuing a.complaint under the Act
and these rules of practice. A complaint
may be for the suspension or revocation
of a permit In addition to the assessment
ctvil penalty.
58

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Fel 1 7 . 45, %i. 7 Wednesâay. ftprfll . 2 7 1 Rilee in Regulationi
24367
.I4 fl..M en i aM
(a) abi?forth.
i !c1aintfortha
.1 tol l
a’
(a. .tomant7e the
‘the Ad a thort g the 3nanceof
—lint
(2) 9pe c reference b eu
o iaion of the Act end em th
jJabonJ which reepoodent is deged
save vtolatedi
(3) A om se statemet*of4be fectual
iii, for afleging the vtolaton
(4) Tha amount of the deil pen ey
ch ii pr sed to be seseeeedi
(5) A itote eot pl. v 1 m g the
uo ng bebi the .proposed penal
(eotieeefre.pocdemt’s r ttu
‘queete bearing on toy mtterial fact
tained mthe nomplami. or en the
?prepñ.tenses of the amoint eNbe
oposod proilty.
copy of these nile. of p.c ia
each complaint . J .
(bJ Oin p1ah Far e re’ Vco er
speriai r of o rndL . . tjJIath1
r the T VOCatoo orscep iun oft
remit shaZ tnn ndm
(1) A ititomeni rnd the see aafs)
the Act. regulabona. end! or e 1
ithori g the tenvenee of the
(2) Spe .flc reference to each term or
t o ’ 1 - of the permit which the
‘ii afleged to have violated,
eged inaccuracy or
d$e tabOfl to reapondeot’s
appbcs on. to each fact which
it respondent allegedly failed to
sciose z i permit appbcs oa. or to
her reasons which form the basis for
e pIatnt
(3) A oie w itetee.e the toal
is is for en±
(4) A request for en
yoke or suspend the permit end a
ataneni of the — end i ue.
‘ ProP o d pai4al sI..r IeT
voca o
(5) A we.ent the bests
recomme ’ dnig the er
as ussp tac. of the
ce veins, a. the cue may b
(I) Nnaus o(the to
quest a b”s en any e.mtwisi
totsiaed to he aca taial. or’sc 4e
propneteness of the propo.sd
voanb o or mape on.
copy of these nile. of prsc ce sha l
openy each . . 4 atot served.
(c) Denvotror, of proposed avff
rnaity The doGor amomit of
rnpceed pena3ty shall be
sterT.ined in s rdance with eny
1teris set forth to the Act reletmg to
it D’ e? ama t ala sivfl penalty and
• with any v6 p guide lines Iweed
anderiha t
(d) Amusdraenl nf . acotpMnt The
q .ii J ii ii t may amend the coe.plaint
of tight lany t e
befwe the answer2a filed. Otherwise the
co .sinao1 may amend the eom a.in1
coZy spon mo co aate by the
Presiding O cer r na]
M irita aIor. is sppropriale.
Responde shall have twenty [ J
addibonal days from the date of seivice
of the amended complaint to file his
answer.
( .3 Wi xw&cfZhexpZD LnL The
comp’ may withdraw the
complaint, or sn pert thcreoL without
prejudice one me before the answer
baa been sled. A one withdrawal
befwe the filing of sa answer. at after
the filing of an answer, the complainant
may withdraw the wnpkint ar ny
part thereof. without prejodice. ly
upon wo n pcntod by the esidang
O cer at &4ocaL £dm r.
) .11 A. uWIi,s.I. f.LirU.
(a) Gen L a .e.a,epoedcot(i)
contest a material ct span ivhsdi
the complaint is beset (2) cantonds that
the amount of the panahy p—=d in
the complaint or pnsp .ed
revonatian or spensinn. as the ase
may be. Is Inappropriate: or (3) contends
that he Is entitled to jnd ent as a
matter of law. he shall le a written
answer to the complaint with the
Regional Hearing Clerk. Any such
answer to the complaint must be filed
with the Regional Hearing Clerk within
twenty (20) days after service of the
compla int.
(b) cn fsVean,werThe
answer shall deariy iad disec*y . !t.
deny or u larn each otthe fscti*l
‘sllegatiose contained in the onmpluml
with regard to which respondent has
any haOWIe e. Where ieapende l bus
no usI. e of a par6onuur f.ctuui
allegation s stas. the egItios is
d emedd. ed. te ali a lso
ptate t4 the *onmstanaee or
which we eged t,. uu ,.iIhuIc’tbt
çuunds of euus. ) the fecta . .t.i
respondent totauds to lace otissim.
and (3) whe a ’bewiiug%s rs nestet
( Reqaee? for 1ie rg. A1ieanog
upon the tunes rersedhy the w i1ai l
and answer abel beheld ivoruquest
of respondent to the answer, In addition.
• bearing may be bald at the disoretien
of the PresidingOffloer. ens spool., If
tines appropriate for adjudication are
raised in the answer.
(d) FaiJwe admit. deny. or expinin.
Psiluze of respondent to admit. deny. a t
mplain any material factual allegation
contained to the amphist oansthvtes
an admission of the.allegation.
(.3 Amendment of die answer. The
respondent may emend the wewer to
the complaint epon motion ?anted by
the Presiding Othom.
(a) GenwnL MI mmions. emopt those
made ora1lyca wdâ ga
bearing, shall (13 be to wrti (I I slate
the çoende therefor with perticolanty.
(3) set forth the relief or order sought
and (4) be accacipaai.d by any
a5davlt. nartificata. other eel de or
legal memorandum relied upon. Sach
motions shall be served as provided by
$ ZLOS(b)(2).
(b) Response mo A party’s
response teeny written motion meal be
filed within ten (10) days after service of
such motion. enluss additional time is
allowed for such teip . The response
shall be aocompanaed by any affidavit.
certificate, other evidence, or lapi
memorandum sebed upco if ao
respouse is filed within the designated
period. the .par’ti.. mey be deemed to
have waived any .ction to the
granting of motion. The Pre.dhig
Officer, egiuniJ Administis lo t, or
AdmiMs toe. as a , .ete, may set a
shorter time rie.poose. armake seth
other orders cermng be thspostboo
of motions as they deem appropriate
(c) Decision. !.xcapt as provided in
* 22.oi{d)(1) and I 222 a). the Regional
Administiator shall rule on all motions
filed or made before an answer to the
complaint Is filed. The Administrator
shall rule on all motions filed or made
after service of the Initial decision upon
the parties. The Presiding Officer shaL
iule on all other motions. Oral a wner.1
on eiotions will DC p.rmittad where the
Presiding Oficar. Regional
A ’ti’ator. or the .Mm wti uba br
considers it n ’y or desirable
I ,l7 Iajt u-,
(a) D JL &pcty may be fousd to
be In defaidt(l) after moflon. upon
fume to die atmely wer to the
oneiplaint 23 after motion or rue
sponte. upon faOw’e to comply with a
prehearmg or beaiing order of the
Presiding Othc or after motion or
sue spool., span fdere to appear at a
conference or hearing without good
cause being sbown.llo ding of default
an the basis of a!athtre to appear at a
hearing shall he made against the
respondent unless the complainant
presents suffideat evidence to the
Presiding Officer to establish a prima
faae case against the respondent. Any
motion fm a default order shall Include
a proposed default order and shall be
served upon all parties. The alleged
59

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24365 Federal Register I VoL 45 No.70! Wednesday. Apr11 a, iaeo I Rules and Regulations
defaulting party shall have twenty ( )
days from semos to reply to the motion.
Defsuit by respondent constitutes. for
purposes of the pending action only. an
admission of ill facts alleged in the
complaint and a waiver of respondent’s
right to a hearing on such factual
allegabons. I! the complaint is foi the
assessment of a mvii penalty, the
penalty proposed in the complaint shall
become due and payable by respondent
without further proceedings sixty (00)
days after a final order issued upon
default. If the complaint is for the
revocation or suspension of • permit. the
conditions of revocation or suspension
proposed in the complaint shall become
effective without further proceedings on
the date designated by the
Administiator in his final order issued
upon default. Default by the
complainant shall result in the dismissal
of the complaint with prejudice.
[ b) Prvcedwes upon default When
Regional Administiitor or Presiding
O cer finds • default has occurred. he
shall issue a default order against the
defaulting party. This order shall
constitute the initial deaslon. and shall
be filed with the Regional Hearing Clerk.
(c) Content.. of a default order. A
default order shall include findings of
fact showing the grounds for the order.
conclusions regarding all material issues
of law or dism ’etion. and the penalty
which is recommended to be assessed
or the terms and conditions of permit
revocation or suspenaion. as
appropnate.
(d) For good cause shown the
Regional Adizunisirator or the Presiding
Officer, as appropriate. may set uide a
default order.
* 22.1 . kd .,nel aattiam.i* wiaird
grum.nt wd oresi.
(a) SeuJeo,ent policy. The Agency
encourages settlement of a proceeding
at any time if the settlement is
consistent with the provisions and
objectives of the Act and applicable
regulations. The respondent may confer
with complainant concerning settlement
whether or not the respondent requests
a hearing. Settlement conferences shall
not affect the respondent’s obligation to
file a timely answer under I 22.11
(b) Consent agreement. The parties
shall forward a written consent
agreement and a proposed consent order
to the Regional Administrator whenever
settlement or compromise is proposed.
The consent agreement shall state that.
for the purpose of this proceeding,
respondent (I) admits the jurisdictional
allegations of the complaint. (2) admits
the facts stipulated in the consent
agreement or neither admits nor denies
specific factual allegations contained in
the complaint and (3) consents to the
assessment of a stated avll penalty or
te th. stated permit revocation or
suspension. u the case may be. The
consent agreement shall Include any and
all terms of the agreement. and shall be
signed by all partie. or their counsel or
representatives.
(c) Consent order. No settlement or
consent agreement shall dispose of any
proceeding under these rules of practice
without a consent order from the
Regional Adminisirstor. In preparing
such an order, the Regional
Administrator may require that the
parties to the settlement appear before
him to answer inquiries relating to the
consent agreement or order.
122.15 PIWiisi i
(a) Purpose of prehearing conftrenos.
Unless a conference appears
unnecessary, the Presiding Officer, at
any time before the bearing begins, shall
direct the parties and their counsel or
other representatives to appear at a
conference before him to consider
LI) The settlement of the cas
(2) The simplification of issues and
stipulation of facts not In dispute:
(3) The necessity or desirability of
amendments to pleadings:
(4) The exchsnge of exhibits,
documents, prepared testimony. and
admissions or stipulations of fact which
will avoid unnecessary proo
(5) The limitation of the number of
expert or other wlteesses:
(8) Setting a time and place for the
hearing: and
(7) Any other matters which may
expedite the disposition of the
-
(b) Exchange of wi’bieu lists and
dxuoientn Unless otherwise ordered by
the Presiding Officer. each party at the
prehearmg conference shall make
available to all other parties (1) the
names of the expert and other witsesses
he intends to calL together with a brief
narrative summary of their expected
testimony, and (2) copIes of all
documents and exhibits which each
party intends to Introduce Into evidence.
Documents and exhibits shall be marked
for identification u ordered by the
Presiding Officer. Documents that hive
not been exchanged and wimesses
whose names have not been exchanged
shall not be introduced into evidence or
allowed to testify without permission of
the Presiding Officer. The Presiding
Officer shall allow the parties
reasonable opportunity to review new
evidence.
(c) Redoftheprehecrang
conference. No transcipt of a
prehearing conference relating to
settlement shall be made. With respect
bother prebearing conferences. no
tr.nsafpl of any prehearizig conferences
shall be made unleu ordered by the
Presiding Officer upon motion of s party
or sea sponts. The Presiding Officer
shall prepare and file for the records
written summary of the action taken at
the conference. The summary shall
incorporate any written stipulations or
agreements of the parties and all rulings
and appropriate orders contIrnui g
directions to the parties.
(d l Lxotion of prehearing conference.
The prehearing conference shall be held
In the county where the respondent
resides or conducts the business which
the hearing concerns. In the city in
which the relevant Environmental
Protection Agency Regional Office is
located. or in Washington. D.C.. unless
(I) the Presiding Officer determines that
there is good cause to hold it at another
location In a region or by telephone. or
(2) the Supplemental rules of practice
provide otherwise.
(e) Unavailability of a pieheathig
osafarenon If a prehearing conference is
eceuay or impracticable. the
Presiding Officer, on motion or sun
sponte. may direct the parties to
correspond with him to accomplish any
of the objectives set forth in this section.
(I) Other disco very. (1), Except as
provided by paragraph (b) of this
section. further discovery, under this
section. shall be permitted only upon
determination by the Presiding Officer.
(I) That such discovery will not in any
way unreasonably delay the proceedmg
(U) That the infornietion to be
obtained is not otherwise obtainable
end
(111) That such information has
4fi nt probative value.
(2) The Presiding Officer shall order
depositions upon oral questions only
upon a showing of good cause and upon
a finding that
(I) The Information sought cannot be
obtained by alternative methods; or
( II) There Is a substantial reason to
believe that relevant and probative
evidence may otherwise not be
preserved for presentation by iwitseus
at the bearing.
(3) Any party to the proceeding
desiring an order of discovery shall
make a motion therefor. Such a motion
shall set forthi
(I) The drcumstances warranting the
of the dtscovery
(Ii) The nature of the information
expected to be discovered. and
( II I) The proposed time and place
where It will be ‘ ‘ - If the Presiding
Officer determines that the motion
should be granted. he shall issue an
order for the ‘ king of such discovery
60

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Federal Ea st VOL a No.70 / Wednesday. April 9, 1980 1 Rules and Regulations
24369
together with the oseditnos led
th. information sought to be
awitheooZ o ueof
d s .f ath&retocomplywtthan
or .sued pwsuant to this paruçuph
may lead to (il the inference that the
information to be discovered would be
sdverae to the party bvm whom the
mformstion was sought. or
( ) The iuuanos of a default order
nder I 22.17(a).
22.20 kcslwstsd cAslori dsdWo’ to
- , .
(a) Geneint The Presiding Officer.
ipon oboc of any party or can sponte.
nay at any time render in accelerated
lecision in favor of the complainant or
the respondent ii to all or any part of
the proceeding. wtthout further hearing
x’ upon such limited additional
,videcce. such as affidavits, as he may
.equlie. It no genuine issue of material
act ,ojta and a party Is entitled to
rud eot as a matter of law, as to all or
any part of the proceeding in addition.
the Presiding Officer. upon obon of the
.espondent. may at any time dtnnln an
sc on without further hearing or upon
mch limited addinonal evidence u he
equAtes, on the basis of failure to
iat,abl ish a prima fade case or other
PO ’JndJ which show no right to relief on
the ‘(the complainant.
t. (1) If an accelerated
or a decision to dismiss is
a .s to all the issues and cl ” ’ in
th pro ceeding. the decision constitutes
in in ba1 decision of the Presiding
D cer. and shall be flied with the
e o:al Hearing Clerk.
(1)1! an accelerated dedaion or a
decision to dismiss Is rendered on less
than all issues or claims in the
rcceeding the Presiding Officer shall
determine what material facts exist
without substantial conboverey and
what material facts remain conO’overted
I good faith. He shall thereupon Issue
an Interlocutory order specifying the
cts which appear substantially
unconiroverted. and the issues and
d” ’ upon which the hearing will
proceed.
part -$ Proos en
I 22.21 the hs
(a) When sri answer is filed, the
Regional Hearing Clerk shall forward
the complaint, the answer, and any
other documents flied thus far in the
proceethng•to the .le! Admth.isO ’abve
Law Judge who shall usup himself or
another A “ ‘n ’abve Law Judge as
Presiding Officer, unless otherwue
pr ‘in the Supplemental rules of
p The Presiding Officer shall
then obtain the case 81. b the ief
““ “ sbve Law judge and notify the
parties a! bAa aujgrimenL
(b) No ior of h.ath . If the
respondent requests a hearing in his
answer, or one Is ordered by the
Presiding Officer under I 22.15(c). the
Presiding Officer shall serve upon the
parties a notice of hearing setting forth a
time and place far the hearing. The
Presiding Officer may Issue the notice of
bearing at sn appropriate time. but not
later than twenty ( ) days prior to the
date set for the hearing.
(C) hstponemen of hearing. No
request f postponement of a hearing
shall be canted except upon motion and
for good cause shown.
(dJ Location of the heaiw,g The
location of the hearing shall be
determined In accordance with the
method for deter ii vig the location of a
prebearing conference under I 2..19(d).
122.22 Ev4dan a .
(a) GeneraL The Presiding Officer
ehall admit all evidence which is not
brelevant. ImmateriaL unduly
repetitious, or otherwise unreliable or of
little probative value, except that
evidence relating to settlement which
would be excluded in the federal cowls
under Rule 408 of the Federal Rules of
Evidence Is not admissible, in the
presentation, admission, disposition,
and use of evidence, the Presiding
Officer shall preserve the confidentiality
of bade secrets and other commercial
and financial information. The
confidential or bade secret status of any
Information shall not, however, preclude
Its being Inboduced into evidence. The
Presiding Officer may make such orders
as may be necessary to consider such
avidence w camera, including the
preparation of a supplemental Initial
decision to address questions of law.
fact or discretion which arise out of that
portion of the evidence which is
confidential or which Includes tade
secrets.
(b) Examination of witnesses.
Witnesses shall be examined orally,
under oath or affirmation, except as
otherwise provided in these rules of
practice or by the Presiding Officer.
Parties shall have the right to cross-
in . a witness who appears at the
bearing provided that such cross-
examination is not unduly repetitious. -
(c) Verified statements. The Presiding
Officer may admit an Insert Into the
record as evidence, in lieu of oral
testimony, statements of fact or opinion
prepared by a witness. The admissibility
of the evidence contained in the
statement shall be subject to the same
rules as if the testimony were produced
under oral examination. Before any such
statement ii read or admitted into
evidence, the witness shall deliver a
copy of the statement to the Presiding
Officer. the reporter. and opposing
counsel. The witness presenting the
statement shall swear to or affirm the
statement and shall be subject to
appropriate oral cross-examination
upon the contents thereof.
(d) Admission of affidavit., where the
witness is wiovailoble. The Presiding
Officer may admit into evidence
affidavits of witnesses who are
unavailable. The term “unavailable”
shall have the meaning accorded to it by
Rule 8 04(a) of the Federal Rules of
Evidence.
(e) EaJiibits. Where practicable. an
original and one copy of each exhibit
shall be filed with the Presiding Officer
for the record and a copy shall be
furnished toeach parry Ati’uie copy of
any exhibit may be substituted for the
original.
(I ) Offacioi notice. OfficIal notice may
be taken of any matter judicially noticed
in the Federal cowls and of other facts
within the specialized knowledge and
experience of the A8ency. Opposing
parties shall be given adequate
opportunity to show that such facts are
oneousIy noticed. -
• 22.23 Obu.cnww end afisre of proof.
(a) Objection. Any objection
concerning the conduct of the hearing
may be stated mall) or in writing during
the hearing The parry raising the
objection must supply a short statement
of its counds. The ruling by the
Presiding Officer on any objection and
the reasons given for it shall be par. of
the record. An excepbon to each
objection overruled shall be automatic
and is not waived by further
participation in the hearing
(b) Offer of proof Whenever evidence
Is excluded from the record. the party
offering th. evidence may make an offer
of prooL which shall be included in the
record . The offer of proof for excluded
oral testimony shall consist of a brief
statement describing the nature of the
evidence excluded. The offer of proof for
excluded documents or exhibits shall
consist of the insertion In the record of
the documents or exhibits excluded.
Where the A I!I,ntti ’ator decides that
the ruling of the Presiding Officer in
excluding the evidence was both
neous and prejudicial, the hearing
may be reopened to permit the taking of
such evidence.
‘122.24 B’.udsn of prossntados burden of
psesumion.
The complainant has the burden of
going forward with and of proving that
the violation occurred as set forth in the
6].

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24370 Federal Register I VoL 45. No.70 1 Wednesday. April 1 1980 I Ru]es and Ragidatfona
complaint and that the proposed dvi i
penalty. revocation. or suspension. as
the ca.e may be, Is appropriate.
‘flowing the establishment of. prima
cie case. respondent shall have the
ourden of pTe.entlng and of going
forward with any defense to the
allegation, set forth In the complaint.
Each matter of conbuversy shall be
determuied by the Presiding Officer
upon a preponderance of the evidence.
I 2S Petog ww
The hearing shall be bansm’ibed
verbatm. Promptly following the inking
of the last evidence, the reporter shall
banamit to the Regional Heanng Clerk
the ori nal and as many copies at the
bansaipt of Les coy as siw called for
to the reporter’s onn a with the
Agency and also shall to the
Presiding Officer a copy of the
baflsor lpL A certificate of service shall
accompany each copy of the n’aas ’ipt.
The Re anal Hearing Clerk shall notdy
all parties of the availability of the
bsns ipt and shall fornlsh the parties
with a copy of the bansaipt upon
payment of the cost of ieprodu on. 1
utile .. a party can show that the cost Is
unduly burdensome. Airy person not a
p y the proceeding may reonve a
copy of the banaa’tpt upon payment of
the reproducton fee, except for those
pa a of the bansc ’ipt order to be kept
‘onfidenbal by the Presiding Officer.
22.25 Prc cen ioca ,
. order.
W.th,in twenty (mJ days after the
parbes are notfied of the availability of
the beAsenpe. or with&ir such lunger tme
is may be fixed by the Presiding Officer.
my parry may submit for the
consideration of the Presiding O er.
proposed findings of fact. condualoci of
law, and. proposed ordea. together with
Dnefs m support thereof. The Presiding
Dfflcer shall set a e by which reply
)nefs must be subuntied. All
jubmussious shall be in writing. shall be
ierved upon all par es, and shall
ontato adequate references to the
‘ecord and authorities relied en.
k part £—‘brttlal Decision and odcn
ro Ranp,n a Hsarlng
2227 tist d.dstor
(a)FLLuzg and content .. The Presiding
Dfflcer ihall Issue and file w h the
tegionsi Hearing Clerk his initial
Iecision as soon as prac cable after the
ierrod for filing reply briefs under
122.26 hu expired. The Presiding
) cer shall retain a copy of the
:osiplaint in the duplicate file. The
rziual decision shall contain his finthugi
if fact. conclusions regarding all
material hone. of raw or dinmetion.
well as reasons thmefun a
recommended dvii penalty usesunent.
If appropriate, and a proposed final
order. Upon receipt of an initial
decision, the Regional Hearing Clerk
shall forward a copy to all parties, and
skill send the originaL along with the
record of the vceeding. to the Hearing
Clerk The Hearing Clerk shall Forward
a copy of the initial decision to the
(b)Atofdvi7pe,rajiy 1 1th.
Presiding Officer determines that a
violation has occam ’ed, the Presiding
Officer shall determine the dollar
amount of the recommended clvii
penalty to be assessed in the initial
decision in accordance with any erl ia
set forth in the Aot relating to the ep
amount of. c lvii penalty, and must
consider any dvii penalty gmdeline.
issued under the Act. If the Presiding
Officer decides to assess a penalty
different In amount from the penalty
recommended to be assessed in the
cornplaLct, the Presiding Officer shall set
forth In the initial decision the ipedflc
reasons for the in ease or decease.
The Prerl ding Officer shall not rafee a
penalty from that recommended to be
usessed in the complaint If the
respondent has defaulted.
(c) E)Yect of initial decision. The
Initial decision of the Presiding Officer
shall become the final order of the
Administi ator within forty.flvr (45 ) day.
after Its service upon the parties and
without finther proceedings unless (1)
an appeal to the Admiith ’a tar is taken
from It by a parry to the proceedings, or
(2) the M ” ator elects, ma sponte.
to review the initial decision.
f22.21 IoUon reiig.ns .1ig.
(a)flgendc ntej Amallonto
reopen a he ng to take fwibm’
evIdence must be made no later than
twenty day , t Im
Initial d i ision on the parties and ahall
(1) state the specific grounds upon
which relief Is sought (2) state briefly
the nature and purpose of the .videnca
to be adduced. (3) show that arch
evidence Is ot simulative. and (4) show
good cause why such evidence tons not
adduced at the bearing. The motion
shall be made to the Presiding Officer
and filed wsth the Regional Hearing
Clerk
(b) Di ositice o’f nmo6on to reopen a
hew,ng. Within ten (10) days following
the service of. motion to reopen a
hearing, any other party to the
proceeding may 51. with the Regional
Hearing Clerk and serve on all other
parties an answer thereto. The Presiding
Officer shall announce his intent to
giant or deny such motion as soon as
pesctirable thersaf . The omduet of
any proceeding which may be required
ares u lt o f the gda nyme t i
aflo d is this section shall be
govomed by the provisions of
plicabIe sedioms of tbs rules. The
filing of a motion to ee .en a bearing
shall antomaticelly stey ng of
all time periods specified under tim ,,
Rule . until such time p5th. mebon is
denied or the reopened hearing a
concluded.
— F-Appeals and
AdmlnIsD’ativs Riview
AppsIb ’ emorre 1..ot
biterlondory ovito . or rtmng
(a) R ut far iD1ormna!!’1n y appeal
Except as provided In this section.
appeals to the Ad ,niuu.bator shall
.btain as a matter of right only from a
default order, an accelerated decision at
d.dsinn to diamm issued under
* 22.30(b) (1) , or an initia l decision
ronderad after an evidentiary bearing,
Appeals from other orders or rulings
shall lie only If the Pre.irierg Officer or
Regional M i t.tsatai. as appropriate.
epon motion of a party. certifies such
u’ders or rungs to the Mmn i.ti ’stor on
appeal. Requests for such certi&abou
shall be filed in writing within aix (6)
day, of notice of the ruling or service of
the order, and shall state briefly the
pounds to be relied upon en appeal.
(b) AvcJIobsliry of interlocutory
eaL The Presiding Officer may
metuly any ruling for appeal in the
A ’ 4 ” trstor when (1) the order or
ruling involve, an important questoil of
law or polic i concerning which there is
substantial grounds for di5erence of
opinion . and (2) eIther ) an immediate
sppeal from the aider or ruling wr!l
astetially ethanos the ul a,me
termination of the proceeding. or (U)
review altar the final ceder is issued will
be inadsquate or ineflecti.s.
(c) DecLiian. U the Adminitiator
determine, that certification wee
Improvidently granted. or If he takes no
action within thIrty (30) deys of the
certI5caUo the appeal is dismissed.
When the Presiding Officer declines to
tify an order or riling to the
Administieta’ on Interlocutory appeal. It
may be reviewed by the Adminisatator
only upon appeal from the inibai
decision, except when the A ”t’b ’ etcr
da , Me , upon motion of a parry and
in exceptional drunastanma. that to
delay review wonld be ‘yto the
pebflc interest. Such motion shall be
moda within ) days of service of an
order of the Presiding Officer refusing to
met!, a riling for interlocutory appeal
to the A i” t atur. Ordinarily, the
intariocutary appeal will be de ded on
62

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Federal RaglM./ VoL 45. No 701 Wednesday, April 9. 1980 ! Rules end Regulations
24371
is of the aubeslulous made by
be Presiding O cer. The i ,th 4 stof
‘v, ,r. allow hrther briefs and
‘ent.
of proceedings. The Presiding
) .aay stay the proosedings
enainga decision by the Ml!irnIu ,tor
pon an order or ruling certified by the
es ding O cer for an interlocutory
ppeal . Proceedings will not be stayed
x ept L u extraordinary cirvuaatances.
bere the Presi ding O cer grants a
.ay of more than thirty (30) days. such
tay must be separately approved by the
.i4 . i iti *tOt.
.3O App.utromorr, 1. .ofWmi
(a) NoQce o,f appeal. (1) Any party
iey appeal any adverse ruling or order
the Presiding O cer by filing a nobee
appeal and an accompany ng
ppeUate brief with the Hearing Clerk
ud upon all other parties and amicus
mae within twenty (30) days after the
iinai decision is served upon the
arties. The notice of appeal shall set
rth aiiei sdve finding, of fact.
Iter nabve conclusions regarding Issues
Law or discietion. and a proposed
. der together with relevant references
the record and the initial decision.
be appellant’s brief shall coutain a
atement of the issues presented for
mew, a its tameut of the nature of the
ir ‘he facts relevant to the issues
or review. argument on the
aented. and a short conclusion
- ne precise relief sought. together
th appropriate references to the
cord.
(2) Within fifteen (15) days of the
:rvica of notices of appeal and briefs
3der paragraph (a)(1) of this section.
iy other party or .nscus curiae may
and serve with the Hearing Clerk a
ply brief responding to argument
used by the appellant, together with
ferences to the relevant portions of the
cord. inittal decision. or opposing
lef. Reply briefs shall be limited to the
ope of the appeal brieLPurther briefs
all be filed only with the permisalon of
a AA l i’ri ’a to:.
(b) Suc spans. review by the
dnmuiütrolor. Whenever the
dminsanstor determines sue sponte to
v ew an Initial decision. the Hearing
erk shall serve notice of such
on the parties within forty.flve
5) days after the initial decision is
rved upon the parties. The notice shall
dude a statement of issues to be
‘lefed by the parties and a tiae
.hedule for the service and filing of
iefs.
(C) Scope of appeai or review. The
p t of the initial decision aball be
: those issues raised by the
parties during the course of the
proceeding. U the b,u .ii.4 ito?
determines that Issues raised, but not
appealed by the parties, should be
,srgued. he shall give counsel for the
parties reasonable written notice of
ach determination to permit
preparation of adequate argument
Nothing herein shall prohibit the
Administrator from remanding the cue
to the Presiding Officer for further
proceedings.
(d) Argument before the
Administrewr. The Administrator may.
apon request of. party or ma sponte.
aasigs a time and place for oral
argument after giving consideration to
e convenience of the parties.
Subpart G-fliá Order on Appeal
fl.31 ordur ce eeL
(a) Contents of the final order. When
an appeal has been taken or the
Administrator Issues a notice of intent
to conduct review ins spouts, the
M””’ ’trator shall Issue a final order
as soon as practicable after the filing of
all appellate briefs or oral argument.
whichever is later. The Administrator
shall adopt. modify or set aside the
findings and conclusions contained in
the decision or order being reviewed.
and shall set forth in the final order the
reasons for his actions. The
A’4” i’trator may. in his disoretion.
lnci’ease or decease the assessed
penalty from the amount recommended
to be assessed in the decision or order
being reviewed. except that if the order
being reviewed isa default order. the.
Administrator may not inceue the
amount of the penalty.
(b) Payment of a c ml penalty The
respondent shall pay the full amount of
the civil penalty assessed in the final
order within sixty (80) days after receipt
of the final order unless otherwise
weed by the parties. Payment shall be
made by forwarding to the Regional
Hearing Clerk a cashiers check or
certified check in the amount of the
penalty assessed in the final order.
payable to the Treasurer. United States
of America.
• o ori monnalJar a IWi ceder.
Motions to reconsider a final order
shall be flied within ten (10) days after
PeMCe of the final order. Every such
motion must set forth the matters
claimed to have been erroneously
decided and the nature of the alleged
errors. Such motion shall not stay the
effective date of the final order unless
specifically so ordered by the
A’ 1 ” trator.
• 33 iisnteI r,ies of prscUoa
governing the sdminlsbeOvs asssamsnt
at v5 penalOss rmder the Tesic
8 s ces Confrat M .
(a) Scope of these Supplemental rules
These Supplamental nile. of practice
shall govern, in conjunction wttb the
preceding consolidated rules of practice
(40 Q ’R Part 2.2), all formal
adjudications for the assessment of any
civil penalty conducted under sectiog
18(a) of the Toxic Substances Control
Act (15 U.S.C 2815(a ) ). Where
inconsistencies exist between these
Supplemental rules and the
Consolidated rules. ( I 22.01—22.32).
these Supplemental rules shall apply
(b) Subpoenas. (liThe attendance of
witoesses at the production of
documentary evidence may be required
by subpoena. The Presiding Officer may
pant a request for a subpoena upon a
showing of (I) the pounds and necessity
therefor, and (ii) the materiality and
relevancy of the evidence to be
adduced. Requests for the production of
documents shall desci ’sbe the evidence
sought as specifically as practicable.
(2) Subpoenas shall be served in
accordance with 22.05(b)(1) of the
Consolidated Rules of Practice.
(3) Withesses summoned before the
Presiding Officer shall e paid the same
fees and mileage that are paid wibiesses
in the courts of the United States.Fees
shall be paid by the party at whose
instance the witoess appears. Where a
witoess appears pursuant to a request
initiated by the Presiding Officer, fees
shall be paid by the agency.
* v.34 th4iplemsntal rues of Fcuc .
ths sdmlnletr ativs us.urn.nt
of dv psn 5ss raider Tie. II of the Cissn
AWAcL
(a) Scope of these Supplemental rides.
These Supplemental rules of practice
shell govern. in con7uncuon with the
preceding Consolidated Rules of
Practice (40 ‘R Part 22). all formal
adjudications for the usessment of any
civil penalty conducted under Section
211 of the Clean Air Act as amended (42
U.S.C. 7445). Where inconsistencies
ulst between these Supplamental rules
and the Consolidated Rules. ( I 122.01-
22.32). these Supplementai rules shall
apply.
(b) H.adqucfl.err enfwvement. Where
the complainant is the Assistant
4 ,r mi.trato : for Enforcement or his
delegate. the prehearing conference and
bearing shall be held in Washington.
DC. wiless the Presiding Officer
deter inei that there is good cause for it
to be held at another location.
(c) “Presiding Off ,cer’ For purposes
of hearings conducted pursuant to 211
a——.——
63

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U3?2 FedatiIR.e/VoL4LNfWenesday.AprllLlseofRuluendRegthtlon.
of the mean Air Act. ‘Pteildlng O cer
means the &A ,mi tya ,e Law Ju .
.—‘.cpointed under 5 U.S.C 31 (see also
. L IS-251. StaL 113) at an
.irttey who Is an employee or
.uthor,sed repreienta ve of the A ncy.
(d l Assignment of a P idia Offi
Upon the filing of an answ the
Regional Hearing Clerk at Hemg
Clerk, as appropriate. shall forward the
complatot answer, end any otbat
doc imenti filed thus fare the
proceeding to the Regional
Admin aim tat or Adnisfritat.
respectively, who shall auigu the
- Presiding Officer. The Repoo.I
Adz isnstor or M—”sDs ar may,
however. forward the mee file to the
Cnief Admiithtrative Law Judge and
request that be asmgn an A slive
Law Judge as Presiding Officer. If the
Adm niststive Law Judge Ibida
that such an eui ment can be mad.
without impairing the abibty of his
office to timely discharge Its other
responsibilities, be shall make the
•amgnment. Otherwise. he shall notify
the Regional Adniimsfrator or
Admuustrstor that he Is unable to mab
such art assiç.ment. The Presiding
Officer assigued to the proceeding shall
obtain the case file from the lef
Administrath’s Law Judge. Regional
Administrator, or Administrator, u
appropriate, and no y the partie. of his
,eJ EvoJuation of p ’vpceed ril
,ienolly. In determ ung the dollm
amount of the recommended vfl
penalty asiessed to the Ual de aion.
the Presiding Officer shall consider (1)
the çav ty of the violation. (2) th. size
at respondent’s bujinese, (3) tha
respandant history of comphance with
the Act. (4) the action taken by
respondent to remedy the speui&
violation,, and (5) the effect of such
proposed penalty on respondent’s
ability to dnue in business. Thi
Presiding Officer ma alec co der any
guidelines fat the Aa.esameef of Civil
Penaines mined neder the Act.
122.3$ $wr itaa sfg..,j ,.
gevSflIEg ets dmlnlsPstivs asaeiamse 5
of 04 psnaf .s imdsr On FsdirU
nsiO J, Fi Ud. . end
(a) Scope of these Supplemental t ales.
These Supplemental rules of practice
shall govern. in coo uncUon with the
preceding Consolidated Rules of
Practice (40 Part 22], all formal
adjudications for the assessment of any
ovil penalty conducted under Section
14 (a) of the Federal Insecticide.
Fun cide, and Rodennr.ide Act is
amended (7 U.S.C. 12 51(a)). Whir,
‘3ccnaisten es exist between these
pplemental rules and the
Consolidated rule. (I I
these Supplemental roles shall apply.
(bJ Vs.iae. The prebearing conference
and the hearing shall be he ld in the
county, parish, at incorporated ty of’
the residence of the person charged.
unless otherwise agreed In writing by afl
Patties.
(cJ Evoiuotton ofpzoposedcisil
penaft in detsriththi the dollar
amount of the recommended thd
penalty assessed in the initial decision.
the Presiding Officer shall canader, to
addition to the ci teria listed to section
1i(a)f3) of the Act. (1) respondents
history of onmpilanns with the Act or t
predecessor statoti and (2) say
evidence of good filth orlack theseoL
.me Presiding Officer must also consider
the guidelines far the Assessment of
Civil Penalties published in the Federal
Register (39 FR V711). and any
adments at supplements theeeto
* u.as s mi nine of pracU .s
Oil admlnlOntivs emmwd
— dvi puraOu soti s r aUon
si :alwi of p.&mRs isviu Ow Mime
Pr scUon Rasasreti , mud Smw wtss A
a) Scope of thee. SuppIementth de&
These Supplemental rules shall govern.
to conjunction with the preceding
Consolidated Rules il Practice (40 R
Part 22), afl foimal ad’ udicatiens
conducted under Section 105(a) or (fl of
the Marine Protection. Research, sod
Sanctuaries Act as amended (33 U.S.C.
1415(a) and (fl). Where inconsistencies
e st between these Supplemental rule.
and the Consolidated Rules. (II 22.01-
22.22). these Supplemental rules shall
apply.
(bJ Additional iter’ion jbr the
issuance of a co*!arnt/ordi,
rrva ti n or si , ion ofcpenn,t In
addition to the ‘at n’fterfa listed to 40
R 22.13 for Issuing a complaint for the
sevoestion or suspension of. permit.
complaints may be Imued an the hula
of a person’s faliwe to keep .rds and
notify appropriate o5 aIs oldmeping
activities, as r.q.lr,d by 40 R 4.1
and 223
I 22,37 wç -n.nW nine of wa .u1L...
gu . Jng the SdmIAts IVVS useswni
of d v i penames wider the S c Si Wuts
DWO . M
(a) Scope of thme Supplemental nt/es.
These Supplemental rules of practice
shall govern. in con junction with the
preceding Consolidated Rules oL
Practice (40 Q’R Part 22), all
proceedings to amiss a vil penalty
conducted under Section 3008 of the
Solid Wuta Disposal Act (42 U.S.C.
1928) (the Acr) Where Incamsistenates
anlat between these Supplemental rules
and the Consolidated Rules, (I I Z2.01-
22 the.. Supplemental rules shall
5 M’ibeuonce of notice. Whenever, an
the basis of any Information, the
Adrn1n stiator determines that any
pemon In violation af(!) say
requirement of Subtitle C of the Act, (2)
any regulation promulgated pursuant to
Subtitle Ca l ths Act. or(3J a term or
condition of a permit Issued pmuuant to
Subtitle C of the Act the Administrator
shall issue notice to the aDeged violator
of his failute to comply with such
requirement. regulation or permit.
(c) Content of notice. Each notice of
violation shall include:
(1) A specific reference to each
provision of the Act. regulation. at
‘mit te or condition which the
slieged violator is alleged to have
violated, end
(2) A conma. statement of the factual
baais for afl.girig such violation.
(d3Ser ic.ofnodce. Service of notice
shall be made In accordan . w(
I 22.05(b (2) of the Consolidated RaZes
of Prentice.
iu& nat of th. fla J IninL (1)
Except as provided in paragraph (e)(3)
at this section, the compliment may
Issue a complaint whenever he has
reason to believe that any violation
taads beyond the thirtieth day after
service of the notice of violation.
(2) The complaint shall include, in
addition to the elements stated in
122.14 of the Consolidated Rules. a
ardor requiring compliance within a
specified time period. The complaLnt
shall be equivalent to the compliance
order ,eierued to in Section 3 8 of the
(3) Whenever a violation is of a non
continuous or tntsrmittent nature. the
1 ” ” traWr may Issue a complaint.
without any prior notice to the violator,
pursuant to 22.14 of the Consolida ted
Rules of Practice which may also require
the violator to take any and all
measures necessary to offset all adverse
sfteqts to b,aZth and the environment
nested, directly or Indirectly, as a result
of the violation.
(4) Notwitbgu ’id1flt 1 2 2.15 (s). any
answer to the complaint must be filed
with the Regional Hearing Clerk within
thIrty (30) days after the Lng of the
complaint
(I] Subpoenas. (1) The attendance of
wi saes or the production of
documentary evidence may be required
by subpoena. The Presiding Officer ay
Wants request for a subpoena upon. a
showing of (1) the pounds and necesslt
therefor, sod (U) the matenafity and
relevancy of the evidence to be
adduced. Requests far the production of
documents shall desc’ibe with
specificity the documents sought.
64

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Feden.! Reglst I VeL 45. No. 70 / Wednesday. April g, 1980 I Rules and Regulations Z4373
.abpoenas shell be sezved in
s rdance with I .o5(b)(1) of the
C ., sohda ted Rules of Prsct .
(3) Witnesses uu oned before the
Presiding Officer shall be paid the sane
fees and iJeage that irs paid witnesses
in the urts of the Uoited States. Fees
ebaU be paid by the par ’ at whose
ins tance the witneu appears. Where a
wi ieu appears pursuant to a request
i ated by the Presiding Officer, fees
shaU be pa3d by the Agency.
Rilj:r I—4chn F Kenned> Federal Bwlthag.
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York IXO?
A io ’ W—.Cw a iiJd ng th and Walnut
8oee a PbiladeIph a. Pennaylvama 151
Regio,i !V—345 Cowtland Soe,t. N E .
Atlanta. Georgia 3 O8
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LT—Z15 Fie oat SteeL
r CaZJorvi. 54205
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Wednesday
September 10, 1980
Part V
Environmental
Protection Agency
Guidelines for Assessment of Civil
Penalties Under Section 1 of the Toxic
Substances Control Act; PCE Penalty
Policy

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59770
Federal Register / VoL 45. No. 177/Wednesday, September10. 1980 / Notices
ENViRONMENTAL. PROTECTiON
AGENCY
(FRt. 1501-6]
Guidelines for the Assessment of Civil
Penalties Under Section 16 of the
Tox o Substances Control Act PC8
Penalty Policy
AGENCY Office of Enforcement.
Environmental Protection Agency (EPA
or the Agency).
ACTtO c Notice of a policy for
Implementation of the Toxic Substances
Control Act, with respect to the
assessment of civil penalties under
Section 16; interim guidance for the
detemuiation of penalties for violations
of the PCB regulations.
Suua ae Section 16 of the Toxic
Substances Control Act (TSCA or the
Act) authori.zes the Administrator of
EPA to assess civil penalties for
violations of the Act. On March 10. 1980,
Jeffrey C. Miller. Acting Assistant
A’ ” trator for Enforcement.
transmitted to the EPA Regional
Administrators a document which
Implements an administrative civil
penalty policy for TSCA. This document
sets forth a general penalty assessment
policy which will be supplemented by
regulation-specific penalty assessment
guidance. Together. these documents
provide interual procedural guidelines to
aid EPA personnel to assess appropriate
penalties. They are cot regulations. The
penalty assessment poiicy establishes
standardized definitions and
a plications of the statutory factors that
the Act requires the Administrator to
consider in assessing a penalty. It also
provides a mechan zm whereby Agency
personnel may, within specified
boundaries. exerc:se discretion in
negotiating consent agreements. and
otherwise adapt the proposed penalty to
the exigencies of special circumstances.
Separate guidances will apply the
penalty system to specific regulatory
and statutory provisions. These
guidances will be developed on a
continuing as-needed basis.
On April 24. 1980. Richard D. Wilson.
deputy Assistant Administrator for
General Eniorcenient. transmitted to the
EPA Regional Mmmistrators the first of
the regulation spec;flc penalty policies.
This document consisted of znxerini
guidance for the detercunation of
penalties for violations of the PC3
regulations.
The TSCA civil penalty policy and the
‘ penalty policy were effective on
4arch 10. 1980 and April 24. 1980.
respectively, the dates these policies
were issued to the Regional Offices.
Althougb the Agency is not required to
publish these documents. EPA is doing
so in order to give them the wide
circulation that publication will provide.
The full text of the TSCA civil penalty
policy, arid the PCB penalty policy, with
the appropriate transmittal memoranda.
appear below in the ‘Supplementary
Information ” section.
FOR FURTHER INFORMATION CONTACTI
Peter J. Niemiec. Attorney-Advisor.
Pesticides and Toxic Substances
Enforcement Division (EN—342), 401 M
SL SW.. Washington, D.C. 20460. (202)
755-9404.
SUPPLEMENTARY INFORMA11OPC The
douents appearing below were
transmitted to the EPA Regional
Administrators on March 10. 1980. and
April 24. 1980. respectively. The
“Technical Support Document” referred
to In the TSCA civil penalty document
has not been reproduced. but is
avaLlable upon request from the EPA
address above.
Dated: July?, 1980.
Jeffrey C. Miller.
ActingAssis antAdm:riistrctor for
Enfoxement ,
TSCA Civil Penalty System
hitroducdon
‘The Toxic Substances Control Act
(TSCA). passed by Congress and signed
into law in 1976. provides for increased
regulation of chemical substances and
mixtures. The Environmental Protection
Agency is charged with carrying out and
enforcing the requirements of the Act
and any rules promulgated under the
Act
Semi on 19 of the Act provides for civil
and criminal penalities for violations of
TSCA or TSCA rules. Civil penalty
amounts may range up to 525.000 per
violation, with each day that a violation
continues constituting a separate
violation. Civil penalties are to be
administratively imposed, 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 penalty has
been imposed by the Administrator.
Section 15 of TSCA requires that a
number of factors be considered iri
assessing a civil penalty, as follows:
In determining the amount of a civil
penalty, the Aominiswator snail take into
acount the nature. circi.mslances. extent.
and p’avuy of the violation or ‘ ,oiacior.s and.
with respect to the violator, ability to pay.
effect on ability to continue to da ousiness.
and history of prior such violations, the
devee of culpability, and such other mattel-s
sa pLU ice may require.
penalties be assessed in a fair. unifc .
and consistent niannen that the
penalties are appropriate for the
violation commz’tted, that economic
incentives for violating ISCA are
eliminated; and that persons will be
deterred from cnmmitting TSCA
violations.
Scope of the Civil Pen city System
The penalty system described in this
document provides the general
framework for civil penalty. assessment
under TSCA. It establishes standardized
definitions and applications oi factors
the Act requires the Administrator to
consider in assessing a penalty. As
regulations are developed, specific
penalty guidelines will be developed
adopting in detail the apulication of thee
general penalty system to the new
regulation. These specific guidelines will
generally be issued when en.forcement
strategies are issued for each new
regulation.
Note.—This document does not discuss
whether assessment of a civil penalty ts the
calTect enforcement resoonsa to a given
violative condition. Rather. this document
iocuses on determining what the proper :iu-
penalty should be if a dec:sion has be o
made that a civil penalty !5 the piuper
enforcenient remedy to pursue.
Brief Descripwn of the S i’s:em
The general civil penalty system is
designed to assign panalties for TSCA
violations in accordance with me
statutory requirements ef Section 16.
Penalties are detertniried in two staQes:
(1) Determination of a ‘ rcvity based
penalty” (GEP). and (2) adjustments to
the gravity based penalty.
To determine the g:avlty based
penalty, the following factors affecting a
violation’s gravity are consideredi
• The “nature” of the violation.
• The “extent” nf environmental har
that could result from a given violation.
and
• The “circumstances” of the
violation.
These factors are incur orated on a
matrix which allcws deteminat cn of
the approm ’iaze gravity based enaity.
Once the gravity based penalty has
been determined. iroward or downward
ad)ustments to the penalty amount are
made in consideration of these otner
factors:
• Cui abiIity.
• History of such violations,
• Ability to pay.
• Ability to continue in business. anc
• Such other inntters as lustice may
require.
Civil Penalty System and Its Application
This section describes in detail the
The purpose of the general penalty
system is to assure that TSCA civil

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Federal Register / Vol. 45. No. 177 / Wednesday. September 10. 1980 I Notices
5971
r.ersl civil penalty system. how
:eC naIty guidances will be
v d applied, and the
,ehind the development of the
. ti.
•e Penalty Fcc ors
The Act reqwres the consideration of
cit :amed factors in any penalty
sessmenL as well as “oWer factors as
ce may require.”
The first four factors—nature.
•: rnstances. extent, and gravity—
to the v olatioa. Under the penalty
stem these four factors are charted on
natrix which y elds the Gravity Based
aIry (GB?). This matrix is a coast cut
‘cughout the penalty system.. As will
seen below. however, the specific
ialty guidelines will affect into which
:egory along each axis of the matrix
violation will fall.
once a GBP figure is reached. several
iseot fatter, are applied:
• An upward or downward
:us ent may be made for particularly
pabla or zion-culpabie conduct. An
A’ard adjus enx of up to 100% may
rnade where, there is a history of such
iciation.
• Two other adjus ents met
.c ficafly required by the Act, but
crized under the “as justice ay
u ‘ uage of 1 15) are to recover
ar. s paid by the United States.
i t ce or eliminate any financial
: m -udve advantage gained by the
ator as a result ci his failure to
ow the Act, or its regulations. Other
e-’oy-case adjusunents n.sy also be
‘ranted under the “as justice may
.iire” ang’.age.
The final statutory adjustment
ors are the violator’s abUity to pay
the effect on the ability to
aue to do business. For several
ions we hare combined the concepts
,ived in these factors onto one
.Uty to pay” factor. This factor will
act as a limit on the amount of
aity assessed. even where other
nra indicate a higher penalty is
ranted,
;z.’ladoa of the Gawitty Based
oi:y
e gravity based penalz (GBPI is
do the fdllo 1ng athic
—
ar e.I
.ç.
A n
c ivw
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I
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20.000
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l3.
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2
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3
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10.000
10.000
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1.500
1.000
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500
200
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I14 .41at , ii L I I • ‘ at 20%
e 15% m I 0, ‘ — 10% *
The GBP incorporates nature, extent,
circumstances. and gravity as follows:
1. Nature. The “nature” factor, as all
factors jot the penalty system. is used in
accordance with its commonly
understood eaning The essential
character of a thinç quality or qualities
that make something what it isi essence”
(Webster’s New World Dictionary).
In the context of penalty assessment,
this factor indicates which specific
penalty guideline should be used to
determine appropriate matrix levels of
“extent” and “circumstances” (of
environmental harm surrounding the
violation). Thus. the nature (essential
character) of a violation is best defined
by the set of requirements violated, such
as the PCB rule, or the precianuiacture
notification requirement Since each
TXCA section, rule, or other appropriate
group of requirements will have a
separate specific penalty guideline that
will include criteria for assiguing
violations to the several levels of
“extent” of potential harm, and
probability of harm, the specific
tailoring of these operational criteria for
each section or rule ensures that
penalties assessed will reflect the nature
of the violation.
Also incorporated in the concept of
“nature” Is whether the violation is of a
chemical control. control-associated
data gctherthg. or hazard assessment
nature:
Chemical controL’ Chemical control
regulations are aimed at minimizing the
risk presented by a chemical substance.
by placing constraints on hcw it is
handled. Sections 5. 7. 12. 13 and sub-
sections 5(e). and 5(1) authorine a wide
variety of chemical control actions. from
labeling requirements to total bans on
manufacture. ‘These req’ .lir?rnentJ are
variously imposed by rulemaking,
administrative order. court injunction, or
by the Act itself.
Con trol-associated data gozlmerzag:
Coritrol ’assocma ted data gathering
requirements are the recordkeeping
and/or reporting requirements
associated with a chemiczl control
regulation. These requ rem.ents enable
the Agency to evaluate the effectiveness
of the regulation, and to monitor
compliance.
Hazard ass essrnent ’ Hazard
assessment requirements are used to
develop and gather the information
necessary to intelligently wei;h and
assess the risks and benefits presented
by particular chemical substances, and
to impose chemical control requirements
when appropriate. The requirments
include those of preinanufacture
notification under § 5. testing under § 4.
and reporting and re:ordkee;ing under
18.
• As discussed in the next two sections.
the “nature” of the violation will have a
direct effect on the measure used to.
determine which”extent” and
“circumstances” categories are selected
on the CBP matrix.
2. EXtent. “Extent” is used to take into
consideration the degree. range . or
scepe of the violaticn. The ian x
provides three leve o for measuring
extent
Level A (Major):
—Potential for “serious” damage to huniaa
health or for major damage to the
environment.
Level B (Signiflcant):
—Potential for ‘ szgrnf can1” amouot of
damage to human health or the
env ironment
Level C ( ,1inor ) :
‘—Potential for a lesser am.ount of tiamage to
human health or the environment.
A number of factors affect into which
level of ‘extent” a particular violation
fits. The spec:fic applicatmozi of these
factors depends in Large degree on the
specific penalty system’s treatnient of a
particular viclatfan. For examole. the
specific penalty system will not only
provide guidance for PCBs in general.
but also for the type of PCB violation.
Che.’nical coastal: For a chemical
cor.trol violation (e.g.. rules for storage

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;JI I .
Federal Re jster / Vol. 45. o. 177 / W dnesdav, Seotember 10. 19C0 / Notices
and disposal of PCBs), the quantity of
the regu’ated substance involyed might
be the principal basis for cacegor.zing
extent. In other words, a violation
irwoiving under 10 pounds ci a given
substance rni ht be Level C. 10 to iao
pounds Level 8. and over 100 pounds
Level A.’ In the development of specific
guidelines. environmental impact data
and other analyses developed in support
of the chemtcal control rule making will
generally be the basis for determining
“extent” levels.
Canwol-associated dcta.gathering
For control-associated data gathering
regulations. the quantity of regulated
substance involved in the recordkeeping
will be used as the indicator of the
extent of the violation. For example. not
reporting the whereabouts oi 1.000
pounds of PCBs is more serious than not
reporting one pound. In general, the
quantity measures used to define the
“extent” of such a violation will be. the
same as those used to define the
“extent” careoories of the control
violation with which it is associated. As-
with chemical control rules. factors
other than quantity may be used when
appropriate to indicate the “extent” of
potential damage.
Hazard asseszmenb Hazard
assessment data-gathering regulations
require a differen: pproach to make an
“extant” determination. Unlike chemical
control and conti ’ol-assoc:ated data-
gathe:ing regulations, the degree of
danger or “hazard” presented by the
substance En question may not be
iwown. Indeed, this lack of knowledge is
the princ pLe reason for the data-
gathering. Toe measure of “extent” of
harm will focus on the goals ci the given
hazard assessment regulation. and the
types of harm it is designed to prevent.
For example, a 4 test 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 violations treated
accordingly, wnereas manufacturing a
chemical without submitting a
premanufacture notification form 90
days in advance, could either be treated
as (1 always being of Level A or. (2)
varjlng in level of “extent” according to
the volume illegally manufac:ured. Thus.
a great number of judgments must be
made in the formulation of the spec:flc
penalty policy.
3, C rcumstazices. “Circ’,rmstannes” is
used in t’ie enalty policy to reflect on
the probability of the assigned level of
‘Other itena. r.acn a, number of people
expolea or potennaUv e-woeed. c vId nave oe n
utthzad here. but (2 those facto,, are thflicuii and
expensive to quar.’ fy f r rn ,viduaI vioIeuoi ,, and
tnt thee. factors are aireudy C aldorea, to some
exieni, under “oimsiancas.
“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 hi /y, medium. or/ow
probability that damage will occur. The
matrix provides the following levels for
measuring circumstances (probability
factors):
Levels 1 and 2 (High): The vwlatioa is
likely to cause damage.
Levels 3 and 4 (Medium): There is a
sigiuficant chance that damage will result
from the violation.
Levels 3 aed 6 (Low): There is a small
likelihood that damage will result from the
violation.
‘The probability of harm. as assessed
in evaluating circumstances, will always
be basod on the risk inherent in the
violation as it was c zrinut:ed. In other
words, a violation which presented a
high probability of causing harm when It
was committed (and/or was allowed to
exist) must be classified as a “hi2h
probability” violation and penalized as
such, even if through sonie fortuity no
actual harm resulted in that particular
case. Otherwise some who commit
dangerous violations would be
absolved. Similarly, when harm has
actually resulted from a violation, the
“circumstances” of the violation should
be investigated to calculate what the
probabilities were for harm occurring at
the time of the violation. The theory is
that violators should be penalized for
the violative conduct, and the “gâod” or
“bad” luck of whether or not the
proscribed conduct actually caused
harm should not be an overriding factor
in penalty assessment. However, the
responsibility for clean-up attaches
without regard to the probaoiiity of
harm (see Adjus ent Factor 3,
Covernmerit Clean-up Casts), As with
“extent.” the specific penalty guidelines
are an essential tool in charzcterimng
the circumstances of a violation.
Chemical control: With chemical
con ol violations, probability is
determined primarily by physical factors
which affect the chance of imoro per
exposure to the chemtcai’s effects. For
example, certain types of impro per
storage of PC s are more likely than
others to result in release of PCBs into
the environment, and actual duninirig of
P s is virtually certain to do some
harm. Cnter.a-for assessing the -
probability of harm resuitin2 from a
violation w:ll whenever ossibie be
based on information deveioped in
suaport of the chemical con ol rile.
Dota . .i a:her:.ig d . maz rd
assessment .A slightly different
approach is t.ke to evaluate
circumstances of data-gathering
violations. The effect on the Agency’s
ability to implemnent of enforce tne ‘‘
is the prlncipdl circumstance to I’
considered. Thus. the matrix lcv
measuring circumstances (probab .i. j
for data.gathering and hazard
assessment violations are as follows:
Levels I and2(High)—Violations which
seriously Impair t.”,e Aoencys abiiie:i to
monitor (data.gatheringj or evaluate
chemicals (hazard assessment).
Levels 3 and 4 (Meaium)—Viola iotis
which impaw the Asancys abth’y to m’rn:tor
or evaluate cliema ala in a less than cnucal
way.
Levels S and8 (Low -’-Violatfons that’
impair the Agency’s abtitty to inor’ttc; 0?
evaluate chemicals ma a less than important
way.
Under these miteria. a violation of a
Section 4 test standard (serious enough
to make a study totally unre!iab!e) h s a
higher probability of resulting in harm to
the public throu;h its effect en the
Agency and would probabi:’ be Level 1
or 2, while late su’omiss:on oi a rec’.iired
report might be only a Level 5cr 6 - -
violation.
Whenever possible. the specific
penalty system wilrattem t to clasaify
certain types of violations acccrci ig to
probability of damage. For exarn l ,
certain ryoes of VIO lattCsiS ala nisposal
rule might a.ways ir.voivm a high
probability of damage. llut other i
of violations aught involve such a -
range of probability of harm that each
case would have to be evaluated
individually. In the latter case, the
specific penalty guideline will include
criteria to guide the evauammcn of each
violation. It 13 thf ’ic’.ilt to estimate the
probability of harm presented by g iven
situation, particularly in light of the
many variables that make up
“circumstances,’ However.
“circumstances” can ne evaluated for
guideline purposes by comparing
situations. For e’ acipLe. it ts clear that,
as a general rule. there is a greeter
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 probaoiiiues within
each ci the six “circumstances”
classifications, For some violations, any
probability of causing harm of over io ’
might be in the “high’ range, while other
violations mmtht be c!asstfied quite
differently. One oartmcular fa::or that
may affect pr0000iiitv ceieraitnanons is
the length of time during which the
violation presents a threat to healt1’
the er.vironment. D’ oint PCSs i
unap roved lar,df :!l mat: tot caus
irnrr.ediatel’.’ but may tnevitabiy c .i ’
harm as it leaches into nearby

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FedernlReQister/ Vol.45. No. 1 / Wednesday. Sentember 10. 1980 1 Notices
59773
vator. But where only temoorary
.r s:or ge is intended, and
.1 is planned, the probability of
wouic be decreased accordingly.
4. Gvit . “Gravity’ refers to the
oire 5il seriousness of the violation. As
used in th:s penalty system. “gravity’ is
dependent variable. i.e.. the evaluation
of “natw’e,” “extent.” and
iuusLar.ces” wtll yield a dollar
i giire ott the matrix that determines the
gravity based penahy.
The Adjusment Facors
The cavity based penalty reflects the
senousness of the violation’s threat to
health and environment. The Act also
requires the Agency to consider certain
factors in assesszig the violators
conduce Culpability, history of SUCh
viola ons. ability to pay. and ability to
continue in business. In addition. the
Acr authorizes the Agency some
discretion to consider “other factors as
justice may require.” Under this last
authorization. two additional factors are
considered and balancedi the cost of the
violation to the government, and the
benefits received by the violator due to
his non-ccmpL ance. In order to compute
penalty adjusznients in a logical fashion.
adjustment factors are considered
following sequence:
Culpabiiity
- ‘ L J Historyt
(3) Ccst to the government
(4) Benefits from non .couipliance and
(5) Ability to pay/ability to continue
in business.
1. C .’!pabiity Since the law only
requires the Agency to consider the
culpability of the vloiator as an
adjustment factor. the existence of a
i-.olation can be established without
ralyir.g solely on this “blameworthiness”
factor. In other words, the Agency may
pursue a policy of strict liability in
penalizing for a violation, though some
aUowar .ce must be made based on the
extent of the violators culpability.’
Under this pena}ty system. the gravity
based penalty may be increased or
decreased. or may remain the same
depending on the violators
cuipa’oiiity.”
The two pririctoal criteria for
assessina culoabilitv are (a) the
‘: oiatcr S ,a7owie e of :ne particular
TSCA requirement. and (b) t e degree of
me aoia:or’scanL-oI aver the vio.maimva _. -
:oridiuou.
ate certain cuvumalancra wnere lii
3” or acme other cz?omtnstaimce tOId.I Out 01 a
ar.v S ColIti•o may sot tesu.i ill assessment of a
- ,I CIQA (m,.o c L lisciuii:yi. F;r . mp.y i ere
PC3j ate e .or.,y stated. ar.d a Inte cras c, into
3! gIou’iqv facility. cai ,mng a aptiL there aid
proDAoiy be no v,olauoc.
(a) The violator’s knowledge: The lack
of knowledge of a particular
requirement would not necessarily
reduce culpability. since the Agency has
no intention of encouraging ignorance of
TSCA and its requirements. The test
under TSCA will be whether the violator
knew or should have known of the
relevant TSCA requirement or of the
general hazardousness of his actions.
This latter point will allow the Agency
to find a viola tO; fully culpable even ii
he has no knowled2e at a particular
regulatory requirement when he does
have knowledge that the particular
substance he was dealing with was
hazardous. For example, lack of
knowledge of the PCB rules would not
reduce culpability I! the violator had
knowledge that the dumping of PCBs
creates a serious threat to human health.
Thus, a reduction in the penalty based
on lack of knowledge could only occur
where a reasonably prudent and
responsible person in the violator’s •
position would not h ave known that the
conduct was hazardous ar.violatlre of
TSCA. It is anticipated that such
situations and attendant reductions will
be rare.
(b) Degree of control over the
violadow There may be situations
where the violator may be less than
fully responsible for the violation’s
occurrence. For example. another
company may have had some role in
creating the violative conditions and
thus must also share in the legal
responsibility for the resulting
consequences. r an employee whose
conduct caused the violation may have
been disobeying his employer’s
instructions. Such situations would
probably warrant some reduction in the
penalties.
Cc) Initial c:dpability determination:
For penalty assessaient purposes. three
levels of culpability have been assigned,
as follows:
Level liThe violation is wiIk’uI. i.e.. the
violator intentionnily committed an act which
he knew would D c a violation or would be
hazardous to human health or the
environment.
—Adjust the G3P Upwarn’ 5%.
Level IL The violator either nad suificierit
knowledge to recogmac the hazaro crsated
by his conduct. or significant control over the
situation to avoid comnutting the violation.
—. o ad:ustment to the C P
Level UI.. The violator lacxed sufficient
kno lece of the potent:al hazard created by
his concuct. anc also lacKed control over the
situation to prevent occurrence or the
violation.
Adiusi the CgP aown warn’ 5%.
It is anticipated that most cases will
present Level II culpability. Level I
situntior.s. in many instances, could be
treated as crx.’ninai ‘,iulations (and often
will be so treated). However, the
decision to file a’crimioal action has no
effect on civil’penalty cu!culations and
is a totally separate issue.
(d) .4ttitude of the v:oIa i’r In
assessing the violator’s “ wtude.” the
Agency will look at the following
factors: Whether the violator is making
“good faith” efforts to comply with the
appropriate regulations: the promptness
of the violator’s corrective acuons: and
any assistance given to EPA to minimize
any harm to the environment caused by
the violation.
Since “attitude” is already refiected in
Level I culpability. and since it is largely
irrelevant to Level Ill culpability, this
adjustment will really only be utilized
where “knowledge” and “control” result
in a Level 11 culoabiiri iinding. While
Level II normally yields no reduction or
increase in penalty. the attitude at toe
violator may justify a penalty
adjustment of up to 15% of the GBP in
either direction. Objective evidence.
such as statements or actions of toe
violator, should be used to justify such
adjustments.
2. Histozy of prior such violations.
The gravity based penalty ma ix is
designed to apply to “first offenders.”
Where a vio,iatar has demonstrated a
similar history of “such violations,” the
Act requires the penalty to be adjusted
upward. The need for s’.icn an u wird
adjustment derives from toe vioia tor s
not being sufflctentiy motivated to
comply (deterred from non-compiyu )
by the penalty assessed for the prevmous
violation. either because of ecunom:c
factors consciously analyzed by tne
firm, or because of neaugetice. .An hcr
reason for penahz ng repeat vic. :o;s
more severely than “first offenders’ is
the increased enforcement resources
that are spent on the sanie violator.
The Agency’s policy is to interpret
“prior such vioLations” as referring only
to prfcr violations of TSCA. even inough
it would seem “such” could refer to ant ’
violations of EPA statutes. a: rainedmal
statutes in general (e.g.. OSH.A. CPSC).
However, since Congress did not
explicitly state it wanted the Aaencv to
go beyond TSCA in deterriimi
violation histor,, the Aoencv b
this narrower lnterp;etaLon. The
penalty system distmawshes between
previous TSCA violations in 2enernL.
and previous violations of m.’ae s.sme et
of reguiatorj reqwrements.
The follownig rules apai:: in
eval’.iatun ig h:stary of prior sucii
violations:
(aj In order to constitute a prior
violation, the orior violation must have
resulted in a nd order. either as a
result of an uncontested complaint, or as
a result of a conteste• complaint wrlicn

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Federal Register I Vol. 45. No. 177 / Wednesday. Sentember 10. 1980 I Notices
is finally resolved against the violator.
VioLations litigated in the Federal
courts, under the Act’s imminent hazard
( fl, specific enforcement and seizure
( 17). and imina1 ( 16(b)) provisions,
are part oi a violator’s “historj” for
penalty assessment purposes, as are
violations for whicn civil penalties have
been previously assessed. However, a
notice of non-compliance does not
constitute a “prior such violation since
no violation has formally been found,
and no opportunity to contest the notice
has been given.
(hI To be considered a “prior such
violation”, the violation must have
occurred within five years of the present
violation. This five year period beg ins
when the prior violation becomes a final
order. Beyond five years. the prior
violative conduct becomes too distant to
reqinre compounding of the penalty for
the present violation.
(c) Generally, companies with
multiple establishments are considered
as one when determining history. Thus,
if one establishment of a company
commits a TSCA violation, it counts as
history when another establishment of
the same company. anywhere in the
country, commits another TSCA
viola don However, two companies held
by the same parent corporation do not
necessarily affect each other’s history 11
they are in substantially different lines
of business, and they are substantially
independent of one another in their
anageent. and in the functioning of
their Boards of Directors. In the case of
wholly- or partly-owned subsidiaries.
the violation history ci a parent
corporation shall apply to its
subsidiaries. and that ci the subsidiaries
to the narent.
(d) lithe prior such violation is oi a
difierent TSCA provision or regulation.
the penalty should be upwardly
adjusted 25 percent for a first repetition
and 30 percent for a second repetition of
the violation. If the prior “such”
violation is of the same, or closely
similar rovision or regulation. the
penalty should be upwardly adjusted 50
percent jot the first repetition and 100
percent for the second repetition.
For these purposes. a prior such
violat on is the ‘same or closely
related” if it is urn /icr to the present
violation. Each TSCA rule or regulation
is considered a separate entity for
ciosely related” purooses. Thus the
identical provision does not have to be
violated both t’jnes for this higher
ad;ustment to be made. For exam Ie.
two seoaraza uniawi i dzsoosals of PC s
ay be “closely sim lar’ if the PCBs
were unlawfully dumped on the
highways in the fIrst instance, and in the
second nstaace. PCBs of over 300 ppm
were burned in a facility that did not
comply with the PC incinerator
standards.
The specific guidelines will give some
guidance on wnal violations are “ciosely
similar” to others, and may set uo a sliding
scale of upward adjustment percentages
rather than the 50 percent or 100 percent
figures provided here.
3. Govern.’nent clean-un costs. An
adjus ient a r not specified in the
statute. but ‘Atitci’, the Agency feels
“justice ‘ ‘ reouire(sj.” is
reimbursement t thegovernment for
funds expended to investigate, clean-up,
or otherwise mitigate the effects of a
violation.
Generally, the dean-up expense of a
violator is to be borne by the violator as
a necessary cost of violation in addition
to any civil penalty assessed. The
government may seek a Federal district
court i tt junction under § § 7 or 17 to
require the violator to dean-up. but
there will almost certainly be situations
where the government will have to
clean-up the violation to quickly
alleviate any hazards created. Where -
these latter situations happen, the
government could probably file a non-
statutory suit in Federal district court to
recover funds which it expended. but it
could even more easily assess these
co 5ts, when they are sufficiently low, in
an administrative proceeding uncter § 16,
particularly where a § 16, particularly
where a § 18 action is going to be D.led
anyway.
The major limitanon to seeking
reimbursement of government -
investigatory and clean-up costs is the
limit of 525. O0 for each violatlon.
However, since each day a violation
continues constitutes a seourate
violation for which a S25.000 penalty
may be assessed, in many instances
clean-up and investigatory costs can be
recovered wtiere the violation is a
continuing one. However, where a
penalty would be in the area of S23.0C0
for the viola con even before government
investigatory and clean-up costs are
considered. a § 16 action wcul be of
little value in recovering these
additional costs.
In adjusting the aenaity. the
government lnvest:oatorv aria clean-up
cost should be adoed to the oenaitv
calculated thus far. Where the totat
penalty under th:s method exceeds
523.000, the enaitv sricuid be cut back
to 325.000. As will be d:scussed ater.
this type at situation !ends tse!f o
u iiization of tne cont nuing vlcia cn
provisions of 15.
It is important to note that
consideration at 3overnment
investigatory and clean-up costs in the
penalty assessment is not intended to in
any way affect the right of the
government to recover investigator’ ‘ m d
clean-up costs in a separate cow’
action. A violator may argue tha
investigatory and clean-uP costs h.. -
been abrogated by settlement oi tzie
penalty. Thus. if there is a reasonable
possibility that the Agency will seek to
recover such costs in a separate suit,
this factor should not be utilized in
assessing the § 16 penalty. Thus the
investigatory and clean-up costs will act
be included twice in calculating a
penalty for a violation.
4. Coins from noncompliance.
Another adjus ent factor which
“justice ‘ require s ” is that the
violator not profit from its violative acts.
TSCA’s ability to prevent harm to puolic
health and the environment is severely
weakened whenever an economic
incentive exists to violate the law. T’ e
penalty system attemots to eliminate, or
at least reduce, these economic
incentives, by adding to the base
penalty an estt.’nate of the economic
gains obtained by the violator a
result of his noncomplianco.
Among such ecor pmnic gains would be
money saved by not investing in new
equipment, or by not following more
costiy operating procedures. or proflts
gained throu2h the sale of ilieoal
products. Rem vir.g such gems no
protects the public by deternng
violations, but also prevents violators
from gaining unfair competitive
advantage over inose who are
coplyuig with the law. For example, a
company wmcn manuractures a new
chemicaL without su’omitung a
premanufacture iouce. pursuant to § 5.
may gain a s or. competitive
advantage over another company who
intends to mar.uiac ’.i:e uie maine
chemical. but follows the § 5 pracedure.
The violator should be per.aiizad at least
to the extent of the economic gains
achieved throti h his noncomn:ance.
Any other result wculd put a premium
on norlcamance.
The specific p nelty gu deiines
should, where possibi . ind caie the
types of economic gains from
noncompliance. and iri:iude either
stancarn estimates of suca gains e.g.,
the purchase once of recuirec new
equipment or faci iucs). or a procedure
for eszimattn the cain. In cesea wnere
economic gains resuitec from :he
coican , s failure mc maxe recuired
capital anc oceration and maintenance
ex enditures, those cair.s must be -
calculated in accordance with the
A ency’s Seotemoer 7. 1973. e’
Support Document’ for conioutin
penclt es uncer the Ap:;l :1. L.

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Federal Register I VoL 45, No. 177 / Wednesday. September 10. 1980 I Notices
Ia
,r.alty Policy. The resulting economic
figure must be “eviawed by the
ally Policy Panel for
. with that policy. In many
des. the CS? will be sufficiently
wir. out adjustment for uus factor.
, ter situations where there is no
c r.Cm motive or benefit from
complianc2. or when the cost of
:.ea 3 up a violation outweighs any
economic benefits received, this
1 d ijsunenc factor need not be applied.
. Ability to pay and ability £0
,rthwe in business. (a) Usage of these
rrL s. The Act lists “ability to pay’ and
abiiity to continue in business” as two
s us ent factors. but for the purposes
c i the penalty system the distinction.s
between the wo are so narrow and
art_ficial that they are :reated as one. In
:akr.g this determination it was
ror.sidered that “ability to pay” might
e Linited (in the extreme sense) to such
idicatora as the market value of the
violator in liquidation, the profits
acc.iaed by the firm over a given time
;ericd. the net sales 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 borrowabia cash.
Essentially, however, a firm can pay up
V ‘ ioirst where it can no longer do
;. However, it s evideric mat
.is. by inserting these two factors
• he Act. for mos: cases did riot
intend that TSCA civil penalties present
so ‘eat a humeri as to pose the threat
of astroytng. or even severely
L ’npainn; a flrm’s business.
Measuring a !L’ms ability to pay ‘a
cash penalty. without ceasing to be
ooerable. can be exremeiy complex.
The focus is on the solvency ci the firm.
Rather than perfornung extensive
naocial analysis of a firm. which
would make an unreasonable efiort on
the part ci both the Agency and the firm.
it is believed that a year’s net income, as
deteined by a fixed percentage of
total sales. will generally yield an
amount which the firm c n afford to
pay. The averaee ratio of net income to
sales eveI for U.S. ms miacturica in tne
past five years :s approximately five
e ent flS7S !:anczn:c Reoorr o ,’ the
P. sident). Since sinail i-ms are
generally slighzly less profitable than
av ge si.zec firms. and since small
firms are the cries most likely to have
thfflculry pay:ng TSCA penalties. the
uideiine is reau ad :o four cercern.
3 cnica y. a fut i wcuid often be abte io oay
Ci t £ eacaily wauta CIU3I it 13 f .Ie for
: . tnca a recralluaIlon 1i 51 £Li :e2 e
aeea In
nce’ .rtt ‘auli.t ‘ av’ w.ii be teec :o
Iz’ .,i4e ‘ u.i;cy to ccn:tnu. an bujanegs’.
Even where the net income is
negative, four percent of gross sales
should still be used as the ‘abilaty to
pay” guideline, since companies with
high sales will be presumed to have
sufficient cash to pay penalties even
where there have been net losses.
For purposes of calculating the ability
to pay. figures (or the current year and
the prior three years should be
averaged. Four percent of the average
sales will serve as the gu:deilne for
whether the company has the ability to
pay.
‘ (b) Application of ability to pay.
While it would be possible for an
inspector to utilize Dunn arid Bradstreet.
or to incuire during the course ci the
inspection to ascertain sales data, the
firm should be presumed to have the
ability to pay at the time the complaint
is issued. This is preferable not cnly for
purposes of adinistrauve convenience.
but also because many firms will not
have their sales information in Dunn
and &adstreet or similar publications,
and because the Act indicates that
financial and sales data are only subject
to inspection when “the nature and
extent of such data are desci’ibed with
reasonable specificity in the written
notice (of inspection).” § 11(b)(). This
singling out by Congress ci these fac:ors
indicates 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
to the complaint, both the Agency and
the inspected firm will save time and
resources by using this approach. Cf
course. if such iniormation can easily be
obtained prior to or during the
inspection, there is rio harm us doing so.
L i the firm raises the issue of inability
to pay in its answer, or in the course of
settlement discussions. the four percent
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 s:atenients. etc. If the proposed
penalty exceeds four per:ent of total
sales. the penally may be recuced to an
affordable leveL
There may be sce cases where a
IL’m argues that it cannot afford to pay
even though the penalty s aejustea
dces not exceed fotr percent of sales. A
variety ci factors. : o conoiex to
discuss here. might recutre such furmner
aujusmient to be mace. In cooiex
cases. the agency m:y need to rely on a
management division economist or an
accountant to anaty:e .he rims s abtuty
to pay and, on a case-by-case basis, to
further reduce the proposed penalty.’
6. Other factors at justice may
require. While two “other (actors” have
been incorporated as adiusunent
factors. other issues might arise, on a
case-by.case basis, which should be
considered in assessing penalties.
Among these factors are:
Money spent by the violator in
cleaning up or otherwise mitzgacion the
harm causeo by the vicicrion. Normally
there should be no reduction for these
costs. since it is part of the cost of
violation. However, there may be
instances here the cost of penalty. plus
cost of cleanup. are excessive for the
particular violation, so that sortie credit
for these expenditures should be given.
• New ownership for “history of
violations. “It may be unfair zu some
cases to burden new ownership with the
previous owner’s history.
• Vctional defense.
• Foreign policy.
• Canfii:t or a:rtbi uicy’ v:s-a-v;s other
Federci statutes c d reguia:th s (e.g..
OSHA. USDA. DOE).
• £ivizvnmentolly benekial
expenditure. Circumstances may arise
where a violator will offer to make
expenditures for envtronnicutally
beneficial purposes above and beyond
those required by law, in lieu of paving
clvi ! penaitl s. The Agtn’.cy. in penalty
actions in the U.S. Disiricr Courts under
the Clean Air and Water Acts. has
determined that crediting such
expenditures is conssstent with the
purpose of civil penalty assessment.
Although civil panal es under TSCA are
adnunistratively assessed. the sume
‘The analyst must keep several particUar pouua
In and. lust. email firms ci:en retort no laxacle
income. an instead prnviae a rstj,n of tr.air
ownerloveralcr, Lhro h salares ar.c newfits sucb
as au:cmo’oiies. ,cscaI ptaes. an so f’ r. i. nen
recansoticun the firm. cssn flaw, ownerf
OPC!ICOt 5 should teceive a. payment fcz services
ony that amount which they cnui cOcaan (or
provac:r.c s; .ilar ser.’ oc in ir,s ;ererel lacor
merest. The rest of tnelr coo;ensai.on ,nct
properly be assignee to profit for inc c am. The
.ccor4 puma to keep ma m nd in exaIr inmn3 ac
rarw’ns is thai email. ;nvaaamy.owned plants often
have several ccrpoetiora met uo 1, nandie anous
aspects of *.e business. U one er core of these
ccrpsrations is cui;o:Ie tsr soti.e ears or . ‘ sc.
v,o.at:oc. the tax returns icr cii in. ivea
creoracions acowd be .xatn.nec and a carnomnea
men P.ow prepared. Or.ee i nc inns iu.stori:sm casa
flows have ocen asseccied. inc analyst ust rnaxe
some es.esacc’u ot .s aaemy tumure earn of :re
coznoar.r. .a so caine the ar.a i it ‘must co sicer the
finns .ic. ii to earn casa i .n :rs c;eraiicns. its
aoi lIy to ,.quic te assets to sneer oer.a :v
‘ana Cta. ! ;c to.n in S s;nessi. and :3 ac : :rv o raise
cue ”, from ienaer, attn is owners. rie
anai ,s must puuae nese (actors wmiCaut eeeenc:no
excessive resources on th. analysis. Iicft a process
can be sss:sced thrsunh aftacusesena warn
i:n..il,e.m.a nu a .i .uuie in ne part.c’., a:
:nd:strv ca l eb a, loeni banker, roneutimni ,. and
otners. if .lppropru:c.

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59:’,
Federal Register / Vol. 45. No. 1 7 / Wednesday, September 10, 19t30 / Notices
rational applies. This adjustment, which
constitutes a credit against the actual
penalty amount, will normally be
discussed only in the course of
settlement egot :ations. The criteria for
acceptable credits are discussed in
detail in section VIII of the April 11, 1978
Civil Penalty Policy. Sefore proposed
credit amounts can be incorporated into
a settlement, the c mpta inant must
assure htmsel! that the penalty (with
credit adjustment) is consistent with the
Apr.! :i. 19 a. Civil Penalty Policy, and
that the company has not already
received credits in another enforcement
action for the same environmentally
beneflcial expenditi.ires. The settlement
agreement incorporating such an
adjustment should make clear what the
actual penalty assessment is. after
which the terms of the reduction should
be spelled out in detail and in a dearly
enforceable manner.
Significont-nnnor barc’er!ine
viola:toris. Occasionally a violation.
wnile of siziiflcant extent, will be so
close to the borderline separating minor
and si ficant violations that the
penalty may seem c .isproportionately
high. In this situation. additional
reduction of up to 5% off the GBP may
be applied before the other adjustment
factor are considered.
Continuing Violations
Since the Act provides not only that
civil penalties may be assessed up to
S25.000 icr each violation, but that each
day a violation continues constitutes a
separate violation for which additional
penalties may be assessed. there :s a
potential fcr vety ia e penalties to be
assessed :n many situations. In some
cases, such large penalties will be
appropriate for continuing violations.
while for others. such as late inventory
reporting, assessing an additional
penalty for each day of violation would
yield a penalty assessment fcr greater
than the violation merits. The specific
penalty guidelines will discuss the types
of continuing violations which should be
assessed on a per-day basis. Tha
discussion should indicate now criteria
such as this will be applied. e.g.. which
continuing violations should never be
penalized on a per.day basis, and which
should usuaily or always be so
penalized.
W’r.eri a nenalty is assessed on a o cr.
day basis mr a cor.tinutng violatton.
care must be taken to assure that the
adiustment factors. “govemment clean
un costs’, and “economic cenefits from
non-ccmpi:ance’ are spread over the
entire penalty, since these figures are
cac’.ilated by looking at the entire
violative situation. For examnie. if a
:ontutuir.g vioiation Las lec four days
and generated 540.000 in government
clean.up costs. these 540.000 in costs
should be added to the doily penilties
(aithough each day would still be Limited
to a maximum S 5.OcO penalty .
Conttnuir.2 violations are
distinguished from multiple viola tioris
and violations whtcn occur several
separate times. These latter violations
will generally be separately assessed.
Settlement
This guidance does not prescribe a
specific percentage guideline for penalty
reductions in the course of settlement.
While, as a general rule, penalties may
be altered in the course of settlement,
there should always be sortie
substantive reason gtven. which is to be
incorporated in any settlement
a eement and consent decree and final
order for any penalty reduction. Other
aspects of settlement are discussed in
the context oi particular pendity factors.
Designing and Applying a .Spec flc
Penalty Guidance
Designing a Spec (ic Penalty G tidonce
The specific penalty guidar.ce, which
will usually be developed as part of the
enforcement strategy for a particular
regulation. will provide the detailed
information needed to fit pc::cui .ir
violations in the overall civil penalty
system. Each specific penalty guidance
will address:
• To the extent possible, the types of
violations that can occun
• How to evaluate the nature Ii e.. whether
cnesticai coetrob or information gatheringl of
a violattom
• How to determute and classify the extent
of possible harm posec by a given viotatiorisi
• Special cor.sioerations in ustng ‘i ’.e
adlusiment factors. par:cula&: ir.ciu .ng
means of estimating gove ment clean.uo
costs and economic benefits from non-
compliance:
• How and when to utilize the concept of
muiti.day violations.
• y “other matters as justice may
require’ which nay ;aruculdriy apply to the
given reuiatioo: ar.o
• Anything else necesiary to effectuate
enlorcemer.: of the regulation and the Acts
penalty poucy.
Applying a Soeczf!c Pe ’ .a!:v GF.adancs
This section brtefly summarizes the
steps necessary to calculate a pro7osed
penalty assessc ’.er.t.
Step 1: 1t i ng hc soecific oenaitv
guidances. ae’ernme ‘tie .ature. extent. one
ciinistances of :ne vioiat :cn.
Siep 2; F:nd the aocroat-.aie e’ tenFand
c mstances levels on the grsvitv based
penalty matrix to i ”u tne :ne gr.ivtty oased
penalty (GaP).
Step 3 D ci :itc oc :cr.t..a
adjustment fur c..paoui:y. ii any.
Step 4: Determine the percentage
adjustment for history. if any.
Step 5: Add the adiustnient pe cen’
from steps 3 and 4 and apply the G
amount is in excess of 523.0CC, rcduc
penalty to 523.00C.
Step & Multi iy the tIep 5 fioure by the
number of days of ioliizicr..
Step 7: Apply govemment cleanu: costs
adjustment, if appIic3ble. Add to the step e
figure.
Step B; Apply ec300m;: gains from non
compliance adjustment. if applicaaie. Ma tO
the step a figure.
Step 9: Make G bet adjustments “as justiua
may require.”
Step 10: Issue formal complaint proposing
the penalty.
Step 11: Discuss settlement any time before
a final adm:nistrative law iud es decision
(unless the complatnt is not contested and
becomes fittal as a matter of aw). If
applicable, determine vioiaicr s ap.itv to
pay. U ap;ropn i2. ranuce penalty to amount
violator can afford to pay. Penalties may be
reduced as a ccr. iiucn of set:lemer,.
Step 12; Issue F:nal croer.
Civil Penalty Assessment Worksheet
Name of Respondent:
Address of Res’rondent’
(1) Complaint l.D. Ncmber
(2) Date Comoig:nr lssuen
(3) Da Le Answer Recet ed:
41 Dale Dclautt Ornsr Sent:
5 Date Ccr.acnt Aoeement Sqned:
(6) D tc Final O;d r St’n::
(7) Date Remittance F.ocei,eo:
1. Gravity Based Penalty !CBP) from
matrix. S.— ..
2. Percent increase or decicase for
culpability. i— .—.
3. Percent increase for v:oiaticn his:orv,
4. And lines 2 and 3. —
5. Multiply CD ? by percentage total ci’. .ne
4. -.
6. Add lines 1 and 5 (s btract line 3 from
line I if necative perce’nagel. 3—.
7. Enter lute 8 amount a: 5 2 5.0 00. whic e er
is less. - .
8 Muttipty Line 7 by tne r.’jber of da a of
violation. 5.—
9. Government c!ean ua costs, if any 5—.
10. Economic gains :rcm non-compliance, if
appropriate. S—
11. Ada l;nes 8 rnrc :n 10. 3—.
12. Total oi outer aciusimenca as justice
may require. 2 .
13. If line 12 represents a net uc:eose to
the penalty acd me ‘.2 to line 11.3’—.
or
If line represents a net deceose to me
penalty sub::ac: kr.e 12 from mc :.
Note.— ne 13 should e me arcoosed
penalty for a given vioiac,on. ‘ ‘ .is proce ure
is reoea;cd for cscn %tuiacion.
PCB Penalty Policy
Jntroduc:;an
Dackgrour.d
On Marcut tn 10 ). • tmc ’:
a TSCA c•..Irun...t. Puiic
memorandum. That dc:ument

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Federal Re ster / Vol. 45, No. 177 1 Wednesday. September 10. 1980 / Noticc
( iplement3 a system for determining
pnal ies in administruti’. e actions
pursuant to Section 16 of the
i scance Car.troi Act (TSCA).
.: that system. penaities are
se ined in two stages: (1)
e ermu1ation of a “gravity based
;enaity” (GB?). and (2) adius .ents to
t . e gravity based per.alty.
To determine the gravity based
erialcy, the following factors affecting a
violations gravity are consiaered
• The 1 anire ” of the violation.
• The ‘extent’ of envroiuaentai bar that
could result fram a given violauon. and
• The circumatancas ’ of the violation.
These factors are Incorporated art a
matrix which allows determination of
the appropriate gravity based penalty.
Once the gravity based penalty has
been determined, upward or downward
ad usanents to the penalty amount are
made in consideration oi these other
factori:
• Culpability.
• History of suth vioia ons ,,
• Ahuay to pCy.
Ability to continue in business, and
• Suon other matter, as 3ustice may
require.
The TSCA Civil Penalty Policy system
provides a frarneworic far the
- -‘lopnent of incividual penalty
ices for each r.ile promulgated
TSCA. This document sets forth
ency policy for the use of-the-CBP
Matrix to assess penalties for specifIc
violations ci the regulations regarding
pcLychlor. ated bipr.eny:s 1?cBs). These
regulations appear at 43 FR 7150 (Feb.
17. 197a) and 44 FR 31514 (May 31. 1979).
The document also v ti1 explain where
Since the purpose of the PCB
reT.ilauorl is to prevent acdiuonal P 3s
from entering ‘he envtronntent. all
violations of it are chemical control
violations by nature. Thus. the nature is
the same for all violations, To use the
matrix to cetermine a per.aity for a
vioiauon. it is necessary to
m:rie the extent and crcuznstances
o each viola uan.
multiple violations should be charged.
and how penalties should be determined
for soon violations.
This policy is being issued as an
interim guidance for the determ:nauon
of penalties for violations of the PCB
regulations. The Agency will review its
experience with this policy before
issuing a final penalty poiicy for the PCB
rule. The final policy will also address
any spec al cons;derctions w’rucn the
Agency decides should be used to apply
the adjustment factors (e.g.. removing
benefits from non-compliance.)
A summary of the policy appears
immediately below the applicability
section. That summary is followed by a
detailed explanation of the policy.
Appicabtlity
This policy is Immediately applicable
and should be used to calculate
penalties for all administrative actions
concernir4 P Bs instituted after the
date of the poiicy. regardless of the date
of violation. Pending cases snould be
reviewed to deterrrune whether the
penalty cakulated under this policy is
lower than the penalty in the ctvil
complaint If this policy yields a lower
penalty. an amendment to the complaint
should be made to substitute the lower
penalty. This policy sl ould riot be used
to raise penalties in ex:st : g actions. No
case should be settled for an amount
higher than the penalty which this policy
would yield.
Summary of the Policy
The gravity based penalty (GB ? ).
based on the nature, extent, and
crcumstances of the vioiaton, is found
from the following mau ’ix
Extent
The extoni is determined by the-
amount and concentr3 ion ot the PCS
material involved. The totul we:oht of
PCB material should be ascertained for
each violation ci me rule. That wetgnt
should :han be reth:oa. der’er,ciin on
the concentration, as follows:
Table 11
Concentration Reductions
(1) 50—499 ppm— ’O reduction.
(2) 500-9.999 mm—Sri reduc: on.
(3) :0.000—99 99 ppm—Cs reduction.
(4) over 100.000 ppm—no’reducnon.
£vceDtions: This reduction step does
not apply :n the following
circumstances:
(I) ‘iclatioxis of 40 CFP 761 10(d) (road
oiling. coaling, dust control).
(il) Where the violation consists of faiLing
to test to qualify for an authcrizauoxu or
(lii) For solids, where the unit of
measurement is other than the actual weight.
Extent categories: The total weight’
figures. reduced by the concentrat:on. if
applicable, are used to dctenu:ne extent.
as follows:
Table I D
(A) Major—3000 ka. or more.
(B) Sign:ficant—1000 kg. more. but less
than 5000 kg.
(C) Minor—less than 1000 kg.
Alternative measares: If weight is not
available, use these aite.riiauve
measures:
Table IV
(A) M jot
Liquid
(a) 1100 ga:lor.s or more, or
fo) a contaminated, area of “ 50 square feet
or more, or
(cJ 300 or more large capacitors.
Nere-Iiqwd
(a) 100 or more flfty ’ ive gallon drums
containm contam:naced soul. rogs. ceoris or
small capacitors; or
tb) 25 or more drained transformers, or 100
or more empty dr .ui s which once con:air.ec
PCB fluid, or any orner PCB soi:ds hav ng a
volume of 750 cubic feet or more.
(B) S, n.ificon
Liquids
(a) 0 gallons or more but less than 1100
gallons. or
(b) A coniaiinlnated area of 50 sauaie feet
or greater. but less than 730 square feet. or
(C) 60 large capactior , or more. Out less
than 300 large caoac tors,
Non-liquids
(a) 20 or more. but less titan too fifty-five
gallon dru.’ns comauling comamuiaieo soil.
rags. d oris or small ca;ac:tcrs.
(bi S or more. less rian i. czaIn e
transformers, or more than 23, but less than
100. empty mums wn ca once contained PCS
or any amer solid iav:n a volume of
150 or more. Dut less i r. 750 cuoic fast.
(C i . ,ort
59777
Table I
Ea *
of x nua avv p
A
S
C
M
S. .& ..iit
i
8 I S i o0100? 0I qw
i ’q r.I l
I
2
3
4
S
a
$25,000
00.000
15.000
(0.000
5000
2.oco
517000
(3.000
10000
5.000
3.000
tico
S5000
3.000
I 500
1.000
500
em
&W vIp
L v qs

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59778
Federal Register / Vol. 45. No. 177 / Wednesday. September 10. 1980 / f Zoti:es
Qqivd.
(aj Less than O gallons. or
(b) A contaminated area of less than 150
•quare feet.
(ci Less than 50 large capacitors.
Non. .’iqu ds
(a) Less than 0 fl ty.ftve gallon durms
containing contarrunated soil. iags. debris or
small apaci:ors: or
(bi Less titan 5 di ained tiunsformers. 20
f!i y.five gallon cium. which previousiy
contained PCB fitucis. or any other PC3 solid
having a volume of approximately 130 cubic
feet.
SpiI!s into waler, food or feeds. Any
P disposal which results in
contamination of surface or ground
water, or food or feeds is always major
in e.xtent.
Circuaistciices (P obabiJiy far Damage)
To determine which level on the
circumstances axis to use, classify each
violation of the regulation into one of
these eight categories of violation:
(1) Disposal
(2) Marking
(3) Storage
(4) Manufacturing
(5) Processing
(6) Distribution
(7) Use
(8) Recordkeeping
Alter classifying the violations.
determine the level on the
circumstances axis from the following
chart
Table V
High renge
Leve/ one:
(1) Improper disposaL
(2) Mani&Cacturing
Level two!
(1) Processing.
(2) Disinoution.
(3) Improper use.
Methrrni rvnge
Level three:
(1) Major storage violations,
(2) Major recnrdkeeping violations,
disposal fadliltie..
(3) Maior marking vioLations.
Level four?
(1) Major recordkeeping violations, use and
storage facilities.
Low rw!ge
Level five
(1) Failure to date P items placed in
Itmage.
( Minor storage violabons.
(3) .1inor maJx. ing vioLations.
- J4YelSJX -
(1) Minor record.keeeing violations.
(2) Faüure to use ‘No ?C3s” laole as
.‘qui ied.
Fin ding the CBPpenai . The extent
and circumstances. as determined
above, will determine a penalty amount
on the GB? Matrix. Tabie 1. This fig’.ire
should be entered on me one (1) of the
Civil Penalty Assessment Worksheet.
(hereinafter, ‘worksheet”) attached as
Appendix A. The other penalty factors.
such as culoability, ability to pay. arid
others. should be applied in the mariner
described in the TSCA Civil Penalty
Policy.
Multiple Violations
Assess multiple violations against a
single violator in any of the following
circumstances:
(1) The violations fall Into more than one
violation category
(2) The violations are in substantially
different locations: or
(3) There is evidence that the violation has
been committed on repeated occasions or has
connnued for more than one day.
If multiple violations are charged
because of evidence of repeated or
continuing conditions, the penalty will
normally be calculated using the
proportional penalty calculation. which
appears in Table VI, below. However,
the Agency can exercise its discretion
either to charge for only one day, or to
charge on a straight per day-or per
-violation basis (CBP X number of days
or violations), depending on factors such
as substantial actual harm, the unusual
nature of risk presented, or other unique
circumstances,
Table VI
Pivpoztional Penally CoJcArlalion
Step 1: Find the total amount of PCB -
materials invoLved. If more than two times
the major extent category. (more than 10.000
kg.) go to step 2.1! lees than two times the
t ui um amount in the major extent
category (less than 10.000 lcg.). use tois
amount to get a penaity from the C ? Matrix.
Divide the penalty by toe number oi days
and enter on line one of the worksheet
(Appendix A).
Step 2 Divine the amount front step one by
the nunmiwn amount in the ma pot extent
category (3000 kgj. (Round fractions to one
decimal place.)
Step 3: Multiply the amount form step two
by the dollar amount from the CliP Marux
major extent category. This is the total GB ?
charged.
Step 4; Divide the amount from step 3 by
the number of days or violations involved.
Enter this daily amount on line one of the
worksheet (Appendix A).
Explanation of Policy
Nature
Since the purpose of the ?C3
regulation is to prevent further
introduc:ion of PCBs into the
environment. this regulation is a
‘It should be noted that if the proparuonal
penatry caiculalion is based on reoeated v oiatior’..,
then the ca ,ciu,.i;on at lint 8 of the workaneet
should represent the nuinter of violations rather
titan tile minion? of days.
chemical control reculation. as defined
by the TSCA Civil Penalty PoLicy
Accordingly, most violations of ti”
regulation are chemical control
violations, The only exception i
vtolatior.s of the recordkeepir.g
requirements, which are control-
associated data-gathering in nature. T’ne
Agency has taken this into account in
designing a specific policy for PC i
penalt:es. The definitions ci the ‘extent ”
arid “circumstances” cateacr:es below
reflect the nature of these viola hots.
Extant
Because the P regulations are
chemical control and ccntrol-assoc ated
data-gathering in nature, the greater the
amount of PCi contairun material
(hereinafter. •‘PCB material”) involved in
a particular violation, the more likely it
is that harm will restlt from the
violation of the PCi rules. For thts
reason, the amount of PCB material’
involved in a particular incident will
determine whether tie major.
significant. or minor extent category
should be used in deriv rrg a peualty
from the CBP Matrix. SLice the
concentration of the PCi naterfaI
involved in an incrtient will also affect
the potential 107 harm. tkus factor must
also be considered in determin:ng which
extent category s appiicn:le to a
particular viola non.
Amount f Material Involved -
The most obvious measure of the
amount of PCi mater.al involved n a
violation is weight. Therefore, the
weight of the PCi mater r l involved Ln a
violation is the or.znarv eturm:nant of
the extent caiegcry to oe usea to fInd
the GB?. To be consistent with the three
extent categories of the GB? Matrix i.e.
major, sign:flcant. and rnmor , three
weight classes have been chosen to
define the extent of a PCi violation,
These classes are as follows:
(A) Majon 5000 kilograms or more.
(3) Signuficanti Between 1000 and 3000
kilograms.
(C) Minori Less than 1000 kilograms,
The minor category weight was
defined as less than ICOC kilo racis
because this is slightly less than the
amount of PCBs n art average
transformer. Since a major por zon ci the
PCDs in existence are itt trans rners, t
is essential that these items be diacceed
of proper!y. Acccrthng y. the Agency
defIned the minor ca :e orv as art
amount of PCEs Less tnan the contents
of an average transformer, so that most
transformers would fall In the sugt’ ‘nt
cateeory. The i\Gcncy beI eves l’
encoura2e the oreper disnosal of
transformers.

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Federal Register I Vol. 45. No. 177 / Wed rcd.it’ Sn ,! mber 0. 1930 I Notices
1 e malor category weight was
:ted at 50 ;. t tiograms. This is
, tiy less than he contents of five
er3ge s:ze ::ar.siorme:s. and
:orresponds to the iac that the cenalty
for a major :morooer is osai is f;ve
:;mes lager than that for a minor
:noroper disposal: that is. S2.5.000 versus
S5.000. (As will be seen oeiow. imoroper
d:soosal :s always level one on the
:ums:ar.ces axIs.i The significant
category is defined as 1.OCO kg. or
sreater. but less than 5.GCO kg. This
aefiniuon is a direct consequence of the
definition of the other two categories.
f, nts Other Than Weighs
The Agency realizes that there will be
situations where the number oi
kilograms oi P 3s involved is not easily
dece uned. Jr. many cases. other units
of measurement (e.g. gallons. cubic feet.
et:.i may be more easily obtained.
.Aodit ionaliy. some violations will
involve r.oc.liquzd PC .ciaterLal. usually
as a result ci :iquid P s being spilled
nio or cleaned up by absorbent solid
aterials. Such solids will often weigh
considerably more than liquid PCBs. If
tne Denalty for such solids were based
he weight categories outlined above,
!sul!. in the Agency s opinion.
id be :nequitabie.
or these reasons. the A;ency has
decided to defir.e each of the three
extent categories by several different
units of measurement. Although these
units of measurement are not
necessarily ecual. it is the Agencys
epinion that they are generaily
comparable.
(A) . fajo,r
IJqt.rzd
Fa) 1100 gallons or more. or
fbi A contaminated area of 730 square feet
or more. Cr
(eJ 300 or more large capacitors
Non .liqwd
(a) 100 or more flhty .flve gallon d.ums
containing contamicaieo soil. rags. deons or
small c amtors. or
fbi 3 or more crair.ec trar.sfcrners. or 100
or more ern iy ffty.(ive gailan crums wnicn
once ccntair.eo ?C3 fluid, or any other P
solid having a vciume of 730 cubic feet or
mare.
t!) S1gnthcon
“1 220 ;ailons or more. ut less man 1.100
s. or
A conZanunateG area of 150 square feet
eater. oui less tr.an 730 scuara feet. or
(c) 60 large capaciiors or more, but less
Ihas 300 large capacitcrs.
Non ./iqu,ds
(a) 10 or more but less titan inn. fifiy.flve
gallon drwns containing ccataminaied soil.
tees. cebris or small cdo.ic;flr5.
(bI 5 or more. but less thOn 1.5. drained
transformers: or more i an 0. but leqs than
100. sinoty fifr .five galion drums hich once
contained P B fluids. or any otner solid
having a volume of 130. but iess than 730.
cubic feet.
(c) . !inozr
Liau:ds
Lass than 220 gailons. or
(b) A contaminated area at less then 150
square feet. or
(c i Less than 60 large capacitors.
Non./iqu,ds
(a) Less than 20 rilty.nve gallon drums
containing ccritamina ted soil, rags. debris or
small capacitors: or
fb) Lass than 5 drainea transformers. 20
fiftv.five gallon drums which oreviously
containea PCBs fluids. or any other PCB
solid having a volume of approximately 130
cubic feet.
The figures above are based on the
- assumption that the densitraf PCB-
fluids is 10 lbs. per gallon. wmch s the
average density of h:gh cc:icentration
PCB’s. If the actual density at the £kud
involved is known. then tne actual
density should be used to convert the
volume of fluids involved into kilograms.
The figure for capac tors is based on an
average at 38 pounds of fl :d in the most
popular models of large capac tors.
Because it is often difflcult to
determine the amount of PCB’s in a
.s lid. the Agency did not attempt to
define the extent categories for solids by
jtng to estimate how much solid PC!
material had the sante ai .ouni of PCB’s
as the average PC! transiorn-.er. Instead.
the Agency tried to maintain the same
economic incentives for solids as for
liquids. Thus. the decision t make 20
drums the cut off poir .i (or me 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 PC! sol.ds. is a proximaia1y
the same as the cost of ir.cinerating the
liquid in one ti’ansformer.
In certain instances, the use of the
different units of measurement
discussed aoove would result :r. a
particliiar violat:on falline into more
than one category. For e amole. fluid
PC! material having a density less thmi
that of average htgh C CCr. tiOri PC! s
may result :n 150 gaiicns wetpmne as
.Uttle as G00 kilograms. using t e ga on
measurements. tr.ts would ce a
significant ‘ iola ’tion: out us:ng the
kilogram measurement. this would be a
minor violation. In such instances, the
penalty should be b4sed on the category
determined by the actual weight. in
kilograms. of me rnatur:al r.volven. if
this information is known. If the weiQilt
is not known. the gallon measure should
be used.
E ceptions to £ te.’u ço:egot ’
Spii!s into woter. Where any imoroper
disposal results in a coniamination of
surface or zround water. the extent will
always be considered major. Since it is
virtually impossible to remove all PC3’s
from surface or ground water once a
spill occurs. enviror.rnenlal harm :s
almost assurea. Because of this c!ean.up
problem, such a soul creates a
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 anti 1 ee . Where any
improper disposal results directly ifl
contamination of food r feed. the
extent 15 oii ays ma;or. 11 such SOL!S are
not quickly detected. they wt!L result in
direct human exposure. tithe
problem is detected before humans eat
the contaminated fcod. .t islikeiv t:i.it
the cost of finding and destroy rtg the
contaminated products will be high.
Thus. the Aaency believes suon
incidents should always be conisidered
major in extent.
Con centra: on Ao us:rnents
The Ager.cy recognizes that the
concentratien of me PC! materials is a
relevant factor to cor.sicer in
determir.tng the amount of damage done
from a violation of t is reeuiation.
Obviou5I , a sotil of h ;h ccnicenrrat!cn
PCB’s puts more ccntam:nants :nto the
environment than a spiii of low
concentration PCBs. Nonetne!ess.
because ?C!’s can be toxic a: very low
concentrations. a spill of a large amount
of low concentration PC! material could
cause widespread harm. Thus. a system
wnich would recuire e total wetght of
PC! material mv lved to be reducea in
direct proportion to the concentration of
that material would severely undermine
the regulatory scheme.
The problem :s illustrated by the
following hypothetical: Someone sc. s
2.000.000 lbs. (or gog.cgo kos.) of fluid
containing PC!s at a concentration of
1.000 oarts per miiiion-iooml. If. in
cn cuLazing ne peria.ty. inc total wetgnt
of the iiiuc was reduced by :ne irec:
crooortion cithe ccncentrat on. less
than 1.000 kiio rams of ?CBs ivouid be
involved for the purnose of calculattn a
penalty. As a result. tnis inoicent wowd
be considered minor in extent, and the
violator would riot be fir.ed more than
55.000. A penalty as small as this would
riot reflect the potential tor harm to me

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Federal Reqister I Vol. 45. No. 177 / Wcdnesd;jv Septemour v.
59,0
environment and would create an
enormous economic incentive for people
t i unproperl thspose of PC3s at low
entrauons. con tr y to the intent of
sgulations.
a account for the effect of the
concentration of PC3 hqu:ds in
de:emirnng tne extent of a violation.
and at the same time es:abl sha system
iith does not severely hinder the
a enc:is program. the following system
has been develoced. To determine tne
extent of p;cbabie damage for a
particular viola izon. the to:al amount of
P material involved in an incident
shou’d be reduced by the percentages
which appear below
(1) 50-499 pem—70% reduction.
(2) 500-9.000 poci—5O% recuction.
(3 lO.OOO- 9.999 pemTi—O reduction.
(4) 100.000 ppm or above—no reduction.
Thus. in the hypothetical quoted
above. where 2.000.000 lbs. of PCB fluid
at a concentration of 1.000 ppm was
disposed of. the total amount would be
reduced by 50%. Thus. the amount of
fluids for deternitnuw the extent of the
prcbabie harm would be 1.000.000 lbs..or
454.345 kiogamns. — -
E.xception.c to Concentrozzon Adjustment
C 1 cwo t . oa
These concentrations adjustment
factors are not used in the following
i umstances:
Wcst o:I. The use ci waste oil that
contains detectable concentrations of
PCBs as a sealant. coaur.g. or dust
control agent. which is prohibited by 40
cm 701.10(dl. Is one situation where the
concentration reduction would not
ap:iy. The agency chose to prohibit
L ese uses wr.enever an detectable
level oi PCBs were present because any
use of PCBs is likely to result in
widespread environc’.e tal and health
damage. Thus. allowing any reducuon of
the amount of PC s used by virtue f
low concentration would be contrary to
the regulatory scneme.
FeiIur to test. The concentration
reducton also does not apply svnere the
violation is the failure to test liquid
required to be tested: for exampie. the
contents of a heat transfer system that
has contained ?CSs. 40 CFR 51.31(d)(1J.
In such cases. tne risk createa by the
violation is that the iiwd wiij be hign
cuncentration PC3s. and that this
material wi i c:r.tinue tn use. Thus. the
Agency feels :nat these persons snculd
r.om obca n a fortu:icus benei:t wrten tne
liquid is flnaily testen anafound to be of
scme lower cor.centration.
A/tern ot,ve measure for scuds.
Finally, the cor.ceruration ac;usunerit
shoui not oe used wnen the PCB
material is measured oy one at the
alternative measures for solids which
appear in Table IV. These attcrnati e
measures were chosen to maintain
economic ir.cent es for proper disposal.
The cost of disposal of SUCh materials is
not dependent on the concentration of
the PCBs in thorn. Ac;ardir. ly . to allow
adjustments for lower conccr.tratlon
might remove the economic incer.tives to
dzspose of these materzais properly.
circumstances
The other variable for determir.ing a
penalty from the CBP Matrix is the
circumstances of tie viola t :on, also
called the probability of damages. The
TSCA Civil Penalty System established
three ranges of probability of damages.
high. medium, and low. Each of these
ranges in turn has two different levels.
for a total of six levels of probability of
damages.
£.rplanation of oteporres
Because there are many ways the PCB
regulation can be violated, and because
each of these violations couid occur in
so marty different environmental
contexts, it ts virtually impossible to
assess in advance all the ossibie -
factors that logically might have some
impact on the probability of damages for
a particular PCB violation. It would be
even more difflcult to try to determine.
in advance, how all c these factors
would interact in any a;ttcular
situation. For this reason, the Agency
believes it is appropriate tv - up the
different tyoes of PCS v oIations, assess
the probability for harm resulting from
each type of violat;on, and then assign
that type of violacon to one of the levels
on the cu ’curnstances axis of the GEP
Matrix.
For the pu.”poses of assessing the
probability of damages from a particu!ar
type of PC3 vtolat ion. all the cossib e
violations of the PC3 rule can oe
grouped into eight categcrles. as follows:
(1) Disposal
(2) Marking
(3) Storage
(4 Manufacturing
(5) Processing
(6) Distributing
(7) Use
(8) Recorokeeping
Immediately below is a table ass gnin
the different cateocr:es of PCB
violations to the . i,:i... .,r
darna es on the GP Ma:r:x. After the
table. the reasons far tne assionment of
each oate2or. o( ion to a e el of
probdollity of c ma;es ts expiamaa.
Hign Range
Level one:
(1) Imeroper dis it of PC s This
includes operaiing diwosai facilitIes at
cundiiioris wrich c not meet the
requtrem . ’nt of the reeuialjons. Ii also
induces any uncontrolled d&scrt4r e of PC3s.
e.g.. Leakage frcm a stored container.
i .lanufac :unng of PC3s without an
exemption or in violat:on of any cor.dition of
an exemption.
Levej two:
ill Processin PC!s without an exem2tion
or in violation of any condiiion of an
exe’rpticn.
(2) Distribution in commerce of PCBs
without e ernpt .cn or in ¶.,olation of arty
concition of an exemerion.
( I tirpraoer use oPC2s or usinc F3s ii’.
viulaiion of any condition of authori:at.on.
For e ompte. this inc udcs removing a ccl
from a PC crans:ontier for sei icir.e. and the
failure to test a heat transfer system that
once contained PC3s.
Medium Rcnge
Level three:
(I) Maior stcriige violations. rne ar
storage vio atiCn means a situation wrere a
significant panion of sp:llao tnater:ai i.ouid
not be cor.tair. c. £xamo.as at sacc situations
are storage iii areas with no cu,bine. non.
cont;nuous or no t oor.n;. or ur.seaied floor
drair.s. Storoas of PC!O n a area wItn
permeable flooring or curoing aso be -
a major storage v loiatlon.
(2 No recorcs or major record keeotng
violations at disposal fai..ities. inclun:ng n.;h
efficiency boilers and landfills. Ma;or recora
keroing violalions oul , include tie failure
to keep data on incinerator operating
parameters.
(3) Major marking vioiat ons. A ma(or
Lnarkit’.g v:olo::cnt is .i z:tuailon ere inc e
is no indication tO somecne i ho is uniamul.ar
with the siluatiar. that FCBs are present.
Level foi.vr
(1) No records or mator recordkee;tr.g
violations at faciiities than use or store .°C!s
Maicr recortix ;ing . ola :ions wo .o
inciida the aosence of ca:a on PC!
trat’.siormers. arc ire aoserce uf recuros cn
any uanster of PCSs from the s.:a.
Low Rai’rge
Lore! ‘i;’e:
(11 Failure to date PC! items & ceu n
storaae.
(2) Minor siorage vioLattons. ! ampes of
these are small cracks in walls, no roof. or
small cracks in o: .tse impervious floor or
cuthing.
(31 Minor rnark:ne violations. These are
situations tn wr.t i all ire reauaremer.ts of r.e
ride have not been io io ed. but znere are
sufficient tn:icatlor.s to nottiy someone
infarmiar wttk, the situation i.’.ac PC! ore
present and enabie them lO icentfv PC!
tiems. An examoic ouid be :.e fat ..re to
mark a Iranscort ver.Icte cor.tainino ?C3
ite’rs wntci’ ae tnemaet es miirked.
La; .,
(11 Minor rec;rdkeeOtn2 voat:ons.
xz moles of suci volaitons are sma e--,rs
in rite nutnoers ci Laru. cacacicors. sr.jil
errors n num:er of corid.ners. or :re
O I 55iOO ci the cow oi :rans’er an
(4 Fatlure to Iabei smael :aoactiors.
fluorescent ii ht ballasis or ‘ar’e ‘ow vcriiaee
c. ip ,gc.curi .‘c’. ‘ni :C3s’ Liaei as :iiurec
bv4OCFR7S1.:oig (.

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Federal Resister / Vol. 45. No. 177 / Wednesci v. Sec,tember 10. 1980 I Notices
59781
‘ r .4ssignmern of Levels of
I
This level cornair.s the two
wnich tne Agency considers
st serious. manufacturing and
:ooer :s osaI. Mar.ufactur.ng is
emeiy ser.ous because !t creates
w PC.3s. in so doiri . tc entarges the
i of enva:or.ntental ar.d human
csu:e. 1aces add tior.ai burdens on
5 osa! :ac: lt!es. ar.d .r.creases the
:51 of protecting the ubiic from this
:emical. !ni roper disposal creates
3VC risks of harm to the environment
human health, because it assures the
ry of more PCSs into the
ivtrori.rtent. This is contrary to the
:a n thrust of the PC2 regulation. which
to ;revent further contamination of
e environment with PC3s. Th Ls. these
tolanons are cor.sidered to be the most
er.ous. and provice the standard
cair.st whicn the other PCB violations
are easwed.
Level :wo. The violations which were
iaced in level two on the GEP Matrix
veg’e those wnic’n the Agency -
c r.sidered to be the most likely to result
:n improper disposal. For example.
;rocessang or distribution of PCEs
ri out an exemption or iii violation of
a ‘ion of an exemption is akely to
sptllare. leakage. volatilization
ur.con oiied dascharges of
?...... Stnuiariy. improper use of PCBs
will, at worst, result in ?C3
contamination of a wide range of
products (as when they are used in a
leaking hydraulic system). or at best will
result :r. an increased risk of improper
disposal.
Level three. This level includes major
storage violations, major recordkeeving
violations at dtsposai facilites. and
major marking violations. The Agency
regards storage violations. such as the
lack of a floor, to be somewhat less
dangerous than the risk incurred by use.
processing, or cisu’ibution ci PCBs
without an exemption. The tat:er are
very Likely to result an improper
disposal. However. storaQe violations
will only cause cantage wnere there is
an accicent. or a leak, which probably
wculd be mntentionai. Ncnetneiess. if
such events cc rred. the possibility for
wicespread contamination would he
hach.
The lac: of recoros. or inadequate
recoros. at d s:csal famii:ies s:miiariy
does not preser.a as severe a risk of -
marocer c sposai as :rocess .g ci PC3s
• out art exempt:on ?iowever. such a
tior. severeiv recuces :ne Agenc-is
.y to eniorce the recuireanenls of the
. Iacion as they per:aan to the
operators of such tac:lities. Accordingly.
the abser.ce c i 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 sttuations where
someone anvestiaating a situation would
not know that PCEs were present or
would be unable to tell which items
contained PCDs. Such a situation creates
a hiah risk of improper disposal.
However. tithe orner portions of the
PCB regulation are observed, rectirds
would be kept on PCB mater 1 ais.
thereby creating at least some chance
that improper disposal would not occur.
For this reason, this violatton is not
considered as risky as improper use or
distribution. However, where major
marking is associated with other
violations, such as recordkeepmg. the
increased risk will be reflected by an
additional penalty.
Level four. Level four includes major
recordkeeping violations at facilities
that use or store PCBs. Major
recordkee g t tations atiadilibes. - -
that use or store PCBs present a
somewhat lower risk than major
recordkeeping violations at disposal
facilities. Since these Facilities do not
themselves dispose of the PCEs. there is
a greater chance that the PCEs w;ii be
identified as such before they are
actually disposed of. However, the fact
that these violations substantially
hinder the Agencys ability to trace the
movement of PCB’s means tnat they
make improper disposal more itXOl . For
tnis reason, the A;ency considers tnis
violator, to be significant.
Level five. Included in this category
are the failure to date PCE items placed
in storaee. minor storaoe violattons. and
minor marking violations. The faiture to — -
date P B 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 wtth
the rule, the lengthy storage will simply
increase, by a small amount, tne r.sk of
an accidental spill. Similarly, miner
marking violations are, by dennition.
violations where there is sufficient
marking to alert someone :nvestiganr.g
the situation that there are PCBs
present. Thus. tne likely u effect ci sucn
•:ioiatior .s is sunpir that. in enteraency
silua lions, tie Ien:th of time recuired to
c:scover the presence cf PCBs might oe
increased some vha:. This sh uid not
s gniflcanuiv increase the amour.: o
damage done. Finally, minor storace
violations are those in wtuch ar.y .ui d
matenal will be substar.ttailv contained.
Thi s. the amount at daai.i;e triaL could
result from such violations would be
relatively small.
Level six. Level six rerresents those
violations whach the :\;Crtcy believes
pose the least risk of COUSIn; harm. It
includes oniy minor recorckueptng
violations, and failurd to label with the
“no PCBs’ mark. In the case of minor
recordkeepir.g violations. sucn
violations. aithou h they n’ic t make
enforcement somewhat mcre d:if:cu!t.
should not scriousi rn ar he Ager.cvs
enforcement efforts. The fa:lure to label
wtth the ‘no PC ’ maik l onL :esut
in the disposal of certain items more
carefully than necessary. thereby
increasing the cost of compliance with
the regulation.
The risk to the environment arid
human health in this case is minimal.
Moveover. the Ager.cv believes that
there are already sLos’arr;ai economic
incentives for maniafacturors to comply
with this iubei ng re:utre er.:. since
their customers voud prcbo iy he
anxious to obtain equipment Dearing
such a label.
Using the GBP . .Th:r;x T F, d a PC ’
Penalty
In order to dctermtne a pena1t i f r a
specific PCB vioiation. the !ollowir.g
steps should be 1oilo ved:
S:eo:: Dr’e me ‘.hc ca:eeo of
violation as involved Li.e aas osai. ir.aAa g.
storage. ma wt1rlnc. ;rocccsir.e tnd
distribution. use. or recard ee tr. ). I! r.icre
than one violation catea rv ‘s .nvoived.
repeat the calculai:on :n steps tnrou r. S for
each violation caie2or .
Step : Find n:ch evc! ‘.e vm t:on i::s
on the c.’rciiar.suuices avs ot t”.e ‘2P .‘ii ’t’.
Siep 3. Caicutate tr.e totat anioun’. of FC s
inv i3i4d_Jn the violation. If r,ere are several
materials involved whcn fail :nio ddfetent
concentration r r.res. do a seaornte
aicula ton for eacn Co entra iicr.
-Step 4: Reduce a .e amoun:s :r. saco
concentration adjustment. ( e sure to note
the exceptior., to tms ste ’ij.
Stee 5. If different concentra::on anges are
present. add up tie fgure frc’n s:ep 4.
Step 8: Determine waton e ier.t catesory
(ma,or. sigfltñcant. or minor ts applicaote to
tie amount from step 5.
Step 7: Use the level from step anc inc
extent from step 6 to ocaie tr.e aenaity on e
G3P Matrix f E.g.. Level 3. signif:cant as
S1o.000i.
Swo 8: Ertier Inc amour. from s:ep or. ne
I of the Civil ?enaitv . sses rsvr.t wcr sheet
áii Crtv to inc TSC. C, i ?“ j : .
Use tnat wor sneei to comoicte Inc
c .siculaa:in of r.e :er.a:iv accourtir.a for
sucn as cwoaoIa . history ci
vicla(ior.s. etc.
£wrnoie
An insoectiori of X Comoanv reveals
th3t the foi owang ttems are ait stored
for di oos:il ‘n a rocir. with an ea;thp-t
ficur

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59 82
Federal Register I Vol. 43. No. 1 I Weth esd y. Seotember 10. 1930 / Notices
: usneforniers
‘capacto
.11 three caoacitors have nane plates
.at show :hat they contain high
concentrs:tcr. PC3a arid have a volume
c i 30 gal!ons eacn. One transformer
contains 300 gallons. arid is tested at
1000 ppm. The second transformer
contains 300 gallons. and is tested at
PCBs. It is leak:ri;. and X ’s general
foreman says that abou: 20 gallons have
leaked. The equ:prnent ts marked. and X
has records on this eqwpment.. Assume
the density of all fluids is 10 lbs/gal.
Step t Determine the categories of
violatina.
These are:
Disposal
Storage
Secause there are two categories. a
calculation is needed for each.
Disposal
Step 3 Find the ‘crmastances” leveL Tnis
is IC vet one. or cisoosaL
Step 3: Find the total amount inVOlVed.
Total disposal. 20 gallons.
20 gal. X 10 lns • 200 1 s.
gal.
200 l:s. X . 45 ke a 90 kg.
Stes 4: Make concentration adi stmenL
No ;ecuct:on for FC c over W0.000
ppn watch is wr.at was spu ed.
Step 5: Not apoiica le.
Step 6. DeLer wie extent category. -
co icg. a Minor
Step 7: Find penalty from matrix.
Level one — Minor a $3.000
Steo & Enter 55.300 or line I of Ire
woric iieet (Arpenaix A)
$to ’cge
Step 2 Find circumstances’ level.
Maior storage (penneaole floor) is
level 3.
Step 3: Find total amount involved.
(I I ,sg iC@.aao ;p r -
1 t: r.gac.g I tat qai. tea
• 3 :a; a-a:a t : ;4 .
g r gaL.
(bI 500-10.000 ppm—SOt reduction 1330 kg.
X .50 — 675 q.
Step 5: Aed figures from step 4.
2555 15,
. . 575r .

Step & Determine extent category.
3330 kg. a Significant
Step 7: Find the penalty from the mainx.
Level 3 — szgntficant = 510.000.
Siep 8: Enter S 0.oCO on lute 1 ci the i
worksheet (Apperid x Al.
Penalty Asses.sment for Multiple
Violations
In the past. the Office of Enforcement
has had numerous questions about
which circumstances were appropriate
for the assessment of multiple penalties.
For the purpose of promoting
consister.cy between regions and to be
consistent with the penalty scheme set
forth above, the following guidelines
should be followed for assessing
multiple penalties. -.
When Not To Assess Multiple Penalties
There are certain inátances when
separate counts should not be charged
and multiple penalties not assessed. The
first t. pe at case where th s is riot
apprcp; ;ate Is wr.ere a singie situauon
presents violations of many portions at
the regulation, which are all ut the same
violation category. For example. if X
Company has a storage area jg
unmarked. and which contains one
unmarked PC3 container, there are two
infractions of the re iiat1cn: The fa iure
to mark the contatner, and the failure to
mark the stora;e area. However, only
one vio!atton should be charred:
namely. a major ni.ar¼:n; violation Soth
infractions present the same risk: that is.
that no one will realize that PCBs are
present. Accordingly. only one per.aity
is assessed. 11 ne v:nl:t cn :aeaaiy is
one like ma:xir.2. which appeari ’at
several levels ci the circumstances axis.
the penalty should be assessed by
looking at the most serious infraction
committed,
Another sttuation in which only one
count should be alleged and one penalty
charged is where there are maltiote
in rac::or.s of trie same ouIatory
requirement. For example. if Ii e
trar.sformers are ur.mar ed. cniv. one
penalty snould be char2ed. Aitnourn
five transformers present a greater risk
than one transformer, this fact is
accounted for by the larger extent
category applicable to the situation with
five unmarked transformers. Again, the
nature of the psk presented is inc same.
so only one penalty is charged.
When Multiple Penalties Should Be
Assessed
The most obvious situatton for
assessing multiple penalties iS where the
situation constitutes infractions of
different violation categories (e.g..
marking and storage). in such instances.
one count should be charged for each
violation category. This was done in the
iaple penalty calculation, above.
Another example of multiple oettaities
used properly ta where one company
has several PCB situatIons which are in
violation of the regulation in
substannally different locations.
Different buiithngs or yards on the same
site would be suiiictent for a mul ;:pie
violation; two sites in the same butid ng
would not, unless the building is very
large (for o amp1e. an auto assembly
building]. In these cases, me separate
locations present separate and d;stinct
tisks to human health and the
environment. Thus. separate penalties
are justified.
.4asessing Penalties for Con::nuzi g at
Repeated V izc ,_
- Section 16 f’-A cleach.- gaves the
Agency’the power to assess penalties on
a daily basis for coritinu:ng situations.
such as where a transfomer ts
improperly stcrcd for a month. It a o
gives the Agency the discreuor. to
charge a penalty for each separate act of
a repeated course of conduct, such as
where someone mar.uiactures PCs on
twer.:y tjferent occasions. tno t an
exemption. However, any simple rule
the Agency might develop concernir.g
when to charge multiole counts in such
cases is iikely tc have undesirable
effects. For example, a policy which said
that only one charge will be assessed icr
a continuing vmoiation would not
adequately protect the environment.
Under such a pci:cy. a comoanv with a
leaking PC3 transformer would have no
incentive to correct the leak, since how
quickly it acted would riot affect the
penaity sigr..:ican .v. A.ernativeiy. a
policy that reqwred tne Agency to
assess muictoin penalties %% enever
there was evidence of a cor.tir.uing
530 q4. a ie a. a .4 i—..
r. r3
2 533 ‘c— eve: 100.000 ppe
f J SCt—L 5,COi et
, ti ri: ::, 2c:
300 qa . a ii ;._ t .3 .i. • 1330

Sten 4: Maxe concentration aoiusunent,
(aj over 200.000 porn—no ao;ucirnent I355
kg.

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Federal Register I Vol. 45. No. 177 1 Wednesdnv. Seotember 10. 1 8O I Notices
1 ,latiOfl would also cause undesirable
• ect3. Sorneor.e wr.o stored an intact
trar.siome? rcper!y for 33 days
be liable far 5300.000. This
airy. in the absence of aggravating
. amstances. seems excessive.
or these :easor.s. the Aeency has
ce eioped the “proporuor.al penalty
aicuiation”. wh is ex:laiued in
e:ail below. This caIculai on should be
used whenever there is evidence of
cont:nuir.g violations, or reoeated
violations which are part cia single
co i. e of conduct. Except in unusual
circumstances. this calculation will yield
the penalty to ae charged for such
ce eated or continu ing violations. The
effect of this calculation is that the
;ena!t is cniltipiied for repeated or
continuing violations where substantial
amounts of PCBs are involved. The
iaciiflide of the multiplication is
prcportior.al to the amount of material
involved. sub jec: to the limitation of
S5.000 per day. the .Age:cy believes it
:s appropriate that the very large
penalties that can result from continuing
or repeated vioiauor.s be assessed in
those situations where large amounts of
?C s are invcived.
Nonetheless. the Agency realizes that
there may be s :t .ianor.s where no
muit:ple penalties are appropr.ate. or
re the violation merits a penalty
lated by multiplying the GE?
.ty directly by the number ci days
c:dents involved. Accordingly. the
.eenCy reserves the dis euon to assess
penalties for repeated or continuing
violations without recard to the
prcoortional penalty calculation.
The Agency expects utat. utmost
cases. the penalty for repeated or
continuing viola tiar.s will be computed
by use of the cronortional penalty
calculation. The cisci ’euor. to assess
penalties more or less than the
proportional penalty can be exercised
under the following circumstances:
• Where substantial actual harm has
ocu.irred as a :esult of the violation:
• Where the unusual carcwnstances of th
violation give nsa to exnaorcinary risks-to
the erivironmenu or
• Other types of h :g tly unusual
lances.
The decision to use this dis etion
should only be mace alter cor.swtations
win Headouar:ers personnel in which
ine reasons icr this exercise are
expiained .n detail.
of e P cpo . r:oncI Penalty
The proccrtonal penalty is calculated
in tie followir.2 cianxier
1: Calculate tie total amount of
nvoive in the situation. reduced
concentration ac;ustinent. Using
a exampie an incividual who
processes 22 gallons of PCBs for 220
days. the total arnoi:nt is 4.000 gallons
(assunur.g the concentration is areater
than 100.000 ppm). If two 50 gallon
capacitors are stored ur.properly for 20
days. the amount involved is wo
gallons.
Step 2: lIthe amount from step 1 is
less than two times the mator extent
cate2ory (10.000 kg. or DO gallons), use
this amount to determine the extent
category and obtain a penalty from the
GEP Matrix. For example. the pcnalty
for the two capacitors improperly stored
for 20 days would be S1.500. Twenty
counts would be charged. at a penalty of
$L500120 days or $75 per day. If the
amount from step 1 is greater than 2
times the extent category, proceed to
step 3.
Step 3: Divide the total amount from
step 1 by the major extent category limit
(e.g.. 5.000 © kg. or 1.100 gallons).
Multiply the result by the amount in the
major penalty ca:e ory. This yields the
proportional penalty. Using the example
of the individual who processes 20
gallons of PC!s per day for 220 days. the
calculation goes as follows:
Amount from Step I .4.000 gal.
4.000 51L.2.a.
1. iO Og.L l i i iwbi ’vt l
3 .8i S22.C00 (ma cr. level ) S .O0O. Total
penalty
Steo 4: Divide the total penalty by the
number of days (or events) involved.
Enter this amount on line 1 of the TSCA
Civil Penalty Assessment Worksheet. In
our example:
572.ooo total penaliy/2C0 days =. a0 per day.
This figure goes on line I of the
worksheet.
The proportional penalty should
always be used unless the calculation -
yields more tan 523.000 ;er day. In that
case. the penalty should be 525.000 per
day. the maximum allowed by statute.
The proportional penalty snouju be
used in the same way as any other
penalty derived from the GB? Matrix.
The per day penalty mould be entered
on line I of the TSCA Clvi! Penalty
Assessment Worksheet, and should be
adjusted by the factors. such as
cu1 abilit and vtolat:on nistor.. shown
cii that document. wnich is attahced to
this policy.
Dated: April 24. 2960.
Richard 0. Wilson.
Oe ur .r . .ss:sccn: .4c. u:s: or :cp .e, l
£‘iforce.,,ent.
vU Penalty Assessment Worasheat
Name of Resocndcr.i:
Acaress ci Responaeni:
Doe. 4t ’t ’I0 Flied 4N 5 813
aiwt.G coos iseo-at-to
59 ’83
t l Date Answer Received:
(4 Date Default Order Sent:
(SI Date Consent Agreement Signed:
lot Date Final Oroer Sent:
(7) Date Remittance Received:
I Otawrv Bawl Pq,’.ity (Q P) Ir ue mevI, ... 5—
2. re.iM a .Is. ci .c,.u. toe c aoi ly_ %
3. Piece,’ i c e I.iaUciI 1Ici’
S AXWII,2a ’ I .i................._.... ......_.... ,.. ,._ ,. S
5. t Iu eiy G P oy osrc.rnaç. total c i i eel — 5 —
• fr wiei I elI. 5 is; vicI W 5 Ii he I 3—.
S ll.sqrJee aqecernaçl)
7 5r ee wi. a iai’ .ri 01 $2L000. ii,c,w .e S I .—.—
4 51
O MultCIy lOIS 7 by Il lS nuffiOle at Save Of vISta ’ 5—
9 G ,— Trie4 0ei COliS. if iii,..
10 E . nci Ijiis 11015 ne,.ccmni.eca. if so’ 5—
- --‘U
ii. ace e.s$ ivci çli IC_______________
12. Tcse 4 oee ady .a ssIS$ as p# map IS. 5—
13. I Iso 12 eaoesw a sot e w to ew S.—
S I . WI. l tO WIS II ..
ci .
It lOis 12 . .. . -...a nie to 5—
a l ly naWUO lO IS 13 . ‘tCuii A 5 I
‘t.’s to erci ic a. rie 01000150 O i eISI?v 101 1 5’ 4ll cta
i TI e ci , ’CU01FS S ‘1015150 ‘ci I$.’I .I.LaUCft
! ) Camoi,tI: ! D N :ii —
(2J Date CompI4ir.: Issueo

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‘t —3
I
I UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
‘ I
WASHINGTON. D.C. 20460

November 16, 1983
OFFICE OF
PESTICIDES AND TOXIC SUBSTANCES
i E M OR A ND U M
TO: Air and Waste Management Division Directors
Environmental Services Division Directors
Toxic Substances Branch Chiefs
SUBJECT: Settlement with Conditions
Attached is a copy of the guidance for the Toxic Substances
Control Act Settlement with Conditions. This document has
been changed significantly from the draft which was circulated
for comment last year. The procedure for executing a Settlement
with Conditions is to first sign a routine Consent Agreement
and Final Order but to defer payment of the penalty until
sixty days after the issuance of a remittance order. A
remittance agreement is then negotiated between EPA and the
violator. This agreement details the actions which the
violator must complete (the Compliance Program and Schedule)
as conditions for remittance of all or part of the penalty.
When the Agency is satisfied that the conditions have been
met, then the Administrator or his delegatee will remit the
penalty by signing a remittance order. Under the previous
procedure, the Compliance Program and Schedule could not be
amended because it was part of a final order signed by the
Regional Administrator. There was also some doubt as to
whether the final order would be legally final If it contained
conditions regarding the collection of the penalty. The new
procedure avoids those problems.
Delegation of the authority to remit penalties with
conditions will be part of the new delegations manual to
be issued in the near future. Under the proposed delegation,
he Administrator will delegate his authority in this area
to Regional Administrators and the Assistant Administrator
for Pesticides and Toxic Substances, who may then delegate

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-2—
their authority to the division director level. Of course,
the delegates will consult with Regional Counsel or the
Office of Enforcement and Compliance Monitoring. If a
case comes up in your Region before the new delegations
manual is ready, contact Headquarters so that the proper
interim arrangements can be made.
These procedures should be applied to all appropriate
violations of the Asbestos in Schools Rule. This guidance
i.s referenced on page 4 of the Enforcement Response Policy
for the Asbestos in Schools Rule where specific criteria
for its application to violation of that rule are given.
If you have any questions about this policy or its
application, call Pamela Harris of my staff at FTS—382-5567.
This guidance document should be used in its present form,
but will be revised as experience with it shows the need
for refinement.
4f.
A. E. Conroy II , ‘irfector
Compliance Monitorr Staff
Office of Pesticides and ’Toxic Substances
Attachment
cc: Glenn (interberger
Steve Leifer
Sanford Harvey

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November 15, 1983
TOXIC SUBSTANCES CONTROL ACT
SETTLEMENT WITH CONDITIONS

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SETTLEMENT WITH CONDITIONS
TABLE OF CONTENTS
Introduction 1
Purpose and Background . . . . . . . . . . . . . . . . . . . . . . 1
Overview • • • • • • • . . . . . . . . . . . . .
. .
. .
. .
. .
.
2
Wnen to Use an SWC
2
Initial Criteria . . . . . . . . . . . . . . . .
. .
. .
. .
. .
.
2
Other Considerations . . . . . . . . . . . . . .
. .
. .
. .
. .
.
4
Incentives . . . . . . . . . . . . . . . .
4
Elements of Settlement With Conditions
5
Complaint . . . . . . . . . . . . . .
• . . •
, •
, ,
• ,
• •
.
5
Consent Agreement and Final Order . . .
. . . .
. .
. .
. .
. .
.
5
Remittance Agreement . . . . . . . . . . . . . .
. .
. .
. .
. .
.
6
Compliance Program and Schedule . . . .
. . . .
. .
. .
. .
. .
.
o
Remittance Order . . . . . . . . . . . . . . . .
. .
. .
. .
. .
10
Roles and Relationships
11
Decision to Use SWC . . . . . . . . . .
. . . .
. .
. .
. .
. .
.
11
Preparation and Issuance of Documents .
. . . .
. .
. .
. .
. .
.
12
lonitoring . . . . . . . . . . . . . .
. . . .
. .
. .
. .
. .
.
12
Determination of Violation . . . . . .
. . . .
. .
. .
. .
. .
.
13
Responses to Noncompliance 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 r1onitoring Sheet

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Introduction
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 for specific 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 TSCA.
These remedies include civil administrative penalties, injunctive
relief, and criminal sanctions. In addition to these remedies, the
Agency uses nonstatutory notices of 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 l6(a)(2)(A) of TSCA authorizes the Administrator to assess
civil penalties for violations of ISCA. Section 16(a)(2)(C) permits
the Administrator to compromise, modify, or remitl/, with or without
conditions, any civil penalty which may be imposed under Sec.tion 16(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 po.rtion of the penalty is “Settlement
with Conditions” (SWC)S
The purpose of the Settlement with Conditions is to enhance
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 dis-
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 abide
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
used 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 in part.

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—2—
Overview
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 (B) and the Con-
solidated Rules of Practice, (2) a remittance agreement which
sets forth the conditions for Remittance (Compliance Program and
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.
The remittance agreement sets forth the CPS, the completion
of which is a condition precedent to the remittance of all or part
of the penalty.
The 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 Criteria
Using an SWC 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 of 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
industries to violate TSCA until 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 entities 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
.?./ 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.

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—3
settlements should not automaticall.
with all nonprofit entities. The C
determine if an SWC is an appropria
whether the violator is a profit or •
Criteria for Choosing an SWC
In the following 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; and
o The violations are continuing (for more than 30 days) or
recurring in nature; and
o To come into compliance, the facility needs to undertake
a detailed design, engineering, and/or monitoring program
requiring numerous, complex steps over time, and
o The company has exhibited a good—faith attitude towa ’d
solving the noncompliance and has no history of non-
compliance; and
o There are clear public benefits to use of an SWC; and
o An SWC acceptable to EPA can be negotiated.
Criteria 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
o The need for the authority of the Agency to be vindicated.
Appendix A of this document provides explicit application of
these criteria to the PCB rule (40 C.F.R. Part 761).

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-4-
Other Considerations
Conparison with Section 17
The CPS portion of the SWC may impose performance require-
nents 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.
Incentives
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 SWC.
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 SUC.
2..! 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
Office. Similar steps must be taken to amend a Section 17 court
order, in contrast to the simpler procedure required to amend an
S W C.

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—5—
o The Respondent may desire not to pay the remitted penalty
in addition to expenditures needed to achieve compliance.
o The Respondent may receive favorable publicity from performance
of the acts outlined in the compliance program and schedule.
Elements of Settlement with Conditions
An SWC, 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. §22.18). It also includes a remittance agreement and a
remittance order. This part of the guidance describes the specific
language which must be incorporated into these documents to constitute
a SWC.
Complaint
A complaint alleging violations of TSCA and proposing a
civil penalty must be issued to establish the Agency’s allegations
that violations have occurred and to initiate any SWC negotiations.
The complaint should be issued in the same format as in any TSCA
administrative civil penalty action. The content of the complaint
is prescribed by 40 C.F.R. § 22.l4(a) & (e).
Consent Agreement and Final Order
This document must meet the requirements of 40 C.FSR. 22.14(b)
and (c). In the agreement the Respondent (1) admits the juris-
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 administrative 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:
Preliminary Statement
This part of the document states that a civil penalty is
assessed for specific violations of TSCA. The Respondent admits
the jurisdiction of the complaint and may admit or neither admit
nor deny the allegations. The Respondent also waives its right to
a hearing and consents to the issuance of a final order and payment
of a civil penalty.
. ./ Unlike judicial consent decrees and consent orders filed in
Federal court, the Administrative Law Judge, unlike a federal judge,
does not Shave continuing jurisdiction over a consent agreement and
consent order signed by the Regional Administrator. (see Consoli-
dated Rules of Practice, 40 C.F.R. Part 22)

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-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.
Fl
nal
Orde
r
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. §22.31(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
?.espo dent performs specific actions. The actions usually include,
but go beyond, compliance with TSCA. 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.
Th 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.

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—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., “all
of the Respondent’s transformers shall contain PCBs in concentrations
less than 50 ppm no later than January 1, 1984.” The Agency will
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 will often take considerable time
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 Cl) 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
CPS 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.
Timetables
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.
M on i tori n g
An important part of the CPS is the inclusion of provisions for
monitoring the 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

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-8-
be 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 techni cal or ape rati onal difficulties
which compromise the Respondent’s ability to meet a deadline.
Technj cal Assi stance
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 nutual 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 Respondent is going to
miss a deadline should not lead to an amendment. Simple failure to
comply, without more, calls for an enforcement response. Where,
however, the Respondent has made a good faith effort to comply with
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 Respondent) 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
the Respondent. Respondent may not claim economic
hardship or increased costs as circumstances beyond
its control.

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—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 the need for extension or amendment
of the CPS may be resolved according to the procedures
described in the “Dispute Resolution” section.
Specificity and Clarity
To avoid controversy over whether the Respondent met an
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 terms. Definitions contained in the CPS must conform with
definitions given in TSCA and its regulations. Redefinition of
terms that have specific statutory or regulatory definitions should
not be attempted; however, examples or illustrations of these terms
may be appropriate.
Quality Assurance
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 independent or government quality assurance program or to split
some samples with an EPA or State laboratory.

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- 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. EPA’s promise is part of the
quid pro 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 defendant’s 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
secti on.
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 Remittance 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.

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— 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-
rnination, the Regional Program Office is responsible for this
decision following the criteria set forth in this document.
Negotiations
Negotiations. J 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 complaint
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 SWC. Similarly, Agency
repr esentatives will want to ascertain the scope of authority of the
Respondent’s representatives.
It is strongly recommended that EPA representatives conduct
negotiations of administrative actions according to their own specific
timetables. Establishing milestones of which all negotiators are
aware will ensure that enforcement actions proceed and are not unduly
delayed by 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
!I Preliminary discussions which may bear on the decision to
proceed with an SWC are not included under “Negotiations” but
rather are instrumental in determining good faith under “Criteria”.
. ../ Once litigation 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.

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— 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 legal 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 Respondent’s 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 the 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 Dire ctor,
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 ionitoring 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
ionitoring 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 Counsel’s 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.
ri on i tori n g
It is the responsibility of the Program Office to monitor
compliance with the CPS. The Regions should establish a specific
team to monitor compliance with a CPS. This team will maintain
a CPS lonitoring Worksheet. The worksheet should contain four
Columns.

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— 13 —
0 Column #1 lists the task to be completed or the standard
to be achieved.
0 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 sample CPS Monitoring Worksheet.
Determination of Violation
The determination that an enforcement response is appropriate
for a Respondent’s failure to adhere to the SWC is the responsibility
of the Program Office. The EPA may determine that the Respondent is
not in compliance with the CPS If any Interim milestone 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
coripromised. 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);
° Timely ultimate compliance is greatly compromised by
the missed milestone; and
° 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 the Agency may issue a rionremittance order.

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- 14 -
Responses to Noncompliance with the SWC
Penalty Payment
If the Respondent fails to adhere to the conditions of the SWC,
the Agency will issue a nonremittance order notifying the Respondent
that because 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 met. 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 16(a)(4) to collect the penalty that was
assessed.
Reinspection and Additional Enforcement Action
Inspections conducted by the Region or HQ’s during the course
of the SWC 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 SWC, however, the Respondent is shielded
from additional enforcement action involving the subject matter
of the Agreement. Once, however, the Region determines that the
SWC has been violated and so notifies the Respondent, EPA should
reinspect the facility to document additional 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.

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APPENDIX A:
APPLICATION OF SWC CRITERIA TO PCB RULE
This Appendix illustrates the application of the criteria
set forth in the SWC guidance document to some typical violations
of the PCB rule (40 CFR Part 761; all references herein are to the
recodification of the rule at 47 FR 19527, May 6, 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 — §761.40
An SWC should not be considered for Marking violations, since
two of the criteria are not met. These violations are easily
correctable.
II. Recordkeeping of Use and Disposal — §761.45
An SWC should not be considered for Recordkeeping violations,
since these violations are easily correctable.
III. Storage for Disposal — § 76l.6O & 761.65
Generally
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 §761.65(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 §761.65(c) can be easily corrected and should not continue
for more than thirty days if adequate corrective action is taken.
Disposal Deadline Violations
Pursuant to §761.65, certain PCB items taken out of use before
January 1, 1983 may only be stored until the deadlines set forth in
the Rule. The strong Agency policy of encouraging advance planning
for proper disposal means that even in instances where a facility
alerts EPA that all authorized disposal sites are overcrowded, an
SWC is not appropriate.
In the case of the Electrical Equipment Rule (47 FR 37342),
failure to. remove electrical equipment from zones of exposure in
food and feed establishments by the deadlines set forth in this
Rule amendment is not a violation qualifying for an SWC. There is
ample flexibility in the Rule amendment to allow advance planning
to solve storage problems.

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-2—
IV. Manufacturing — §761.20
I ntentional
Intentional manufacture of PCBs without obtaining an exemp-
tion, even where an exemption might have been granted, will never
satisfy the second criterion.
I ncidental (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 the shut down of the
facility is imminent. The goal of such an SWC 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 SWC, 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 if 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 the 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—
tarnination, and the second criterion were met because the violator
had no reason to know that the oil contained PCBs, an SWC should be
considered.

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—3—
V. Use — §761.30
Generally
The PCB 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 Methods
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 retrofilling requirements. If the
Respondent can demonstrate that an alternative to retrofilling
will permanently reduce the PCB concentration in the hydraulic
or heat transfer system, an SWC 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 §761.3O(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 hydraulic fluid.
VI. Disposal — 76l.60
PCB Articles
Unauthorized disposal of certain PCB 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
industry that all such articles may contain PCBs. Therefore an SWC
should not be 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 the person did not have reason
to know the articles contained PCBs.
Landfills and Lagoons
While PCBs and PCB items landfilled prior to February 17, 1978,
do not have to be removed for disposal, where the Respondent has
disturbed a landfill, this constitutes ongoing disposal. If (1)
the clean up of the landfill constitutes a major undertaking
requiring many steps over time and/or (2) long—term monitoring to
protect groundwater is required, use of an SWC may be in order.
Given the seriousness of a disposal violation with threatened
groundwater contamination, the full penalty in such a case should
not be remitted.

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—4—
I ci nerati 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
the 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
of pipeline condensate from its gas distribution system, and EPA
needs 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
E?A could perform the testing Itself with minor expenditure-of
resources, an SWC would not be warranted.

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APPENDIX B: SAMPLE DOCUMENTS
Consent Order Agreement and Final Order
Remittance Agreement
Compliance Program and Schedule
Remittance Order
Nonremittance Order
Persons and institutions are fictitious.

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UNITED STATES
ENVIRONMENTAL PROTECTION AGENCY
In re: ) Docket No. TSCA -
)
LOUISIANA WESTERN TRANSMISSION )
CORPORATION ) CONSENT AGREEMENT
719 S. Carroilton Avenue ) AND
New Orleans, Louisiana 71301 ) FINAL ORDER
)
Respondent
Preliminary Statement
1. This administrative 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 seq . (TSCA). The
action was instituted by a complaint and notice of opportunity
for heari ng, filed upon Louisiana Western Transmission C6rpora—
tion (respondent), on July 23, 1982. The complaint charges that
respondent used polychiorinated biphenyls (PCBs) in violation
of 40 C.F.R. §761.20(a), thereby violating Section 15(l)(C) of
ISCA, 15 U.S.C. §26l4(l)(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 concedes 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
1. 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,
Bechtelsville, Bernville, Delmont, Entriken, Grantville, and Lilly,
Pennsylvania; Barton, Alabama; Danville, Kentucky; Gladeville,
Tennessee; Hanover, New Jersey; Kosciusko, Mississippi; and White
Castle, Louisiana, and other locations.

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—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 50 ppm limit after May 1, 1980.
respondent’s June 12, 1981, letter indicates that only one exceed—
ance of the 50 ppm limit remained when a subsequent sampling
(“9th Analysis”) was conducted by respondent between February 3
and March 9, 1981.
6. Respondent has made good faith efforts to comply with the
prohibition against use of PCBs in natural gas pipeline compres-
sors. Even prior to enactment of TSCA, respondent, in 1972, had
commenced a program to phase out PCBs in its compressors.- This
program was accelerated in early 1976. Respondent conducted
decontamination 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 findings 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
initially establishing a July 1, 1984, deadline for eliminating
PCBs from heat transfer and hydraulic systems. See 40 C.F.R.
§761.31 Cd) and (e); 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-
ximately $200,000 Louisiana Western alone has expended to date
over $3,000,000 in clean—up costs.
7. Respondent has at all relevant times acted in good faith and
cooperated with EPA in attempts to gauge the extent of pipeline
compressor contamination, and in implementing remedial measures.
8. Respondent has voluntarily instituted remedial measures including
testing, draining, and other decontamination measures to remove
PCBs from its gas pipeline compressors.

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—3—
Conclusions of Law
By reason of the facts set forth in the “Findings of Fact,”
it is concluded that repondent has violated Section 15(1)(C)
of TSCA, 15 U.S.C. §26l4(l)(C), by failing to comply with a
rule issued under Section 6 of TSCA, 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 issue the following order:
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)(2)(B) of TSCA; PCB
Penalty Policy” [ 45 Fed. Reg. 59,770 (1980)] it is hereby
ORDERED that:
Respondent is assessed a civil penalty in the amount of $158,800,
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 shall be made within sixty (60) days of receipt of
this consent agreement and final order. 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:

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-4-
It is so ordered. This order shall become effective immediately.
( Signature of Headquarters Judicial Officer)
Judicial Officer*
Date: At:
*or Regional Administrator

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—5—
SAMPLE EMtTTANCE AGREEMENT
Introducti on
On ( date of consent agreement and final order ) , Louisiana
Western Transmission Corporation was assessed a penalty of $158,800
by administrative consent agreement and final order for violations
of the Toxic Substances Control Act (ISCA). Pursuant to 40 C.F.R.
§ 22.31(b), Respondent and EPA agree to defer payment of the
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 penalty is to be deferred, the agreement
should indicate the amount of the penalty to be deferred. This
will he equal to the amount which may be deleted if the compliance
program and schedule are adhered to by the Respondent.

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-6—
COMPLIANCE PROGRAM AND SCHEDULE
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 50 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 Testing : 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

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—7—
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. Information
on sampling developed by EPA and provided to Louisiana Western
as part of the EPA/natural gas industry cooperative sampling
program shall serve as guidance for this sampling.*
To allow for comparison of analytical results, Respondent
shall prepare 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 by Louisiana Western using the EPA
methodology 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 shall consist of clean
glass bottles with teflon lined lids, metal containers or equivalent.

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-8-
Louisiana Western during the EPA/natural gas industry cooperative
sampling program. On—going quality control including analysis
of blank sample containers, duplicates, 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
found to contain 50 ppm or greatéF PCBs by thoroughly draining the
PCB 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 PCBs, as determined in accordance
with Part 7, 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
PCBs removed during decontamination operations shall be handled,
stored, and disposed of in accordance with the PCB Rule.

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—9-
4. Assessment of 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 Compliance : If after a minimum of sixty
(60) days of operation PCB levels remain below 50 ppm, each
compressor shall be tested again after six (6) months of operation.
If after six (6) months of operation since the last decontamination,
PCB levels remain below 50 ppm, units shall be considered to be in
compliance as stated in Part 1.
6. Additional Decontamination : If results of testing after
decontamination an.d sixty (60) days or six (6) months of operation
show PCB levels of 50 ppm or greater, the compressor(s) shall be
decontami nated again in accordance with Part 4. Parts 4 through 7
shall be repeated 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 r ferred to in this Agreement are calendar days.
1. Complete Sampling Plan: Thirty (30) days
2. Initial Testing: Thirty (30) days or on
the basis of tests conducted
within the six (6) months
prior to the effective date
of this Agreement

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— 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 (60) 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 decontaminated; (c) the amount of PCB liquid resulting
from decontamination procedures which was stored and/or disposed of;

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— 11 —
(d) the location of the storage and/or disposal facility or facilities;
(e) 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
and twenty (120) days until final compliance is achieved. The
final report should indicate 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 be sent to:
A. E. Conroy II, Director
Compliance Monitoring Staff
Office of Pesticides and Toxic 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
TSCA and to inspect facilities and records to determine compliance
with this consent agreement.
Notification of Technical or Operational Difficulties :
If technical or operational difficulties will make it impos-
sible for Louisiana Western to meet any of the deadlines in the
Compliance Schedule, Louisana Western will immediately notify EPA.
Techni cal 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.

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— 12 —
A in e n d in n t S
Upon mutual consent of EPA and Louisiana Western, this Agreeme
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 the schedule set forth on pp. 5 and
6 (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
incorporated into this Agreement which shall remain in effect
until final compliance is achieved.
Enforcement
While this agreement is in effect, EPA shall not initiate
additional enforcement action against Louisiana Western for use of
those gas pipeline compressors which are the subject of this Agree-
ment and which rnay 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.

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- 13 -
This agreement does not insulate Louisiana Western from com-
pliance monitoring and enforcement actions for TSCA violations not
addressed by this Agreement nor from enforcement actions under other
laws administered by EPA, nor under laws administered by state or
local environmental authorities.
This agreement does not limit or affect the rights of the
Louisiana Western or the United States as against any third parties.
Dispute 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 submjt
disputes of technical issues to Dr. Alpha Romeo of the Tulane
University Electric Engineering Department for arbitration.
Quality Assurance
The laboratory performing analysis of the samples will
participate in the Southeastern Regional PCB 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 business information. The Louisiana
Western waives this right.

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- 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 (TSCA), which permits the Adminis-
trator to “compromise, modify, or remit, with or without conditions,
any civil penalty.”
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 agreement under which EPA
agreed to remit $158,800 of the penalty on condition that
Louisiana Western performs the activities 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
*or delegate

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— 15 —
Louisiana Western
719 S. Carroilton Avenue
New Orleans, Louisiana 71301
RE: Nonremittance Order
Dear fir.
This nonremittance order is issued pursuant to section
16(a)(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 LouisianWestern
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 has 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 0. Ruckelshaus, Administrator
Environmental Protection Agency

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APPENDIX C
Penalty Remittance Worksheet
Supplement to Penalty Calculation
Assessed penalty [ justification]
Amount due immediately
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

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APPENDIX 0
CPS Monitoring Sheet
Performance Requirement
Date
Due
Date
Completed
.Submit Sampling Plan
to the Agency for
9/3/82
9/3/82
Plan was satisfactory;
i.t listed ten facili—
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 sati sfactory.
The six 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
addi ti onal
dates may be
be scheduled
Interim Reports Schedule
10/3/82
2/3/83
6/3/83
10/3/83
Work progressing.
Final Compliance Target
Date
6/30/83
Performance Evaluation

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-!“- 4i (
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY Ø
WASHINGTON, D.C. 20460

Q 3 0 85 OFFICE OF ENFORCEME.7
A’.D COMPLIANCE
MONITORING
MEMORANDUM
SUBJECT: Procedures for Handling Business Confidentiality
Claims Asserted on Documents in TSCA/FIFRA
Enforcement Action or Investigati
FROM: Courtney M • Price C •
Assistant Administrator for Enforcement
and Compliance Monitoring
TO: Assistant Administrator for Pesticides and
Toxic Substances
Regional Administrators, Regions I—X
Regional Counsels, Regions I—X
Director, National Enforcement Investigations Center
I. Introduction
It has become apparent in recent months that overly broad
claims of confidentiality have been received, resulting in the
withholding of, or delay in review of, much useful data from
or by Agency personnel who have not obtained clearance to review
confidential business information. The existence of CBI claims
also complicates the introduction of documents into evidence in
administrative or judicial enforcement actions.
This memorandum establishes procedures for dealing with
claims that information under the Toxic Substances Control Act
(TSCA) or the Federal Insecticide, Fungicide, and Rodenticide
Act (FIFRA) which has been obtained in a potential enforcement
action or investigation is confidential business information
(CBI).
This memorandum does not, however, address procedures
for dealing with the special problems raised by TSCA and FIFRA
CBI claims made during hazardous waste inspections or hazardous
waste enforcement actions. For example, a claimant may contend
that information obtained in inspections conducted under the
Resource Conservation and Recovery Act or the Comprehensive
Environmental Response, Compensation and Liability Act is

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—2—
entitled to TSCA CBI protection merely because the RCRA or
CERCLA inspections also uncovered information relating to disposal
of polychlorinated biphenyls. The Agency is currently considering
how to deal with unwarranted citing of TSCA by CBI claimants.
Once implemented, these procedures will help us identify
and challenge unwarranted TSCA and FIFRA CBI claims, avoid
delay in declassifying questionable claims, and segregate CBI
from the non—CBI portions of reports, whenever feasible.
II. Confidential Business Information Defined
Neither the environmental statutes nor the CBI regulations
at 40 C.F.R. Part 2, Subpart B, themselves define CBI. They do,
however, refer to the definition at 5 U.S.C. §552(b) (4), which
protects privileged or confidential trade secrets and commercial
or financial information obtained from a person.
The substantive regulatory criteria for making confidentiality
determinations are set forth in 40 C.F.R. S2.208. Business infor-
mation is entitled to confidential treatment for the benefit of
a particular business if:
° a business confidentiality claim has been submitted and
has not expired by its terms, been waived, or been with-
drawn; and
• the submitter has established that it has taken, and will
continue to maintain, reasonable measures to protect the
confidentiality of the information; and
• the information is not, and has not been, reasonably
obtainable without the submitter’s consent by other persons
(other than governmental bodies) by use of legitimate means
(other than discovery based on a showing of special need in
a judicial or quasi—judicial proceeding); and
• if no statute specifically requires disclosure of the
information; and if either it has been shown that disclosure
is likely to cause harm to the submitter’s competitive
position or the information is voluntarily submitted and
its disclosure would be likely to impair the Government’s
ability to obtain necessary information in the future.

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—3—
III. The Confidentiality Determination Process
— —Current Regulatory Procedures
The determination process is to be initiated whenever
a i reedom of Information Act request for information claimed to
be CBI has been received, or whenever it is desired to determine
whether business information in the Agency’s possession is entitled
to confidential treatment even though there exists no request
for release of the information, or whenever it is believed that
a request for release of the information will be received at
some future date. (See 40 C.F.R. S2.204(a).)
Before initiating a confidentiality determination, the EPA
office in question should consider whether it is possible to
obtain the affected business’s waiver, modification, or withdrawal
of its claim of confidentiality in a way that will allow
disclosure of the needed or requested information without the
necessity of a final determination.
Pursuant to the regulatory process for making confidentiality
determinations, formal reviews of CBI claims are commenced accord-
ing to 40 C.F.R. Part 2, Subpart B. In brief, under this procedure,
the EPA office in possession of the material claimed to be CM
will furnish the submitter a written notice stating that EPA is
undertaking this analysis and seeking the submitter’s comments
on the points enumerated in 40 C.F.R. S2.204(e)(4) insubstan—
tiation of its claims. (OECM or the Office of Regional Counsel
is the initiating office for the declassification of NEIC reports.)
The submitter then has at least 15 business days within which to
submit these comments. On the basis of the comments received,
the Office of General Counsel (OGC) or the Office of the Regional
Counsel, as appropriate, will make a final determination, based
upon the criteria specified in 40 C.F.R. S2.208 and any related
criteria in S52.306 or 2.307, as to whether the material is
entitled to continued confidential treatment. The submitter is
provided notification of OGC’s or the Office of Regional
Counsel’s final determination. Any submitter who objects to a
final decision to declassify may commence an action in a Federal
court, within 30 days, to obtain judicial review of the deterio-
ration, and to obtain preliminary injunctive relief against
disclosure.
IV. Affirmative Steps to Determine the Confidentiality or
Non—confidentiality of Information Submitted
As indicated above, some confidentiality claims will clearly
appear reasonable under the regulations; others clearly will
not. Still others will be doubtful.

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—4—
The following procedures are adopted for dealing with each
respective class of claims:
A. Apparently reasonable claims will not trigger an
affirmative effort by the Agency for a final confidentiality
determination until and unless an independent need for such a
determination arises. Initial, decisive action by an EPA office
is required, pursuant to 40 C.F.R. §2.204(a), whenever there is
pending a Freedom of Information Act request for material claimed
confidential in the possession of that office, or whenever EPA
desires or is required to release the information.
B. Questionable claims are those which appear not to fall
within the coverage of the CBI privilege, or those relating to
the existence of, cause of, or responsibility for pollution or
contamination, i.e. , to unlawful disposal, or to releases or
discharges to the environment, or to required cleanup. Such
claims are often not supportable, and they should immediately be
questioned by the office receiving the claimed information. As
a first step, the receiving office should, immediately upon
discovery of questionable claims, contact the submitter to attempt
to narrow or eliminate the claims. It is especially important
that this be done whenever an EPA enforcement report is to be
written which relies upon the material claimed as CBI. Section V,
below, specifies the step to be taken to segregate material
claimed confidential unless the submitter retracts its claim.
If a questionable claim remains, and if there is reason to
believe that its existence will hamper EPA’S use of the informa-
tion, the receiving office shall initiate the formal confidentiality
determination process.
C. Clearly invalid claims should immediately be rejected
pursuant to the alternative procedure of 40 C.F.R. $S2.204(d)(2)
and 2.205(f) (made applicable to TSCA and FIFRA claims by §2.306
and §2.307, respectively). As with questionable claims, a first
step should be to contact the submitter to attempt to have the
claim withdrawn. A clearly invalid claim may be one which, for
example, seeks to protect information which the submitter has
already publicly disclosed, which is otherwise in the public
iorniin, or which is clearly not within the protection of the CBI
privilege.
The CBI regulations cited above authorize the receiving,
EPA office to issue a notice to a company submitting the claim,
advising that a final determination has been made; that the
information clearly is not entitled to confidential treatment;
and that unless the company notifies EPA of the filing of an
action in Federal court to review the Agency’s determination and
to obtain a preliminary injunction against disclosure, the
infr rmation will be made publicly available on the 31st calendar
day after the submitter’s receipt of the notice. This notifica-
tion should be sent to the submitter under the signature of the

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—5—
Regional Counsel or the Assistant Administrator for Enforcement
and Compliance Monitoring. A copy should be sent to the Office
of General Counsel in the latter case.
The confidentiality regulations provide that, where the
information may be CBI, a company should be afforded the
opportunity to substantiate its claim of confidentiality under
the formal determination procedures earlier described. There
fore, this alternative procedure should be used only when a
claim is clearly invalid.
V. Segregation of TSCA or FIFRA CBI in Enforcement Reports
In the preparation of an enforcement—related report
containing both claimed CBI and non—CBI data, the confidential
information should be segregated from the non—CBI data to the
extent that such segregation is possible.
VI. Release of Confidential Information to Congress
EPA is required to release CBI—claimed material to Congres-
sional committees and subcommittees upon written request of the
Chairman of such committee or subcommittee.
There are a number of special considerations which may
arise with respect to the delivery of such materials to Congress.
Consequently, you should contact the Senior Enforcement Counsel
upon receipt of any request from Congress for CBI—claimed material.
VII. Conclusion
Improving our ability to identify and reject invalid CBI
claims while strictly preserving the confidentiality of truly
confidential information is of fundamental importance to EPA’s
enforcement efforts. Therefore, it is imperative that the CBI
determination process operate as effectively and efficiently as
possible. Your cooperation in implementing the procedures set
forth in this memorandum is greatly appreciated.

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0 Sq
-
UNITED STATES ENVIRONMENTAL
WASHINGTON D.C. 20460 j . CLERK
L
MAR 2 9 1985 85 APR 6 9: 2U
OFFICE OF
PESTICIDES AND TOXIC SUBSTANCES
MEMORANDUM
SUBJECT: Regional Pesticides and Toxic Substances Case
Settlements
FROM: A. E. Conroy II, Director
Office of Comp1-i- anc.e Monitorin
Terrell E. ‘WtIT T
Acting Associate Enforcement Counsel
for Criminal Enforcement and
Sped al Litigation
TO: Addressees
Each Region is hereby authorized to negotiate settlements for
all enforcement actions issued by it under Section 16(a) of the
Ioxic Substances Control Act and Section 14(a) of the Federal
Insecticide, Fungi ci de, and Rodenti ci de Act (F IFRA) without pri or
consultation with the Director, Office of Compliance Monitoring.
The requirement for Regions to obtain advance written concurrence
from Headquarters before settling pesticides or toxics cases
involving a change of more than 40% of the originally assessed
penalty is hereby wai ved. In exerci Sing this authority Regions
will be expected to follow applicable program guidance on penalty
assessments and settlements. A document implementing this waiver
of prior Headquarter’s consultation is attached.
Attachment

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1 EG10NAL PESTICIDES & TOXIC SUBS1 ANCtS DIViSION DIRECTORS 1151
Louis Gitto, Director
Al r Management Di v i si Ofl
EPA Region I
John F. Kennedy Federal Bldg.
Boston, MA 02203
Barbara Metzger, Director
Environmental Services Division
EPA Region II
Woodbridge Avenue
Raritan Depot, Bldg. 209
Edison, NJ 08837
Stephen R. Wassersug, Director
Hazardous Waste Management Division
EPA Region III
841 Chestnut Bldg.
Philadelphia, PA 19107
Winston A. Smith, Director
Air, Pesticides and Toxics Management Division
EPA Region IV
345 CourtIand Street, N.E.
Atlanta, GA
Wil1 am H. Sanders III, D rector
Environmental Services Division
EPA Region V
230 South Dearborn Street
Chicago, IL 60604
Allyn Davis, Director
Air and Waste Management Division
EPA Region VI
1201 Elm Street
Dallas, TX 75270
William A. Spratlin, Director
Air and Toxic. Subst-enees Division
EPA Region Vfl
726 Minnesota Avenue
Kansas City, KS 66101
Irwin L. Dickstein, Director
Air and Toxic)Sub tances Division
EPA Region VIII
1860 Lincoln Street
Denver, CO 80295
Harry Seraydarian, Director
Toxics and Waste Management Division
EPA Region IX
215 Freemont Street
San Francisco,.CA 94105
Gary L. O’Neal, Director
Al r and Taxi cs Di vision
EPA Region X
1200 Sixth Avenue
Seattle, Washinyton 98101

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2 q ic o

WAIVER OF PRIOR HEADQUARTE 1 RS CONSULTATION TO SETTLE
FIFRA & TSCA CASES
On May 29, 1980, the Pesticides and Toxic Substances
Enforcement Division [ now Office of Compliance Monitoring,
(0CM)] issued a set of procedures for obtaining OCM’s
concurrences on FIFRA and TSCA cases. Among other things,
these procedures required advance written concurrence from
0CM before the conclusion of any Regional FIFRA or TSCA
settlement which was changed by more than 40 percent of the
original penalty. This criteria for settling cases has been
in effect and utilized by the Regions and 0CM since 1980.
Because of the experience the Regions have gained over the
past five years in settling cases, 0CM has decided to relax tne
40 percent penalty adjustment criteria. However, even though
concurrences for prior consultation are being relaxed, a
substantial degree of informal communication with 0CM will
continue. Regions must continue to send copies of TSCA and
FJFRA complaints, consent agreements and final orders to the
Case Support Branch, Office of Compliance £lor.itoring.
Consistent with the March 10, 1980, TSCA penalty policy,
Regions should continue to incorporate into settlement agreements
and consent agreements and final orders, substantive reasons why
penalties are adjusted. Written justifications for penalty
adjustments must also be included in each case file and be in
accordance with the appropriate 0CM penalty policies. Finally,
procedures must be established in each Regional Office to ensure
that the Regional Program Division Director agrees with and
concurs on every case adjustment below 40% of the original
penalty. This concurrence must be in writing, using a format
similar to that currently utilized by 0CM and the Office of
Enforcement and Compliance Monitoring (example attached). This
written concurrence must be included in the case file.
Since 0CM has the ultimate responsibility for ensuring that
pesticides and toxi cs pena-iti es are assessed in a fai r, uni form
and consistent manner throughout the country, there will continue
to be periodic oversi ght and evaluation of Regi onal case files.
The quality and performance of the program in the Regions will
be primarily examined through annual Regional Reviews conducted
by 0CM. Additionally, 0CM may request that Regional case files be
submitted to Headquarters for review.

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MAR 2 9 1985
—2—
Should this oversight program reveal that a Region(s) is
not following Agency policies for adjusting FIFRA or TSCA
settlements, written concurrence procedures between 0CM and t hat
Region(s) may be reinstated.
In this manner 0CM intends to ensure national consistency
while promoting Regional autonomy in FIFRA and TSCA case settle—
men t S.
Attachment

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OE /— ____
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
/l
DATE •
January 25, 1985 Region 10, Seattle, Washington
JECT Scope of TSCA Investigative Subpoena Use
FROM James R. Moor (
Regional Couns l
TO
Terrell Hunt
Acting Associate Enforcement Counsel
Office of Enforcement & Compliance Monitoring
The viability of using ISCA subpoenas for investigating virtually all
hazardous waste matters/cases is addressed by the attached memo prepared
by John Hamill of my office. In light of the broad scope of TSCA §7, 15
U.S.C. §2606, I think the idea has merit.
Your comments, criticisms and suggestions will be much appreciated. I am
also sending copies of this to 0CC and the other Regional Counsel for
their reaction.
cc: Thomas L. Adams
Stanley H. Abramson
Regional Counsel 1-IX
Attachment
EPA Form 1320.6 (Rev. 3-76)

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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
DATE .2l January 1985
TSCA Subpoena Use To Facilitate CERCLA § 106 and RCRA § 7003
ECT Proceedings, or CAA § 303 (42/7603), CWA § 504 (33/1364),
SDWA § 1441 (42/300i), and TSCA § 7 (15/2606) Proceedings
FROM John A. Harni . (
TO James R. Moore
As one aftermath of preparing those notebooks for Denver for you,
I have reflected on the fact that we may be taking a too narrow
a view of when we can use investigative subpoenas under TSCA 11(c)
[ 15/ 2610(c)]. Our thinking has been that we needed PCBs or asbestos
(materials currently regulated under TSCA) as a necessary predi-
cate for issuing TSCA subpoenas. EPA’s powers may be broader.
I’ve re-read TSCA § 10(b), 15 U.S.C. § 2608(b), and § 7, 15 U.S.C.
§ 2606 in connection with ISCA 11(c) and have concluded that § 10(b)
allows EPA to use TSCA subpoenas whenever its trying to decide whe-
ther the “...manufacture, distribrution in commerce, use, or disposal
of a chemical substance or mixture, or...any combination of such
activities, presents or will present an unreasonable risk of injury
to [ human] health or the environment....”
That means, in effect, that anytime we are looking toward a possible
“ imminent and substantial endangerment ” situation under any of the
Acts involving any chemical substance or mixture , then TSCA § 10(b)
enables us to issue and use TSCA § 11(c) subpoenas in support of
fact finding in that effort.
Naturally, I know of nothing in any national guidance which supports
this view, but I recommend we adopt it as a working hypothesis and
seek ways to corroborate it and instigate the practice.
cc: Merrill
Hohn
Rogowski
Li ther
Hel neck
Garci a
El sen
EPA Foim 1320.6 (Rev. 3-76)

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TSCA COMPLIANCE PROG .AM POLICY No. 6-CFC-1
Product Labeling for Both Essential and Non—Essential
CFC Aerosol Propellant Uses
TSCA Section : 6(a)
Issue :
Will EPA initiate enforcement action against, processors
of CFCs as an aerosol propellant for use in products whose
labeling bears directions for both essential and non—essential
uses?
P a 1 f cy :
CFC aerosol propellant products whose labeling hears directions
for both essential and non—essential uses create the rebuttable
presumption that those CFCs have been processed In violation of
the CFC regulations. The Agency will bring an enforcement action
against the processor, unless the processor can prove that the
CFCs have been processed, only for an essential use.
Discussion :
The Agency, promulgated regulations under authority of the
Toxic Substances Control. Act (40 CFR Part 762) stating that after
December 15, 1978, no person may manufacture, import, process,
process for export or distribute in commerce for processing any
fully halogenated chlorofluoroalkane (CFC) for any aerosol
propellant use except:
1. Use in an article which is a food, food additive,
drug, cosmetic or device exempted under 15 U.S.C..
2602; or
2. The following essential uses listed in Part 762.58:
a. Mercaptan stench warning devices,
b. Release agent for molds used in the production of
plastic and elastomeric materials,
c. Flying Insect pesticides for use in non-residential
food handling areas except when applied by total
release or metered valve aerosol devices, and for
space spraying of aircraft,
d. Diamond-grit spray,
e. Non—consumer articles used as cleaner—solvents,
lubricants, or coatings br electrical or electronic
equipment,
f. Articles necessary for safe maintenance and operation
of aircraft,

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2 - 6-CFC—1
g. Uses essential to the military preparedness of
the United States as determined by the Administrator
and the Secretary of Defense.
h. Pharmaceutical Rotary Tablet Press Punch Lubricants.
(FR Notice Tuesday January 5, 1982 pp 148—49)
Since publication of the regulations, the Agency has also
Issued a special essential use exemption for the following:
Temporary exemption for Automatic Timed Release Insec-
ticide Dispensing Systems Used In Storage of Tobacco.
(May 19, 1982 to December 31, 1982)
The purpose of the regulations is to ensure that CFCs are
not processed as aerosol propellants for any non—exempt/non-
essential uses. The Agency, however, has found CFC—propel1ed
aerosol products with labeling containing directions for both
essential and non—essential uses. Although the CFC regulations
do not prescribe labeling for products containing CFCs processed
for non—essential/non—exempt aerosol uses, it Is only reasonable
to presume that a product has been processed for any use directed
on its label. Such labeling may include the product container
label or any other collateral literature distributed with or apart
from the product.
The Agency presumes that any CFC aerosol—propelled product
bearing directions for a non—essential/non—exempt use has been
processed for this unlawful use. A processor can rebut this pre-
sumption by showing that
a. it processes CFCs only for an identifiable group of
users and that each of these users use CFCs only for
exempt uses, or
b. each of these users, by virtue of the nature of their
business, could use CFCs only ‘for exempt uses, or that
c. by sticker labeling the non—exempt/non—essential uses
which appear on the label have been fully nullified.
In the absence of such showings, the Agency will br-ing appropriate
enforcement action against processors of CFC aerosol propelled
products whose labels include directions for both essential and
non—essential uses.

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- b—L L—I
S J s o :
CFC £nforfement Rê p4nse Po1i; ’...
Re f ré; rces :
40 CFR Pai t 762.
: 
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TECHNICAL GUIDANCE
)
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TECHNICAL GUIDANCE
)
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- .
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COMPLIANCE STRATEGY FOR
T iE F IA3LE AS3ESTOS-CO 4TAIN NG MATERIALS I I SCHOOLS:
iDE TIFICATIC’1 AND NOTIFICATION ? EGULATiON
THE PESTICIDES
A D T3XI SUBSTANCES E FORCE ”ENT DIVISION,
THE U.S. ENVIRC MENTAL PROTE T?A ‘GENCY
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
¶1. WAShINGTON, D.C. 20460

June 24, 1982
o,wIc oc
P(S?IC DC AND TOXIC 3U STANC S
ME M OR A 0 U M
SUBJECT: Compliance Strategy for the Asbestos In Schools Rule
TO: Air and Hazardous Materials Division Directors
Environmental Services Division Directors
Toxic Substances Branch Chiefs
The final version of the Asbestos In Schools Rule was
Duolishec in the Federal Register on May 27, 1982 (.17 Federal
Register 23361). Attachea is the Compliance Strategy or tnis
rule. A proposed strategy was circulated in April, 1981, for
comment. This ocurnent reflects comments on the proposed
strategy a d the discussion of compliance issues at the Regior.al
Asbestos Update Conference on 1ay 6, 1932, as well as, changes
to tne proposed rule.
Please note that “Cr1 ten a for Sati sfactory Partici oati on
in tne TecnniCal Assistance Program (TAP)”, which is mentioned
in this strategy and was discussed at the conference is under
development. State Prcgrams are briefly discussed in this
document. A guidance document speci icai1y for State rograms
associated with this rule Is also under development. Finally,
in response to requests made at the conference, traini g
mate iais will be sent to the Regions for compliance ass stanc
and compliance monitoring.
If you have any questions please contact Pamela Harris
(FIS 755-9404) of my staff.
,1
A. E. Conroy U,,Director
Pesticides and Toxic Substances
Enforcement Division
cc: Regional Asbestos Coordinators
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Asbestos in Schools Rule
Compliance Strategy
Overview . . . . . . . . . . • • • • • , • • • •
Requirements or the Regulation . . . . . . . . . 2
Inspection
Sampling
Analysis
Warnings and Notification
Recordkeepi ng
Exemptions
Re;ulated Community . . . . . . . . . . . . .
Organization of Schools
Location of Asbestos
C
cneorceme’l. . . . . . • e • s • . . • • • . • . . 0
Objectives
Types of Violations
Voluntary Comoliance
Co ip1iance Monitoring Strategy , . . . . . . . . 9
Lompliance Moni or 1 ng ?r 1 ori ies
Compliance Monitoring c ivities
Inspection Sche ie
Neutral Ad inistrat,ve Inspection
Scheme
State Programs for Compliance Monitoring
Administrative Responsibilities . . . . . . . . . 13
Program Management
Program Integration
Appendix: 100 Most Po2ulOuS School Districts
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Overview
The data available on the health effects of inhaled asbestos
chow that even limited exposure can increase the occurrence
f asbestos related illness and cancer in exposed individuals. 1/
In response to the health effects of asbestos the Environmental
Protection Agency’s Office of Toxic Substances launched in early
1973 a voluntary Technical Assistance Program (TAP) to aid schools
in the detection of asbestos in school buildings. As of September,
1980, as many as 40%.of the schools in the United States had not
been properly inspected and a larger percentage of schools had not
followed the recommended surveillance and analysis tecnniques. In
some states no attempt had been made to inspect the schools.
Because of the serious health effects of asbestos anc tne limited
success of the TAP, the Environmental Protection Agency published
a rule under Section 6 of the Toxic Substances Control Act (45
Feaeral ReQister 23360, May 27, 1982). The rule is intended to
loentify scnools containing asbestos and reduce the risk of
exposure to the estimated 3,000,000 students and 250,000 teacners
and other staff who use the schools which contain asbestos. All
primary and secondary schools in the United States will be affected
by the rule.
The rule which applies to Local Education Agencies (LEA’s) nas
five requirements:
1 . Inspect ion
2. Saripling
3. Analysis
4. Warnings and Notification
5. Recordkeeping
Sc ocis Duilt after ece er 2 , 1973, are exemot from tne
requirements of tne rule. A school is exempt from the regulation
if it proper1y performed inspections, sampling and analysis under
t ie voluntary program an found no friable asbestos—containing
material or if it can document that no friable asbestos—containing
materials were used in ouliding or renovating the school.
1/ See Technical Support Document for the Asbestos in Sc oo1s
— Rule for a detailed discussion of the health risks of
ex2osure to asbestos.
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-
Number
of
Non—Public
School Type Schools
Catholic 9640
Lutheran 1039
Other church affiliated (e.g., 3049
1ebrew, Quaker, Episcopalian,
Seventh Day Adventists)
Non—church (e.g., military, 2772
handicapped children,
Montessori , exceptional
children)
The largest numoer of children attending non—public schools
attend the 9,640 Catholic schools. Of these 8,100 are elementary
schools and 1,540 are secondary schools. The educational organi-
zation consists of 165 dioceses overseeing approximately 10,300
parisnes. The diocese, whfch is headed by a bishop, may or ay
not have a Board of Education responsible for tne financial
management of the school system. There are three types of-Catnolic
Sch ois. Private or independent schools are owned and ooerated
by a religious community (e.g., Jesuits). Parish SChOOlS are
sponsored by one or several c.lurcnes ana are usually eie en:ary
schools. Diocesan schools are subsidized by tuition anc central
funds and are, for th most part, high schools.
Other non—public schools are generally autonomouS private elementary
an secondary sc oo1s.
State Soard of Education
The State Board of Education acts in an accreditation capacity,
maintaining certain minimum standards for Instruction, curriculum
and physical plant specifications of school buildings for
both public and private facilities.
Compliance
Objectives
The objective of the compliance program is to encourage compliance
with the rule. Activities should be seen in this light rather
than as attempts simply to detect violations. In cases dhere
means other than enforcement actions will achieve compliance,
these actions should be pursued to ccnclusion before resorting to
enforcement actions.
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Types of Violations
Violations are failures to comply with any requirement of the
Rule. For each requirement there may be several violations.
o Recordkeeping Reauirement . [ Records should be accurate,
complete and up to date.j Violations are:
— Falsified records
— Failure to keep records
— Missing elements (incomplete records)
— Records which are not made available to the
public or EPA inspectors.
o Inspection of Buildings . [ All buildings should be inspected
to locate friable materials.] Violations are:
— Failure to inspect all buildings.
— Failure to follow proper inspection procedures
as detailed In the Guidance Documents.
o Sampling . [ Samples should be taken of all friable
materials.] Violations are:
— Failure to sample all areas of friable materials.
— Failure to sample according to rocedures in tne
Guidance Documents.
o Analysis . [ Samples snould be analyzed using polarized
Ti rit niicrocopy with X—raj diffraction as a confirmat3ry
technique.] Violations are:
— Failure to have samples analyzed.
— Failure to ensure use of the proper analytical
technique.
o Warnings and Notices . [ Notices should be posted in schools
as required oy the u1e. Personnel using the building and
the PTA (or parents of the children) should be notified if
the school contains friable asbestos materials.] Violations
are:
— Failure to post notices.
— Failure to send warnings to the proper persons.
o Use of Exemptions . [ TAP activities or building documents
indicate that tnere are not friable asbestos—containing
materials in the school building.] Violations are:
— TAP activities do not support the conclusion that
there is no fri able asbestos—contai ning material in
the school because those activities were inadequate (see
OTS criteria for satisfactory TAP participation).
— Records which support the exemption claim are inadequate.
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-8-
Voluntary Compliance
One of -the goals of this stategy, as well as of the Asbestos
in Schools Rule, is to achieve voluntary compliance.
Since tne presence of asbestos in schools is a potential health
hazard, particularly for children, it is a problem which causes
public concern. This public concern provides a strong motivation
for voluntary compliance. To tap this potential the Regions will
offer public education programs which include speakers and courses
for public and professional organizations. A major source of the
speakers and course coordinators is the American Association of
Retired Persons through a contract with EPA.
The Regions should encourage public participation in monitoring
.compliance with the rule. Good rappor,t between the Regional
compliance monitoring staff and interested local groups can
greatly increase the effectiveness of the rule.
Since the records are public information, members of the public can
inspect them for completeness. Recoros which are suspected of being
incomplete or unreliable (see hltriggersu in Compliance Monitoring
Section) should be reported to the Regional Office. The Regional
Office should encourage such inspection and ub1icize the follcwing
information:
o The name of Regional Enforcement Contact person;
o What sort of information snould be reported to tils
person; and
o How to contact tne person.
Several citizens groups which have expressed an interest in tnis
progam could assist the implementation of this rule at the local
level. For instance, the League of Women Voters n Illinois
participated in the TAP by inspecting all schools in the state
outside of Chicago. Similar assistance by public groups could be
helpful to LEA’s as well as to EPA. Interested groups are:
o Parent Teachers Association
o League of Women Voters
o Education Associations
— National Education Association
— American Federation of Teachers
o American Association of Retired Persons.
The training programs can prepare members of these groups to support
compliance with the Rule in the following ways:
o Enhance public awareness by publicizing the purpose
and goals of the program.
o Perform routine screening of scnool records.
o Assist the LEA’s in complying with tne Rule.
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All of these activities should Increase the level of voluntary
compliance. Requests for training should be directed to the
Regional Office which will determine how best to respond to
the requests. The contractors from the American Association
for Retired Persons would be the best choice for providing
this training.
PTSED and OTS will develop a Compliance Assistance Guidance Document.
This document will provide step—by—step instructions for complying
with each requirement of the rule. Regional personnel should use
this document as the basis of the training programs which they provide.
compilance Monitoring Strategy
Compliance MonitorinQ Priorities
In areas where the lack of public participation or State programs
necessitate a Federal presence to monitor compliance with the
rule, the primary method of compliance monitoring will be inspec-
tion of LEA and school records. Inspection of records will detect
recordkeeping violations as well as other types of violations, So
that the LEA can be sure that all of its compliance activites are
reflected in its records, the inspector should notifiy tne governing
official of the LEA at least one week before any planned inspection.
Sampling and analysis may be performed to confirm tne results obtained
by the LEA.
Comoliarice Monitoring Activities
compliance monitoring snail be both affirmative ano responsive.
Responsive actions will e triggered by complaints from the
community. Affirmative compliance will consist of visiting
Local Education Agencies to determine the actual level of
compliance.
The limited resources available for conipll3nce monitoring must be
utilized so that two criteria are met:
o LEA’s used by the largest numDer of children are inspected
for verification of compliance.
o The maximum degree of response to suspected violations is
P05 Sib 1 e
The 100 largest public school districts in tne United State educate
approximately 25 of the country’s children. In the two years
following the publication of this ule the level of cc T1pliance for
all of these districts will be deter iined (these districts are listed
in the Appendix).
Other resources will be all ocated so that evidence of nonco 1 pl lance
is investigated.
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— 10 —
Insoection Scheme
Inspections by EPA personnel are necessary to the successful
enforcement of the Rule. Such Inspections put the regulated
community on notice that compliance Is considered an important
issue by the Agency and that violations will be detected and
pursued. Even if surveillance cannot be total, it can
serve as a spur to compliance. Inspection visits are also a
means of responding to public complaints of noncompliance by
an LEA.
Two criteria wiH be used to select the LEA’s for inspection visits:
o LEA’s for which complaints have been received or
which the Asbestos Coordinator has reason to believe
are not in compliance.
o LEA’s which have been chosen using a neutral scheme.
The allocation of resources between thes two types of inspections
will depend on the number of complaints received by tie Region and
the level of compliance for the LEAs. The success of Regional
personnel at resolving complaints without tne necessity of inspec—
tion visits is also a factor. However, at least 25 percent of
available resources shoOld be reserved for t e neutral inspections.
Neutral Ad nnistrative insoectlon Scflerne ( 1AIS )
The following criteria will be applied to select LEA’s to b
inspectc under tne NAIS:
0 LEA’s which are in the top 100 in student population
(see Appendix) in the United States, but did not satis-
factorily comply with the TAP.
0 Checks of other LEA’s — remaining NAIS resources.
To target NAIS inspection of LEA’s which are not in the top 100
and did not participate in the technical assistance program use
the following procedure.
1. Consider all LEA’s with buildings constructed or removated
between 1940 and 1973 which have not already been targete
for inspection.
2. Divide resources between public and private LEA’s. Allot
to the private schools a percentage of the resources equal
to the percent of the school ppopulation in private schools
plus ten to fifteen percent. The rest of the resources will
be used to inspect the public schools.
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— 11 —
3. Rank the public and private LEA’s separately by size.
Determine the number of schools on each list. This number
II II
13 .
4. Determine the number of inspections available for each type
of LEA. This number is UBI I
5. DIvide A by B. A/B C. Choose every Cth school on each
list for Inspection. Determine A, B, and C separately for
public and private LEA’s.
For example if there are 100 private LEA’s in a Region and resources
are available to inspect 5 private schools.
A 100 there are 100 LEA’s
B = 5 there are resources for five inspections
C 100/5 = 20 inspect every 20th school in the list ranked by
popul ati on.
If population figures are not available, list the schools in
alphabetical order.
These LEA’s have now been targeted without any consideration of
their compliance or voluntary activities or whether or not trey
claim to be exempt from t e requirements of the rule for any
eason other than th date of construction.
The inspector will vis t these schools and determine if the
inspection, analysis and sampling — whether perforrr.ed under tile
TAP or after the effective date of the rule — is satisfactory.
He will also determine f the LEA has complied with the record—
keeping and notification requirements of the rule. If an LEA
claims that it is exempt from the rule, the inspector will inspect
the documents which support that claim. The inspector should
inspect the buildings and take samples for analysis in cases where
the inspector question the documents supporting the exemption
claim.
Inspection Procedures
The inspector will go to the central office of the LEA selected and
review the files. Depending on the time available, he will choose
1—5 schools to visit for a records review and possible inspection
and sample analysis. Triggers for choosing a school are listed
b e 1 ow.
o Records are too consistent, eS?2Ci 1ly where a large
school system has schools built or renovated during
the relevant period.
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— 12 —
o Records Indicate a lack of friable material .
o Lack of cooperation on part of school officials.
o Significant gaps or uneven detail in required records.
o Lack of response to local weather events such as severe
storms or floods that may have led to water damage.
o Other suspicious conditions, Including information available
to the Asbestos Coordinator that indicates possible non—corn—
p1 lance.
If none of the above triggers is relevant, the largest school, the
oldest scnool and the school used for the most nonschool activities
shall be visited.
Records in the schools will be inspected. If the records indicate
that inspection sampling and analysis were performed out that no
asbestos was discovered, the inspector may wish to inspect and take
samples for analysis to confirm the records.
State Programs for Compliance Monitoring
There are many reasons why State programs could perform compl.iance
assistance and monitoring functons for this Rule more effectively
than the Federal government. A State—run program cou1 be inte—
grated int.o an existing program such as a building safety progra;n.
Also State organizations, such as public health departments us ially
nave a Stat wioe network with offices in counties an major cities.
This means that State organizations are in a better position to
establish rapport with the community on tnis issue. The States
may also have options available to encourage compliance through
the use of State regulations which would be more effective than
the use of Federal authority.
Some States have done an excellent job of implementing the voluntary
Technical Assistant Program described in the Introduction of this
document. me EPA will review the status of TAP in the States
which participated and determine if a federal presence in the
State Is desirable. Detailed criteria for evaluation of successful
participation in the TAP are available from headquarters. Utner
States which did not participate fully in the TAP will establish
comprehensive programs during the twelve month compliance period
following the effective date of the rule. EPA will evaluate these
programs also, to determine if a federal presence is necessary.
Evaluation criteria include technical expertise of tne personnel,
proposed scheme for monitoring compliance, the goals of the
State Agency implementing the program (since ensuring public health
is the principal concern of the rule, a State health or environmental
agency would be the preferred agency) and the quality assurance
pro g rem.
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— 13 —
The EPA will make technical training materials available to states
whiCh wish to run their own program. These materials should provide
adequate technical background for personnel involved in the program.
At the end of the first year of implementation, personnel from EPA
will evaluate the effectiveness of the state program.
States which choose to Implement their own program can still refer
cases to Regional EPA offices for enforcement response, if the state
agency deems this action advisable.
States may wish to participate only partially in the program.
For instance, a State may collect information from LEA’s concerning
the activities in response to the rule or State universities
may be willing to analyse samples for asbestos. State programs
may vary widely. The compliance monitoring activities which
are not performed by the State must be performed by the Federal
government.
The Federal government would continue to play a role in States
unwilling to implement their own programs.
In general the Regions should encourage the States to implement
their own programs under cooperative agreements with EPA. Head-
quarters will provide further guidance for the management of-State
cooperative agreements for this program.
d .in is:rative Res onsioil ities
Program Management
PTSED will coordinate responses to problems which affect more
tnan cne Region or whicn may require special expertise (for
example, a problem dealing with laboratory analysis). Problems
tnat require coordination witn 015 will also be handled tnrough
PTSED.
Any policy issues will be handled by Headquarters. If any pol cy
ISSUCS arise wh ch are not covered by this document, the Region
should contact PTSED. The issue and its resolution will then be
shared with all the Regions.
The Responsibilities of Headquarters are outlined below:
o Provide technical information. -
o Liaison with OTS.
o Policy and program guidance.
o Advisory role in case development.
o Liaison with Department of Justice should an
Injunction be requested.
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- 14 -
The responsibilities of the Regional offices are as follows:
o Target inspections based on criteria and information
provided by headquarters.
o LIaison with State Programs.
o Inspect schools.
o Gather information.
o Case development.
o Notices of Noncompliance and initial selection of
•cases to be referred to Department of Justice
through Headquarters.
Program Integration
Some States may have their own plans for asbestos in schools, (for
example, updating building codes). Liaison with state asbestos
programs will be handled by Regional Offices.
015 will develop crieria for evaluating the effectiveness of
LEAs’ activities under the TAP. PTSED and 01$ will develop
Compliance Assistance Guidance for training persons in how to
comply with the rule-. PTSED will develop -State Program Guidance
flich %‘ill include Compliance Monitoring Guidance for State
,,ersonnel perform ng compliance monitoring activities.
This Rule triggers the export notice provisions of Section 12 of
ISCA. This section states that chemicals regulated by a proposed
or final R 1e under Section 6 of TSCA may be exported only after
the exporter has notified the Administrator of EPA. For furtner
information concerning Section 12 and this rule see “Export
Notification Clarification Statement” 45 FR 37608, July 21, 1981.
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— 15 —
dix: 100 MOST POPULOUS LOCAL EDUCATION AGENCIES
RANK
MEMBERSHIP
NAME OF UNIT
LOCATION
962,963
721 ,419
550,606
477,339
232,328
223,740
220,046
193,907
187,764
172,152
168,660
136,634
136,187
135, 313
130,357
128,411
127,529
118,722
113,606
111 ,922
New York City Sch Dist
Puerto Rico Sch Dist
Los Angeles Unif Sch Dist
City of Chicago Sch Dist
Philadelphia City Sch Dist
Dade County Sch 01st
Detroit City Sch Dist
Houston ISO
Archdiocese of
Archdiocese of
Hawaii Dept of
Archdiocese of
Baltimore City
Broward County
Dallas ISO
Fairfax Co Sch 01st
Prince Georges Co Sch 01st
Diocese of Brooklyn
Memphis City Sch Dist
San Diego City Unif Sch Dist
Brooklyn, NY
Hato Rey, PR
Los Anqeles, CA
Chicaao, IL
Philadelohia, PA
Miami, FL
Detroit, MI
Houston, MI
Chicago, IL
Philadelphia, P
Honolulu, HI
New York, NY
Baltimore, M D
Ft. Lauderdale, FL
Dallas, TX
Fairfax, VA
Upper Marl t oro, MD
Brooklyn, NY
Memphis, TN
San Diego, CA
1
2
3
4
5
6
7
8
9
I ’
12
13
14
15
16
17
13
19
Chicago
Phil adel phia
Educati on
New York
Sch Dist
Sch 01st
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— 16 —
RANK
2T
22
23
24
25
26
27
28
29
30
31
35
36
I
-I
38
39
‘I
-T
MEMBERSHIP
111 ,889
110,601
106,156
104,867
102,633
102,329
102,163
92,558
91,944
88,388
87,425
86,783
83,533
83,487
83,090
82,235
82,086
80,982
79,190
77,799
NAME OF UNIT
LOCATION
Hillsborough County Sch 01st
Archdiocese of Los Angeles
D.C. Public Schools
Jefferson County Sch 01st
Montgomery County Sch Dist
Baltimore County Sch 01st
Duval County Sch Dist
Cleveland Sch Dist
Milwaukee Sch Dist
Pinellas County Sch 01st
Clark County Sch 01st
Orleans Parish Sch 01st
Archdiocese of Detroit
Diocese of Cleveland
Archdiocese of Newark
Orange County Sch 01st
Dekaib County Sch 01st
Albuquerque Sch 01st
Jefferson County Sch fist
Columbus Sch 01st
Tampa, FL
Los Angeles, CA
Washington, DC
Louisville, KY
Rockville, MO
Towson, MD
Jacksonville, FL
Cleveland, OH
Milwaukee, WI
Clearwater, FL
Las Vegas, NY
New Orleans, LA
Detroit, MI
Cleveland, OH
Newark, NJ
Orlando, FL
Decatur, GA
Albuquerque, NM
Lakewood, CO
Columbus, O
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— 17 .
NAME OF UNIT
Mecklenburg Charlotte Sch Dist
Atlanta City Sch Dist
Anne Arundel Sch Dist
Nashville—Davidson Co Sch Dist
Palm Beach County Sch 01st
Archdiocese of Boston
Indianapolis Pub Schs
Saint Louis City Sch 01st
Boston Sch fist
Archdiocese of St. Louis
Fort Worth ISD
E Baton Rouge Parish Sch Dist
Denver Sch fist
San Antonio ISO
El Paso ISO
Jefferson Parish Sch Dist
Newark Sch fist
Archdiocese of New Orleans
Mobile County Sch fist
Archdiocese of Cincinnati
Granite Sc) Dist
Polk County Sch Dist
Charlotte, NC
Atlanta, A
Annapolis, MD
Nashville, TN
W Palm Beach, FL
Boston, MA
Indianapolis, IN
St. Louis, MO
Boston, MA
St. Louis, MO
Fort Worth, TX
Baton Rouce, LA
Denver, CO
San Antonio, TX
El Paso, TX
Gretna, LA
Newark, NJ
New Orleans, LA
Mobile, AL
Cincinnati, OH
Salt Lake City, LIT
Bartow, FL
MEMBERSHIP
LOCATION
42
43
44
45
46
47
48
49
50
51
52
I - -
54
55
-‘7
i8
0
2
76,121
74,560
71 ,989
71 ,504
70,963
70,738
69,735
68,964
68,951
67,698
66,821
65,908
65,128
61 ,816
61,707
61 ,534
61,438
61 ,099
60,966
60,311
59,878
58,912
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— 18 -
RANK
MEMBERSHIP
NAME OF UNIT
LOCATION
58,459
57,265
57,082
56,561
56,199
56,118
55,979
55,830
55,323
55,081
54,709
53,856
53,540
52,592
50,577
50,371
50,080
49,328
48,729
48,632
0,
48,466
New Castle Co
San Francisco
Austin ISD
Tucson Unified Sch Dist 001
Archdiocese of Milwaukee
Diocese of Trenton
Cincinnati Sch Dist
Virginia Beach City
Long Beach linif Sch
Cobb County Sch Dist
Wake County Sch Dist
Portland Sch Dist O1J
Greenville County Sch 01st
Tulsa City Sch Dist
Diocese of Rockville Centre
Seattle Sch Dist
Diocese of Pittsburgh
Jefferson County Sch Dist
Buffalo City Sch Dist
Pittsburgh City Sch 01st
Brevard County Sch 01st
Oakland UnIf Sch 01st
Wilmington, DE
San Francisco, CA
Austin, TX
Tucson, AZ
Milwaukee, WI
Trenton, JJ
Cincinnati, OH
Virginia Bch, VA
Long Beach, CA
Marietta GA
Raleigh, WC
Port1an j, OR
Greenville, SC
Tulsa, OK
Rockvllle Centre, NY
Seattle, WA
Pittsburgh, PA
Birmingham, AL
Buffalo, Y
Pittsburgh, PA
Rockledge, FL
Oakland, CA
Sch Dist
Unif Sch 01st
64
65
66
67
68
69
70
71
72
73
74
70
77
73
79
60
81
82
83
84
Sch 01st
01st
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iI0 S14p
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
4
SEP 211982
OFFICE OP
PESTICIDES AND TOXIC SUBSTANCES
MEMORANDUM
SUBJECT: Model Asbestos in Schools; Cooperative Compliance Program
TO: Regional Asbestos Coordinators
mt roducti on
As you know, on May 28, 1982, the Agency issued a final rule,
‘Friable Asbestos—Containing Materials in Schools; Identification
and Notification,” under Section 6 of the Toxic Substances Control
,‘ ct (TSCA). This rule requires local education agencies (LEAs)
to comply with its requirements by June 28, 1983. In FY83 only
limited Federal resources will be available to monitor compliance
with this rule. We anticipate, however, that the States will also
nave a major interest in determining the level of asbestos con-
tamination in the schools under their jurisdiction. In fact, we
are aware that the Regions have worked with tne States to varying
degrees in the Technical Assistance Program (TAP) for voluntary
inspection of schools for asbestos. In many States, this coopera-
tion resulted in the inspection of most public and some private
school buildings for friable asbestos containing materials, nowever,
not all buildings in all States were inspected. Therefore, we
encourage the Regions to continue or expand tneir cooperative
programs with tne States for monitoring compliance with this rule
and to aevelop such programs where they do not exist.
Proaram Substance
In seeking cooperation from the States, the Regions should try
to establish the most comprehensive complementary program possible.
No matter what the degree of State participation, the Regions will
want to establish a comprehensive tracking and implementation system
for the compliance monitoring program which identities the following
for each State:
1) public schools
2) private schools
3) number with friable material
4) number with asbestos
5) number where corrective action has been taken
States can participate to varying degrees in the planning and
implementation phases of a cooperative program.
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—2—
Enformation Sharing
A State may agree to supply the information regarding its
schools to help the Region better target planned inspections.
This information could include information about the age and
population of schools and, If available, the status of any
activities involving asbestos in schools in that State.
Partial Compliance Monitoring Responsibilit
The State may agree to divide compliance monitoring
responsibility for the asbestos in school rule. For instance,
a State may decide to undertake compliance monitoring activities
in public schools, while EPA would monitor compliance in private
schools. Other possible divisions of responsibility could be
according to geographic areas in a state, or rural vs. urban
a reas.
Under Such a program the State and the Region would pool
information resulting from the inspections for inclusion in the
Federal program tracking system.
Laboratory Support
A State may also offer laboratory analytical support for
analysis of Federal samples collected during compliance inspec-
tions for the asbestos in schools rule.
Total Compliance Monitoring Responsibility
The Region and the State could pool their data from the
Technical Assistance Program. Based on this data, each State
could develop its own program of targetting, and conducting
inspections and supply EPA with quarterly reports on accomplish-
ments.
Program Form
A cooperative compliance monitoring program can be implemented
by means of either formal or informal agreements.
Formal Agreements
For those Regions and States interested in the formal approach,
we have attached a model Memorandum of Agreement which describes the
most comprehensive cooperative program which EPA and the States
could undertake. This model, however, is only suggested as a guide.
Regions may use the model or modify it as deemed appropriate for
any for. al agreement reached with the State.
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—3—
There are two major advantages of entering into a formal
written agreement with a State. First a written agreement would
embody a comprehensive plan for the compliance monitoring program
with a clear indication to both parties of their specific commit-
ments to one another. Secondly, a formal agreement would allow
EPA to designate participating State inspectors as representatives
of EPA, thus allowing them access to private schoo4s which they
might otherwise have no authority to enter.
Informal Agreements
We realize, that some States, although
in a cooperative program, may be reluctant
written agreement with EPA. In this case,
informal agreements with States. However,
each Region should develop its own written
activities will be performed by the State.
informal arrangement, EPA will not be able
officials as Agency representatives, wnich
willing to participate
to enter into a formal
Regions should pursue
in such circumstances
plan indicating what
However, under such an
to designate the State
may limit State activities.
All programs, formal and informal, should be reviewed at
least annually by the Regional Asbestos Coordinator.
If there are any comments or questions regarding the model
Memorandum of Agreement for asbestos in schools compliance mOni-
toring, contact David Hannemann at 755—9152. Other questions
regarding the Asbestos in Schools Program should be aidressed to
Pamela Harris at 382—5567.
(i’
V
A. E. Conroy I
Pesticides and
En forcement
i rector
ic Substances
Si Ofl
Attachment
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DRAFT
L1 O0EL MON—FUNDED COOPERATIVE AGREEMENTI 8JUL 1  -
ASBESTOS IN SCHOOLS I
MEMORANDUM OF AGREEMENT
BETWEEN
THE U.S. ENVIRONMENTAL PROTECTION AGENCY
•ANO
STATE OF ______________ ADMINISTRATIVE AGENCY
(Public Health Department or Board of Education)
I. PREAMBLE.
This memorandum of agreement supports a comprehensive program
for monitoring compliance with the laws enacted by the United
States of America and the State of ________________ to protect
human health and the environment from the hazards of exposure
to asbestos—containing materials in schools. Both agencies
agree that cooperating to obtain compliance with State and
Federal rules governing friable asbestos—containing material
in schools is necessary and desirable to minimize duplication
of efforts and to respond to mutual concerns for human safety.
AUTHORITY.
The U.S. Environmental Protection Agency (EPA) is responsible
for administering and enforcing the Toxic Substances Control Act
(TSCA) L5 USC 2601. et seq.] Under TSCA, EPA has the authority
to protect man and the environment from any unreasonable risks
to health from toxic substances. As part of this mandate, EPA
has promulgated regulations requiring public and private schools
through the secondary level to identify friable asbestos—containing
building materials and notify the employees and Parent Teacher
Associations if friable asbestos—containing materials are
found (40 CFR Part 763, 47 Federal Register 23360, May 27, 1982).
Under the authority of TSCA sections 10 and 28 EPA may enter
into cooperative agreements with States to monitor compliance
with the requirements of TSCA.
The State of ______________ is responsible for administering and
enforcing the _______________ Law. [ Statutory citation] Under
that law, the Director/Administrator of the ___________________
is empowered to ( Brief summery of State Law) .
The above listed statute(s) provide the State of ______________
Administrative Agency authority for the following activities:
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-2-
(Entry Into a Memorandum of Agreement)
Identification of Friable Materials
Inspection of Public School Buildings
Inspection of Private School Buildings
Other (response to complaints)
Sample Collection
Sample Analysis
Inspection of Records (recordkeeping & notification)
III. RESPONSIBILITIES
The State of _____________ Administrative Agency and EPA propose
to provide a level of compliance monitoring within the State of
____________ to assure that all school are inspected for friable
asoestos—containing materials and are in compliance with applicable
Federal and State laws. The State of _____________ Administrative
Agency and EPA will exchange information, coordinate activities
and assist each other to eliminate duplication of efforts. The
State of ________________ Administrative Agency and EPA will
meet at a minimum of twice a year to coordinate mutual planning
and implementation elements of their respective Asbestos in
Schools programs. To accomplish this goal, the State of
ALdministrative Agency _________ and EPA agree to undertake the
responsibilities set forth in this agreement.
A. STATE RESPONSIBILITIES
The State of ________________ Administrative Agency agrees to
develop an inspection program consisting of one or more of
the following elememts for identifying friable asbestos-
containing materials and reviewing LEA’s recordkeeping and
notification files.
Program Planning Elements
L. Designate an individual to serve as a contact person
with EPA Region — on all matters relating to this memorandum
of agreement.
2. Identify to EPA Region — all schools in the State, by
Local Educational Agency (LEA).
3. Notify EPA Region — of all schools that have been
inspected for friable asbestos—containing materials under the
technical assistance program (TAP).
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—3—
4. Develop an inspection profile identifyitig friable
asbestos—containing materials for schools in the State:
a. not inspected under the TAP or;
b. inspected but meeting the standards for
satisfactory participation in the (TAP).
5. Identify all LEA central record offices for EPA.
6. Develop a neutral inspection scheme for conducting
recordkeeping and notification inspections at the State LEA’s.
Program Implementation Elements
1. Continue current State program identifying and sampling
all friable materials in schools for asbestos fibers until
all school buildings are in compliance with 40 CFR Part 763
and State asbestos in schools laws.
2. Conduct recordkeeping and reporting inspections
based on a neutral inspection scheme to:
a. Identify school buildings with friable asbestos—
containing materials and the locations of the
asbestos.
b. Determine if the required records are being
maintained and,
c. Determine if the proper individuals or groups
were notified regarding the findings of the
inspection.
3. Encourage compliance with the State/Federal Asbestos
in Schools law/rule and take appropriate enforcement actions
when there is no other alternative.
4. Report violations of the Federal asbestos in schools
identification and noti fication rule to EPA Region —.
B. EPA RESPONSIaILITIES
The U.S. Environmental Protection Agency (EPA) agrees to
develop an inspection program for friable asbestos—containing
materials and reviewing LEA’s recordkeeping and notification
files that will compliment the State asbestos in schools
program. The EPA will also provide technical assistance,
training and analytical support as well as perform other
activities that will compliment the State program.
Program Planning Elements
1. Designate an individual to serve as the contact person
with the State of ________________ Administrative Agency on
matters relating to this memorandum of agreement.
2. Assist the State of ________________ Administrative
Agency in developing its inspectfon profiles.
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-4-
3. Evaluate the status of the TAP and develop standards
for satisfactory participation. LEA’s which have satisfied
the standards will be given a low priority for compliance
monitoring inspections.
4. Develop a neutral inspection scheme for the 100 largest
LEA’s in the country for recordkeeping and notification
inspections.
Program Implementation Elements
1. Provide compliance assistance and training for State
inspectors or other Interested groups involved in inspecting
school buildings for friable asbestos containing materials.
This training will occur in the State of ______________ and/or
at t e EPA Region office or elsewhere as determined by the
parties.
2. Issue Federal inspector credentials to all trained
and qualified State personnel.
3. Provide sample analysis assistance, as needed, to the
State for friable materials. EPA will also provide a list of
laboratories which participate in its quality assurance program.
4. Conduct Federal inspections for identification of
friable asbestos-containing materials in schools referred to
EPA by the State.
5. Conduct Federal recordkeeping and notification inspections
at LEA’s using EPA’s neutral inspection scheme and data on
LEA’s the State will inspect.
6. Conduct follow—up inspections for violations and
complaints regarding friable asbestos—containing materials in
schools.
IV. STATEMENT OF WORK
A. The State of _______________ Administrative Agency agrees to:
1. Enumerate State employees involved in the Asbestos in
Schools compliance monitoring program as fo)lows:
Number Work years
in Program in Program
Director/Administrator
Program Manager
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—5—
Number Work years
in Program in Program
nspector
Chemists/Lab Technicfans
Clerical
Consul tants
Legal
1. tdentification Inspections.
The State or local orgainzation will
inspect ( number ) school buildings for friable materials.
Friable materials are those which can be crumbled using
hand pressure.
2. Collection of friable material samples.
The State agrees to collect samples of all
friable materials in school buildings (3 samples from each
homogeneous area of friable material). Sample locations
must be plotted on a diagram of the school bui1ding.
: Analysis of Samples..
The State ag-ees to an lyze all samples of friable materials
collected under the friable asbestos—containing materials
in schools program. Sample analysis must employ polarized
light microscopy (PLM) with X-ray diffraction (XRD) used
only as a confirmation technique.
4. ecordkeeping and Notification Inspections.
The State agrees to perform ( number ) record—
keeping and notification inspections at LEAs central record
offices and will conduct follow—up inspections at a minimum
of (3) three schools to verify records.
Sample collection and analysis conducted in connection with
recordkeeping and notification inspections will follow the
procedures outlined in items 2 and 3 above.
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-6—
SUMMARY — Projected Outputs Under the Agreeme’it
Activity Quarter Total
1st 2nd 3rd 4th
Identi fication
In spectfons
Samples
Analyzes
Recordkeepi ng
& notification
inspections
Samples
Analyzes
3. The Environmental Protection Agency agrees to:
1. Identification Inspections.
The EPA will inspect ( number ) school buildings for friable
materials. Friable materials are those which can be -
crumbled using hand pressure.
2. Collection of friable material samples.
The EPA agrees to collect samples of all friable materials
in school buildings (3 samples from each homogeneous area
of friable material). Sample locations must be plotted
on a diagram of the school building.
3. Analysis of Samples.
The EPA agrees to analyze all samples of friable materials
collected under the friable asbestos-containing materials
in schools program. Sample analysis must employ polarized
light microscopy (PLM) with X-ray diffraction (XRD) used
only as a confirmation technique.
4. Recordkeepi ng and Joti Fl cation Inspections.
The EPA agrees to perform ( number ) record—keeping and
notification inspections at LEAs central record offices
and will conduct follow—up inspections
at a minimum of three (3) schools to verify records.
Sample collection and analysis conducted in connection with
recordkeeping and notification inspections will follow the
procedures outlined in items 2 and 3 above.
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—7—
SUt1M RY- Projected Outputs Under the Agreement
Activity Quarter Total
1st 2nd ird 4th
Identi fication
!n specti’ons
Samples
Analyzes
Recordkeepi ng
& noti ficatton
Inspect ions
Samples
Analjzes
‘I. 1ODIFICATIONI SUSPENSION OR TERMINATION OF THIS AGREEMENT
This ‘lemoranium of Agreement, when accepted by both parties, -
snail continue in effect unless modifed by the mutual
written consent of both parties or be terminated by either
party upon a tr irty (30) day advance written notice to the
other. The, specific output commitments set forth in this
or ginai agreement shall be’ for the period of -
________________ Mutual agency outputs shall be negotiated
a ri ri T1 y .
FOR THE u.S. E’4YIRONNIENTAL PROTECTION AGENCY
Date _____________ Approved _________________________________
Regional Administrator, Region
U.S. Environmental Protection Agency
OR THE STATE OF ___________________ ADMINSTRATIVE AGENCY
Date _____________ Approved ________________________________
Title
State Administrative Agency
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ASBESTOS IN SCHOOLS - MEMORANDUM OF AGREEMENT
The TSCA rule “Asbestos: Friable Asbestos-Containing Materials in Schools:
Identification and Notification,” which became effective on June 28, 1982
will be enforceable on June 28, 1983. Only limited Federal resources
will be available to monitor compliance with this rule. Therefore, in
Fl 83, EPA wishes to enter into non—funded cooperative agreements with the
States to supplement Federal resources for monitoring compliance with the
requirements of the asbestos in schools rule.
Attached is a model memorandum of agreement which describes the most compre-
hensive cooperative program which EPA and the States could undertake. We
hope that the States will be willing to assume as many of the outlined
responsibilities as are appropriate and feasible based on their own level
of resources and prior compliance monitoring activities in this area.
Since these agreements will be non—funded, we recognize that the level of
each Regional program will be based on the level of responsibility which
each State voluntarily assumes. Any level of responsibility which the
State is willing to assume is welE ii e and should be accepted by the Regions.
1ease review this draft memorandum of agreement and be prepared to
du; ss implementation of the program at the National Meeting.
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
. . .\I(.L .
WASHINGTON. D.C. 20460
t cott ’
oFFIcc o
DEC 5 982 PCSTCIDCS AND TO I(. . INS1 AP4CrS
1E1ORAN DUM
TO: John A. Todhunter, Ph.D.
Assistant Administrator
or Pesticides and Toxic Substances (TS—788)
SUF JECT: Compliance Assistance Guidelines for the Asbestos—In—
Schools Rule
AtPached eor your approval is a document entitled
“Compliance Assistance Guidelines: Friable Asbestos—Containing
Matetials in Schools; Identification and Notification Rule.” The
document was developed by the Chemical Control Division in
conjunction with the Pesticides and Toxic Substances Enforcement
fliviston in order to provide clear, concise guidance to States
and local education auencies (LEAs) on how to comply with the
rule. The guidance will he applicable to LFAs in all stages of
Lule compliance. It provides information to assist both LEAs
that have participated to some, degree in the Agency’s volunta.j
rc ram, ut question whether the.ir activities’ were suffi ’cient to
satisfy the rule’s requirements, as well as LF.As that did not
Dart1cipate in the voluntary piogram and are now beginning their
asbestos ptogram by complying with the rule.
The document has been teviewed by the Regional Asbestos
Coordinators and th it comments have been incorporated. I
recornmen i that you approve this document so that we may begin to
circulate it to the LEAs.
.1! 1 1
( 1 L ’ ( (. • •
Don . Clay, Directot!
Office of Toxic Substances
Attachment
A prove )
Disapprove _________________________
Date
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4 S—3
Compliance Assistance Guidelines:
rJJble Azbcstos—Contair.ing Materials iii Schools;
Identification and Notification Rule
1. llio must comply
A. Local education agencies (LEA) must ir.spect each school
buildir.g built prior to December 31, 1978, which they
lease, own, or otherwise use as a school building, to
locate all friable material.
B. School mear.s any public or private day or iesidential
school which provides elementary or secondary education
for giade 12 Or under as determined under State law , or
any school of any Agency of the United States (20 U.S.C.
2854).
Note: State law will determine whether
kindergarter.s, nursery schools, or day—care centers
a e cor.sideied elemer.taiy schools for purposes of
this Lule.
Ii. Inspections
A. LEAs must inspect all areas withir. the school building
i r.clud ing:
eil. r.cis and a1ls in hallways, ciassLoc s, gymnasiums,
s.•di( m1r.g ccols, auditoLlums, ca eteLLas, inachir.eiy and
stoLage tooms, steel suppoit beams and columns, ar.d
pipes and boilei areas.
B. Inspection shalr include looking foi and touching all
suspect friable materials, ir.cludir.g surfaces behind
suspended ceilings and r.on—peimar.ent concealed areas
which may be entered during r.oLrnal maintenance and
Lepairs. (e.g., access panel for utilities).
C. Ftiable material means any material applied onto
ceilings, walls, stiuctural memoers, piping, ductwork,
oz. any othei patt of the huildir.g stLucture, which when
• .Ly may be cLumbled, pulvetizec oL ieuuced to a powdeL
y hand ptessute.
A :ey phLaso s “applied onto”. This does
not include ceiling tile.
—1—
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D. The key point to be noted is that material must be
friable. Ar. example to note is pipe insulation. If
upon inspection one finds pipe insulation to be exposed
or pipe lagging to be deteriorating and the insulation
material is friable, adequate steps should be taken to
sample and analyze the material to determine if it is
asbestos. Undamaged pipe lagging and boiler wrapping
should not be disturbed.
E. Local education authoiities that have not inspected
•schools for possible friable materials or. pipe, duct—
woLk, 01. boilets, must do so according to this rule.
III. Sampling
A. If friable materials are found in a school building, at
least 3 samples from locations distributed throughout
the samplir.g area must be taken for each distinct type
of matetial found. Each sample must be identified with
an ider.tificatior. (tD) r.umbeL- unique to the sampling
locatlor. and buildir.g. The location of each sample
should be documented ar.d added to the school’s
Lecords. (Foi. additional information on how to take
samples, see Appendix A.)
i ote: Additions to buildings sho’ild be inspected
catef lly foL similarities to older parts of the
uildir.gs. Gften building mateLials may appear to
he ch same when they a e actually of different
compositior.. It is important to inspect all areas
of the building, rather thar. considering an entire
building to be one sampling area.
B. Sampling aiea means any area, whether contiguous or not,
within a school building which contains friable material
that is homoger.ous in texture and appearance. If two
areas diffeL ir. appearance, the rule requires that 3
samples be taken from each area.
C. The requirement that 3 samples be taken in each area
supersedos the Lecornmer.datlor. made in Asbestos—
Cor.tair.ir.g iateL1als in School Buildings: A Guidance
iocu’rer.t Patt t to take one samrle pe 5000 sauare feet
f f ah .e •31
D. Ln schools heLe only I oi 2 samples were oLigir.ally
cbtair.ed, additional samples must be taker. to meet the
Lule requlLemer.t of 3 samples for each distinct type of
friable material found.
—2—
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Note: Schools which determine that asbestos was
present based or. analysis of less than 3 samples
may certify that all friable materials wi].l be
treated as asbestos cor.tair.ir.g. In this case,
additional samples will not need to be taker.;
however, recordkeepir.g and notification
requirements will still apply. If schools wish to
make the case that no asbestos is present, then 3
samples are required.
E. Friable materials on piping and boilers are a unique
situatior.. Often only a portion of piping and boiler
lagging is friable. When friable materials are present,
schools may choose fLom one of the following approaches!
1. Take 3 samples of the material for analysis.
2. CeLtify that the materials contain asbestos
(S763.117(c)) and comply with the rest of the Rule.
3. Take ore sample of the fiiable material and have it
analyzed. If asbestos is preser.t, then treat the
pipe and boiler lagging as if it cor.tair.s
asbestos. If one sample shows no asb2stos is
present, take 2 more samples to comply with the
Rule.
F. Sampling locations should be randomly d stributed within
t e sanpl r.g areas. Locations should r.ot be selected
foL ccr.ver. er.ce ot ease of reachir. the sample or
ecause the sarnpleL judges the location to be
representative (e.g., all samples in a single area).
G. Friable materials or. pipes and boilers should be
cor.sldeLed as distinct areas.
IV. Ai alysis
A. LEAs shall have all samples of fi iable material analyzed
fo asbestos using Polarized Light Microscopy (PLM),
supplemented wheie r.ecessat-y by X—Ray D ffLact1on in
accotdar.ce with t trtetirn Method OL the Deceimir.atior. of
; s )ost1foLIn iir. Lais in B’ lk Insulation Samples.”
flot : Jse of lectLor. r ic oscopy wili not qualify
the school foz. compliance afteL June 28, 1982.
B. A ijSt of laboratories which participate in EPA’s
quality assurance program foz. analysis of bulk asbestos
samples may be obtained by calling Research Triangle
Institute. (1—800—334—8571)
—3—
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C. Schools should keep records of all writter.
cotrespor.der.ce with laboratories (laboratory reports ar.d
ir.terpLetatior.s of these reports).
Note: The followir.g ir.formatior. should be included
ir. a laboratory report: (schools should ask the
lab to include this information).
1. The sample ID r.umbei.
2. A statement that the sample was analyzed using PLM
supp.lemer.ted by X—ray diffraction where necessar ’.
3. Petcer.t of each type of asbestos present.
4. Comments or. any other materials present.
V. Warnings and Notifications (only when asbestos is present)
In schools where friable asbestos—containing materials are
ptesent, the following notification requirements shall be
met:
A. Notice to School Employees (Po tir.g Requirement).
1. Notice to School Employees (EPA form 7730—31 shall
be posted in the primary administrative and
custodial offices and in the faculty common rooms
of each school.
2. Cor.ter.t must be der.ticaL tc EPA Form 7730—3.
cpies ay be obtained thL-ough the Ir.dustiy
Assistance Office (lAO) EPA headquarters 800—424—
9065 ot from Regional Offices.
3. Notice shall remain posted indefinitely in any
school which has friable asbestos—containing
material.
B. Guide for Reducing Asbestos Exposure.
A copy of the “Guide for Reducing Asbestos
Exposure”, (EPA Form 7730—2), shall be distributed
to all custodial or maintenance employees. Copies
may be obtair.ed horn lAO, EPA Headquarters, or from
Regior.al Offices.
i cer. notice of location o fL1ab e asbestos nateLlals
to all building employees.
Local education authorities must provide all
peLsor.s employed in the school a written notice of
the location, by ‘oom or building area, of all
friable asbestos—containing material in the school.
—4—
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D. Notice to Parer.t—Teacher - Associations (PTA).
Local education authorities shall provide notice of
the results of ir.spectior.s and analyses to the PTA
of that school. If there is no PTA for the school,
the local education authority must directly notify
the parents of its pupils. EPA recommends that the
notification include the following statement: “It
is important to note that not all friable asbestos—
containing material need be removed from schools.
Once such material has beer. identified, a program
car. be implemented to ensure that the material is
maintained in good condition and that appropriate
precautions are followed wher. the material is
disturbed for any reason.”
C. The for-mat of the notices in items C and D are at the
discretion of the local education authority. A copy of
the notifications, a list of addressees, and the date of
notifications should be kept in the school’s records.
VI. Recordkeepir.g
o forms are to be submitted to EPA. These are recordJ eepir.g
Lequiremer.ts which must be made public y available upon
request.
A. Records in Each School: LEAs shall compile and maintain
in trie adrnir.istrative offices of E’ach school under their
autnority a record which includes:
1. Name and address of the school.
2. List of all school buildings associated with the
school, an indication the ir.!5pectior. has been
completed, and which buildings contain friable
materials. This should include space that is
leased, owned or otherwise used as a school
building.
3. Documentation for schools which contain friable
mater ials:
a. A biuepLLnt, diagram, OL written description
o the hur .cir.g whicn i drcates the loc tror.
and aLea in square feet of each sampling area
of such material(s), the location samples were
taker., and the identification number of each
sample, and which describes whether each
sampling area of friable material contains
asbestos, including an estimate of its
asbestos content.
—5—
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b. Copies of all laboratory reports. (See 1 11(C)
for content of reports).
c. Copies of the Notice to school employees.
d. Copies of the “Guide for Reducing Asbestos
Exposure,” and one copy of Parts 1 and 2 of
the Guidance Document “Asbestos—Cor.tair.ir.g
Materials in School Buildings.” These
documents car. be obtained either through the
tAO, EPA Headq .iarters or from Regional
Offices.
4. A statement that the requirements of the rule have
been satisfied, signed by the person responsible
for compliance with the rule. The person
responsible for compliance should be an official of
the LEA.
B. RecoLds at the LEA.
1. A list of all schools ur.deL its authoLity,
indicating whether schools were inspected and which
schools contain friable asbestos.
2. A record of the friable materials in schools which
we e sampled and analyzed, indicating which
inatetiais contain asbestos.
3. Fo each school whLch cor.ta r.s frianle asbestos
natetLals, the total area of such materials in
squa e feet and the r.umbeL of school employees who
regularly woLk in the school.
4. EPA Foim 7730—1, “tnspectior.s for Friable
Asbestos—Containing Materials.”
a. Each LEA shall complete and retain in the
administrative office of the LEA EPA Form
7730—1, “Inspections for Friable Asbestos—
Cor.tair.ir.g Materials.”
h. Copies of this foLrn may be obtained through
the lAG, EPA Fleadquaitets, OL fiom Regional
O f ices.
—6—
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VII. Exemptions
A. Exempt from all Provisions of the Rule.
1. Schools built after December 31, 1978.
2. Schools in. which all friable asbestos—cor.tair.ir.g
materials have beer, eliminated by removal.
NOTE: FOL the purpose of this exemption the use of
air—tight enclosures which are constructed between
the asbestos material and the building enviror.mer.t
will be considered a step equal to removal. To be
cor.sidered satisfactory, an enclosure must
completely restrict access to the friable asbestos
mateiial, be completely air—tight, and contain r.o
air plenum. Suspended ceilings with removable
ceiling tiles are not adequate to meet this
exemption.
3. Schools in which an abatement program has resulted
in the el mir.atior. of all fiiable asbestos—
cor.tair.ir.g material by satisfactory encapsulation.
a. Satisfactory encapsulation means that the
material is completely encapsulated, no longer
exposed, no longer capable of releasing
fibers, and not friable.
ote: Encapsulated material should be visually
rs ected to oe sute theLe aze ro holes CL voids in
he membrane. The membrane should not be cracked
(if memb ar.e is flexible it hill not crack under
r.oLmal building settlir.g or impact).
b. In. many cases sprayed or. friable asbestos—
cor.tair.ir.g material cannot be satisfactorily
encapsulated, especially material which
appears fluffy or similar to cotton candy.
B. Exempt from Inspection, Sampling, and Analysis. Schools
a e exempt from S 763.105, 763.107, and 763.109 if
they:
1.. visuaLy inspected all aieas o t e school EOL
ft ’-’ inateLial pLioL to the effective date of the
t. ule.
2. Sampled each distinct type ot friable material
according to the rule requirement of taking 3
samples per distinct area are exempt from sampling
Lequiremer.ts. (See item III CD)).
—7—
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3. Had the samples ar.alyzed using PL,M supp].emer.ted by
X—Ray Diffractior. where r.ecessary, or by Electron
MicLoscopy.
If a school building was found to contain friable
asbestos—containing materials, then the
Lecordkeeping and notification requiremer.ts of the
Rule shall apply to the LEA.
The inspection, sampling, and analysis requirements
of this rule shall not apply to schools certifying
that all friable materials ‘shall be treated as
asbestos—containing. The record shall also include
ir.forrnatior. or. the location of these materials.
C. Certification Requirement
1. If a school inspected, sampled, and analyzed for
friable asbestos—containing materials prior to the
effective date of the Rule and found none, the
school is exempt from the recoudkeepir.g and
rotification Lequ].remer.ts of the Rule. HoweveL,
schools which have friable material present shall
Letain a copy of all laboratory teports and aU.
correspondence with laboratories concerning the
analyses of samples taken and maintain in. the
recotd a certifying statement that the building
contair.s no friable asbestos materials. The
t.equu.ed certifying statement can be Eour.d in
763.1l7(a)(3) of the Rule.
2. Schools which car. document that no Eiiable
asbestos—containing building materials were used in
cor.stLuctior., modification, or renovation are
exempt from the Rule. Documentation must clearly
show that any friable material used did not contain
asbestos. A certifying statement to this effect
must be maintained in the school’s record. The
Lequiied certifying statement can be found in
§763.117(b)(2) of the Rule.
—8—
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Appendix A — How to take a sample
Use a small cor.tair.er such as a plastic 35mm film
car.ister, a small, wide—mouthed glass jar with a screw—
or. lid or a prescriptior. medicine bottle. The container
should be dry and clear..
o Ger.tly twist the open end of the container into the
material. A core of the material should fall into the
container. A sample car. also be taker. by using a knife
to cut out or sciape o f a small piece of material and
then placing it into the container.
Note : Be sure to penetrate any paint or protective
coating and all the layeis of the material. If th
sample container cannot per.etiate the material,
consider whether the material is really friable or
not.
O Tightly close the sample cor.tair.er. Wipe the exterior
of the cor.tair.eL with a damp cloth to remove any
inateiial which may have adheL€d to it duLir.g sampling.
o Tape the container lid to pre’wer.t the accidental opening
of the container during shipmcnt or handling.
O Label the sample container. This label should identify
the scnool date the sample wa taker., sample (ID) number
and the collector’s name.
o :•laKe a LecoLa of each sample I y notir.y the date the
sample was taker., location of material sampled, the area
of boom sampled, and the samp.e ID number.
o Send the sample to an analytical laboratory for
analysis. (Foi. names of laboratories which participated
in the Agency’s Quality Assurance (QA) Program,
call (800) 334—8571).
o To avoid causing ur.r.ecessaiy exposure to asbestos
fibeis, the following piecautior.s should be taken during
sampling.
— The material should be samçled when the a ea is not
jr. use.
— Or y those peLsor.s needed OL the sampling should
be pLeser.t.
— The sample container should be held away from the
face during actual sampling.
—9—
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— Do cot disturb the material ar.y more than
r.ecessax.y.
— The material car. be spLayed with a light mist of
water to prevent fiber release during sampling.
- If a large number of samples are taken, NIOSH
recommends that the sampler wear an approved
espiLato . Contact the NIOSH Regional Offices
listed in Appendix E of Guidance Document 1 for
information or. approved respirators.
- If pieces of material break off during sampling,
wet mop the flooLs and areas where they have
fallen.
—10—
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17 1
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
— a-’. j .
WASHINGTON, D C. 20460
8 JUL 983
OFFICE OF
PESTICIOES AND TOXIC SUBSTANCES
E M OR A MD U 1
TO: Regional Toxic Branch Chiefs
Air and Hazardous Materials Division Direct ors
Environmental Services Division Directors “d.•
SUBJECT: Asbestos in Schools Enforcement Response Policy
Attached is a final copy of the Enforcement Response Policy
for tne Asbestos in Schools Rule. The compliance date for this
rule is June 28, 1983. Evidence of nonco ipliance after this
date is a violation of the rule and as such is subject to enforce-
ment actions as discribed in this policy.
If you have any questions, call Pamela Harris of my staff
(FTS 382-5567).
4/779

A. E. Con II, Director
Cocipl iance( ,M nitoring Staff
Office of Pesti cices and Toxic Substances
Attachment
cc: 1arci a Williams, OTS
Edward Klein, CCD
Ted F,retoo, OLEC
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ENFORCEMENT RESPONSE POLICY FOR
THE FRIABLE ASBESTOS-CONTAINING MATERIALS IN SCHOOLS:
IDENTIFICATION AND NOTIFICATION REGULATION
CONPLIANCE t ONITORING STAFF
OFFICE OF PESTICIDES AND TOXIC SUBSTANCES
THE U.S. ENVIRONMENTAL PROTECTION AGENCY
July 6, 1983
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Asbestos in Schools Enforcement Response Policy
CONTENTS
Part I Introduction
Tne Requirements
1
Tie Violations
2
Liability . . .
3
?AP T II Determining the Level of Action
Notice of Noncompliance
3
Final Response
4
Civil Penalty
4
Injunctive Action
5
Criminal Action
5
PAkT III Assessing an Administrati-ve Penalty
Gravity Based Penalty
5
Nature of Violations
6
Extent Category
6
Circumstances Category . .
7
Independent Assessment
8
Adjustment Factors . . . . .
9
Ability to ?ay/Ability to Continue in Business .
.
10
T I V poflcation of the Policy
Pppendix A: Sample Notice of Noncompliance
11
Appenoix 3: odel Compliance Program Schedule. . . .
.
12
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PART I INTRODUCTION
The Envirornental Protection Agency (EPA) has published the
“Friable Asbestos-Containing Materials in Schools: Identification
anc Notification Rule” (Asbestos in Schools Rule) (47 Federal
Register 23361, May 27, 1982) under Section 6(a) of the Toxic
Suostances Control Act (TSCA). The purpose of the rule is to
icentify the location of friable asbestos in school buildings and
to notify persons who risk unwitting exposure to asbestos. The rule
was effective on June 28, 1922, and allows one year after that date
for the performance of required activities.
The EPA’s 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 Coordinator and state and local contacts. The inspection
and notification requirements of the rule are now mandatory. Cer—
ta’n other activities associated with asbestos in schools, such as
abatement and control procedures, are not requirements of the rule.
However, since these activities are often logical consequences of
complying with the rule, the EPA will continue to offer advice to
school personnel on how to control hazards from friable asbestos—
containing material through the Regional Asbestos Coordinators.
This Enforcement Response Policy provides guiaance to the
Regions in enforcing the provisions of the Asbestos in Schools
Rule. The remedies under Sections 16 and 17 of TSCA are available
for violations of this rule. Part II of this document provides
cuidance in the use of notices of noncompliance, civil administrative
penalty actions, injunctions and criminal actions for violations
of this rule. Part III of this document explains how to use the
General TSCA Civil Penalty System (45 Federal Register 59770,
Septernber 10, 1980) to arrive at an appropriate civil administrative
penalty, where that penalty is utilized.
irie ecuirements
The requirements of the regulation are directed at Local Education
Agencies (LEA’s). As discussed in the rule, this term includes:
o Any local education agency as defined in Section
198(a)(10) of the Elementary and Secondary
Education Act of 1965.
o The governing authority of any nonprofit elementary or
secondary school
This rule imposes requirements which may be divided into the
following f ve basic action areas:
c dentif’cation: Inspection of all school builcings for
friable materials;
o Sampling: Collection of samples of the friable
materials;
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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 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 have 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
recoras in each school and in the LEA administrative office. These
records, available to the public as well as to EPA, document the
compliance efforts of the LEA and of each school.
Exemptions
o Schools which were built after December 31, 1978, areexempt
from all requirements of the rule.
o 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. Certification, as required by the rule, must
be n the school ‘s records.
o Schools which completed specific requirements of the rule as
part of the voluntary Technical Assistance program (see “Com-
pliance Assistance Guidelines”) need not repeat these activities.
If no asbestos was discovered by the TAP, the appropriate
certification must be in the school’s records.
o Schools which have satisfactorily abated (see “Compliance
Assistance Guidelines”) asbestos-containing materials before
iune 28, 1983, are exempt from all requirements of the rule.
o Schools which certify for the record that all friable
materials will be treated as asbestos—containing materials for
purposes of this rule are exempt only from the inspection,
samplinc and analysis requirements of this rule. This certi-
fication must oe in the school’s records.
T .e io1ations
Fa 1ure to perform any requirement of the rule constitutes a
v olation of TSCA. Thus, possible violations of the rule incluae:
o Failure to inspect;
o Failure to sample;
o Failure to analyze;
o Failure to notify; and
o Failure to keep records.
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The improper use of an exemption would result in at least one,
a c possibly all of the above violations. If records or certi—
f cat,on were falsified to support an exemption claim, the
fa’ s,fication woulo be a separate violation. TSCA 16 provides
fcr civil anc criminal penalties for any person who violates a
pr3vlsion of 15 if the violation is knowing or willful.
Li a D l ii ty
In taking enforcement action to redress violations of this rule,
EPA has the option of proceeding against the entity alleged to be in
violation and/or against the responsible official who signs the
certification.
Generally, EPA will hold only the LEA liable for the actions
of its officers and employees. The Agency, however, reserves its
right to imoose individual liability under appropriate circumstances.
&poropriate circumstances for the purposes of this rule are cases
where an ndiv,dual has knowingly or willfully signed a certifi-
cation statement which is false.
PART II DETERMINING THE LEVEL OF ACTION
The regulations require school officials to perform ce tain
actions in ‘dentifying friable asbestos—containing materials and
notifying s2ecified persons of the presence of such materials.
Si.ice the asDestos in schools regulatory program began as a volun-
tary program, the EPA will continue the program in the same spirit
o coope ’ation.
However, situations could occur which would require an enforce-
ment response. The various levels of possible enforcement response
are the following:
o Notice of Noncompliance
o Civil Complaint
o Injunctive Action
o Criminal Action
Notice of Noncompliance
Wnen a Rec anal official determines that an LEA has violated the
sbestos in Scnools Rule, the appropriate Regional office should issue
a notice of noncompliance. Witnin 30 cays of the receipt of the
notice of nonconoliance, the LEA should demonstrate compliance
w’tr toe Rule.
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-4-
Since the LEA is the responsible party, the notice of noncom-
pliance should be sent to the LEA, but a copy should also be sent to
any specific school involved. The notice of noncompliance should
state that the LEA must demonstrate compliance with the rule and
oescri e the actions it has taken to come into compliance with
tne rule within thirty days of the receipt of the notice. If the
LEA cannot achieve compliance within 30 days of the receipt of the
not ce of noncompliance, the Regional office should seek a final
resoonse.
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 the notice
are subject to one or more types of final enforcement responses.
These are: (1) civil penalty, (2) injunctive action or (3) criminal
act on. The most common enforcement response will be the civil
penalty, but injunctive or criminal 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 aCivil
Complaint. The Civil Complaint will describe the violations and the
arnoun.t of the penalty to be assessed. Unoer certain conditions, all
or part of the penalty will be remitted under a negotiated Settlement
with Concitioris (SWC) if the LEA abides by a Compliance Program and
Scheaule (CPS). (The Settlement with Conditions is a separate docu-
rent prepared at the same time as the Civil Compliant.)
To determine if an LEA is a good candidate for negotiating an
SWC apply the following criteria:
1. Violations have been documented and have not been corrected
within 30 days after a notice of noncompliance.
2. The violations will require more than 30 oays to correct.
3. The LEA exhibits a good attitude towards coming into
compliance with the rule under a CPS.
A CPS acceptaole to EPA can be negotiated. (A model CPS
for the Asbestos in Schools Rule is the subject of
Appendix B.)
More aetailed guidance concerning Settlement with Conaitions
w,ll oe sent to the Recions in the near future. Please notice
:nat tne only aspect of the rule under negotiation is the dead—
line for completion. An LEA may not, at this time, offer to
abate asbestos in the school if it does not have to notify
parents. Any LEA which has allowed school children and staff
to be exposed to an friable asbestos containing material after June
28, 1983, must inform the PTA or the parents directly and the staff
of the school
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—5—
If the LEA fails to demonstrate good faith in abiding by its
compliance program and schedule, the penalty will not be remitted
and the LEA will be required to pay the total penalty.
injunctive Action
In certain cases where the EPA’s efforts to obtain voluntary
conoliance by a notice of noncompliance or a civil penalty
assessment fail to achieve cooperation on the part of the LEA,
iri unctive action may be the appropriate response. In such
cases, the Regional enforcement attorneys should consider seeking
an injunctive 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 DOd only by the
Associate Administrator (AA), Office of Legal and Enforcement Councel
(OLEC), or the IA’s designee. Requests for injunctive action should
be forwaraed to OLEC with a copy to the Compliance Monitoring Staff.
For futher guidance see following OLEC memoranda “General Operating
Procedures for the Clvii Enforcement Program” (July 6, 1982) and “Case
Referrals for Civil Litigation” (September 7, 1982).
Criminal Action
Criminal sanctions are available for violations of the Asbestos
in Schools Rule, pursuant to Section 16(b) of TSCA. Only serious
violations,.where tnere is “guilty knowledge” or intent (“knowing
and willful” violations), should be consloered 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 ASSESSING AN ADMINISTRATIVE PENALTY
The purpose of this section of the enforcement response policy
is to explain how to use the TSCA Civil Penalty System, (45 FR 59770,
September 10, 1980,) to arrive at an appropriate penalty where an
administrative penalty is the appropriate enforcement response.
The Gravity ase Penalty
The gravity based penalty (GaP), as defined by the TSCA Civil
erai:y Syste i, is a function of three factors:
The “nature” of tie violation committed.
° Tie “extent” of the violation, or the amount of potential
r sk to human health from the inability of the Agency
and the public to assess the health hazard involved.
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-6-
C The ‘ 1 circumstances” of the violation, or the probability
that the violation has impaired the ability of the Agency
and the pubii to assess the health hazard involved.
Wnen all tnree of these factors are specified for a
v olation, it is possible to determine the gravity based
from the G3P matrix. That matrix, which was estabfl shed
TSCA Civ l Penalty System, appears below.
EXTENT: MAJOR
SIGNIFICANT T MINOR
CIRCUMSTANCES: LEVEL
HIGH 1
RANGE 2
$25,000
S20,000
$17,000 $5,000
$13,000 j $3,000
MID 3
RANGE 4
$15,000
$10,000
$10,000
$6,000
$1 ,500
$1 ,000
LOW 5
RANGE 6
$5,000
$2,000
$3,000
$1 ,300
$5 0
$200
ature at v oiations
The Asbestos in Schools Rule constitutes a hazard assessment
-egulation. The rule will serve to identify the location of
friable asbestos—containing material and to notify persons who
are exposed to asbestos. With this information exposed persons
may take measures to reduce the risk to themselves.
Extent Category
In this case the potential risk arises from the inability
of the Agency and the public to assess whether exposure is
occurring to a material which is known to result in risk to
numan health. Thus, failure to comply with the rule prevents
people from knowing if they are exposed to asoestos and pre—
cluaes any adequate response to the problem.
Since the presence of friable asDestos—containing material
s unknown in the absence of specific information about the
Duilaing, the possibility of risk can be considered to be evenly
o’stributed among schools subject to the rule whlcn have not
complied with tne,rule. Therefore, all violations are placed in
:re same extent category. The extent category is the significant
cateçory. In this case the information iS not reported to EPA
part i cular
penalty
in the
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—7—
ano will not make a major impact on its overall policy, nor does
: e rule require any action on the part of the LEA in response
to the rule. Thus the major category is not appropriate. The
information would, however, have 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
violation 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
asbestos is directly proportional to the amount of good quality
information available to them. Thus, the violations have been
categorizea based on the amount of information available to the
public and the Agency.
The Agency’s goal is to bring about compliance with the
rule. Schools, as non—profit public service institutions, will
feel the impact of even small fines. Thus, in each Range the
Lower Level circumstance is applied.
Level 2 Violations
o Falsification of notices to staff and PTA’s or parents
Falsification of records or certification for exemptions
The Agency considers falsification of information about the
performance of the rule requirements to constitute a separate
eo 1 ation in that complete and accurate records and notifications
are not available. Falsification of. records can leac to a sense
of false security for school personnel, persons who use the
school and children’s parents. Adaitional exposure to asbestos
could occur as a result of falsification because employees did
not take ordinary precautions to limit asbestos exposure. This
result may be worse than failure to keep those records in the first
place. Falsification of records or certification Which support an
exemption claim are violations in this category. In this case the
LEA will be assessed a penalty for falsification of records.
Level 4 Violations
o Failure to create and keep accurate records (including
certification statement for exemptions)
c Failure to inspect
o Failure to sample
o ailure to analyze samples
o Failure to post warnings ano notify (including failure to
distribute “A Guide for Reducing Asbestos Exposure”)
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- 8
The intent of the Rule is to identify the location of friable
asoestos-containing material in -the school and to communicate that
n orna:ion to the school personnel and parents of the children.
e recuirements of the rule are relatively simple and the Agency
has orovioed guidance documents anc other forms of training and
assistance for LEA’s to comply with the rule. Failure to perform
ary requirement destroys the integrity of the program. For example,
recorc’s aremeaningl ess if no inspection was performed. Also, if
an inspection located friable materials but no samples were taken
or analyzed, then there is still no knowledge about whether there
isa hazard from asbestos. If the warning and notification require-
nients are not followed, then the persons who need to know about
t e asbestos hazard do not know.
Level 6 Violations
c Failure to keep adequate records in the right place
o Failure to inspe:t properly
o Failure to sample properly
o Failure to analyze properly
o Failure to notify prope.rly
nese vio etions are activities -that the LEA performed techni-
call improper y. Gooa faith efforts to comply with the rule
constitute a lesser violation tnan outright failures to comply.
: ever:heiess, 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 cornply. Incomplete compliance which is in
ad faith would be Level 4 or Level 2 violations depending on
the circumstances.
Inaependent Assessment
Although each school may have failed to comply with more than
one requirement, Regional enforcement personnel should cnarge an
LEA only once for each school fl v-iolation. The charge should be
for the highest level violation (see “Circumstances , page 7), but
cite all others.
Tre viOlCtiOfl for fa lure to keep records in the district office,
which occurs at the LEA level, snould be treated as a single
violation equal to tne failure of one school to maintain records.
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— 9. —
Ac ustment Factors
TSC.A requires the Agency to consider certain factors in
assessing the violator’s conduct: Culpability, history of such
violations, aoility to pay and ability to continue in business.
The Act also authorizes the Agency some discretion to consider
‘otner factors as justice may require”. In the General ISCA Penalty
Policy, two factors are considered in this category: cost of the
violation to government and benefits 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 hazard other than notification, it is difficult to calculate
the benefit from noncompliance. The government does not have to
launcn expensive cleanup activities or investigations so the cost
to the government is also not high. Therefore, it is not appro-
priate to apply cost ana 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 in the following sequence:
(1) Culpability
(2) Ability to pay/ability to continue in business
. Culoabi 1 ity
Tne two principal criteria for assessing culpability are the
v’olator’s kr.owleaqe of a TSC requirement and the violator’s
control over tne violative conaition. Other criteria are the
wilifuiness of the violator to commit the violation and the
attitude of the violator.
Lack of knowledge of this particular rule would reduce culpa—
ility only where a reasonably prudent and responsible person in
tne v olator’s position woula not have known of the rule. The
Agency has had an asbestos in schools program for several years,
nas mailed copies of the rule to all LEA’s known to the Depart-
ment of Education and has supported a vigorous outreach program.
The Agency anticipates that situations in which a reasonably
prudent and responsible person would not know of the rule would
ze extremely rare. If such a situation does exist, the penalty
could be adjusted downward as much as 25 .
There may be situations where the violator is less than fully
esoonsi 1e for tne violat on. F r instance, an employee or
contractor disobeyed the instructions of the employer and
as a resu 1 t of that aisobedience, the violation occurred. If
rooer1v documented, such situations would warrant some reduction
n aenaity. The aopropriate reduction is up to 25%.
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- 10 -
ttitude of the violator is an important factor, particularly
wi r respect to this rule. “Good faith” efforts to comply with
the rule can result in a reduction of the ,penalty by up to 15%.
Deliberate recalcitrance can result in an upward adjustment of
up to 15%.
Ability to Pay!Aoility to Continue in Business
For purposes of this rule the gravity based penalty will be
determined based on the parameters and culpability factors already
ciscussed. This amount will be the penalty in the complaint.
The LEA may raise ability to pay as an issue. In this case the
Rer iona1 Office will have to determine what the LEA can be expected
to Day.
Many LEA’s will have limited funds. Some may argue that they
cannot afford the penalty because they have used funds to abate
or control the friable asbestos-containing material in the school.
The 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 eitner be completed, in progress, or under contract, and
the costs must be clearly documented. Trie cost of vaguely “planned
actions” will not be deducted. Regionalpersonnel should review
the contract and any results reports before determining the
amount of reduction. The deduction should not exceed 80% of the
penalty, i tne LEA has not notified the PTA (or parents) and
school staff of any asbestos hazard remaining in the school
after June 28, 1983. ( n RWC could allow remission of the
remairing 23% when the proper persons are notified.)
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— 11 —
Acpencix A: Sample — Notice of Noncompliance
Local Education Agency
St reet
Ci:y, State
Zip Code
Dear
The United States Environmental Protection Agency (EPA) finds
(Name of LEA)
(Name of School, if applicable)
in violation of the Friable Asbestos—Containing Materials in
Schools: Identification ard Notification Regulation, 40 CFR Part
763, Subpart F, promulgated under Section 6 of the Toxic Substances
Control Act. The regulation requires Local Education Agencies to
‘dentify, sample, and analyze possible friable asbestos—containing
materials in schools, to notify the school personnel and the PTA ’s
‘or parents) of the results of those efforts if asbestos is
discovered ana to keep records of these activities.
An Agency investigation has determined that:
.Describe violation(s), citing the section(s)
of the regulation violated)
Tre EP. is issuing this Notice of Noncompliance rather than pursuing
further enforcement action concerning this violation at this time.
Please wr te the Agency within 30 days of your receipt of tnis
letter cescribing the actions you have taken to achieve compliance.
Should you have any questions regarding this letter, or should
you neea technical assistance, please contact _________________
I.
Sincerely yours,
N a me
Title
egionai Office
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— 12 —
Ao en ix B: Moael Compliance Program Schedule
INTRODUCTION
It is the goal of this Compliance Program Schedule to bring
all schools operated by the Local Education Agency (LEA) into
compliance with the Asbestos in Schools Rule within a specified
::rne after the effective date of this document. The effective
tate of this document is the date it is signed by both the
Environmental Protection Agency (EPA) and the LEA. A school will
be aeemed to be in compliance when all five activities required by
the rule have been completed. These activities are:
o loentification: Inspection of all school buildings for
friable materials;
o Sampling: Collection of samples of the friable
rnateri al S
o Analysis: Analysis of the samples to determine if
they contain asbestos;
o Notification: Informing tne Parent Teachers Associati_on
or parents, faculty and other staff
of the presence of asbestos, and distri-
buting “A Guide to Reaucing Asbestos
Exposure” to custodial and maintenance
personnel ; and
c ecordkeeping: 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 t e requirements of the
rule have been satisfied.
Determination of compliance will be based on the submission
y the LEA to the Regional Asbestos Coordinator (RAC) of copies of
the records required by the rule to be kept at the LEA’s central
office and certification that all ot ier requirements have been
met. EPA may verify the certification.
If an LEA completes all the compliance program tasks outlined
in this cocunent by t e dates agreed upon by both EPA and the LEA,
th t o tne penalty assessed the LEA for violation of the rule
w 1 i oe remittec by letter.
CO! PLIANCE PROGRAM TASKS
1. Determination of the Extent of Noncompliance
1l schools in the LE which nave not documented compliance with
;h rule or qualifiec for an exemption, must be brought into
compliance with this rule. EPA has assessed penalties for the
following violations in the following schools:
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P’ppencix B cont. — 13 —
(List specific schools 1 violations and penalties as they
appear in the civil complaint and cite the complaint.)
S nce EPA did not inspect all schools in the LEA, the possibility
exists that other schools are in violation. 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—
nents, not in compliance with one or more requirements) and submit
the list to the Regional Asbestos Coordinator. The final compliance
oroçram scnedule will address all schools which are not in compliance
with the rule. If both parties to the CPS agree, the final date
for conpl ance may be renegotiated at the time this list is submitted.
2. Compliance with the Rule
The LEA shall follow the Compliance Assistance Guidelines for the
Asbestos in Schools Rule developed by the Environmental Protection
Agency (EPA). approved by the Assistant Administrator for the
Office of Pesticides and Toxic Substance on December 29, 1982.
EPA will provide assistance such as lists of laboratories which
participatec in EPA’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 superlntendant or other responsible party stating
that the LEA has complied with all requirements of t he rule. !f
n EP conpliance monitoring inspector may visit the LEA to confirm
c. npliance wi:n the rule.
COMPLIANCE SCHEDULE
Tasks Schedule
1. Determination of the extent of 30 days after effective
noncompliance aate of CPS
2. Bring schools into compliance — days after effective
with the rule date of CPS
3. Records and certification submitted Within two weeks of the
to Regional Asbestos Coord’nator final compliance date
1/ At the discretion of the Regional counsel other proofs of corn-
— pliance may oe required, such as the a certified receipt from
tne PTA official who received notification.
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Appendix B cont. — 14 —
OTHER PROVISIONS
1 . Enforcement
While this Agreement is in effect, and as long as the LEA has not
failed to comply with the terms of the agreement, EPA shall not
initiate additional enforcement action against Respondent for
violations of the Asbestos in Schools Rule in schools on the list
submitted to EPA.
This Agreement does not insulate Respondent from compliance moni-
taring and enforcement actions for ISCA violations not addressed
by this Agreement nor from enforcement actions under other laws
administered by EPA, nor under laws administered by state or local
environmental authorities, except where the ISCA rule would preempt
such laws.
2. Notification of Technical or Operational Difficulties
Respondent shall notify EPA imriediately in all cases where technical
or operational difficulties will make it impossible for Respondent
to meet any of the deadlines in the Compliance Schedule.
3. echnical Assistance
EP shall provide reasonable technical assistance to Respondent
on questions concerning such matters as sampling and ana]ytical
roced res, and word ng of notifications, for the purpose of
conply;ng with this Agreement.
. Anendine its
Upon mutual consent of EPA and Respondent, this Agreement may be
amended a any time to modify or add technical and operational
requirements (such as, but not limited to, deadline modifications
necessitated by technical or operational aifficulties) for the
purpose of achieving compliance by Respondent with the Asbestos
in Schools Rule. Any changes and/or amendments to this Agreement
shall e incorporated into this Agreement when the amendment(s)
have been signed by authorized representatives of EPA and R sporident.
5. Evaluation
EPA will assist the LEA in the evaluation of the results of its
Asbestos Identification and Notification Program.
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— ,4 5
S’4,
RECE ivED /6 & i o
rp v IV _________________
PRO FECTION AGENCY
WASHINGTON• DC 20460
I, PRO ’
84 R1’3I ’ 1: 48
JUL - 2 :24
OFFICE OF
PESTICIDES AND TOXIC SUBSTANCES
MEMORANDUM
SUBJECT: Revised Asbestos in Schools Rule Enforcement Response Policy
FROM: A. F. Conroy II, Director
Compliance Monitoring Staff
TO: Addressees
Attached is the revised Asbestos in schools Enforcement Response
Policy. Regional-personnel made a number of thoughtful and helpful
comments. Major comments and the response of my staff are summarized
below:
o A number of Regional commenters suggested that the proposed
list of circumstances for issuing a notice of noncompliance
(NON) to a Local Education Agency (LEA) is too limited.
The list of circumstances for issuing an NON was expanded
in the final document.
o Many commenters also stated that, since no list is likely to
completely cover all possibilities, the Regions need more
flexibility to decide if an NON is an appropriate enforcement
response.
The list is presented simply as examples of instances meriting
an NON. The key to deciding whether or not to issue an NON
is the awareness of parents and staff concerning the presence
of asbestos in the schools. If, in spite of the violations,
the parents and staff are generally aware of the extent of the
presence of friable asbestos-containing material in the school,
the NON is appropriate. If not, then a civil penalty is
the appropriate response.
o Some commenters were concerned that the large LEAs are
receiving more lenient treatment because they were inspected
during the first year after the compliance deadline when the
initial enforcement response was an NON. Some of these LEAs
may not have achieved compliance.
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This point is balanced by other considerations. The policy
of issuing an NON as an initial enforcement respoiis.e had
little effect on the overall level of compliance with the
rule. The Agency believes that the policy of assessing penalties
as an initial response will encourage compliance by all schools
in order to avoid the payment of those penalties. Also,
the schools subject to this policy revision have had an
extra year to comply with the rule. For this reason, leniency
is not justified.
This policy also applies to LEAs which received an NON,
apparently complied with the rule, and were found, upon
reinspection, to still be in violation of the rule. Regions
should verify certifications of compliance by rei nspecti ng
a precentage of LEAs.
o Some commenters asked what Regional personnel should do if
no abatement actions are necessary in a school which is in
violation. It would seem that no Settlement with Conditions
(SWC) would be possible.
It is possible that the Region could think of some condition
for settlement that would be appropriate and beneficial to
the school community. If this is not the case, Regional
personnel should require payment of the penalty. Note that
TSCA requires that the Agency consider the ability to continue
in business as a penalty adjustment factor.
o Several Regions recommended that violators should not
completely avoid all of the penalty, even through
abatement actions. One commenter suggested that if a school
was still in violation one year after the compliance date, it
deserved to pay some penalty. Another stated that a policy
of collecting no penalty for violations compromised the
credibility of the Agency.
The revised policy suggests that only part of the penalty
will be remitted as part of an SWC. Since situations will
vary considerably, the amount to_ be remitted will be left to
the discretion of the Region.
o One Region suggested that the Agency determine if friable
asbestos-containing material is present before issuing
a civil compl&int. If friable asbestos-containing material
is not present, then the Region would only issue an NON.
It would be extremely burdensome for the Agency to determine
that no friable asbestos-containing material is present in
even a medium-sized LEA, especially one which has not
complied with the rule. The intent of the rule is to
make the LEA responsible for making this determination.
Failure to do so is a violation of the rule, regardless of
whether friable asbestos-containing material is ultimately
discovered.
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-3—
o A number of Regions inquired about the timing of violations
subject to the revised policy.
The policy applies to violations detected after June 28, 1984.
The enforcement response Is for violations detected on the
day of the inspection. Minor violations, which are corrected
during the course of the inspection, may fall into the
category of violations meriting an NON. The Regions should
not fail to issue a civil complaint because an LEA achieved
compliance after the inspection but before the completion
of the complaint documents. The LEA will have been in
violation of the rule for at least a year, which is sufficient
justification for a penalty. The Region may view timely
compliance as evidence of good faith and adjust the penalty
downward somewhat (see “Adjustment Factors’ 1 in the enforcement
response policy). Failure to assess a penalty could encourage
the regulated community to delay compliance until EPA
conducts an inspection.
o Some Regions suggested that an NON should be issued if
the violations were not “knowing and willful” or if the
violator exhibited “good faith”.
At this time, these LEAs have been in violation of the
rule for one year . The rule has been effective for two
years , during which the rule received nation-wide publicity.
There are no excuses for noncompliance by reasonably
prudent and responsible persons. The penalty policy
allows for reductions in the penalty for “good faith”
or “non—culpability”, but these circumstances do not
merit the issuance of an NON instead of a civil complaint.
o Some Regions commented that the penalties should be higher.
Some Regions commented that the penalties should be lower.
The penalties were not changed.
The Office of Toxic Substances, the Office of Enforcement and
Compliance Monitoring and the Office of General Counsel submitted
no comments.
cc: Marcia Willianis
Don Clay
David Mayer
Ted Firetog
Ruth Bell
Terrell Hunt
John Seitz
Jack Neylan
Ralph Turpin
Regional Asbestos Coordinators
Regional Counsel
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June 22, 84
REVISED ENFORCEMENT RESPONSE POLICY FOR
THE FRIARLE ASRESTOS-r.ONTAINING MATERIALS IN SCHOflIS:
IDENTIFICATION AND NOTIFICATION REGULATION
COMPLIANCE MONITORING STAFF
OFFICE OF PESTICIDES AND TOXIC SUBSTANCES
THE u.S. ENVIRONMENTAL PROTECTION AGENCY
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Asbestos in Schools Enforcement Response Policy
CONTENTS
Part I Introduction
The Requirements . . . . . . . . . . . . . , . . • • • 1
The Violations , . . . . . . . , . . . , . • • • • • • 2
Liability . . . . . . . • • , • • • • • • • , • 3
FAIfl II Determining the Level of Action
Notice of Noncompliance . . . . . . . . . . .
.
.
.
.
.
4
Civil Penalty . . . . . . . . .
.
.
.
.
.
5
Injunctive Action . . . , . , . . . • • • • •
•
•
•
•
,
6
Criminal Action . . . . . . . . . . . . . . .
.
.
.
.
.
6
PART III Assessing an Administrative Penalty
Gravity Based Penalty . . . . . . . . . . . •
•
•
•
•
•
7
Nature of Violations . . . . . . . . . . . .
.
.
.
.
.
7
Extent Category . . . . . . . . . . . . . . .
•
•
•
•
•
8
Circumstances Category . . . . . . . . , • •
•
,
•
•
•
8
Independent Assessment . . . . . . . . . . •
•
•
•
•
•
10
Adjustment Factors . . . . . . . . . . . . .
.
.
.
.
.
10
PAFU IV Application ot the Policy
Appendix A: Sample Notice of Noncompliance .
.
.
.
.
.
12
Appendix B: Model Compliance Program Schedule
.
.
.
.
.
15
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PART I INTRODUCTION
The Environmental Protection Agency (EPA) has published the
“Friable Asbestos—Containing Materials in Schools: Identification
and Notification Rule” (Asbestos in Schools Rule) (47 Federal
Register 23361, May 27, 19R2) under Section 6(a) of the Toxic
Substances Control Act (TSCA). The purpose of the rule is to
identify the location of friable asbestos in school buildings and
to notify persons who risk unwitting exposure to asbestos. The rul.e
was effective on June 2R, 19R2, and allows one year after that date
for the performance of required activities.
The EPA’s 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 Coordinator and state and local contacts. The inspection
and notification requirements of the rule are now mandatory. Cer-
tain other activities associated with asbestos in schools, such as
abatement and control procedures, are not requirements of the rule.
However, since these activities are often logical consequences of
complying with the rule, the EPA will continue to offer advice to
school personnel on how to control hazards from friable asbestos-
containing material through the Regi onal Asbestos Coordinators.
This Enforcement Response Policy provides guidance to the
Regions in enforcing the provisions of the Asbestos in Schools
Rule. The remedies under Sections 16 and 17 of TSCA are available
for violations of this rule. Part II of this document provides
guidance in the use of notices of noncompliance, civil administrative
penalty actions, injunctions and criminal actions for violations
of this rule. Part III of this document explains how to use the
General TSCA Civil Penalty System (45 Federal Register 59770,
September 10, 1980) to arrive at an appropriate civil administrative
penalty, where that penalty is utilized.
The Requirements
The requirements of the regulation are directed at Local Education
Agencies (LEA’s). As discussed in the rule, this term includes:
o Any local education agency as defined in Section
198(a)(10) of the Elementary and Secondary
Education Act of 1965.
o The governing authority of any nonprofit elementary or
secondary school.
This rule imposes requirements which may bedjvided into the
following five basic action areas: -
o Identification: Inspection of all school buildings for
friable materials;
o Sampling: Collection of samples of the friable
mate rils;
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o Analysis: Analysis of the samples to determin -:if
they contain asbestos;
o Notification: Informing the Parent Te.ichers 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 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 have 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, document the
compliance efforts of the LEA and of each school.
Exemptions
o Schools which were built after December 31 , 1978, are exempt
from all requirements of the rule.
o 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. Certification, as required by the rule, must
be in the school’s records.
o Schools which completed specific requirements of the rule as
part of the voluntary Technical Assistance program (see “Com-
pliance Assistance Guidelines”) need not repeat these activities.
If no asbestos was discovered by the TAP, the appropri ate
certification must be in the school’s records.
o Schools which have satisfactorily abated (see “Compliance
Assistance Guidelines”) asbestos—containing materials before
June 28, 1983, are exempt from all requirements of the rule.
o Schools which certify for the record that all friable
materials will be treated as asbestos-containing materials for
purposes of this rule are exempt only from the inspection,
sampling ançi analysis requirements of this rule. This certi.
fication must be in the schoolts records.
The Violations
Failure to perform any requirement of the rule constitutes a
violation of TSCA. Thus, possible violations of the rule include:
o Failure to inspect;
o Failure to sample;
o Failure to analyze;
o Failure to notify; and
o Failure to keep records.
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The improper use of an exemption would result in at least one,
and possibly all of the above viol ations. If records or certi-
fication were falsified to support an exemption claim, the
falsification would be a separate violation. TSCA 516 provides
for civil and criminal penalties for any person who violates a
provision of §15 if the violation is knowing or willful.
Liability
In taking enforcement action to redress violations of this rule,
EPA has the option of proceeding against the entity alleged to be in
violation and/or against the responsible official who signs the
certi fi cati on.
Generally, EPA will hold only the LEA liable for the actions
of its officers and employees. The Agency, •however, reserves its
right to impose individual liability under appropriate circumstances.
Appropriate circumstances for the purposes of this rule are cases
where an individual has knowingly or willfully signed a certifi-
cation statement which is false.
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PART II DETERMININ( TUE LEVEL OF ACTION
The regulations require school officials to perform certain
actions in identifying friable asbestos—containing materials and
notifying specified persons of the presence of such materials.
Failure to perform these activities is a violation of Section 15
of TSCA.
The various levels of possible enforcement response
are the following:
o Notice of Noncompliance
o Civil Complaint
o Injunctive Action
o Criminal Action
Relatively minor violations merit an initial notice of non-
compliance, followed by a civil compliant if the LEA does not
comply. More serious violations deserve a civil penalty as an
initial response.
Notice of Noncompliance
A notice of noncompliance is appropriate only for certain minor,
technical violations of the Asbestos in Schools Rule, Such vio-
lations include:
o Minor inspection, sampling and analysis violations such
as:
— Failure to inspect all areas where most areas
have been inspected (this does not apply to
systematic failure to inspect pipes and boiler
rooms); and
— Minor sampling or analysis errors made despite a
good faith effort to comply with the rule.
o Minor posting violations, such as:
- Failure to post all required notices, where most
notices have been posted.
o Minor recordkeeping violations, such as:
- Failure to meet the June 28, 1983, deadline if
compliance is complete on the day of inspection;
- Failure to maintain a form 7730-1 when all
information on the form is available in the files;
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-5-
Failure to maintain copies of the guidance documents
when required if the Local Education Agency (LEA) has
ordered them from EPA, but the copies have not yet
arrived; and
— Failure to maintain a signed certification that there
is no friable material when records indicate that
there is, in fact, no friable material.
Similar types of minor violations would also warrant a notice
of noncompliance. Note that parents and school employees will be
generally aware of the status of asbestos in the school buildings
in spite of these violations.
Since the LEA is the responsible party, the notice of noncom-
pliance should be sent to the LEA, but a copy should also be sent
to any specific school involved. The notice of noncompliance
should state that the LEA must demonstrate compliance with the rule
and describe the actions it has taken to come into compliance with
the rule within thirty days of the receipt of the notice. If the
LEA cannot achieve compi iarice within 30 days of the receipt of the
notice of noncompliance, the Regional office should seek an
administrative civil penalty.
Administrative Civil Penalt
For all violations for which a notice of noncompliance is not
appropriate and for cases where an LEA does not comply with the
rule within 30 days of the receipt of a notice of noncompliance,
the Region should issue an administrative civil complaint. Civil
penalties are the appropriate initial response when the violations
have significant impact on the awareness of parents an& school
employees concerning the presence of asbestos in the school.
The administrative civil complaint will describe the violations
and the amount of the penalty to be assessed. Guidance for deter-
mining the amount of the penalty is contained in Part III of this
policy document, “Assessing An Administrative Penalty”.
Under certain conditions, part, but not all, of the penalty
will be remitted under a negotiated Settlement with Conditions
(SWC) if the LEA abides by a Compliance Program and Schedule
(CPS). (CMS issued the the Settlement with Conditions guidance on
November 16, 1983.)
To determine if an LEA is a good candidate for negotiating an
SWC, apply the following criteria, in addition to those discussed in
the SWC guidance:
1. The LEA exhibits a good attitude toward coming into
compliance with the rule and performing abatement
activities under a CPS.
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-6-
2. A CPS acceptable to EPA can he negotiated. (A model CPS
for the Asbestos in Schools Rule is the subject of
Appendix B.)
Please notice that the only aspect of the rule under negotiation
is the deadline for completion. An LEA may not, at this time, offer
to abate asbestos in the school if it does not have to notify parents.
Any LEA which has allowed school children and staff to be exposed to
a friable asbestos containing material after June 28, 1983, must
inform the PTA or the parents directly and the staff of the school.
If the LEA fails todernonstrate good faith in abiding by its
compliance program and schedule, the penalty will not be remitted
and the LEA will be required to pay the total penalty.
If the LEA has no necessary abatement activity to perform,
then EPA may consider other reasonable alternatives as conditions
for an SWC or will simply collect the penalty. (In most cases
the amount of the penalty after the application of adjustment
factors is less than the cost of abatement actions. Thus, these LEAs
are paying less than those who negotiated SWCs.)
Injunctive Action
In certain cases where the EPA’s 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,
injunctive action may be the appropriate response. In such
cases, the Regional enforcement attorneys should consider seeking
injunctive 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). For guidance see “General
Operating Procedures for the Civil Enforcement Program”* and “Case
Referrals for Civil Litigation”*.
Criminal Action
Criminal sanctions are available f or violations of the Asbestos
in Schools Rule, pursuant to Section 16(b) of TSCA. Only serious
violations, where there is “guilty knowledge” or intent (“knowing
and willful” violations), should be considered for criminal sanctions.
Guidance on the use of criminal sanctions is available in “Criminal
Enforcement Priorities for the Environmental Protection Agency”*.
* Regional personnel may find these memoranda in the “General
Enforcement Policy Compendium” issued to the Regional Counsels
by the Office of Legal and Enforcement Counsel on March 3, 1983.
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—7
PART III ASSESSING AN ADMINISTRATIVE PENALTY
The purpose of this section of the enforcement response policy
is to explain how to use the TSCA Civil Penalty System, (45 FR 59770,
September 10, 1980,) to arrive at an appropriate penalty where an
administrative penalty is the appropriate enforcement response.
The Gravity Based Penalty —
The gravity based penalty (GBP), as defined by the TSCA Civil
Penalty System, is a function of three factors:
O The “nature” of the violation committed.
O The “extent” of the violation, or the amount of potential
risk to human health from the inability of the Agency
and the public to assess the health hazard involved.
o The “circumstances” of the violation, or the probability
that the violation has impaired the ability of the Agency
and the public to assess the health hazard involved.
When all three of these factors are specified for a particular
violation, it is possible to determine the gravity based penalty
from the GBP matrix. That matrix, which was established in the
TSCA Civil Penalty System, appears below. -
IEXTENT: MAJOR
SIGNIFICANT
MINOR
HIGH 1
RANGE 2
$25,000
$20,000
$17,000
$13,000
$5,000
$3,000
MID 3
RANGE 4
$15,000
$10,000
$10,000
$6,000
$1 ,500
$1 ,000
LOW 5
RANGE 6
$5,000
$2,000
$3,000
$1 ,300
$500
$200
CIRCUMS1ANCES: LEVEL
Nature ot Violations
The Asbestos in Schools Rule constitutes a hazard assessment
regulation. The rule will serve to identify the location of
friable asbestos-containing material and to notify persons who
are exposed to asbestos. With this information exposed persons
may take measures to reduce the risk to themselves.
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- -
Extent Category
In this case the potential risk arises from the inability
of the Agency and the public to assess whether exposure is
occurring to a material which is known to result in risk to
human health. Thus, failure to comply with the rule prevents
people from knowing if they are exposed to asbestos and pre-
cludes any adequate response to the problem.
Since the presence of friable asbestos-containing material
is unknown in the absence of specific information about the
building, the possibility of risk can be considered to be evenly
distributed among schools subject to the rule which have not
complied with the rule. Therefore, all violations are placed in
the same extent category. The extent category is the significant
category. In this case the information is not reported to EPA
and will not make a major impact on its overall policy, nor does
the rule require any action on the part of the LEA in response
to the rule. Thus the major category is not appropriate. The
information would, however, have 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
violation 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
asbestos is directly proportional to the amount of good quality
information a rai1able to them. Thus, the violations have been
categorized based on the amount of information available to the
public and the Agency.
The Agency’s goal is to bring about compliance with the
rule. Schools, as non-profit public service institutions, will
feel the impact of even small fines. Thus, in each Range the
Lower Level 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
performance of the rule requirements to constitute a separate
violation in that complete and accurate records and notifications
are not available. Falsification of records can lead to a sense
of false security for school personnel, persons who use the
school and children’s parents. Additional exposure to asbestos
could occur as a result of falsification because employees did
not take ordinary precautions to limit asbestos exposure. This
result may be worse than failure to keep those records in the first
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place. Falsification of records or certification which support an
exemption claim are violations in this category. In this case the
LEA will be assessed a penalty for falsification of recorcjs.
Level 4 Violations
o Failure to create and keep accurate records (including
certification statement for exemptions)
o Failure to inspect
o Failure to sample
o Failure to analyze samples
o Failure to post warnings and notify (including failure to
distribute “A Guide for Reducing Asbestos Exposure”)
The intent of the Rule is to identify the location of friable
asbestos-containing material in the school and to communicate that
information to the school personnel and parents of the children.
The requirements of the rule are relatively simple and the Agency
has provided guidance documents and other forms of training and
assistance for LEA’s to comply with the rule. Failure to perform
any requirement destroys the integrity of the program. For example,
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 knowledge about whether there
is a hazard from asbestos. If the warning 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
These 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 would be Level 4 or Level 2 violations depending on
the circumstances.
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Independent Assessment
Although each sch.ool may have failed to comply with more than
one requirement, Regional 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 all others.
The violation for failure to keep records in the district office,
which occurs at the LEA level, should be treated as a single
violation equal to the failure of one school to maintain records.
Adjustment Factors
TSCA requires the Agency to consider certain factors in assessing
the violator’s 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”. In the General TSCA Penalty Policy, two
factors are considered in this-category: cost of the violation to
government and benefits 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 hazard
other than notification, it is difficult to calculate the benefit
from noncompliance. The government does not have to launch expensive
clean up activities or investigations so the cost to the government
is also not high. Therefore, it is not appropriate to apply cost
and 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 in the
following sequence: - -
(1) Culpability
(2) Ability to pay/ability to continue in business
Culpability
The two principal criteria for assessing culpab_ility are the
violator’s knowledge of a TSCA requirement and the violator’s
control over the violative condition. flther criteria are the
willfulness of the violator to commit the violation and the
attitude of the violator.
lack of knowledge of this particular rule would reduce culpa-
bility only where a reasonably prudent and responsible person in
the violator’s position would not have known of the rule. The
Agency has had an asbestos in schools program for several years,
has mailed copies of the rule to all LEA’s known to the Depart-
ment of Education and has supported a vigorous outreach program.
The Agency anticipates that situations in which a reasonably
prudent and responsible person would not know of the rule would
be extremely rare. If such a situation does exist, the penalty
could be adjusted downward as much as 25%.
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— 11 —
There may be situations where the violator is less than fully
responsi ble for the vtol ati on. For instance, an employee or
contractor disobeyed the instructions of the employer and
as a result of that disobedience, the violation occurred. If
properly documented, such situations would warrant some reduction
in penalty. The appropriate reduction is up to 25%.
Attitude of the violator is an important factor, particularly
with respect to this rule. “Good faith” efforts to comply with
the rule can result in a reduction of the penalty by up to 15%.
Deliberate recalcitrance can result in an upward adjustment of
up to 15%.
Ability to Pay/Ability to Continue in Business
For purposes of this rule the gravity based penalty will be
determined based an the parameters and culpability factors already
discussed. This amount will be the penalty in the complaint.
The LEA may raise ability to pay as an issue. In this case the
Regional Office will, have to determine what the LEA can be expected
to pay.
Many LEA’s will have limited funds. Some may argue that they
cannot afford the penalty because they have used funds to abate
or control the fri able asbestos—containing material in the school.
The 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
should either be completed, in progress, or under contract, and
the costs must be clearly documented. The cost of vaguely “planned
actions” will not be deducted. Regional personnel should review
the contract and any results reports before determining the
amount of reduction. The deduction should not exceed 80% of the
penalty, if the LEA has not notified the PTA (or parents) and
school staff of any asbestos hazard remaining in the school
after June 28, 1983. (An SWC could allow remission of the
remaining 20% when the proper persons are notified.)
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- 12 -
p _ pendix A: Sample Notice of Noncompliance
CERTIFIED MAIL
RETURN RECEIPT REQUESTED
( Name ) , President or Superintendent
Name - Address of the
Local Education Agency (LEA)
Re: Notice of Noncompliance
Docket #xxxxx—-xx-x( )
Dear ( Name of President or Superintendent )
The United States Environmental Protection Agency (EPA) finds
the ( Name of LEA ) in violation of the
Friable Asbestos—Containing Materials in Schools: Identi ficati on
and Notification Regulation, 40 CFR Part 763, Subpart F, promul-
gated under Section 6 of the Toxic Substances Control Act. The
regulation requires Local Education Agencies to identify, sample,
and analyze possible friable asbestos—containing materials in
schools, to notify the school personnel and the PTAs (or parents)
of the results of those efforts if asbestos is discovered and to
keep records of these activities.
On ( Date ) , EPA reviewed the asbestos inspection
records of the Name of LEA) . There are ( Number )
elementary and secondary schools in Name of LEA
Some of these schools were inspected on Date . Further
sampling and analysis was carried out on Date • The following
violations were found during the review of school records:
(List Violations)
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— 13
This notice of noncompliance is issued by the U.S. EPA in
lieu of further action at this time, provided that these
violations will be promptly corrected. Within thirty (3.0)
days of receipt of this notice of noncompliance, the
[ Name of LEAL —______ must correct the violations of
the Asbestos in Schools regulation and certify in writing to
EPA that such corrections have been made. In addition, the
school district must certify that all schools within the
district are in compliance with the requirements of the
regulation. (See enclosed certifications statement.)
You must submit these certifications to:
(Name and address of Regional Asbestos Coordinator)
Failure to correct the violations and to submit such a statement
within 30 days may result in the issuance of an administrative
civil complaint as provided in the Toxic Substances Control
Act, 15 U.S.C. Section 2601 et seq, for the assessment of
civil penalties.
If you have any questions, please do not hesitate to contact
(Name and telephone number of the Regional Asbestos Coordinator).
Sincerely,
____________________ , Director
Air and Waste Management Division
End osure
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- 14 -
CERTIFICATION STATEMENT
I hereby certify that (Name of LEA) ——_____
has corrected the violations cited in the notice of noncompliance
dated ( Date of notice of noncompliance ) , docket number ( Number )
and has, to the best of my knowledge, complied with all
other requirements of the Friable Asbestos—Containing Materials
In Schools: Identification and Notification Rule (40 CFR
§763.100 et seq) . I understand that EPA retains the right
to reinspect any or all schools and that the discovery of
further violations may lead to additional enforcement action,
including possible imposition of administrative penalties.
______________________ President or Superintendent
( Name of LEA )
(Date)
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- 15 -
Appendix B: Model Comp1ii -P-r’oi i chédule __________——
INTRODUCTION
It is the goal of this Compliance Program Schedule to bring
all schools operated by the Local Education Agency (LEA) into
compliance with the Asbestos in Schools Rule within a specified
time after the effective date of this document. The effective
date of this document is the date it is signed by both the
Environmental Protection Agency (EPA) and the LEA. A school will
be deemed to be in compliance when all five activities required by
the rule have been completed. These activities are:
o Identification: Inspection of all school buildings for
friable materials;
o Sampling: Collection of 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 have been satisfied.
Determination of compliance will be based on the submission
by the LEA to the Regional Asbestos Coordinator (RAC) of copies of
the records required by the rule to be kept at the LEA’s central
office and certification that all other requirements have been
met. EPA may verify the certification.
If an LEA completes all the compliance program tasks outlined
in this document by -the dates agreed upon by both EPA and the LEA,
the % of the penalty assessed the LEA for violation of the rule
will e remitted by letter.
COMPLIANCE PROGRAM TASKS
1. Determination of the Extent of Noncompliance
All schools in the LEA which have not documented compliance with
the rule or qualified for an exemption, must be brought into
compliance with this rule. EPA has assessed penalties for the
following violations in the following schools:
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- 16 -
(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 violation. 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) and submit
the list to the Regional Asbestos Coordinator. The final compliance
program schedule will address all schools which are not in compliance
with the rule. If both parties to the CPS agree, the final date
for compliance may be renegotiated at the time this list is submitted.
2. Compliance with the Rule
The LEA shall follow the Compliance Assistance Guidelines for the
Asbestos in Schools Rule developed by the Environmental Protection
Agency (EPA), approved by the Assistant Administrator for the
Office of Pesticides and Toxic Substance on December 29, 1982.
EPA will provide assistance such as lists of laboratories which
participated in EPA’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. 1/
An EPA compliance monitoring inspector may visit the LEA to confirm
compliance with the rule.
COMPLIANCE SCHEDULE
Tasks Schedule
1 . Determination of the extent of 30 days after effective
noncompliance date of CPS
2. Bring sch ols into compliance days after effective
with the rule date of CPS
3. Records and certification submitted Wi-thin two weeks of the
to Regional Asbestos Coordinator final compliance date
1/ At the discretion of the Regional counsel other proof of com-
pliance may be required, such as the a certified receipt from
the PTA official who received notification.
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— 17 —.
OTN
1. Enforcement
While this Agreement is in effect, and as long as the LEA •has not
failed to comply with .the terms of the agreement, EPA shall not
initiate additional enforcement action against Respondent for
violations 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 this Agreement nor from enforcement actions under other laws
administered by EPA, nor under laws administered by state or local
environmental authorities, except where the TSCA rule would preempt
such laws.
2. Notification of Technical or Operational Difficulties
Respondent shall notify EPA immediately in all cases where technical
or operational difficulties will make it impossible for Respondent
to meet any of the deadlines in the Compliance Schedule.
3. Technical Assistance
EPA shall provide re-asonable -technical assistance to Responden-t
on questions concerning such matters as sampling and analytical
procedures, and wording of notifications, for the purpose of
complying with this Agreement.
4. Amendments
Upon mutual consent of EPA and Respondent, 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 Respondent with the Asbestos
in Schools 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.
5. Evaluation
EPA will assist the LEA in the evaluation of the results of its
Asbestos Identification and Notification Program.
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASH INGTON D.C. 20460
4 L pgO
APR I 5 1985
OFFICE OF
PESTICIDES ANO TOXIC SUBSTANCCS
MEMORANDUM
SUBJECT: Reductions and Remittances of Penalties
for Violations of the TSCA Asbestos—in—Schools
Rule
FROM: A. E. Conroy II, Director
Office of Compliance Monitoring EN—342
TO: Addressees
Regi onal personnel may reduce a penalty for violation of
the Toxic Substances Control Act (TSCA) at the time of settlement
for a variety of reasons. As described in the “Guidelines for
Assessment of Civil Penalties Under Section 16 of the Toxic
Substance Control Act” (45 Federal Register 597700), reasons for
reductions are:
o Culpability
o History of such violations
o Ability to pay L,J 4,, 1 L
o Ability to continue in business
o Such other factors as justice may require 7°u1’41ao.cc ,
The final category includes reductions for “environm lly
blilficial expenditures” above and beyoniWt11 ië required b y law.
For purposes of a -es1nvoIv1ng the Asbestos-in-3 ff Ys Rule,
tW e expenditure iiiiy be a atement activities conducte . .before
the sett’ement. In theory, a penalty couldwe reduced to
zero, if t1iIproper combination of circumstances are present
to justify this reduction.
Often the circumstances are not present to justify a ma,
reduction of the penalty. However, the school district may-
offer to abate asbestos or perform other “env c op,mentalhi n
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—2—
ficial expenditures” in the future . In these cases, the Environ-
mental Protection Agency may remit a penalty. The procedure is
described in “Settlement with Conditions” (November 16, 1983).
For purposes of the Asbestos—in-Schools Rule, Regions may negotiate
a settlement with conditions with any Local Education Agency (LEA)
willing to make a good faith effort to adhere to a compliance
schedule which is satisfactory to the Agency. The Agency will
not, however, remit a penalty to zero for a violation of the
o Asbestos—in—Schools RUTë . (page 5, Revised Enforcement Response
Policy, Ju1y2, 1984) 1’he Agency does not allow the tot l
remittance of the penalty for actions that the violator agrees
. tjjperform only after being confronted with a penalty for vYolatiqn.
The amount oflhe penalty is left to the discretion ot the Regional
personnel negotiating the settlement because circumstances of the
cases and financial status of the LEAs can vary significantly.
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materials in their buildings that may have been overlooked in their initial
school inapections.
As a result of an EPA-sponsored AHERA evaluation study and various
enforcement activities, it was discovered that, in the original inspections,
certain categories of ACEM were frequently missed by inspectors and do
not appear in many management plans. Therefore, inspectors conducting
reinspections should make sure that materials such as ceiling file,
wallboard, plaster walls, linoleum, fire doors, duct insulation and vibration
dampening cloth, which are considered suspect ACBM, are identified and
included in the management plan.
The regulations regarding reinspections impose no requirement beyond
reinspecting the materials and areas covered in the original inspection, plus
any additional materials discovered subsequent to the original inspection;
that is, reinspection encompasses “all frisble and nonfrisble known or
assumed ACBM.” [ Section 763.85(b)(3)(i)]. EPA strongly recommends,
however, that the reinspection be thorough so that any deficiencies in the
original inspection will be addressed in the reinspection. Any actual or
assumed ACBM not previously identified that is discovered during
reinspection (or periodic surveillance) should be included in an update to
the management plan. The update must include a management planner’s
recommendations for appropriate response actions based on an accredited
inspector’s assessment [ See Section 763.88(d)].
Question 5:
Answer:
If the time interval for a 6 month periodic surveillance inspection should
coincide with the date for the reinspection, can the reinspection also satisfy
the periodic surveillance requirement?
YES, since reinspection includes everything that would be covered in the
6 month surveillance.
Question 6:
Is reinspection required for buildings in which no ACBM, known or
assumed, was found in the original inspection, or where abatement
subsequent to the original AHERA inspection removed all ACBM?
Answer:
NO. Since the AHERA rule conf’mes the reinspection to “all friable and
notable known or assumed ACBM,” reinspection is not required for
buildings which contain no ACBM. However, in accordance with Sections
763.93(d) and (e), management plans should document the asbestos
removsl as a response action activity in accordance with Sections 763.94(b)
and (g); or, if applicable, contain an inspection report or architect’s
statement that the building is asbestos-free; or that no ACBM was specified
in its construction [ see Sections 763.99(a)(6) and (7)]. Schools that have
conducted asbestos abatement to remove all ACEM should conduct a
reinspection in case some ACEM was missed, in addition, LEAs must
2
continue to appoint a “designated person,” retain their management plans
indefinitely, and provide annual written notification to parent, teacher, and
employee organizations of the availability of the plan.
Question 7:
Will areas of newly friable ACBM or assumed ACEM be required to
undergo initial cleaning in accordance with Section 763.91?
Answer:
YES. If upon reinspection (or during s periodic surveillance) the condition
of ACEM or assumed ACBM has changed from the original AHERA
inspection to friable from nonfriable, and the building has not been cleaned
since the original inspection, the following requirements as stated in Section
763.9 1(c)(l) will apply: “Initial cleaning. Unless the building has been
cleaned using equivalent methods within the previous 6 months, all areas of
a school building where friable ACEM, damaged or significantly damaged
thermal system insulation ACM, or friable suspected ACEM assumed to be
ACM are present shall be cleaned at least once after the completion of the
inspection required by Section 763.85(a) and before the initiation of any
response action, other than 0 & M activities or repair
Question 8:
AHERA requires that an an accredited management planner review the
results of each inspection and assessment. Is this also required for
reinspections?
Answer:
YES. Section 763.88(d) states that “the local education agency shall select
a person accredited to develop management plans to review the results of
each inspection, reinspection, and assessment for the school building and to
conduct any other necessary activities in order to recommend in writing to
the local education agency appropriate response actions.”
The review and response action recommendations are particularly important
if assessments of known or assumed ACEM have changed from the initial
AHERA inspection, or if known or assumed ACEM, previously identified
as nonfriable, has become friable.
Question 9:
Must an LEA reinspect a building that is no longer in use as a school?
Answer:
NO. Section 763.85(b)(l) iodicstes that LEAs shall conduct a reinspection
in buildings that they “lease, own, or otherwise use as a school building.”
However, if the building is not being used as a school at the time its
reinspeetion would have occurred (even if the LEA continues to lease or
own the building), the LEA must be able to certify that it is no longer using
the building as a school. In addition, if an LEA has stopped using a
building as a school, and later decides to use the building as a school, it
must be reinspected in accordance with Section 763.85(b).
3
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Question 13:
What are the necessary components of an AHERA reinspection?
Answer:
An accredited inspector should visually reinspect and reassess the condition
of all known or assumed friable ACBM; visually inspect previously
considered nonfriable ACBM and touch it to determine if it has become
friable; identify homogeneous areas of material that have become friable
since the last inspection; develop required records (detailed in the Answer
to Question 11) and submit such records to the LEA ’s designated person
Within 30 days of reinspection.
Question 14:
What are the required qualifications for the persons involved in the
reinspection?
Answer:
The person conducting the reinspection must be accredited under AHERA
as an inspector, and his/her accreditation must be current for the period in
which the reinspection takes place. The management planner responsible
for the review of the results of the reinspection and recommendations for
resppnse actions must be accredited as a management planner under
AHERA and his/her accreditation must be current for the period in which
the review of the reinspection takes place.
Question 15:
When the management plan is revised as a result of the reinspectian, does
the updated plan have to be resubmitted to the State?
Answer:
NO. A management plan has to be submitted to the Governor of the State
when it is first developed. AHERA does not require subsequent updates or
other changes to the plan to be submitted to the State.
5
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Regional Asbestos Groups
Mr. James Bryson
EPA, Region I , (APT-231 1)
Aabeatoa Coordinator
JFK Federal Bldg.
Boaton, MA 02203
(617) 565-3635 — (fl5) 8353936
Mr. Albert Kramer
EPA, Region II, (MS-500)
Acting Asbestos Coordinator
2890 Woodbridge Ave.
Raritan Depot. Bldg. 5
Edison, NJ 08837
(201) 321-6793 — (FTS) 340-6793
Ma. Carols Dougherty
EPA, Region iii, (3AM-32)
Aabeatoa Coordinator
841 Cheatnut Bldg.
Philadelphia, PA 19107
(215) 597-3160 — (FTS) 597-3160
Ma. Sally Shaver
EPA, Region IV
Acting Asbestos Coordinator
345 Courtland St. . N.E.
Atlanta, GA 30365
(404) 347-5014 — (FTS) 257-5014
Regional Asbestos Coordinators
Mr. Tony Reataino
EPA, Region V. (5SPP-TUB1 1)
Asbestos Coordinator
230 5. Dearborn Street
Chicago, IL 60604
(312) 886-6003— (FTS) 886-6003
Ms. Carol D. Peters
EPA, Region Vt, (ST-PT)
Acting Asbestos Coordinator
1445 Ross Avenue
Dsltss, TX 75202-2733
(214) 655-7244 — (FTS) 255-7244
Mr. Woltgang Bmndner
EPA, RegIon Vii, (ARTX)
Asbestos Coordinator
726 Minnesota Ave.
Kansas City, KS 66101
(913)651-7381 — (PTS) 551-7381
Mr. David Combs
EPA, Region Viii, (8AT-TS)
Asbestos Coordinator
1 Denver Pisce, Suite 500
999-18th Street
Denver. CO 80202-2413
(303) 293-1442—(FTS) 330-t 442
Ms. Jo Ann Semones
EPA, Regton iX, (A-4-4)
Asbestos Coordinator
75 Nswthorne Street
Sen Francisco, CA 94105
(415) 744-1112— (FTS) 484-1128
Mr. MaB Witkening
EPA, Region X, (8T-083)
Asbestos Coordinator
1200 Sisth Avenue
Seattle, WA 98101
(206) 442-8282 — (FTS) 399-8282
Answers to the
Most Frequently Asked Questions
About Reinspections
Under the AHERA Asbestos-In-Schools Rule
This document has been prepared in response to the many inquiries that have
been received by the Environmental Protection Agency (EPA) concerning the
reinspection requirements and related provisions of the Asbestos Hazard
Emergency Response Act (AHERA) regulations.
The answers developed here represent the Agency’s responses to the most
frequently asked questions on this subject. We believe most problem areas have
been addressed. However, it is likely that additional questions will occur as the
reinspection cycle gets underway. This document is not intended to cover every
conceivable query about the reinspection process. It should be used as an adjunct
to the AHERA rule for additional clarification of the regulations.
Any questions not answered by this document can be referred to the appropriate
Regional Asbestos Coordinator listed on the last page or the EPA Toxics Hotline
in Washington, D.C. at 202/554-1404.
Office of Toxics Substances
Office of Pesticides and Toxic Substances
U.S. Environmental Protection Agency
Washington, D.C. 20460
May, 1991
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United States Office of Toxic Substances May 1991
Environmental Protection Office of Pesticides
Agency and Toxic Substances 75

EPA Answers to the


Most Frequently
a C) u
a
Or
Asked Questions
5
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About Reinspections
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Under the AHERA
Asbestos-In-Schools Rule
Peeled on Recycled Paper
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itO Sr 4 1 .

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
4( PRO1IC
cy 6
OFFICE OF
PESTICIDES AND TOXIC SUSSYANCES
MEMORANDUM
TO: Air & Waste Management Division Directors
Environmental Services Division Directors
Toxic Substances Branch Chiefs
SUBJECT: Asbestos Reporting Rule Compliance Strategy
On July 30, 1982, the Environmental Protection Agency
published the Asbestos Reporting Rule. Attached is a copy
of the the Compliance Strategy for this rule.
A draft of the strategy was circulated to the Regions
during July for comment. The final version of the strategy
incorporates those comments where appropriate.
If you have any questions, please call Pamela Harris
at FTS 382—5649.
A. E. Conroy I Director
Pesticides and 1 Aic Substances
Enforcement Division
cc:
Asbestos Coordi nators
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ASBESTOS REPORTING RULE
COMPLIANCE STRATEGY
Pesticides and Toxic Substances Enforcement Division
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Asbestos Reporting Rule
Compliance Strategy
Overview . . . . . . . . . . . . . . . . 1
Requirements of the Rule . . . . . . . . . 1
Regulated Industries . . . . 3
Compliance Issues . . . . . . 4
Objective
Types of Violation
Industry Notification 5
Compllance Monitoring . . . . . . . . . 5
Compliance Monitoring Priorities
Neutral Administrative Scheme
Administrative Considerations . . . . . . 9
Program Management
Program Integration
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UVLRYLk W
The purpose of the Asbestos Reporting rule is to obtain current
information about major aspects of asbestos manufacture and pro-
cessing to support the Agency’s asbestos investigations Into the
risks from asbestos (47 Federal Register 33198, July 30, 1982).
This rule is being developed in conjunction with analyses by the
Consumer Product Safety Commission (CPSC), the Occupational Safety
and Health Administration (OSHA), and the Mine Safety and Health
Administration (MSHA). The CPSC is studying asbestos in consumer
products, while OSHA and MSHA are reviewing the current occupational
exposure standard.
The Rule requires that persons subject to the Rule complete and
submit certain forms to EPA.
The objectives of the compliance strategy are to ensure that
o All persons who should report do report;
o Information is reported accurately;
o All reports are received by the Agency in a timely fashion.
Possible violations of the rule are failure to submit forms, failure
to properly complete forms, late reporting, and falsification of
information.
Compliance monitoring activities will consist of reviewing notices
received, cross checkjng industry lists to determine that all
persons who are subject to the rule do report, investigating
reports of noncompliance, and Inspecting the records of some
manufacturers importers and processors.
REQUIREMENTS OF THE RULE
The reporting requirements of the rule are outlined below:
A. Who must report (S763.65 )
1. Persons who were miners, millers or primary processors
of asbestos or importers of bulk asbestos in 1981
(S763.56(a)) (EPA form 7710—36) must report.
2. Secondary processors of asbestos or importers of asbestos
mixtures (S7 3.65(b)) (EPA form 7710—37 parts I and II)
must report.
3. Persons who are importers of asbestos mixtures or
articles containing asbestos in 1981 (S763.65(c))
(EPA form 7710—37, parts I and III) must report.
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—2
4. Some persons described in parts 2 and 3 above, will be
selected in a sample survey to fill out EPA form 7710-36,
( 763.65(d) ).
B. What to Report
1. Submitters report all information required by the
appropriate sections of the EPA forms. (See the “Instruc-
tion Booklet —— Reporting Commercial and Industrial Uses
of Asbestos’ printed with the rule in the Federal
Register for a discussion of the reporting requirements
and definitions.) EPA form 7710-36 and EPA form 7710—37
can be obtained by telephoning the Industry Assistance
Office (lAO) 800-424—9065.
2. Miners, primary processors and secondary processors must
report information “known or readily ascertainable” by
the respondent, including all information in a person’s
possession or control, plus all information that a
reasonable person might be expected to possess, control,
or know, or could obtain without unreasonable burden
or cost.
3. Information already reported to CPSC may be referenced on
the form and need not be submitted unless the respondent
has informed the CPSC of his objection to sharing data
with EPA in which case submission to EPA is mandatory).
(Information for 1981 which was not required by CPSC
but is required by EPA must be submitted on EPA forms.)
C. Exemptions ( 763.65(f) )
1. Secondary processors of asbestos who process asbestos to
repair articles, construct buildin 1 gs or other similar
activities or to apply, assemble, install, erect, consume
or repackage the mixture without modification are exempt.
2. Persons who are small manufacturers, processors or
importers, as defined by S763.63(n) (i.e., who employed
no more than 10 full—time employees at any one time in
1981) are exempt.
0. Schedule for Reporting
1. Miners, millers, primary processors and Importers of bulk
asbestos (S763.65(a)) EPA form 7710-36 must be submitted
by November 30, 1982.
2. Secondary Processors and inporters of asbestos mixtures
(S763.65(b) and Cc)) must report by October 30, 1982.
3. Those secondary processors who are selected for additional
reporting shall submit the required data within 90 days of
the receipt of EPA notification to do so.
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—3—
E. Where to Report
Respondents will mail completed forms to
U. S. Environmental Protection Agency
Post Office Box 2070
Rockvllle, MD 20852
F. Confidential Business Information
Respondents may claim Information confidential by checking
the appropriate spaces on the form and signing the certification
statement.
REGULATED INDUSTRIES
The rule applies to persons who are miners or primary processors
of asbestos, importers of bulk asbestos, asbestos mixtures or
articles containing asbestos, and certain secondary processors of
asbestos. PTSEDhas obtained a partial list of 3,131 persons to whom
the rule may apply. The GCA Corporation of Bedford, Massachusetts
prepared this list under a contract from EPA. The list contains the
names of some companies which do not process asbestos. 1t also does
not differentiate between primary and secondary processors. In spite
of its flaws, it is an useful guide. Sources for the list are:
1. Dun and Bradstreet tape for four SIC categories.
• 2891 Adhesive and Sealants (968 establishments)
• 2952 Asphalt Felts and Coa€ings (350 establishments)
• 3292 Asbestos Products (325 establishments)
3293 Gaskets, Packing, and Seal’ing Devices
(553 establishments)
2. Asbestos Information Association list.
3. National Emission Standards for Hazardous Air Pollutants
(NESHAP) l1sti g from EPA Compliance Data System.
4. NIOSH printout of asbestos—containing products.
5. Bureau of Mines mailing list.
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—4—
6. Asbestos/Cement Pipe Producers Association.
7. Friction Materials Standards Institute members.
8.. U.S. Customs List for 1980 for importers of asbestos.
9. State Industrial Directories.
The list is organized by Region. The appropriate section of the
list for each Region will be sent to the Regional Asbestos Coordi-
nator (RAC). The RAC may obtain the national list from PTSED,
if he needs it. PTSED will ask the RAC to help update the list
by recommending possible deletions and additions. The RAC may
wish to contact state agencies which regulate the asbestos industry
to obtain information to update the list. The list will also
be updated by adding the names and address of persons who request
the reporting form.
COMPLIANCE ISSUES
The objective of this compliance strategy is to ensure that all
persons subject to this rule file their reports in a timely and
accurate fashion, and that no persons subject to this rule fail
to report.
Types of Violation
There are four types of violations:
1. Falsification of reports.
2. Failure to report.
3. Incomplete reporting.
4. Late reports.
Falsification of Reports : Falsification of any of the items
required by the rule would lead EPA to draw incorrect conclusions
about the threat to health and the environment posed by the con-
tinued manufacture or import of asbestos.
Submission 0 f a falsified form does not satisfy the requirements
of this rule under ISCA §8(a), and is forbidden by TSCA §15(3)(B).
Knowing falsification of Information submitted to the government
Is also a violation of 18 U.S.C. Section 1001 and is, or may be,
a criminal offense.
Failure to Report : Failure to submit a report, as required by
the rule, would greatly impair the Agency’s ability to make
decisions concerning asbestos’ effects on health and the environ-
ment. Failure to report is a violation of TSCA Section 15(3)(B).
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—5—
Incomplete Reports : Incomplete reports only partially Impair the
Agencys ability to regulate asbestos. If 015 can readily obtain
the missing information from the submitter, then no violation will
have occurred. OTS has decided to offer reporters two correction
cycles to complete their report. The “8(a) Asbestos Flow Process” (1)
details the OTS policy with respect to correction cycles. However,
if the submi tter continues to withhold critical information, a
violation of TSCA Section l5(3)(B) will have occurred.
Late Reports : Late reports impair the Agency’s ability to compile
data on segments of the asbestos industry and will delay planned
analysis. Reports received later than 30 days past the deadline
for reporting or more than 30 days past any extension granted by
OTS will be referred to PTSED for enforcement response. (Exten-
sions may be granted by OTS for good cause. Reports submitted
within the extended time period will not be treated as violative.)
INDUSTRY NOTIFICATION
The proposed Asbestos Reporting Rule was published In the Federal
Register (46 F.R. 8200, January 26, 1981). Written comments were
solicited prior to May 27, 1981. Following that date there was a
20 day period during which EPA personnel were available to meet in
Washington, D.C., with interested persons. Comments were received,
and responses to the comments are addressed in the final rule. In
addition, articles about the rule have appeared in major trade
journals.
The list of companies described in the Regulated Industries section
were used as a mailing list to distribute copies of the rule and the
required form. The Industry Assistance Office (800—424—9065) will
be available to answer any questions about the rule or the form.
COMPLIANCE M0NITORIN
Compliance Monitoring Priorities
There are four methods available to the Agency to detect violations.
In order of practical application they are:
1. Reviewing forms received by the Agency for timeliness,
accuracy, and completeness.
2. Cross—checking the list of asbestos miners, millers,
importers and processors against reporters of forms
received to detect failures to report.
3. Verifying reports by reviewing company records.
4. InvestIgating reports of noncompliance.
(1) “8(a) Asbestos Flow Process” is a document which outlines
the report processing procedures that Informatics General
Corporation, the OTS contractor, will use. These procedures
will detect late reports, incomplete reports, and some reporting
c n0o 0ncF document is available from the Information
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—6—
Reviewing Forms : The Information required by this rule is to be
submitted on the appropriate prepared forms. All required Infor-
mation should appear on the form. Using the procedures in the
p8(a) Asbestos Reporting Flow Process”, OTS and its contractor,
Informatics General Corporation will process the forms. Unreported
information is easily detected and will be investigated. Late
reports will also be referred to PTSED. Information which appears
to be unsatisfactory will also be investigated. For instance,
the submitters may report unknown in several places on the form.
However, repeated use of “unknown” as a response is probably
unwarranted. The report processors will flag the report for
investigation if “unknown” is used in place of expected data.
If a submitter has not reported satisfactory and complete informa-
tion after OTS has allowed the submitter two opportunities to do
so, the matter will be referred to PTSED.
When OTS refers late or incomplete reports to PTSED, OTS will
describe the type of violation and certify that the report
received is in violation. When suspected violations are
referred, OTS will give the reasons for its conclusion that
the report is or may be In violation and recommend specific
investigations which the Regions may perform. (For instance,
OTS may report that worker numbers are inconsistent and recommend
investigation of personnel records.)
Cross-checking List of miners, millers,processors and importers.
The Agency has compiled a list 0 f persons whon may be subject
to the rule. The Agency mailed a reporting package to each
person on the list developed by GCA and updated as described in
the Regulated Industries Section. The Agency requested recipients
of the package to inform the Agency if they are not subject to
the rule.
The Agency will treat non—respondents to the updated list in the
following manner. (Non—respondents are pers,ons who received a
reporting package but neither submitted the form nor informed
the Agency that they were not subject to the rule.)
August 30, 1982 Effective date of the rule
October 30, 1982 Secondary processors and importers of
asbesos mixtures report
November 30, 1982 Miners, millers, primary processors and
importers of bulk asbestos report
December 14, 1982 OTS (Chemical Control Division (CCD))-
sends letter to non—respondents
requesting either submittal of form
or notification to EPA that they are
subject to the Rule.
January 21, 1983 PTSED will send a list of persons who
have still not responded to each Region.
The Regions will try to determine if
the persons who did not respond are subject
to the rule.
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—7—
If it can be determined that a non—respondent was subject to the
rule, the Regions will pursue appropriate enforcement response.
The Regions will inform PTSED of the results of its Investigations.
PTSED will inform OTS (Information Control Branch) of the results
of the Regional investigations.
Revfewi’ng Company Records : Some companies which have apparently
complied with the rule will be randomly selected for Inspection
to verify the information on their forms. The companies which
the Agency inspects will be chosen by computer using statistically
valid criteria. Other companies which are on the list but did not
submit a form will be randomly selected for inspection to verify
that they are not subject to the rule. (See Verification Inspection
Scheme.)
Investigating Reports of Noncompliance : The Consumer Product
Safety Commission, state or federal agencies, current or former
company employees, or competitors may have information which
implies that a company is violating the requirements of the
rule. Information which comes to the attention of EPA Headquarters
will be transmitted to the appropriate Region forinvestigation.
In some instances, the case may be resolved by telephone or writ-
ten communication with the company. In others, inspection or
subpoena of the firm’s records may be necessary. The RAC should
inform PTSED of all alleged violations which come tO his attention.
OTS will refer submitters of forms with unresolved problems to
PTSED. For example, companies which excessively report that
information is unknown and continue to refuse to submit the
requested information after two opportunities will be inspected.
Companies that report “unknown” for more than 50% of the fields
where that response is permitted may be targeted for inspec-
tion. If the inspector, using routine inspection procedures,
is able to discover the information, then the company has not
reported “readily available information”, and is in violation
of TSCA.
Neutral Administrative Inspection Scheme
There are two reasons for an Inspection of a company.
1. Suspicion of violation based on a complaint, tip
or referral from OTS.
2. Verification of data submitted by companies. (See
Verification Inspection Scheme. )
Both types of inspections will be targeted by the Compliance
Monitoring Branch (CMB), PTSED on a quarterly basis. The
Agency will investigate all allegations of violations. Alle-
gations which are received in the regions should be forwarded
to headquarters.
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CMB will begin targeting inspections 45 days after the appropriate
conpliance deadline. This 45 days allows time for the processing
of a large number of reports so that the selection of sites will
be more truly random within the parameters. This time will also
allow the resolution of some reporting problems. Specifically the
targeting will conform to the following schedule:
December 14, 1982 Begin targeting Inspections of Secondary Processors
January 14, 1983 Begin targeting inspections of Primary Processors
Targeting inspections of nonsubmitters will begin 45 days after
December 14, 1982, the date OTS sends letters to nonrespondents.
Thus, targeting of these inspections will begin on January 31,1983.
Each quarter, CMB will know how many inspections each Region will
have to perform to investigate allegations of violations. CMB
will then target inspections of companies which did not return
forms. This number will not exceed 10% of the inspections performed
during that quarter. (PTSED may increase this percentage if the
Agency discovers that a large number of persons subj ect to he
rule have not reported.) This is to verify that persons who did
not report are not in violation.
CMB will then ask the reports processing group in OTS to tatget
the remaining inspections using the selection program described in
the discussion of the Verification Inspection Scheme . At least 5
additional sites should also be selected (CMB may vary this number
based on experience). If a company selected by the program has
already been inspected or targeted, CMB will replace It with one
of the additional sites.
This procedure will target both processing sites and corporate
headquarters. If necessary, CMB should call the company’s technical
contact reported on the form and determine whether the pertinent
records are available at the plant site or at corporate headquarters.
The inspection will be conducted at the location of the records.
While the rule has no recordkeeping requirements, relevant records
are likely to be kept for tax or business purposes, or to comply
with other Federal regulations. Section 11 of TSCA provides that
EPA has access to these records.
Verification Inspection S cheme
Verification inspections will be targeted from among all the sites
which submitted forms. As the EPA receives the reporting forms,
the data along with the document control number for each form will
be put Into the computer. The computer data base will then contain
production and geographical information on all reporting sites. A
computer program will target inspections from an initial universe
which consists of all sites which reported using a statically valid
selection criteria. These criteria include geographical distribution
of the reporters, production volume, worker population, and type
of industry (miners, millers, secondary processors, etc.).
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A few, about 10%, of the verification inspections will Investi-
gate companies which did not report but are listed as manufacturers
or processors of asbestos. These inspections will be targeted by
the Compliance Monitoring Branch (CMB) from Headquarters. The
CMB will obtain from lAO a list of sites which received forms or
are listed elsewhere as manufacturers or processors of asbestos.
Togethe’r with OTS, CMB will determine which sites on the list
did not return forms. Companies which are clearly no longer in
business or have already been identified as violators of the rule
will be deleted from the list of non-reporters. These inspections
will be targeted so that the percent of the inspections performed
in each Region is equal to the percent of companies on the list of
non-reporters which are in that Region. Otherwise the selection
will be random.
Inspections
Inspection Guidance will be sent to the Region near the October 30,
1982, compliance date. The inspectors will compare the data on
the form with the data in the company’s files. Significant,
unexplained differences between data reported and the data in the
files represent violations. Enforcement action should be taken
against violators according to the Enforcement Response Policy,
with concurrence from Headquarters.
ADMINISTRATIVE CONSIDERATIONS
Program Management
OTS and PTSED have developed report processing procedures that
will detect suspected violations ‘of failure to report, failure
to report completely and late reporting. PTSED will also target
inspections under the NAIS described in this document. The
Regions will conduct the inspections.
Coordination with 015 is important, The results of inspections
will provide OTS with an estimate of the overall reliability of
the data reported under this rule.
Assistance from OTS is necessary for violation detection. For
instance, a key piece of evidence to false reporting is the report
that OTS received. Personnel from OTS will also help enforcement
personnel determine the significance of discrepancies between data
reported and data found In the files. Consultation with OTS will
be necessary in most cases, so that only significant inconsistencies
are the subject of enforcement actions.
Any tips that indicate a possible violation are to be investigated
first at Headquarters by an OTS review of the form submitted by
the alleged violator. If further investigation Is indicated, the
case will be referred to the Region. Any violations detected by
Headquarters or the Regions will be referred to the appropriate
Region for enforcement response, with concurrence from Headquarters.
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Allocation of Responsibility
PTSED
o WrIte Policy and Strategy Guidance
o Act as liaison between Regions and 015
o Concur with enforcement responses to violations
OTS
o Process reports (detection and certification of reporting
violations detected by the reporting process)
o Target verification inspections using computer program
Regions
o Perform inspections
o Determine violations
o Develop cases and litigation with Headquarters concurrence
Program Integration
Information received under this Rule may be useful to working
groups which are developing other regulations under TSCA for
asbestos. Release of data to these groups will be in conform-
ance with TSCA procedures for handling Confidential Business
Information.
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“ “C”
1 ‘LA ( t)’1I’L I A c I. i’; ;; Ar4 PUL IL? N ) • , — A , hc’•; t OS — 1
Ih n to Wedr Protective Clothing and Equi ii:ient for Asbestos
c giil itions Compliance tinnitoriny Inspections
TSCA Sections : 6 and 3
Issue :
In the course of an inspection to iicnitor compliance with
rules regulating asbestos, when is it appropriate for EPA
inspectors to wear protective clothing and equipment?
Policy :
Inspectors should wear protective clothing and equipment when
they enter areas which fleet one of the following criteria:
o Records, reports, or other information clearly indicate
that an asbestos hazard is present; or
o In the jurlyenent of an inspector, the presence of an
asbestos hazard may reasonably be suspected.
Discussion :
The Environ iental Protection Agency (EPA) has promulgated
t :o rules concerning Asbestos. The first, the Asbestos in
Schools Rule (47 Federal Register ?336U, May 27, 198?), requires
tnat Local Education Agencies identify the location of friable
asbestos—containing materials in school buildings and notify
the staff and the parents of school children if friable asbestos—
containing material is present in the school. The second, the
Asbestos Reporting Ru1 (47 Federal Register 33198, July 30, 1982),
requires that persons who nine, manufacture, process or import
asbestos or asbestos—containing products report to the Agency
concerning those products.
The Agency promulgated these rules, at least in part, because
inhalation of asbestos fibers is hazardous to human health.
For this reason, EPA inspectors should take care to limit
their exposure to asbestos hazards. Exposure to an asbestos
hazard nay be reduced by wearing protective clothing, usually a
disposable coverall worn over street clothes, and protective
equipment, such as a mask or respirator to filter fihers and d.ust
which nay be inhaled. Many sites visited by EPA inspectors
will offer no hazard at all. At other sites, noncompliance
iith the rules will make it difficult to estimate the potential
hazard. In any case, EPA inspectors should be.careful not to
cause undue, and possibly unwarranted alarm, as the result of
conducting an inspection.
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1t SIH!ctorS Sh’)IJld Coti(ltirt thi’ I)I)f’IIifl J cnnft r nCca i I r , C )r Its
iuS 1 ii ’CtiOflS wi ariny appro 1 ir dt. strw’t clothing. The r cur’K
shwild ifl(licat(? ireas her uxposure to asbpsto hazir 1 riaj
occur. If the iiispector plans to enter these areas, he or
she should wear Protective clothing and equipment. For exailple,
if an inspector ( nters a processing area to verify reports
submitted in compliance with the Asbestos Reporting Rule, he
or she should wear protective clothing or equipment if the
records indicate that hulk asbestos is being handled in an
“open process. An example of a time when protection would
not be necessary is the inspection of a school building which
does not contain friable asbestos-containing materials according
to records kept to satisfy the requirements of the Asbestos in
Schools Rule. Additionally, if the inspector enters an area
which, in his or her judgement, may contain asbestos, then
protective clothing and equipment should be worn. For example,
if an inspector decides to conduct an inspection of a school
building to verify the records and encounters an area of untested
friable material, the inspector should put on protective clothing
and equipment before sampling the material. Also, if an inspector
enters a processing area described in the records as “closed”,
but observes dust which may contain asbestos fibers, he should
put on protective clothing and equipment.
In all cases, the inspector should be careful not to
unduly alarm other persons at the site of the inspection. The
inspector should explain that he or she conducts many inspections
involving toxic materials and must, therefore, routinely take
precaitions to limit all exposure to potentially harnful su ’stances.
It ay be advisable to take samples in school buildings during
lunch hours, recesses, or other times when an area is not in
use, to reduce the exposure of children and staff to any asbestos
released during the sanpling. This strategy would also avoid
any alarm that nay result from the sight of an EPA inspector
in protective clothing and equipment sanpling material in the
building.
Any questions regarding the advisability of wearing protec-
tive clothing in any sp.ecific situation, may be referred to the
Regional Occupational Health and Safety Designee. Each inspector
should determine who the Regional Designee is and have the
Designee’s phone number readily available should the need for
consultation an Se.
It is important that Agency employees protect themselves
from exposure to potentially hazardous materials. It is also
important that inspectors use good judgement to avoid creating
alarm merely as a result of their inspections. Since the
appearance of an inspector dressed in protective clothing and
equipment is clearly alarming to many observers,-inspectOrs
should avoid wearing protective clothing and equipment if
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it is not necessary. If protection is nt c ssary, inspectors
should tteunpt to Ilj fliuhi ze undue concern Iron other persnns t
the site. At no time, however, should inspectors coinpro nise
their own safety by not protecting themselves whenever there
is a possibility of exposure to an asbestos hazard.
See Also :
TSCA Inspectors Manual and Inspection Guidelines issued for
the two rules.
Key Words :
Asbestos, Compliance monitoring inspections, Protective
clothing and equipment
A. E. Conroy II, Director
Compliance Monitoring Staff
Office of Pesticides and Toxic Substances
J1 i5 83
Date
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ISCA COMPLIANCE PROGRAM POLICY No. 6-ASBESTOS-2
Treatment of Catholic Dioceses as Local Education Agencies
ISCA Section : 6
I ssue :
For purposes of determining responsibility for complying
with the Asbestos in Schools Rule (47 FR 23360, May 27, 1982),
are Catholic dioceses or archdioceses “Local Education Agencies 11 ?
Policy :
If the Catholic diocese performs other functions for the
schools within its jurisdiction which are similar to the func-
tions performed by public school districts for member schools,
then the dJ cese or archdiocese Is a “Lqca _EducationAgency”
and must asiiiine responsibi1ity for compliance with the Asbestos
in Schools rule and may be liable for violations.
Discussion :
The Asbestos in Schools rule defines a “Local Education
Agency” as:
(1) Any local education agency as defined in Section
l98(a)(l0) of the Elementary and Secondary Education
Act of 1965 C20 U.S.C. 2854L
(2) The governing authority of any nonprofit elementary
or secondary school, where the term “nonprofit” means
owned and operated by one or more nonprofit corporations
or associations no part of the net earnings of which
inures, or nay lawfully inure, to the benefit of any
private shareholder’ or individual
The bishop of a diocese is the governing authority of
“one or more,,.corporations or associations” which constitute
the schools in the diocese. Often these schools are corpora-
tions, of which the bishop is an executive officer. The
documents of incorporation are evidence of the bishop’s
responsibility in this matter. Also, the bishop may hold title
to the school buildings and land. ( egional personnel should
inspect the documents of incorporation and the deeds to the
school property to evaluate the bishop’s responsibility.)
The similarity between the structure of a diocese and a
school district also gives credence to the policy that the
diocese is responsible for most of the Catholic schools
within its district. The diocese education office will
often set the curriculum and calendar, order text books and
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obtain insurance for al.1 the schools. Also, the diocese may
employ a building commissioner for all the school buildings in
the diocese. Finally, the bishop has direct authority over the
parish priest who supervises the day-to—day activities of the
parish, including the parish school.
The bishop then, clearly has suffi dent authority to require
compliance with the rule by most Catholic schools within the
diocese. He, therefore, has the responsibility for compliance
with the rule by the schools.
See Also :
“Compliance Monitoring Strategy for the Asbestos in
Schools Rule”, June 24, 1982.
Key Words :
Asbestos, Local Education Agency, Diocese.
1 1 ’ i ’ C ,Director
Compliance M ni ring Staff
Office of Pesticides nd Toxic Substances
Date
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State Records
In some states records which will verify that the LEA per-
formed abatement activities are available. The inspector wifl
consult the appropriate state agency to determine if these records
verify that the LEA qualifies for the exemptions.
See Also :
Memorandum from A.E. Conroy II to Regional Asbestos
Coordinators dated March 3, 1983, “Qualification for Exemption
from the Asbestos in Schools Rule’.
Key Words :
Asbestos, Abatement and Removal, Exemption, Schools.
A. E. Conr 7 c kI, Oirector
Compliance iloni\toring Staff
Office of Pesticides a \Toxic Substances
Date
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E ‘- J
UNITED STATES ENVIRONME ”TAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
Mi : I 82 / 4 - II
OFFICE OF
PESTICIOES AND T0
r1EMORA UUM
SUUJECT: Qualification for Exemption from the
Asbestos in Schools Rule
TO: Regional Asbestos Coordinators
The Asbestos in Schools Rule (47 Federal Register 23361,
ay 27, 1982) exempts from the provisions of tne rule “any
school if the Local Education Agency (LEA) has conducted
abatement programs that result in the elimination of all friable
asbestos materials from the school either by removal or encap—
su F-a-t . on of the materials.” The rule is ambiguous on the point of
when the abatement must occur for the school to qualify for the
exemption. The preamble implies that the removal should occur
b !_o e t he effective date of tne..rule (June , 19 2) to qualify
r the exemption, b’ t tne language in tne rule. suggests-that
erei1ov l_JJLay occur duringthe.compliance period (before June
1983). Because the rule is unclear on this point and because
doater.Ierit does reduce or eliminate the risk of exposure to dSbeS-
tos, the Agency wiJLaccept properly condi cted abatement 7royraIIIs
.qhjcfl are completed eforeJune2 , j9 3,\ as qualifying for this
exemption.
Of course LEA’s which claim the exe: ption for certain schools
and yet did not take adequate abatem;ient actions are in violation
of the rule. The intended purpose of the inspection prograil i
determine the level of compliance with the Asbestos in Scnools
Rule. Regional personnel will determine if schools which claim an
exemption qualify for that exemption. Qualification for the exemp-
tion not only reflects compliance with the rule but should also
reflect a lessening of the asbestos hazard in school.
In determining if the LEA correctly claimed an exem;uption, the
Region may inspect maintenance records or survey buildings, subpoena
maintenance records, or check reports required by the r ational
Emissions Standards for Hazardous Air Pollutants (F E I1AP) under the
Clean Air Act. In certain Regions, other methods to determine if
abatement actions were conducted by the LEA may be available, such
as state records.
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se four methods for verifying exemptions are discussed i4,
,,.re detail below:
Inspect Records and/or Buildings
An LEA which claims this exemption should have records of
its abatement activity. The LEA may also have inspected, sam-
pled and analyzed friable material in the schools involved and
have records of these inspections and analysis. EPA inspectors
Can confirm that an LEA qualifies for the exemption by inspecting
the records of the abatement activity. In accordance with Section
11(b) of the Toxic Substances Control Act (ISCA), inspectors may
investigate building and maintenance records to determine that
the school has indeed qualified for the exeiiption by conducting an
effective abatement program. An inspection under this Section may
extend to all things within the premises (including records, files
and papers) bearing on whether he requirements of this Act have
been complied with. If the records are inadequate to demonstrate
that the school is exempted, the inspector will survey the building
to determine if friable materials appear to be present, and, if
appropriate, take samples for analysis.
Subpoena Records
If the LEA refuses to g-ive an inspector permission to review
pertinent records or to i ispect the school, the inspector
should consult with Regional attorneys about the possibility
of filing- a subpoena for • he_records--according tq Section 11(c)
of TStA Issuirig a subpoena is also appropriate if a documented
allegation is made to the Agency that a school has claimed this
exemption witnout justification.
Review NESHAP Records
If the LEA claims that it is exempt because the asbestos
material was removed, the inspector could consult the records of
the EPA ’s Office of Air Quality Performance and Standards. The
National Emissions Standards for Hazardous Air Pollutants (NESHAP),
a part of the Clean Air Act, require that all removals or renova-
tions of more than 15 square meters (t 2 square feet) of asbestos
containing ñiateri 1s must be reported to either the EPA Regional
OLce Q_L a state agen’cy to which authority has been delegated, with
a copy of the notice sent to t ieEPA Regional Office. This notice
could be used to verify qualification for the exemption. If there
is no notice, the Region should investigate the possibility of vio-
lations of ISCA or the Clean Air Act or both.
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te Records
In some states records which will verify that the LEA per-
formed abatement activities are available. The inspector will
consult the appropriate state agency to determine if these records
verify that the LEA qualifies for the exemptions.
I hope this guidance helps you to deal with the exemption
issue as it arises in your Region. If you have any questions
ofl this matter call Pamela Harris of my staff (FTS—382—5567).
A. E. Conr III, Director
Pesticides a d Toxic Substances
Enforcement Division
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TSCA COMPLIANCE PROGRAM POLICY No. 6 - ASBESTOS — 3
a1ification for Exemption from the Asbestos in Schools Rule
Based on Asbestos Abatement Programs
TSCA Section : 6
Issue :
If a Local Education Agency (LEA) wishes to claim the
exemption described in section 763.ll7(c)(2)(i) of the
Asbestos in Schools Rule for asbestos abatement, when must
the abatement be complete to qualify for the exemption?
Policy :
The LEA must have completed the abatement June 28, 1983.
If there is still friable asbestos-containing material in
the school on that date, the LEA must comply with the warning
and notification and recordkeeping requirements of the rule.
Discussion :
The Asbestos in Schools Rule (47 Federal Register 23361,
May 27, 1982) exempts from the provisions of the rule ‘any
school if the Local Education Agency (LEA) has conducted
abatement programs that result in the elimination of all friable
asbestos materials from the school either by removal or encap-
sulation of the materials.” The rule is ambiguous on the point of
when the abatement must occur for the school to qualify for the
exemption. The preamble implies that the removal should occur
before the effective date of the rule (June 28, 1982) to qualify
for the exemption, but the language in the rule suggests that
the removal may occur during the compliance period (before June
28, 1983). Because the rule is unclear on this point and because
abatement does reduce or eliminate the risk of exposure to asbes-
tos, the Agency will accept properly conducted abatement programs
which were completed before June 28, 1983, as qualifying for this
exemption.
Of course LEA’s which claim the exemption for certain schools
and yet did not take adequate abatement actions are in violation
of the rule. The intended purpose of the inspection program is to
determine the level of compliance with the Asbestos in Schools
Rule. Regional personnel will determine if schools which claim an
exemption qualify for that exemption. Qualification for the exemp—
ti on not only refl ects compliance with the rule but should also
reflect a reduction of the asbestos hazard in the.school.
In determining if the LEA correctly claimed an exemption, the
Region may inspect maintenance records or survey buildings, subpoena
maintenance records, or check reports required by the National
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Emissions Standards for Hazardous Air Pollutants (NESHAP) under the
Clean Air Act. In certain Reyions, other methods to determine If
abatement actions were conducted by the LEA may be available, such
as state records.
These four methods for verifying exemptions are discussed in
more detail below:
Inspect Records and/or Buildings
An LEA which claims this exemption should have records of
its abatement activity. The LEA may also have inspected, sam-
pled and analyzed friable material in the schools involved and
have records of these inspections and analysis. EPA inspectors
can confirm that an LEA qualifies for the exemption by inspecting
the records of the abatement activity. In accordance with Section
11(b) of the Toxic Substances Control Act (TSCA), inspectors nay
investigate building and maintenance records to determine that
the school has indeed qualified for the exemption by conducting an
effective abatement program. An inspection under this Section may
extend to all things within the premises (including records, files
and papers) bearing on whether the requirements of this Act have
been complied with. If the records are inadequate to demonstrate
that the school is exempted, the inspector will survey the building
to determine if friable materials appear to be present, and, if
appropriate, take samples for analysis.
Subpoena Records
If the LEA refuses to give an inspector permission to review
the pertinent records or to inspect the school , the inspector
should consult with Regional attorneys about the possibility
of filing a subpoena for the records according to Section 11(c)
of TSCAe Issuing a subpoena is also appropriate if a documented
allegation is made to the Agency that a school has claimed this
exemption without justification.
Review NESHAP Records
If the LEA claims that it is exempt because the asbestos
material was removed, the inspector could consult the records of
the EPA’s Office of Air Quality Performance and Standards. The
National Emissions Standards for Hazardous Air Pollutants (NESHAP),
a part of the Clean Air Act, require that all removal s or renova-
tions of more than 15 square meters (162 square feet) of asbestos
containing materials must be reported to either the EPA Regional
Office or a state agency to which authority has been delegated, with
a copy of the notice sent to the EPA Regional Office. This notice
could be used to verify qualification for the exemption. If there
is no notice, the Region should investigate the possibility of vio-
lations of TSCA or the Clean Air Act or both.
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S t a t eRe c o r d s
In some states records which will verify that the LEA per-
formed abatement activities are available. The inspector will
consult the appropriate state agency to determine if these records
verify that the LEA qualifies for the exemptions.
See Also :
Memorandum from A.E. Coruroy II to Regional Asbestos
Coordinators dated March 3, 1983, “Qualification for Exemption
from the Asbestos in Schools Rule”.
Words :
Asbestos, Abatement and Removal, Exemption, Schools.
A. E. Conrcr( 1 1, Director
Compliance 1oni\toring Staff
Office of Pesticides ‘äodl Toxic Substances
JUL 2 19 4
Date
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TSCA COIIPLIANCE pRO(;RA i POLICY NO. 6 - ASBESTOS—IN-SCHOOLS — 4
“For-Profit Schools”
TSCA Section : 6
Issues :
If a school claims that it is a “for—profit” corporation
or organization, is the school subject to the Friable Asbestos—
Containing Materials In Schools: Identification and Notification
Rule (Asbestos—in-Schools Rul e)?
Policy :
Based on information obtained from the Department of
Education during rule development, the Environmental Protection
Agency (EPA) assumes that all schools are either public or
non—profit organizations and the rule specifically applies
to these two types of schools. The rule does not apply to
a “for—profi t” school , but the school would have to demonstrate
its “for—profit” status.
Discussion :
The Asbestos-in-Schools Rule (47 FR 23369, May 27, 1984)
applies to Local Education Agencies (LEAs) which are defined
in section 763.103(e) of the rule as:
(1) Any local education agency as defined
in section 198(a)(1O) of the Elementary and
Secondary Education Act of 1965 (20 U.S.C. 2854).
(2) The governing authority of any nonprofit
elementary or secondary school, where the term
“nonprofit” means owned and operated by one or
more nonprofit corporations or associations no
part of the net earnings of which inures or may
lawfully inure, to the benifit of any private
shareholder or Individual.
Since this definition does not include “for—profit”
schools, they would not be subject to the rule. However,
during rule development, the Department of Education indicated
to EPA that the definition would include all schools. Therefore,
the Agency’s policy is that the burden of proof Is on the
school to demonstrate its “for—profit” status. Examples of
appropriate documentation would include U.S. Internal Revenue
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or state tax forms on which the school claimed and paid
taxes on a profit, or end—of-year financial statements
certified by an independent auditor. In the absence of such
documentation, the Region should proceed with the appropriate
enforcement response for the violations present at the LEA.
See also :
Friable Asbestos-Containing Materials in Schools:
Identification and Notification Rule — Section 763.103(e)
(47 FR 23369, May 27, 1984)
Key words :
Asbestos, “For-profit”, Local Education Agency
I
A. E. Conroy
Office of Cot
21 May 1985
rector
e Monitoring
Date
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TSCA COMPLIANCE PROGRAM POLICY NO. 6 ASBESTOS—IN-SCHOOLS - 5
Enforcement Response for Small Local Education Agencies
Without Friable Material
TSCA Section : 6
Issue :
If an inspector, authorized by the Environmental
Protection Agency (EPA), determines that there is no friable
material in a small Local Education Agency (LEA) [ small LEA is
defined as 1—3 schools], and the LEA is in violation of any
provision of the Asbestos-in-Schools Rule, should the Region
issue a civil complaint or a notice of noncompliance for the
violation?
Policy :
If an EPA inspector has determined, upon completion of
a thorough inspection, that all of the schools within a
small LEA are free of friable materials, the Region should
issue a notice of noncompliance as the initial response to
any violations of the Asbestos—in—Schools Rule by that LEA.
Please note that this policy does not apply if it is determined
by EPA that the school carried out abatement activities
after June 28, 1983 and failed to notify parents and teachers
that asbestos was present.
Whether or not the Region elects to inspect the entire
LEA in order to verify that there is no friable material is
at the Region’s discretion. However, unless such an inspection
is conducted, the Region may not issue a notice of noncompliance
for a violation of the Asbestos—in-Schools Rule. Instead the
Region should Issue a civil complaint.
Discussion :
The Revised Asbestos—in-Schools Enforcement Response
Policy of July 22, 1984, provides guidance for when the
appropriate enforcement response is to issue a notice of
noncompliance or a civil complaint. Notices of noncompliance
are the proper response when “parents and school employees
[ are] generally aware of the status of asbestos in the school
buildings in spite of [ the] violation” (See page 5, paragraph 1).
If there is no friable material present, then there is nothing
for parents and school employees to know about “the status
of the asbestos in the school buildings”. In these cases,
the Region should issue a notice of noncompliance to the LEA.
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Generally, an inspector evaluates compliance of an LEA
based on the records present at the school and/or LEA, and by
an on-site inspection of selected schools within the LEA.
however, it is important to note that an inspection of the
building only indicates the presence or absence of friable
material. Furthermore, the rule requires sampling and analysis
of friable material to determine If it contains asbestos.
When an inspector has not inspected all of the schools
in an LEA, Regional personnel cannot make a determination
regarding the absence of friable material In the LEA. In
cases such as this, the Region should follow the guidance in
the Revised Enforcement Response Policy and select the appro-
priate response.
The purpose of this policy Is to allow the Agency to
select an enforcement response policy which requires fewer
resources In those cases where the EPA Inspector has verified
that there is no friable material throughout a “small” LEA.
Moreover, this policy does not suggest that an inspector has
any obligation to evaluate the LEA for friable materials. The
decision of whether or not to inspect an entire LEA, which is
essential in order to issue a notice of noncompliance Instead
of a civil complaint, should be based on the size and proximity
of the schools within an LEA.
See also :
Revised Asbestos-in-Schools Enforcement Response Policy
(July 22, 1984)
Key Words :
Small Local Education Agency [ 1-3 schools], Friable
material, Notice of noncompliance.
I #I’ 1
A. E.
Office
is:
Io
i rector
ce Monitoring
Date
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Sr 4

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
I
WASHINGTOND.C.20460
4 PRO 11
SEP 101985
OFFICE OF
PESTICIDES AND TOXIC SUBSTANC t
MEMORANDUM
SUBJECT: TSCA Compliance Policy No. 6 — ASS — 6
FROM: A. E. Conroy II, Director
Office of Compliance Monitoring
TO: Addressees
Attached is the TSCA Compliance Program Policy No. 6 —
Asbestos In Schools — 6, “Recordkeeping Requirement for
Schools with Friable Asbestos-Containing Material”.
This policy applies to the Asbestos in Schools Rule
recordkeeplng requirements set forth at 40 CFR §763.114(a)(5).
This section requires that one copy of “Asbestos—Containing
Materials in Buildings: A Guidance Document”, Parts 1 and 2
(i.e., the orange books) be retained at schools having friable
asbestos—containing material. However, these guidance docu-
ments are no longer being published. Instead, the Agency is
now publishing an updated book under a different name en-
titled “Guidance for Controlling Asbestos-Containing Materials
in Buildings” (i.e., the purple book). Therefore, the Office
of Compliance Monitoring shall permit schools to retain the
purple book, in their administrative office, in lieu of the
orange books required by the rule. As you know, the purple
book contains an insert and will eventually have a statement
printed in the book, which indicates that this replacement
of books is permitted by the Office of Compliance Monitoring.
It is important 1o note that schools must continue to retain
copies of the “Guide for Reducing Asbestos Exposure”, which
is also required by 40 CFR §763.114(a)(5).
If you have any questions concerning this policy,
which is final , please contact Claudia Goforth of my staff
at FTS 475-6723.
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TSCA COMPLIANCE PROGRAM POLICY - No. 6 - ASB - 6
Recordkeepi ng Regui rement for Schools with
Friable Asbestos—Containing Material
TSCA Section : 6
ISSUE :
Will EPA allow the guidance document entitled “Guidance for
Controlling Asbestos—Containing Materials in Buildings” to be
kept on file at schools with friable asbestos—containing material,
in lieu of the guidance documents entitled “Asbestos—Containing
Materials in School Buildings: A Guidance Document,” Parts 1 and 2,
required by section 763.114(a)(5) of the Asbestos in Schools Rule?
POLICY :
A school with friable asbestos-containing material Is required
at 40 CFR §763.114(a)(5) to retain one copy of “Asbestos—Containing
Materials in School Buildings: A Guidance Document,” Parts 1 and 2
(the orange books). EPA will allow an updated version of this
document entitled “Guidance for Controlling Asbestos—Containing
Materials in Buildings” (the purple book) to be kept on file In
lieu of the Iocuments required by the rule.
DISCUSSION :
The guidance documents required under 40 CFR §763.114(a)(5)
are no longer being publishe d. Therefore, schools with friable
asbestos—containing materials shall be permitted to satisfy the
requirements by retaining an updated version of the required doc-
uments entitled “Guidance for Controlling Asbestos—Containing
Materials in Buildings”, document number 560—585—024 (the purple
book). This book may be obtained by contacting the Toxic Substances
Control Act (TSCA) Assistance Office at 800-424-9065.
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-2—
See Also :
“Asbestos—Containing Materials in School Buildings: A
Guidance Document,” Parts 1 and 2, “Guidance for Controlling
Asbestos Containing Materials in Buildings”.
Key Words :
Friable Asbestos—Containing Material, Schools, Orange Books,
Purple Book.
References :
Memorandum dated July 31, 1985 to Susan Vogt from A. E. Conroy II,
entitled Recordkeeping Asbestos In Schools Rule Guidance
Documents.
A.
Of
1 rector
Itoring
SB’ Io
Date
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1t Zl ? -
UNITED STATES ENVIRON M ENTAL PROTEC1I
W! SH:NGTON. DC 20460 EPA/REc l(,i J
3I 3
MAR 2 1 1930 EN F U R C t L .
D Ià P P JWORCEMENT
MEMORANDUM
SUBJECT: Confidential Business Information
TO: Louise D, Jacobs, Director
Enforcement Division, Region VII
FROM: A.E. Conroy II, Director
Pesticides and Toxic Substances
Enforcement Division
As a follow-up to our conversation at the Enforcement Division Di.rectors
meeting in Annapolis, I am forwarding two act Lon papers concerning the steps
my office has initiated to resolve TSCA confidentiality issues. The first
issue, classification of confidential and non-confidential information, was
raised in your memorandum of January 8, 1980, and subsequently by Clyde Eller
and Julio Morales—Sanchez. In order to minimize unwarranted claims of confi-
dentiality, inspection procedures and formc have been revised, and the Office
of General Counsel has been requested to consider making an amendment to the
PCB rule or a class determination. In addition, Marilyn Bracken’s Office
has instituted revision of the TSCA—CBI Security Manual.
The second issue document involves the development of procedures to
expedite the review of confidentiality claims and the incorporation of
changes in the inspection manual with respect to routine security measures.
These issues were raised in Clyde Eller’s memorandum of December 19, 1980.
As a result of that memorandum, the pertinent sections of the inspector’s
manual concerning routine security measures were revised and procedures for
expediting the review of confidentiality claims will be included in the
“TSCA Case Proceedings Manual”. I appreciate your thoughtful suggestions
regarding the enforcement of TSCA and hope that the measures which have
been implemented alleviate any unwarranted burdens on the administration
of the program.
/1
/
A. E. Conroy II,(Dir, ctor
Pesticides and Toxic ,Substances
Enforcement Divis 6n
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II. Issue: 1. Procedures for making expeditious determinations
that information is not confidential
2. C iunents on routine security measures
A. Clyde Eller meunrandum of Cecenber 19, 1979
1. The itenorandum requests inclusion of procedures for
declassification of individual claims of
confidentiality in the “TSCP Inspection Manual”
2. The menorandum requests that certain routine security
procedures cutlined iii a draft accompanying A. E. Conroy’s
meno of 11—27—79 be relaxed.
Resolution:
1. The Office of General Counsel delegated the authority
to declassify information claimed confidential in
connection with inspections under the PCB rule on
11—26—79. The authority was delegated to the Regional
Counsels. Procedures for TSCP attorneys to augment
this delegation will be included in the “ ‘ISCA Case
Proceedings Manual”.
2. The procedures concerning routine security measures
for handling information in the office and while
traveling have been revised in the final inspection
menual.
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oAyg December 19, 1979
SUBJECT Comments on Confidentiality Procdures
i M iual
FROMi , . Eller I
Director
U Enforcement Division, Region IX
TO,
A E. Conroy II
Director
Pesticides and Toxic Substances Enforcement
The following are general comments on the confiden-
tiality procedures for the TSCA Inspection Manual:
1. 1f a company claims that information collected during
an EPA inspection is confidential, an enforcement action
based on that information will, be severely hampered.
The TSCA Inspection Manual should include a section on
the roles of the regions and headquarters in making an
expeditious determination that the information is not
entitled to confidential treatment.
2. The security measures (Chapter 3, Section 6), especially
for routine matters, are overly stringent and
unrealistic in comparison to usual and customary
practices. For example, for routine security measures,
the TSCA Inspection Manual states:
While (tjravelling . . . (blriefcases should
not be left unattended in a motel room. . .
In the (o]ffice . . .(dlocuments and field
notes must be kept in a locked filing
cabinet when not in actual use. They should
never be left on the desk unattended.”
Because motel rooms are locked and all regional offices
are secured, the routine security measures are
unnecessary and will hinder the timely preparation of
TSCA enforcement actions.
If you have any questions, please contact me or Keith
Takata of my staff at (415) 556—a008.
EPA FORM 1320.1 IREV. 3-76) f L
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‘ UNITED STATES ENVIRONMENTAL RorE TIoN AGENCY
WASHINGTON. D.C. 23460
I
..s 9
OFICZ OF NFORC ’.t iT
M RANtVM
St3BJECi : Confidential Business Information Authorization for TSCA Enforthient
TO: Enforcenent Division Dfrec rs
Air and Hazardous Materials Division Directors
Simveiiance and Analysis Division Directors
Background
Certain business information collected durii 1 CA insFections may be
entitled to confidential eã nt under Section 14 of the statute and EPA
r ulatlons (40 .C R Part 2). Information declared confidential busir.ess
information (CBI) by a ccau ny mist be handled according to the rocedures
detailed in the TS (31 Security Manual , under which only rsons cleared
for access may vIew the 1nrorzrat Lor1.
irirq the enforcemant pro ess, many different Individuals will be involved
with information obtained during the ins ction. If such inforn’ation has been
cla3 d confidential business information, each rson who is involved tiust
be authorized for access. These individuals include iris ectors, case pre ra—
tion staff, attorneys, and secretarial sup rt staff. In eddition, all
laboratory r nnel who handle confidential samples mist be authorized.
Confidential Business Information ((31) Catecories
The TSCA—CBI Security ocedures currently provide for t. o levels of
access a.ithorization to confidential business information:
o General Categ3ry — all (31 not falling into the ‘s ecial categ3ry 1 ’
classification
•o S ecia1 Category — (31 information thich includes:
—S ecific confidential chemical identities (e.g., Section 8 inventory
form C chemical identities and Section 5 Preman. facture Notice
themicals cia imad confidential) -
—Information about product formulations, and
—Information about s cif ic processes used in marufacturin or
prOcessing.
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An individual who is authorized for special category access is alp’
authorized for general category access.
General access authorization will be required for all enforcement
personnel (inspectors, case preparation staff, attorneys, secretarial staff,
and laboratory personnel) who deal with TS inspection data that may be declared
confidential (documents, records, physical samples).
Enforcement personnel involved in Section 8 and Section 5 enforcement
activities, as well as those involved in PCB or ‘C inspections concernir
formulation or processir information, will require special category authoriza—
tion.
Authorization Status of Enforcement Personnel
Many TS inspectors and attorneys have alre y obtained I authorization;
npst cleared thus far have only general category authorization. In some cases,
when the Request for Access form was submitted, the “data required” and
“justification” rtions were caupleted in very specif±c terms (e.q., t1 carry
it PCB inspections”), implying some limitation even on general category authoriza-.
tion. Other enforcement staff who may become irwolved in TSCA cases are not
authorized for confidential business information at all. The Regional cument
ntrol Officer has a list of and files for all, persons authorized and their
category of authorization.
Since we are currently corx3uctir ir pect !.ons for P s and CFCs and will
soon implement inspection programs for Sections 5 azxl 8, it Is essential to
obtain the appropriate authorization for all inspection and enforcement personnel
litmediately. Because of the time lag beta’een submission of access requests and
granting of a cess, projections of future activities for each individual should be
made and the broadest anticipated access needed should be requested.
o At this time, it is anticipated that all personnel involved in
Sections 5 and 8 need special category Luthorization.
o When we begin inspections related to prccessing of PCBs based
on the exemptions due early ne. t ear, ersonnel involved in
that program will also require special category authorizaton.
o All other inspectors and enforcement staff involved with TSCA
will need only general category authorization.
Procedures for Submission of Access Requests
The attached “Everything You Always Wanted to Know About the Procedure for
Becoming Authorized” details the steps involved in obtaining confidentiality
authorization. Each individual mist be submitted on a separate form, but a
covering list mist also be attached. To expedite the process for enforce—
ment personnel, the forms should be submitted to PTSED after Regional approval
and PTSED will forward them to ors. .. , e follcwin Procedures and 1 mw c r
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Special Category
special category access requests should be made on the “Request for
J ccess to Special Category TS Confidential Information Form.”
o If the access request is for an individual who already has general
Category auttor ization, insert “Resu nittal for Expanded Access” in
the bottom margin.
o The following language should be used for special category:
1 ta Required: Records, documents, physical samples, and other
materials for review in conjunction with a TSCA
enforcein nt investigation (or case proceeding)
involving chemical identity, process, or formula—
tion- information.
Justification: lb allow for the conduct of TS cattpliance irwestiga—
tions (or participation in TSCA enforcement case pro-.
ceedings) during whih confidential chenic.al identity,
process, or formulation data may be encountered.
2. General Category
General category access requests should be suk nitted on the “Request
for Access to TSCA- I” form.
o If the access request is for an individual who already has a limited
general access authorization, insert “Resi..thnittal for Expanded Access”
in the “Caxui nts” rtion of the form.
o The following language should be used for general category:
Data Required: Records, documents, physical samples, and other
materials for review in conjunction with a TSCA
enforcement investigation.
Justification: To allow for tthe conduct of TSCA ccmpliance
investigations (or participation in TSCA enforce—
ment case pro ..eedthgs) during which confidential
data may be e countered.
Procedures for Enforcement Handling of Confidential Information
The inspection through case proceeding aspects of the TSC enforcement program
present certain procedural requirements to ?rotect confidential business data
collected during an inspection. Basic procedures are contained in the TSCA-CBI
Security Manual , but field staff and case preparation procedures are not cov red
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eddress enforcement questions related to confkIential business
formation, P SED has developed, with concurrence om the Office of
‘ xic Substances and Office of General Counsel, the attached procedures
for handling confidential business information during the inspection
phase of the enforcement process. These procedures wifl. be incorporated
into the TSC Inspection Manual now nearing cu pletion, so we would
appreciate any catut nts on them by no later than Nouentber 28.
Similar procedures are being developed for TSC I, case preparation.
Both sets of procedures will be included in a planned rev is ion of the
TS —CBI Security 4anual.
Stmu ary of Needed Action
o Review the list of Regional Enforcement Personnel (inspectors, attorneys,
case preparation officers, secretaries, and laboratory analysts) currently
cleared for access to corifi ential information and their levels
of autlx,rization.
o Determine which individuals should be edded to the list and those who
should gain edditional authorization.. Cottplete the appropriate forms.
o Officially suthtit the names of new individuals and resubuit the names
of those needing expanded authorization.
o Mail the materials to Mary E. Mc1 nnell, Acting Heed
Regional Coordination Unit, PTSED, E —342, t EL’A
Washington, D.C. 20460.
P1’SED will forward the forms to 01 ’S to expedite the process.
A. B. Conroy I , pirector
Pesticide3 and Tox’c Substances
Enforc .ment Div’ on
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ntcec States Pes ic:ces ano
Envircnmentai Prctec: on Tcxic Sucstar.ces
erc, Enforcement Division
PA Enforcement Facts
and Strategy
Chlorofluorocarbons
(CFCs)
Ova r’new
C loroflucrccarbcns (( Cs) have been found to roduce a risk to hu an
r ealth a nd the envircrimer.t by cau.sinc deoletiort of the ozone layer whicn
sriields the earth’s surface from ultraviolet radiation. Lt icugn the
effects of ozore ce ,let cr are ci.ff cult o ci.art .fv, uicreasec e csure to
ultraviolet raciat on leacs o a stat stica_l’ sigruficaro creas 1.i
skin cance:. Scre negati’e effects on olanos and anin als re also
L. .kel7. .ere are sot,ie oredic icns of verse effects because of -n
increase in the !artn’ s t oerat.ire ( reethcuse efface) and char ee
in climate.
Cn 1arcn 17, l97 , the Envi:cr erital ?:otection gencv ublisned a rula
nich Drohibits aJ..ccst eli. of the tanufactu:e, roc ssing, and dist:i ut on
in c r erce of fully halo enated cilorofluoroalkanes (also as
cnlorofluorocaroons or c C.s) for aerosol rcoellanc uses subje to the
roxjc Suostances Control ;ct. tr. a related ac icr., the Fccd ar.d ruo
A ni.riistration banned C C aerosol procellants in osz foco, crug,
and st tic oroducts.
• intent of nese rules is to reduce iiss ions of chlorofluorcca:bcns
to the atmoshere, and therecy reducing the environ entel risks caused
by o1etion of the ozone layer.
En 1975, croxim atel’p one—haLf of the C ’C3 orcduced in the Jnited States
‘were used as aerosol rccellantz. Since that ti. ie, tnis figure nes
drc ced nsiderab1v. Alternatiie ;rocelLants or r cnaerosci •al err atives
for r cse uses are available. -hen rio alternative exists for an essential
use, i exer tion from the re ulatior. tray be ranzed.
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—2—
aeculatec Industries
Any !ranufacturer, bulk distributor, b.LLk iin rter, or processor (filler)
of ch.loro fluorocarbons is sth ect to the rule, as are importers and
exorters of aerosol products.
T re are five cFC manufacturers and roxii ately 300 aerosol fillers
in the United States. Together, they are responsible for nearly all
of the ‘C activity requlated by the ban; the other industry categories
erforn only a small oercentage of regulated activity.
Recuirements under toe CFC Rule
Ban of Aerosol Prowellant Uses*
The following activities are banned by A in connection with
aerosol prooellant uses of Cs as of the dates indicated:
October 15, 1978 Manufacturing (except for ex ort)
Dece.mber 15, 1973 Processing, L rtin9 in bulk,
importing finished aerosol articles,
and distributing in bulk (exceprt
for export
The following activities are banned by the related ED rule:
December 15, 1978 Maiufacturing and filling
April 15, 1979 Iritroductirig finished products into
interstate rm erce
The ter:n “aerosol ro ellant’ includes the substance which excels
the active ingredients in a roduct and any other substance used to
tdifv the excelling force or to achieve delivery of the active
ingredients. In general, anything which is not an active ingredient
is a rocellant.
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—3—
Essential Use Exe.’notions
The llowing uses have been found to be essential, and therefore
are not banned:
A—regu.lated prcducts: • mercaptarl stench mine warning devices
• release agents for molds in plastic
and elastomeric croduction
• flying insect pesticides for use in
non—residential fccd—baridlir.g areas
and for space—spraying of aircraft
• diazitnd grit spray
• nonconsumer articles used as cleaner—
solvents, lubricants, or atincs
for electrical, or electronics
ecui ment
• articles necessary for the safe
maintenance arid operation of aircraft
• uses essential for military pre aredness
as determined by the Aäninistrato and
Secretary of Defense, and
• iniUess fincer rinting syster s (until
ugust 1, 1981)
FD —regu1ated products: • metered—dose steroid human drugs for
nasal innalation
• metered—dose steroid huiran dru s for
oral inhalation
• metered—dose reriergic bror.chodia!ator
human drugs for oral inhalation
• ntraceotic vaginal foams for iuman
use
• metered—dose er otarnine tartrate drug
roduct.s aáninistered by oral inhalation
for use in hui ans
• foamed or sprayed focd products tiich
contain chiorotentafluroethane (F—115)
as an rating agent
When an exeription is granted for an essential use, it must onl ’ be used
for that essential use. If a oroduct can reasonably be ex czed o be
used for nonessential uses, the filler may not represent the orcduc: as
having other uses. If the oroduct has an estaclished market ‘ vfl Cri includes
rrarty nonessential uses, t.ne filler must make it clear, in labeling or
vertisirig, the use is limited to the essential use exem tion.
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-.4—
Certification
Purchasers of CZC.s for any use must submit a certification to the manufacturer
secifying ‘ t ether the Cs will be used for aerosol or other uses rior to
shiment of the substance. This requirement applies to all CSC .S manufactured
after Cctober 15, 1978.
ReDortinc
Manufacturers and processors of C Cs are required to file annual reports
with EPA. The recorts are mailed to the Pesticides and Toxic Substances
Enforcement Division by March 3]. of 1980, 1931, and 1982.
The 1980 manufacturers’ reports will cover the eriod from October 16, 1978,
thr gh December 31, 1979; the 1980 processors’ reports will cover
the period December 16, 1978 through December 31, 1979. For the first
retort, each group has been asked to provide 1978 and 1979 data separately.
Suosecuent retorts will cover the oreceeding calendar year.
Record— ceepi. is not recuired by the rule, but will be necessary for
compiling the annual report.
• The manufacturer’s annual report includes a list of all .irchasers
of C s and tne total quantities shiped, as well as a breekdcwn
of cuantities shioced for aerosol and other uses.
• Processors must submit a retort shcwinc from whom they ur nased
Cs and the quantities airchased. They must also submit an
itemized list of cuantitices processed for the various EPA essential
uses, total FDA essential uses, and non—protellant uses.
• Imtorters are subject to the same reporting requirements as
manufacturers but ão r t need to file an annual re’ ort if none
of their customers buy for EPA—regu.lated aerosol propellant uses.
Enforcement
Q j active
The objective of the C C enforcement rogram will be to ensure that activities
banned by the regulation have not taken lace end that recui:ed retorts
are orocerly prepared and filed.
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—5—
Tv es of /io1ations
o Process inc of CFCs for banned aerosol uses after Dec nber 31, 1978
aeference: 40 cFR 762.12(a)
o Manufacturinc C Cs for nor.exe t aerosol crccellant uses after
Decemcer 15, 197a
Reference: 40 762.11(a)
o Recordkeeoing and retorting violations , including submission
of a false annual revort, failure to submit an annual report,
failure to obtain certification from a ‘C ourchaser, and
submission of a late annnual reoort
Reference: Certification 40 c!R 762.11(c); manufacturer
annual recort 40 CFR 712.3 (a) submission, (b) forn at; orocessor
annual report 40 C R 712.3 (a) submission, (b) format; willful
falsification 18 USC 1001.
o Collusion between the manufacturer and orocessor in submitting
false annual rePorts
Reference: 40 CFR 712.3 and 7l2.
o ? buse of an essential use exe ction
Reference: 40 CFR 762.12(a)
o Distributinc CFCs in bulk for banned aerosol roce1lant uses
a ter Dece.’r.cer 15, 1978
Reference: 40 C R 762.13
o t crtir.g oulk CFCs for nonexe t aerosol rc e11ant uses after
Decem er 15, 1978
Reference: 40 ‘R 762.11(b)
o Im rting nonexex ot CFC—orooelled aerosol articles after
Becen:er 15, .1973
Reference: 40 C’R 762.11(5)
Violation Cetection
A orogr n of aerosol filler ins ections will e conducted based on
thfo ation obtained from a ccmbLiation of the following sources:
o A.nalysis of annual reports of processors and manufacturers
o Market lace sam Pling
o Referrals from the Pesticides Registration and Pesticides
Inspection progr s
o Cooperation w .th the Food and Drug A tinistration and tne
Consumer Product Safety Cormission
o Ties from competitors and the general ib1ic
o Cooteration with U.S. CUSt S Service
o Insoections of ranufacturers’ records
in addition, non—targeted ins- ections wil be conducted based on a
neutral a riinistrative scheme.
Cue: each
As oart of its effort to achieve voluntay ccmoliance with the CFC rule,
will continue its orocr m to thfor the regulated co riu it’, about
the r ui:ec ents and any theer retatior.s or clarifications develcped
by the Agency.
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—6—
Re! edies
tinder the Toxic Substances Control Act, the following enfor:ez ent actions
may be taken against violators of its ‘rovisioris or rules oromulgatad
under the Act:
o Notice of r ncom liance
o k ithistrative enajt’, of to $25,000 er violation oer day
o Civil action including injunctive relief and sei:ure
o Criminal penalties of t to $25,000 and/or one year of
irn riwrm’ent cer violation
Suniiar’ of Enforce’nent Strateov
En.force.’r.ent efforts will focus on accounting for CFCs ourchased by
fillers. The ;gency wi].]. try to make sure that all CFCs purchased
for rosol orovellant uses are being r loved in exeir.ct products, and
that the e:ce ptions given are riot being abused.
Ins;ections will be limited to those fillers cirrently buying CFCs.
Violations by manufacturers and distributors can only occur if thsre
are associated filling (processing) violations. Therefore, thes
activities will be investigated only where there has been a filling
violation.
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C?C L’1FORCEME 4T F 1 ;CTS A O STa r G
PA
C C enforcement Prirori.ties
Potential violations of the C’C ban rule have been ranked for enforcement
priority based cn the estimated likelihood of the violation occurring,
the de’ ree of bar n to the environment, and the ease of detection. The
categories of possible violations acear below in order of decreasing
priority along with the considerations leading to the ranking decisions.
Each of the violations below would be a violation of §15(1) of TSCA. In
addition, a ca nercial distributor or user of a banned finished croduct culd
be violating l5(2) if they knew or had reason to know that tne product
was nufactured illegally (and distributed or used it). Distributors
or users of C Cs will not be pursued exceDt in ccn unction with a fillirr
vi3latIon. Section 15(3) culd be violated if an ex rter failed to
five the A nthistrator notice under S12.
(1) ? rocessiric of CFCs forbarined aerosol uses after December 15, 1978
This category is the most important for a ntrnber of reasons:
• Ianv of the other tgories of violations cannct be cott itted.
if there is rio related filling violation.
• It is the filling violation that makes the increment of
environmental harm cossible.
• This tyce of violation is the easiest to detect and often
is the onlv reasonable way to find other tyoes of violations.
!conomic incentives to violate arise from:
• The cost of R & D necessary for reformuJ.ation of the
product
• The cost of anging the Labels, advertising, or pesticide
registration, as necessary
• The cost of anging the filling line and the associated
facilities (especially great if the filler installs equitment
which allows filling with hydrocarbons which require costly
changes to prevent exolosions and fire.
Since Cs are re exoensive than hvdrccarbcris, where hydrocarbon
filling caoaoilitv already exists, the economic incentive to
violate is relatively s aU.
1 1—1
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(2) Abuse of an essentia]. use exe tion
Violations in this category have environr enta.). effects ar
economic incentives uery similar to those of category (1),
but these violations are much more difficult to detect.
(3) Collusion between the manufacturer and orocessor in sub iitting
false annual re rts
rhis tyoe of violation is serious because it frustrates the
purpose of the annual reports as a c nplinace onitoring tool.
Such a violation makes cross—checking of manufacturers’ and
processors’ reports meaningless, and makes it much less likely
that violations will be discovered. Because of these nsideratior.s,
a collusion violation increases the amount of environmental harm
likely to occur before other violations are detected.
(4) Manufacturir.a CFCs for nonexemot aerosol Dro ellant uses after
Octocer 15, 1973
This t is a ivsical1v necessary m lernent to a filling
violation, but unless there is an associated certification violation
or llu.sion between the manufacturer and filler, a violation does
not exist.
(5) L ortinc bulk CFCs for nonexe t aerosol or ellant uses after
Cecemoer 15, 1978
This violation is anaiccous to category (4), but the cuantities
cotentially involved are ucn less.
( ) Distributinc CFCs in bulk for banned aerosol orocellant uses after
ecencer 15, 197d
This t, like categories (4) and (5), is ysically necessary for
a filling violation to occur. cwever, it is even tore difficult to
rove enan the manufacturing violaticris because the CFC rule does
not recuire distributors to obtain certifications from their
customers.
(7) L ortir.a nor.exe. t CFC—?rc elled aerosol articles after Dece oer 15, 1973
This violaticn is analogous to category (1), but the guantities involved
are exected to be :t uch less, and detection is much rcre difficult.
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(S—U) Recordkee ina ar.d re ortinc violations .
These violations include: (8) su iiissicn of a false annual rewort;
(9) failure to submit an annual recort;
(10) failure to obtain certification fran
a C pir chaser; and
(11) submiss ion of a late annual reort.
Violations fri these categories have a low priority in the aosence
of associated filing violations. No environmental harm results;
their ly harm is that they may trigger an necessary thsection.
The econcmic incentive to violate is smaU because the cost of
m liance is low.
When these violations are used to ver up violations tiich result
in environmental harm, they are important because they may cause
a delay in the detection of serious violations, and therefore
result in an increment of environmental harm.
A inist:ative Considerations for CFC Enforcement
C oliance .cnitorina Tools
Several tools will be employed to target ths ections of CFC fillers.
T se tools and the way in ni.ch they will indicate facilities warranzi g
instecticn are descri ed below.
1. Analysis cf Annual Re crts
The annual recortw ‘ hich manufacturers and processors must submit to
EPA in arch of 1980, 1981, and 1982 will have two functions in the
enforcement crograrn:
• They will enable EPA to discover likely violations through
disc:ecancies between manufacturers’ recorts and processors’
reports.
• They will also easy m arison between the quantities reorted for
essential uses and the quantities projected for essential uses
in the hearings and econcmic reports. Th.is use will be im rtant
as a clue to cosaible abuses of limited exern ticns (i.e., cesticides
for rcnresidentia.1. food handling areas).
Manufacturers nust recort the total cuantity manufactured arid the quantities
so1 within a given year to aerosol procellant customers for aerosol
roce1lant arid other uses. Processors must recort the quantities purcnased
from the various manufacturers as ll as the quantities processed in a
given year, broken down into (l)the scecific EPA essential use categories;
(2) total FDA essential uses; and (3) ‘other, defined in a letter to
processors as any nonorocellant uses.
11—3
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R orts will be analyzed by itside nt:actors through A
eaduarters. Suspicious results will be sent to the Regions for
evaluation and follow—ta (i.e., inspection or an informal recuest
for an explanation). The contractor will be hired under TSC t
contracts set t by the TSCA Policy and Strategy Management
3nit of the Toxic Substances Branch, PTS D.
• Processors’ recorts i be ecked for internal consistency.
The total quantity purchased can be ccmpared to the total
quantity processed. If the difference between the two totals
is greater than their estimated storage capacity plus expected
losses, an ins ection of the rocessor is indicated. Cra the
other hard, agreement that is too good could reflect manipulation
of thta or a rnisunderstaridir.g of what is required.
• Manufacturers and crocessors’ rePorts can be cross—checked
to see that the totals ught and sold agree. If there is a
discrepancy, inspection of the processor is indicated.
• Totals for each essential use can be m red with their
anticipated use (to be determined frcm the hearings, essential
use determinations, economic im ct recorts, and letters to
A) in the hope of discovering a cover—up of an illicit use,
abuse of a limited exemction, or a use for which the exeirtction
s iould be reconsidered because the use is greater than expected.
2. iarket lace Sardine
A marketplace sanm ling program will be used to detect cossible filling
violations and abuses of essential use ex ptions. :1arketplace
sanrplir.g will be used to set filler inscection criorities, and
will not be used to trace a croduct to its source to prove every
step of the distr ibutiort rocess.
T crocram will be amall to avoid dtlication, wir.n one or two cities
samcled per year. Less than 300 samoles will be collected and of these,
less than 100 will be analyzed. ‘Ibtal contractor hours to aid in
the progr n is estimated at less than 300 hours.
3. P.eferrals frcm the Pesticide Proaram
The cesticides orogr mi is the A prcgri which overleos most with the
C rule. Cs re the crecellant for ll over 1,000 reciseered
products at one tL-r (registrations by r ore than 400 companies). Three
of the essential use exemotion categories cover ‘C-propeUed pesticides
(nonresidential food handlino areas, space scraving of aircraft, and
products recessarj for .ilitari preparedness).
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Des ite the overlap between FIFPA and CA in this area, the
ability of the esticides program to enhance CFC compliance
will be li.itited by the following factors:
• Pesticide ins ectior.s are currently done by state goverri ents;
therefore, it is i n ractical for aeadcuarters to set a
referral program. Regions arid states who are able to set t
a referral program themselves are encouraged to so (keeoing
in mind the limitations on information which ay be exchanged
between States and the Federal government).
• Although registrations of products containing CECs would be
useful for targeting inspections, it was found during the
mailing to processors that many registrations are for companies
which have either gone cut of business, tnoved arid left ro
forwarding address, or stooed filling the registered product
without ncellirig their registration. tri addition, many
registrations are in the names of the marketers of the products
in addition to or instead of the fillers.
4. Tics arid Outreach
TiOS om outside sources are an im’ rtant art of any enforcement
orcgrain. Any companies turned in through unsolicited ties will be
giren very high oriority for insvection.
Cometitors ‘ iil e in the best position to provide information about
possible violations. Members of the general oublic will be unable
to detect most violations of the EPA rule.
5. Cocoeration with FDA and SC
Since the ( ‘C rule was develoced arid romulgated in oceration with
the Food and Drug A ninistration (FDA) and the Consumer Product
Safety Camiission (C?SC) and the rogra.ms overlao to a nsiderable
extent, it seems reasonable to coordinate the enforce.’tient efforts. In
order for EPA to be able to share all TSCA information with FDA and
CPSC, the agencies must set up procedures to protect TSCA Confidential
Business Information which are acceptable to EPA.
FDA has chosen riot to set TSCA confidentiality procedures.
—If any FDA vilations are discovered during the course of
an EPA inspection arid it would riot be a violation of TSCA
Confidential 3u.siness Information procedures to so,
the violation should be reoorted to the FDA area office.
—FDA is rot likely to discover any EPA violations because
their enforcement program in this area is very small;
FDA’S C inspections will be a,ne as art of their
routine inisoectionts.
11—5
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• SC is Qlrrently setting up nfidentia1ity crocedures which
are designed to meet rs Confidential 3usiness Infor iation
requirements and a Me orandum of Understanding will everituaUv
ce written. Some c000eration has already taken place:
—CPSC gave EPA a list of all fillers who had been filling
with CPCs shortly before the ban went into effect (infor—
ation obtained through reports required by CPSC).
—EPA’S CFC Filler Irtscection Manual will include a section
on referrals to CPSC for possible labeling violations.
—There are a few products which are covered by CP3C’ s
labeling requirement and r t by the EPA ban: products for
unclogging drains using vapor ressure, glass chillers,
boat rns, and the essential use exemption dia tvond grit
spray. In addition, some EPA filling violations may involve
SC labeling violations. Marketplace sanipling results
will also be referred to C?SC.
6. Cooceration with U.S. customs Service
Under the CZC rule, CFC—procelled aerosol articles may not be Li orted
( trm .ercially) after ecember 15, 1978. Since 513 of TSCA is
designed to cover ismorts banned under 56 of TSCA, ar.d since 513
wiLl, be im 1errertted soon by the, U.S. Customs Service, an indecendent
rcgr n for C Cs will riot be set unless icicorts orove to be a
problem.
Tbe rturter of oroducts affected by the ban is believed to be extremely
small, with on].y one oroduct known thus far.
7. Manufacturers Records tns ectiori
Manufacturers certification and sales records will be inspected by
3eadquarters with ntractor assistance. A list of processors will
be comoiled from the information which is obtained.
1though anyone with C’Cs in stock after the ban takes effect is a
- cotential violator, chronic violators would have to purchase their
‘Cs on a ntinuing basis. T1 se capable of chronic violations will
have a much higher riority for inspections tnan those who may simply
use their remaining stacks.
It will be relatively simole to find .311 of the aercsol fillers who
are curchasing C!Cs, and riot just those who are claiming essential
aerosol ;rcceLlartt uses, but exariinirig manufacturers records.
• c C ouronasers will ever.tuallv need to have a letter Cs) of
certification cn file with the manufacturer(s).
• 1ar.ufacture:s have indicated that they organize their customer
files (all) and certifications (all exceot for Allied) according
to the tyce of business.
II —€
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? c licaticn of Ccn liance 4or.itorinc Tools to Violations
The table oelow lists the primary targeting and detection methods for each
tegory of C violation.
Violation Tarceting cetecticri !ethods
(1) Fiflur for a tnarketolace s n ling filler inspection
banned e analysis of annual reports
manu.facturer inscection
referrals
outreach
(2) abuse of essential marketplace saxn lir.g filler thsoection
use ex notion analysis of annual retorts (product labels, adver—
manufacturer inscectiort tising, distribution)
referrals -
outreach
(3) l1us ion in lsi— analysis of annual reports filler ‘s and manufacturer ‘s
fyir g annual reports filler inspection records inscectiorts
(4) nufacturir.g C’Cs filling violation nufacturer inspection
for banned uses and filler irtscection
(5) irn rting bulk Cs filli.ng violation bi rter • s records inspec—
analysis of annual reports tion
referrals from Customs
outreach
(6) distributing bulk filling violation filler inspection (shipping
C s — - records)
distributor ‘s records
inspection
(7) Lrnorting banned re !erral from Custans imoorter’ s records inscec—
articles mar }cet;iace sampling t.ion
(8) su iss ion of a analysis of annual recorts filler inscection
false annual retort filling violation
(9) failure to submit analysis of annual reports filler instection
an annual retort manufacturer inspection
(10) failure to obtain manufacturer instect ion
a rtification
(11) late s ibmission of late sub iissiort of annual
annual retort retort
11—7
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: eutral kdninistrative Inscection of Fillers
A porticnof the filler ths ections will be based on neutral
iinistrative iteria; not all filler inscections will be targeted.
• Routine inspections during the first year of the ban will be
based a the relative quantity of ‘CS irchased in a three
month per icd. This information is obtained through the
manufacturers records inscection.
—Fillers are ranked according to the quantity purchased.
—If there are no targeted inscections nding, this ranked
list will be used to set thsoectioi priorities, with
hiqhest priority given to those irachsing the largest
quantities.
—See A endic for a detailed descri tion of the selection
process.
• After the first year of the ban, new C C pirchasers will be
given a higher inspection Driority, ranked according to the
quantity irchased. Fillers who re not thsoected previousi!,
but have been on the filler list before will also be insoected
then, because of their location, it if efficient to do so.
Any additions.], in ections will be based on a raridci select ion.
• CFCa are r cre exoens ive than hydrocarbons. Once a croduct
has been refor nulaeed with hydrocarbons as the rcpellant,
there is little econouiic incentive to c ance back to CFCs.
Consequently, once a filler has been thscected and found to
have made changes to hydrocarbons, no further inspections
will be done unless it is a follow—tm inscecticn or a
targeted inscection.
11—8
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J.location of e cnsibilities
The following table su. rLarizes the responsibilities of aeadcuarters, the
egicns, and ntractors as scribed in this strategy.
Activity Eeadcuarters Recions Contractor
Outreach/voluntary rn liance
Analyzing annual re rts x X
•larket?laCe sainD].jng x X
Setting raferra]. sst riz X X
Manufacturer irt .s ections X x
Targeting filler irls?ections X x
rargetthg based cn filler ths ections x X
iller ins ect ions X
Case re arat .cn x
X denotes rajor resonsibility for carryir.g cut t e activity
:c ertotes artici aticrl in planning, exacution, or analysis
II_9
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AP IX I
C aract ri:iation of the Re ulated Industr i
: ‘!anufacturers
T re are five C manufacturers in the U.S. The’i are: Du Pont; A.Uied
C emicaJ. Coro.; ?ennwalt Cor.; E aiser Aluminum; and Racort, Inc.
sulk Distributors
T1 n.irter of bulk distirbutors is known. According to C ’C manufacturers,
a small Eracticn of Cats made for aerosol procellant uses is sold to bulk distri-
tutors. Distrthutors who ,.irchase Cs, as c posed to those who ITerely ship
under contract, are required to procvide a certification (as to the intended use
of the ‘Cs) to the rnanufacturer. Fillers who irchase from distributors are
not required to provide certifications and the distributor is not required to
cttain one. cwever, if a bulk distributor has cbtairted certification from his
custorr ers, he wiLl, not be considered in violation of the ban on distribution
less there is evidence of a ccnsoiracv.
! ulk Ir orters
Id oth rjca is the crtlv known bulk Ln rter. They have clai. d that
r,or.e of their custoxr.ers are. fill rs.
processors (Fillers )
‘ re are oroximatel’i 800 aerosol fillers. (“Filler” is the term used
in the trade; ‘orocessors ’ 1 is the term used in the rule and in ISCA.) About one
cearter of them have irchased CFC5 since the ban or have orovided manufacturers
with a certification. About half of all fillers are custom fillers, i.e.,
they fill for other um der r.tract. Many fillers are small businesses.
I orters
The rairter of imcorters is large and orly defined, but the nu±er of
imoorters affected by the ban is believed to ce very small. Very few aerosol
articles are L1i zrteo. The ban on Lit rt1ng is ore easiiy enforce iz cer 513 or
I CA.
Ex orters
Zxoorts are nt:olled by ccntrolling 9rccessing. Thus, exorters need r t
ce characterized se’,arately frc n fillers.
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APPENDIX II
C-er’ieral Ir.secticn ?rccedures for Fillers
Filler inspections will be based on an accounting of CFC use. This will be
accomtlished by either of t v methods: a mass balance or a scan of formulation
records • The choice will depend on a ri riber of factors, such as: which can
be done more quickly; which c culd be more reliable; which one the plant manager
is willing to consent to (unless a warrant has been obtained); and which is
possible given the method of recordkeepthg. (Recordkeepthg methods and inventory
practices vary widely among fillers.)
The mass balance method will focus on CFCs received during a certain time
interval, e.g., three months. Cnice the quantity received has been established
from shipping or inventory records, an accounting will be done for all CFC uses
during that tixn period (from filling or hlbatchingu records). If all CFCs can
be accounted for in essential or non—propellant uses (allowing for losses), the
CFCs can be consi ered to be accounted for.
The scan of formulation records focuses on the ingredient records for all
aerosol roducts filled at the plant. If the only products formulated with CFCs
aii in essential use examptionas, the CFCs used can be considered to be accounted
for. If any non—ex npt products are found, then the inspector must determine
whether the product was filled aft r Dec ’nber 15, l 78 (frcm “bat hing. ’ or filling
record).
The labels of all products which are exempt from the ban should be xaxnined
to make ssure that the instructions do not encourage uses outside of the exemptic
The inspector should also ask to see the advertising for the product, e.g.,
catal s, brochures, etc. If the labeling or advertising is ambiguous, the
existence of a violation wil]. turn on whether the product can reasor.ably be ex-
pected to be applied to a non-essential use.
Very little information can be derived from inspecting equi nent. The
filling equipt ent and plant facilities must be modified in order to be able to
fill with h drocarbonis, but the modifications involve fire prevention; the equip—
merit can be used to fill with CPCs once it has been modified.
A records inspection, rather than in inspection that emphasizes product
sampling, is preferable because potential violations can be detected imnediately
(rather than waiting for an anlysis of the samples) and because products filled
in violation may no longer be on the premises.
If the inspection has been targeted for a particular product (for instance,
as a result of the marketplace sampling), the targeted product should be emphasized,
but a general inspection should be done as well.
Many custom and in-house fillers will be handling FDA—regulated items. ‘ A
does not have the authority to inspect for FDA violations. Eowever, if an FDA
viclation is in plain view during an inspection for A violations, it should ce
noted and referred to FDA.
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APP DIX III
Scecific !J ,ements of Annual Rerorts
Re ortin Recuirements for Manufacturers
Every cersor. -.o manufactures fully halogenated chloroflucroalkanes after
October 15, 1978 for aerosol, propellant uses subject to I!CA must su nit an
annual report to Eeadquarters.
P e one of the report must contain:
(i) name of the business,
(ii) business address,
(iii) chief executive officer,
(iv) addresses of all facilities at which fully ha.logenated ch.loro—
fluorocarbons are manufactured,
(v) nine, business address, and telepi or.e nun er of the ir.divi—
dual most knowledgeable of the contents of the report. The foUo ir.g
The following statement must also be thcl ed:
“‘rhis report covers manufacture of fully halogenated chlorofluoro—
alkanes for aerosol propellant uses frcm (date to date).”
Page t c and subsequent pages (if necessary) will contain a list of the pur-
chasers for aerosol propellant uses, their shipping addresses, the total quantity
purchased, the quantity for aerosol propellant uses, and the quantity for other
uses. The total quantity manufactured for all, uses during this time period must
also be stated.
The following statement and certification (by the chief executive officer)
must apcear at the bott ii of the last page:
“I understand that I may assert a claim of business confidentiality by
marking any part or all of this infcr:nation as “TSC? Confidential Business
Information” and that information so marked will not be disclosed except in
accordance with the procedures set forth in 40 R Part 2. I further understand
that if I do not mark this information as confidential., A may disclose it
pu licly without providing e notice or an opportunity to object.
I certify that to the best of my knowledge the contents of this report are
accurate and canpiete.”
Date
Signed
?3sition Title
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Re ortinc Recuire!nents for Prccessors
Every person who processes fully halogenated ch.].orofluoroalkanes for aerosol
pro llant uses subject to !!CA after December 15, 1978 must su nit an annual
report. A separate report must be su nitted for each processing facility.
page one and the statement and certification at the end are i entica.]. to the fnanufac—
turers’ reports except that processors’ reports contain “the facility address”
(iv) and the statement:
“This report covers purchases and rccessing of fully halogenated chioro—
fluorcalkanes for aerosol rope].lant uses frcm (date to date).”
Qi page 2 and subsequent pages, the processors must list who they purchased
fran, their business address, and the quantity purchased. They must also list the
quantities processed for the various exempted A uses (itemized), total FDP
uses, and non-propellant uses during that ti’ne period. The report ends with the
statement concerning business confidentiality (quota su ra ) and certification
by the highest official of the processing facility.
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TSCA COMPLIANCE PROGRAM POLICY No. 6—CFC-1
Product Labeling for Both Essential and Non—Essential
CFC Aerosol Propellant Uses
TSCA Section : 6(a)
Issue :
Will EPA initiate enforcement action against processors
of CFCs as an aerosol propellant for use in products whose
labeling bears directions for both essential and non—essential
uses?
Pol icy :
CFC aerosol propellant products whose labeling hears directions
for both essential and non—essential uses create the rebuttable
presumption that those CFCs have been processed in violation of
the CFC regulations. The Agency will bring an enforcement action
against the processor, unless the processor can prove that th
CFCs have been processed only for an essential use.
Discussion :
The Agency promulgated regulations under authority of the
Toxic Substances Control Act (40 CFR Part 762) stating that after
December 15, 1978, no person may manufacture, import, process,
process for export or distribute in commerce for processing any
fully halogenated chiorofluoroalkane (CFC) for any aerosol
propellant use except:
1. Use in an article which is a food, food additive,
drug, cosmetic or device exempted under 15 U.S.C.
2602; or
2. The following essential uses listed In Part 762.58:
a. Mercaptan stench warning devices,
b. Release agent for molds used in the production of
plastic and elastomeric materials,
c. Flying insect pesticides for use in non—residential
food handling areas except when applied by total
release or metered valve aerosol devices, and for
space spraying of aircraft,
d. Diamond—grit spray,
e. Non—consumer articles used as cleaner—solvents,
lubricants, or coatings for electrical or electronic
equi pment,
f. Articles necessary for safe maintenance and operation
of aircraft,
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2 — 6—CFC—l
g. Uses essential to the military preparedness of
the United States as determined by the Administrator
and the Secretary of Defense.
h. Pharmaceutical Rotary Tablet Press Punch Lubricants.
(FR Notice Tuesday January 5, 1982 pp 148—49)
Since publication of the regulations, the Agency has also
issued a special essential use exemption for the following:
Temporary exemption for Automatic Timed Release Insec-
ticide Dispensing Systems Used in Storage of Tobacco.
(May 19, 1982 to December 31, 1982)
The purpose of the regulations Is to ensure that CFCs are
- not processed as aerosol propetlants...fo.r any non—exempt/non-
essential uses. The Agency, however, has found CFC—propelled
aerosol products with labeling containing directions for both
essential and non—essential uses. Although the CFC regulations
do not prescribe labeling for products containing CFCs processed
for non—essential/non—exempt aerosol uses, it is only reasonable
to presume that a product has been processed for any use directed
on its label. Such labeling may Include the product container
label or any other collateral literature distributed with or apart
from the product.
The Agency presumes that any CFC aerosol—propelled product
bearing directions for a non—essential/non—exempt use has been
processed for this unlawful use. A processor can rebut this pre-
sumption by showing that
a. it processes CFCs only for an Identifiable group of
users and that each of these users use CFCs only for
exempt uses, or
b. each of these users, by virtue of the nature of their
business, could use CFCs only for exempt uses, or that
c. by sticker labeling the non—exempt/non—essential uses
which appear on the label have been fully nullified.
In the absence of such showings, the Agency will br-ing appropriate
enforcement action against processors of CFC aerosol propelled
products whose labels include directions for both essential and
non-essential uses.
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3 - 6-CFC-l
i .1so :
CFC Enforcement Response Policy.
References :
40 CFR Part 762.
Key Words :
Aerosol Propellant, CFCs, Chiorofluoroalkane, Essential—use.
c Substances
Si Ofl
NJG3O
0
LQ
ate
.-rr
A E. Conroy
Pesticides al
En forcemen
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DIOXIN COUTAI•IINATED WASTE
COMPLIANCE STRATEGY
THE PESTICIDES AND TOXIC SUBSTANCES
ENFORCEMENT DIVISION,
THE U.S. ENVIRONMENTAL PROTECTION AGENCY
ru-i
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STRATEGY FOR IKE ENFORCEMENT OF THE TSCA-SECTION 6 RULE ON
TEl C L0RQOI E?1ZO-P -OIOXiN (2,3,7,R—1CflIfl
UVE. ?1EW
me gency published an immediately effective proposed r5 rule
under the Toxic Substances Control Act (ISCA) on the disposal of
wastes contaminated wIth 2,3,7,8—Tetrachiorodiberizo—p—dioxin
ICOD) on March 11, 1980. The Agency issued the final 5 rule on
May 19, 1980. The ru’e:
Poses restrictions on Vertac, Inc., •Jacksoriville,
Arkansas, regarding the removal for disposal of
wastes containing TCDD.
• Requires VertaC to past notices at its facility
at the principal access point to the storage area
stating that dioxin wastes are stored on site and
that removal for disposal is prohibited.
• Requires Vertac to test certain wastes.
• Requires ‘/ertac to notify the agency one week prior
to •shipment of waste naterial.
• Requires that any person dis’posing of wastes contain-
ing ICOD notify EPA at least O days prior to
disposal.
The dioxin in question is an impurity förmed in the process of
anufacturing 2,4,5—Irichiorophenol (2,4,5—TCP). The is
2racessed into a pesticide by the same name and is also used as a
starting material for other pesticides such as 2, ,5—Trichloro—
phenoxy acetic acid (2,4,S—T), 2 —(2,4,5) -Trichlorophenoxy propionic
acid (2,4,5—TP Silvex), Erbon, Ronnel and Hexachiorophene. All of
these are contaminated to some degree with TCDD. In some cases
pesticide producers manufacture 2,4—0 immediately after naking
2 ,4,5—TCP. Thus the residues of 2,4,5—TCP which were contaminated
with TCDO could also contaminate to some degree, tne The
level of contamination should, of course, be lower than would be
found in 2, ,5—TCP, and over the course of producticn, the concen-
tration of TCDO should decrease.
This §6 rule focuses on wastes because the dioxin cont mi—
nation is more highly concentrated in the wastes associated
with the production of these substances than in the final
product. In fact the disposal of these substances themselves,
1 •C., the pestic des, ;s not covered by c o ru e.
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—2-
REQUI EM.E’!TS OF THE RULE
The r jle:
• Prohibits ‘Iertac, tnc. or any person who dispos . s
of chemicals for commercial purposes from re ovin
for Usposa1 a y of the astas in; TC fl
produced before May 12,\1980, located at its
Jacksonville, Arkansas, site.
• equires ‘Jertac to post the Jac s nvifl facility
at the principal access point to the storage area(3)
stating that dioxin wastes are stored on site and
that removal for disposal is p-ohibit l.
• Requires Vertac to dispose of all was e material
containing TCDO produced at the Ja ksonville facility
after May 12, 1980, at facilities which comply with
751.41(b) (PCB Regulations) until 77S.190(a)(3) is
compl eted.
• Requires Vertac to notify the Assistant dministrator
for Pesticides and Toxic Substances at least one week
prior to shipment of dioxin waste rnateri l . -
• Requires Vertac to test wastes produced after May 12.,
1980, at the Jacksonville facility ar.d provide tne
Assistant Administrator (OPTS) with results withii
two weeks f analyses. If the wastes contain no
detectable TCDO, the disposal notification require—
mnent is withdrawn.
Requires any person who disposes of chemicals for
commercial purposes to notify the Assistant Admini
strator by certified letter with a copy to the appro-
priate EPA Re’jional Administrator at least Sn days
before the firm intends to dispose of any wastes
containing ICOD.
Note: Waste material or wastes containing TCD() means any qaste
material or waste(s) resulting from the manufacture or
processing of 2 , 1,S_Trich1orophenol (1C7) or its
pesticide derivatives or any waste(s) resulting from
manufacturing processes using equipment that was at
some time used in the manufacture of 2, ,5 —iC? or
its pesticide derivatives.
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—3—
GULAtED £NDPJSN( -
The regulated community is composed of those per’srins w o
01S305e of :he wastes addressed by this regulation. T: 1 j 5 would
incl’jde potentially all those fi who ha”e bean ann/or are
still producing 2,4,5-IC?, 2,4,5—I, Silvex, Ronnel, £rbgn,
Hexachlorophene or those substances produced on equipment
:jsed to manufacture the above six substances (e.g., 2, —fl).
The regulation focuses on the aisoosal of wastes. Thus e’. en
a firm that has not produced any of the above substances in
several years would still fall within the a bit of this regulation
if t .ey now disposed of any of the regulated wastes.
The firms that produce(d) wastes subject to this regulation
are divided into two classes: producers of manufacturing—use
products and formulated/end—use products. In the process of
na
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-4-
*: anufactur i ng-use grade was referred to _as technical grade in
previous years. The term manufacturing—use refers to the grade
wh h is used to nanufacture pesticide fornuiations. it is the
..arm used , th current Pestic d3 Registra icn Guidelines.

,l, I. _. I
OS J E CT I ‘I ES
The major objective of this strategy is to insure that no
wastes regulated under this §6 rule are disposed of in violation
of the rule. The ultimate goal of the rule is to prevent the
improper disposal of dio.dn, a. one of the most toxic synthetic
S u b St a .i cc - k n own.
A secondary objective unrelated to enforcing the rule is
to identify any sites where the iastes were disposed prior
to tne effective date of the rule. Since the inspectors will
e involved in determining .:hat a company has done with its
waste in order to assure that the firm has not violated the
rec’jlatlons, information on such sites may be available d’jrino
the i pection. These sites viii be added to the Office o .
Waste rograms Enforcement’s (OWPE) trac
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—5—
%,Tr ,
• ‘ Js
There is only one possible specific io1ati n or this rule
( s it aopltes to ‘/ertac), and there are four ossthLe general
v’olatlons or this regulation.
° Failure y Vertac to Comoly with the Terms of the ule
Vercac violates the rule i( t eicner:
a) 1ov s any of its pre-May 12, 1t30, TC I1 wastes
without EPA approval
b) Disposes of i ts TCDD contaminated 2, —O wastes
in an inappropriate landfill.
c) Fails to notify EPA prior to disposal of any
wastes generated in the resumption of the
production of 2,4,5-TCP or its pesticide
derivatives. (Note: In such a case, ‘/ertac
would be treated like any other dioxin waste
holder subject to the rule. The other four
general violations would apply.)
d) Fails to test wastes generated after May 12, l9 rl,
and/or fails to pr vtde the AA of OPTS with
res ilts withintwo weeks -of analysis.
e) Fails to post the Jacksonville fa lity at tne
principal access point as required.
o Failure to Notify EPA Prior to Moving Dioxin Wastes
fliis § ( ) rule requires a Pirii to suomi a nocice
to the Assistant Administrator for Pesticides and
Toxic Substances prior to moving dioxin wastes.
Should a firm move these wastes without notice or
if they are moved prior to the expiration of the fl
day notice period, the firm has violate1 h th TSC.4
§lS(l)(C) and §15(3)(B).
Withholding Material Information from a flioxin
Notice U a rirrn witnnolas inrormacion essential
to an Agency decision concerning the movement of
dioxin wastes, the firm has violated l5(l)(C)
and l5(3)(3) of TSCA. The notice would be invalid
at the time of submission. If the firm then moves
the dioxin contaminated wastes 1 it also commits a
failure to notify violation.
Submission of False or Misleading information on a
Dioxin Notice rirm suornitting false or misleading
information violates l5(l)(C) and i5(3)(3) of
ISCA. The notice is therefore invalid at th time
it is suhnitt d. If t , firm then moves he dioin
contaminated waste, it also commits a failure to
notify violation.
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—6—
False Claim of No Detectable Le ,els of TCDO A firm
is exc uaed ro tne §6(a) rfle iP it can show
that its wastas contain no detectable levels o
TCDD. Should t e 4gency daterr ine that a firm’s
ciairi of non—det2ctabMity is false, then the
flrm has violated TSCA l (l)(C).
E SPECTION SCIEME
The basis of the compliance monitoring for this rule will
be a neutral administretive inspection scheme that w i ’l hoth
comport with the Supreme Court’s holding in 1arshall ‘. Barlow’s
! nc . and establish priorities for tar ti ginspectioii . file
first priority will be monitoring the Vertac site. This will
be handled directly by OWPE. The rest of the firms can be
oroken down into three categories:
1) producers of the manufacturing_use grade
2, ,5—T, Silvex, Ronnel, Erhon and Hexachlorr phene,
2) formulators of any f these six suhstances,
3) producers of other products (e.g., 2, -O) produced nn
the same equipment thAt was used to make any of the
six substances nent•ioned in category 1.
hile categories 1 and 3 will be small (ifl to 20 sites),
category 2 will contain about 200 sites. In addition, the
wastes f m category 1 irms probably contain significantly
more TCDD than the other categories. After Vertac, the
firms in cateaory 1 should receive the highest priority
in targeting inspections. Formulators are of less :oncern
as their wastes sill p’obably contain substantially less
TCDD. The same holds for the substances produced on ‘contarni-
nated equipment.” Those firms in categories 2 and 3 would
be inspected only after those in category 1
The Agency should inspect all the manufacturing—use grade
producers out does not have enough resources to inspect all
the formulators. Therefore, it should select firms to inspect
based on a Neutral Administrative Inspection Scheme from the
sites in the Agency’s records.
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-7—
NEUTRAL ADMINISTRATIVE INSPECTION SCHEME
:n order to select facilities to Inspect wit ouit prejudice,
tne Agency will consider severa factors. population from
. iicn the selection will be made is composed of the approximately
200 ianc sites that produce(d pesticide formulations ahich
could result in dioxin contaminated waste.
The seven plant sites which produce(d) the manufacturing
use grade products are not included in the population. I:i
will be inspected once every year and at least twice per year
if vicla:iois are found.
To determine which formulatior’ plant sites are to be i.ispected,
t. e following criteria should be applied by each region:
Amount of Subject Pesticide Total ioxin 4aste
Produced InsDections
Top tflird
Middle third
Lower third 2O
a plant has been inspected once, It can be removed from
the sele tion population for two years unless ‘,iolations are
found. Violations will trigger follow-up inspections and will
: eep the site in the selection population.
In addition, other sites at which ‘,iolations are found in
response to complaints or from information obtained during
production site inspections (a.g.. waste disposal sites) may
5e added to the population for future inspection.
Does not include inspections of technical producers.
ADMINISTRATIVE CONSIDERATIONS
R0GRAM MANAGEMENT AND ALLOCATION OF RESPONSIBILITIES
OPTSE will:
Coordinate with other offices in OPTS in reviewing Notices
of Disposal and any resulting restrictions and keep the
regions informed on these.
Telephone companies submitting incomplete notifications
to obtain omitted information.
Target inspections and provide the regions information
needed to conduct the inspections.
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-a-
Coordinatebetweei the regions and the !ational nforcement
Investigations Center ( 1EIC) in Den ier for inspections
requiring sampling, physical inspection of a disposal
site, or other areas of NEIC expertise.
Coord nate with the OWPE regarding inspections o
ciernical vaste disposal sites involving dioxin, and
casework where action may be taken under either TSCA
or RCR or both.
Review Concurrence Requests from the regions t3 issue a
Civil Complaint under ISCA for violations of the §
dioxin disposal rule.
Partic pata in any criminal cases arising from violations
of the §6 rule.
The regior.s will
0 Perform inspections and gather evidence for the case file.
Prepare and issue Civil Complaints under TSCA (requires
concurrence from headquarters) and handle any resulting
litigation.
0 Participate in filing criminal actions under TSCA.
ii ?.—I.. 1
rote.
o inspections: Participates in inspections when samoling
may be required. Sampling dioxin contaminated waste is
dangerous and highly complex and requires special equip-
ment and training.
0 Analysis: NEIC will analyze dioxin waste samples. The
rule requires that in order for a waste to be considered
excluded from the regulatory requirements, there can
be no detectable level of TCDD using capillary column
gas chromatography interfaced with high resolution
mass spectrometry (GC/HRMS). The GC/HRMS methodology
detects dioxin down to about 3 parts per trillion.
Consequently, accurate sample analysis is of the utmost
importance. Due to the complex nature of dioxin sample
analysis, the samples dill probably be split, allowing
more than one laboratory to analyze each sample. Other
laboratories may be specified later.
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UNITED STATES ENVIRONMENTAL, PROTECTION AGENCY
WASHINGTON, D.C. 20460

0 IIJ
r . ‘i
OFFICE O
PESTICIO S AMO 1•OXiC SUBSTANCES
M EM OR AND U M
TO: Regional Toxic Branch Chiefs
Air and Hazardous Materials Division Directors
Environmental Services Division Directors
SUBJECT: 2,3,7,8-TCDD (Dioxin) Disposal Rule
Attached is a final copy of the Enforcement Response Policy
for the 2,3,7,8—TCDD (Dioxin) Disposal Rule. This is a refine-
ment of the document that was used to process the recent round
of cases and incorporates the experience from those cases. If
you have any questions, feel free to call Pamela Harris of my
staff (FTS 382-5567).
/V /,
/ ( 7 J

A. E. Conroy/It, Director
Compliance ;1,nitoring Staff
Office of Pesticiaes and Toxic Substances
Attachment
cc: Marcia Williams, OTS
Edward Klein, CCD
Ted Firetag, OLEC
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July 6, 1983
DIOXIN CONTAMINATED WASTE
ENFORCEMENT RESPONSE POLICY
COMPLIANCE MONITORING STAFF
OFFICE OF PESTICIDES AND TOXIC SUBSTANCES
THE U.S. ENVIRONMENTAL PROTECTION AGENCY
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PART I
ENFORCEMENT RESPONSE POLICY FOR
THE DIOXIN CONTAMINATED WASTE RULE
INTRODUCTION
Defi ni tions
The Violation . . .
Substances Regulated
Persons Regulated
Exemptions
PART II DETERMINING THE LEVEL OF ACTION
Final Actions
Notice of Noncompliance.
Civil Penalty
Injunctive Action. .
Criminal Sanctions .
. . S S S S
. I I I S S
Multiple Remedies
Criminal Sanctions. . . . . . . . .
Notices of Noncompliance
Civil Administrative Penalties and
Specific Enforcement . .
PART III ASSESSING AN ADMINISTRATIVE PENALTY
Summary of the Penalty Policy
CalcuLation of the Gravity Based
Extent
Circumstances: Ranges
Circumstances: Levels
Multiple Penalties
Adjustment Factors
Detailed Explanation of the Policy
Nature
Extent
Circumstances .
Multiple Penalties
Definition as One Day Violations
• S I S S S S

.
• S S • S S S S S
• S S • I
• S S S
• S S S
3
4
5
6
6
7
8
8
9
9
10
11
11
12
13
13
14
14
15
17
18
Penalty
• I I I
S S S
PART IV APPENDICES
Appendix 1: Hypothetical Cases 19
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PART I - INTRODUCTION
On March 11, 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—Tetrachlorodibenzo—p-dioxin (TODD) (44 Federal Register
15592, 1980). The 1980 rule was effective 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 TCDO
contaminated wastes to notify the EPA prior to disposal. The
information provided in the notification allows the Agency to
make a case—specific assessment of the risks involved in the
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 for companies that do not detect
TODD using a specified technique to test their wastes. Actual
aisposal of the waste may be regulated by promulgation of a rule
under ISCA or application of the Resource Conservation and
ecovery 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 Dispo.sal of Tetra—
chlorodibenzo—P—Dioxin” (hereinafter, Dioxin Rule). This regulatio i
was promulgated pursuant to Section 6 of the Toxic Substances
Control Act (TSCA). Accordingly, the remedies in Sections 16
and 17 of TSCA are available for violations of this regulation.
Part II of this document provides guidance in the use of notices
of noncompliance, civi1 administrative penalty actions, injunctions
and criminal actions for violations of this rule. Part III
of this document explains how to use the TSCA Civil Penalty
System, 45 Federal Register 59770 (September 10, 1980) to arrive
at an appropriate civil administrative penalty, where that remedy
is utilized.
Definitions
The Violations
Violations of the regulation may be divided into the following
categories:
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—2—
o Noncompliance with Prohibitions
— Violation, by Vertac or other parties, of the prohibition
against removal for disposal of Vertac’s pre-May 12,
1980, ICOD—contaminated wastes; and
— Vertac’s failure to place its post—May 12, 1980, ICOD
contaminated waste in PCB—approved landfills.!!
o Notification Violations
- Vertac’s failure to notify EPA one week prior to ship-
ment of TCOD-contaminated post-May 12, 1980, waste to
PCB-approved landfills;
- Failure of persons subject to the regulation to notify
EPA 60 days prior to removing TCDD wastes for disposal;
— Submitting inaccurate information in a TCOD—contar’iinated
waste disposal notification;
— Falsifying information in a TCDD—contaminated waste
disposal noti fication;
— 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 missing information. If the information is promptly
proviaed, no violation has occurred.); and
— Late notifLcatlon.
o Marking Violation
— Vertac’s 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
1_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.
2j Vertac has complied with the testing requirement,
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—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—Trichiorophenol (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—D manufacture may also contain
2,3,7,8—ICOD from the equipment, and these wastes are
regulated by this Rule, unless they qualify for an
exemption.
It is important to note that at least two other statutes potentially
regulate ICOD contaminated wastes. A product packaged and labelled
as a pesticide is regulated by the Federal Insecticide, Fungicide,
and Rodenticide Act (FIFRA) and not TSCA. Disposal of pesticides
and pesticide containers is covered in RCRA and FIFRA. Also, when
proposed rules under RCRA covering TCDD contaminated wastes
become final, the TSCAregulation will be repealed.
‘For further guidance concerning substances regulated by the rule,
consult the chart below. -
egulati n of Dioxin Containing Suostances
Substance Law Regulating
Waste from manufacturing of TSCA
2,4,5—TCP or its pesticide
derivatives
Spills of bulk manufacturing ISCA
intermediates of 2,4,5 —TCP
or its pesticide deriviatives
Residue on equipment used to TSCA
manufacture 2,4,5—TCP or its
pesticide derivatives
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-4-
Packaged, labeled, technical FIFRA, RCRA
grade or final use pesticide
ready for distribution
Residue in pesticide container FIFRA, RCRA (rare
and the container instances ISCA)
esidue in bulk storage container TSCA
with no pesticide label
Technical grade pesticide in the TSCA
process of repackaging or repro—
cessi ng
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
RC A rule becomes 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 disposers, persons who operate storage
for disposal facilitieslJ and others for whom disposal is
either for commercial advantage or incidental to their business
activities.
. ../ Additionally, the rule names Iertac 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 noncompliance on the part of Vertac than on the part
of any other company subject to requirements of the
ru 1 e.
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—5—
The Agency considers the waste generator to have primary
responsibility for complying with the 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.
Exemptions
persons holding wastes defined under this regulation
as TCDD—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 mass spectrometry). If this
testing shows that the wastes contain no detectable TCDD,
the waste holder is not subject to the regulation. (See 45
Federal Register 32683, May 19, 1980, “The Analytical Methodology
for Testing TCOD.”)
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—6—
PART II - DETERMINING THE APPROPRIATE LEVEL OF ACTION
Final Actions
The first step in planning an enforcement response to a
violation of this regulation is to determine the appropriate
level of enforcement action. If, after a full review of the
investigation file, Regional enforcement personnel determine
that a violation 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 TCDD 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 constituting only minor or technical infractions
of this rule and then only if there is no pattern of more serious
violations or if no previous notice of noncompliar ce has been
issued to the company. Examples of violations which warrant such
notices include the following:
— Repeated failure to use certified mail 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 incomplete notice will be to
telephone the submitter and attempt to obtain the
missing information. Only if the submitter continues
to fail to provide the required information will the
notification be considered incomplete.
— Failure by Vertac to provide results of analysis
of its post—May 12, 1980, wastes within two weeks
of the date the analyses 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.
Aoditionally, if a respondent fails to achieve compliance
during the time period specified in the notice of noncompliance,
a civil penalty is the appropriate respcnse. Civil penalties
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—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 Enforcement
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 protecting the environment from the hazard
presented by violation of this regulation.
Although Section 17 of TSCA can be a very effective tool in obtaining
compliance, it is also more resource intensive than a civil penalty
action. In addition, it has been the Agency’s experience that a
civil penalty action is usually sufficient to obtain compliance.
For these reasons, the Agency believes that the use of Section 17
remedies should be limited to those instances where, in the
judgment of the Region, a civil penalty action will not result in
swift enough compliance to protect human health or the environment
or where there are good reasons why penalties are not appropriate.
Injunctive action is appropriate in the following cases:
o To prevent a company or person from violating the
ISCA §6 regulation by moving or disposing of con-
taminated waste without notifying the Agency 50 days
in advance as required by the rule.
o To orde: a clean-up of improperly disposed TCDD-
contaminated waste under the authority of RCRA
§7003.
The most probable subject of an injunction under Section 17
of TSCA would be a person with a significant amount of 2,3,7,8—
TCDO-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 might be disposed of without notification.
The object of the injunction would be to prevent further disposal
without notification.
Injunctive actions must be initiated in Federal District court by
the Department of Justice (DOJ) and may be referred to DOd only
y the Associate Administrator (AA), Office of Legal and Enforcement
Councel (OLEC), or the AA’s designee. (If necessary, however, the
Region is delegated the authority to obtain an emergency temporary
restraining order from the U.S. Attorney to prevent imminent disposal
of the waste without notification.) Requests for injunctive actions
snoul be sent to OLEC with a copy to the Compliance Monitoring
Staff which will review the technical evidence and inspection pro—
cedures used to support the case.
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-8-
For additional guidance see the following OLEC memoranda, “General
Operating Procedures for the Civil Enforcement Program” (July 6,
1982) and “Case Referrals for Civil Litigation” (September 7, 1982).
Criminal Sanctions
Criminal sanctions pursuant to Section 16(b) of TSCA are the most
serious sanctions available 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 the prospective defendant(s). TSCA imposes criminal penalties
only for violations of the Act which are done “knowingly or will-
ful ly”.
A second factor to consider is the nature and seriousness of the
offense. As a matter of resource allocation, EPA willinvest,igate
and refer only the most serious forms of environmental misconduct.
Of primary importance to this assessment is the extent of environ-
mental contamination or human health hazard that resulted from, or
was threatened by, the prohibited conduct. Also of signif.icance
is the impact, real or potential, on EPA’s regulatory functions.
Third, the compliance history of the subject(s) of a potential
criminal case is important. Criminal sanctions become more
appropriate as inc)dents of noncompliance increase. While not
a prerequisite, a history of environmental noncompliance will
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
12, 1982.)
iultiple eme ies
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.
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-9—
Criminal Sanctions
Simultaneous civil and 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 pcovides
fertile grounds for legal challenges to one or both proceedings
that, even if unsuccessful, will 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 which emergency remedial
response is mandated.
If the Region is considering the option of simultaneous civil and
criminal sactions, the Region must consult with Headquarters CMS
and OLEC.
Notice of Noncompliance
In general, a notice of noncampliance should not be used in con-
junction witTh .any other final remedy. Where a particular situation
presents several violations, sor’ie of which would merit a notice
of noncompliance, while others would merit civil penalties, no
notice of noncompliance should be sent. Instead, an administrative
penalty 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 Enforcerient
The criteria outlined above already anticipate that civil penalties
and specific enforcement will be used sequentially. There may,
however, be instances where the concurrent use of these penalties
is appropriate. If the Region deems this to be appropriate in
any case, it should consult with CMS and the Department of Justice
before bringing either action.
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- 10 —
PART III - ASSESSING AN ADMINISTRATIVE PENALTY
Summary of the Penalty Policy
Calculation of the Gravity Based Penalty (GBP ) -
The GBP, a function of the nature, extent, and circumstances
of each violation, is based on the following matrix:
Extent of Potential Damage
Circumstances (Probability A 8
of Damages) MAJOR SIGNIFICANT MINOR
Hign Range:
1
2
$25,000
20,000
$17,000 1S5,000
13,000 3,000
Mic ange:

4
15,000
10,000
10,000
6,000
l,500
1,000
Low Range:
6
5,000
2,000
3,000
1,300 I
500
200
As a first step in locating a specific violation on the
matrix, the nature of the violation must be classified. i
violation may be either chemical control, control—associated
data gathering, orhazard assessment in nature. No violations
of this regulation are hazard assessment violations.
Chemical control violations of this regulation include:
o Noncompliance with prohibitions violations :
— Violation, by Vertac or other parties, of the
prohibition against removal for disposal of Vertac’s
pre—May 12, 1980 TCDD-contaminated wastes;
o Marking violation :
— Vertac’s failure to post its Jacksonville facility as
required by the rule.
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— 11
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-contarninated
wastes for disposal;
— Submitting inaccurate information in a ICOD—
contaminated waste disposal notification; and
— Falsifying information in a TCDD—contaminated waste
disposal notification.
— 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 notification.
Extent
egional enforcement personnel should determine the extent of the
violation based on the amount of TCDD-contaminated wastes involved
in the violation, as follows:
55—gallon drums Gallons!! Pounds. . /
Major: 500 or greater, or 25,000 or greater, 100,000 lbs or
amount unknown or amount unknown greater or amount
unknown.
Significant: Greater than 1 Greater than 50 but 600—100,000 lbs
but less than 500 less than 25,000
Minor: 1 or less 50 or less 200-600 lbs
Circumstances: Ranges
The range of chemical control violations should be classified as
foil ows
High Range: oncompliance with prohibitions
(Levels 1 & 2)
Medium Range: Marking violations
(Levels 3 & 4)
!i A 55-gallon drum is filled to a 50—gallon capacity.
.2.1 The amount of dry powder that will fill a 55 gallon drum
is approximately 100—600 pounds.
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— 12 -
Tne range of control associated data gathering violations
should be classified on the circumstances axis as follows:
High Range:
(Levels 1 & 2)
Medium Range:
(Levels 3 & 4)
Low Range:
(Levels 5 & 6)
Notification violations such as falsification,
nonreporting or omission of important
information.
Testing violations and notification violations
such as reports more than 30 days late but
before actual disposal.
Minor notification violations.
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
Waste from production
on equ pment previouslyl
pesticide derivatives
used in the production
or mixture of both
of 2,4,5—TCP or its
types of wastes in un-
pesticide derivatives.
known proportions.
Non-compl iance
Level 1
Level 2
with prohibitions
Marking
V a 1 a t I on s
Level 3
Level 4
Notification
Violations
Falsification or
over 60 days late
or nonreporting
—— Level I
—
— Level 2
30-60 days late
Minor Omissions
Level 3
Level S I
Level 4
Level 6
See page 16 — 17 for a more detailed discussion of the information
in the chart.
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— 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 penalty policy, a viulation is repeated
if it occurs on separate days. For example, if a waste holaer
fails to comply with a prohibition against disposal, and ships
waste twice in one day, one violation should be charged. However,
if the waste holder ships on two days, two violations should be
charged.
Adjustment Factors
The adjustment factors discussed in the ISCA Penalty Policy
pages 9—17 should be applied as .appropriate to violations of
this regulation.
Ditaile Explax ation of tne Policy
This portion of the policy explains the reasons for the speciric
structure of the TCDO-contaminated waste civil penalty policy
and provides detailed instructions on its use.
As noted previously, the gravity based penalty (GB?) is a
function of three factors: nature, extents and circumstances.
The basis for classifying each of these factors appears below.
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— 14 —
Nature
To aeterrnine the “nature” of a violation, the TSCA Civil Pena1ty
System defines three types of ISCA 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 ‘n how
the substance is handled. This rule places constraints
on the handling of TCDD—contaminated waste in the following
manner:
o Waste holders must comply with the Agency’s
restrictions concerning disposal; and
o Vertac must comply with the specific requirements
set out in this rule (See p. 2—3 for complete
description)
Violations of these requirements are thus chemica1 control
violations by nature.
Control—Associated Data Gathering Violations . The notification
and testing re4uirements deve1op information necessary to aflow
the EPA to assess and control the risks presented by TCDD-con-
taminated wastes. On that basis, violations of the notification
requirements and of the testing requirements qualify as control—
associated data gathering violations.
Extent
The extent axis of the GBP matrix measures the degree, range
or scope of the harm or potential harm caused by the violation
to human health or the environment. Since larger amounts of
TCDD—contaminated wastes have more potential to cause harm to
human health and the environment, the quantity of waste involved
determines the extent of harm or potential harm.
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— 15 —
Three weight/volume classes have been chosen to correspond to
the three extent categories of the ISCA Civil Penalty System.
The Major category is placed at 500 drums because Vertac stated
that its current 2,4—D 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
TCDO 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 1 drum to less
than 500 drums. The definition of the significant category is
a direct consequence of the definition of the major and minor
extent categori es.
In cases where amounts cannot be determined, the Major extent
category shall apply.
Ci rcumstances
The circumstart.ces axis of the GBP matrix reflects the probability
for 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 relative concentration of TCDD in the waste based on the
type of pesticide production involved.
Circumstances: Ranges . The purpose of the chemical control
requirements of this regulation is to avoid the harm caused by
exposure of the environment to TCDD—contaminated wastes. Vio—
lations of the chemical control requirements are described in
this policy as “Noncompliance with prohibitions” and “Marking”.
These Categories are classified as follows:
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- 16 —
o Violations involving noncompliance with prohibitions
are placed in the high range of the circumstances axis.
The Agency has placed restrictions or prohibitions
on disposal for the purpose of preventing health r
environmental harm from TCDD—contarninated 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 range .
There is a significant chance that the failure 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 ICOD-
contaminated wastes are stored on site.
The control—associated data gathering violations of this
regulation damage the Agency’s ability to make an assessment
of hazard. These violations are described as hlNotification.H
These violations are classified as follows:
o With Notification violations, the Agency is not
informed of proposed disposals and cannot control
the 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 on tne circumstances
axis.
o Late not-ification 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 level assigned to a violation
in each range for both chemical control and control-associated
data gathering violations is based on the type of pesticide
production which generated the waste involved. There are
two types of waste subject to the notification requirement:
o Waste from the production of 2,4,5—TCP and its
pesticide den vati yes.
o Wastes from the production of other pesticides
(such as 2,4—D) if they are produced on equipment
previously used to produce 2, 1.,5 TCP and its pesticide
derivatives.
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— 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 derivatives will exp_lain
the basis for this distinction.
TCDD forms during the process of manufacturing 2,4,5-TCP. TCDD,
because of its toxicity, is an 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 TCDD than the final product, depending on
the success of the process used to remove the contaminant.
The 2,4,5—TCP is processed into a pesticide by the same name
and is also used as a starting material for other pesticides.
These pesticide derivatives of 2,4,5-TCP are contaminated with
TCDD because the original starting material was contaminated.
However, their deg ee 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. Residues of TCOD—contaminated 2,4,5—TCP
left on the equipment cause the contamination of the 2,4-0
with TCDD. However, the level of contamination is lbwer
than that found in 2,4,S—TCP and its pesticide derivatives.
Additionally, with continued use of the equipment, the
concentration of TCDD contamination decreases.
Thus, if the waste is directly contaminated by production of
TCP or its pesticide derivatives, the concentration is higher,
so a higher level is assigned. Ef the waste is indirectly
contaminated by production on contaminated equipment, the
concentration is lower, and decreases with continued use of
the equipment, so a lower level in the range is assigned.
Therefore, a two—part criterion based on expected contamination
levels is the basis for determining the level category of
the circumstances axis. (See chart on page 12.)
Multiple Penalties
Regional enforcement personnel should assess multiple penalties
in the following situations:
o A separate citation charge for the violation is
found in this penalty policy.
a The violation is repeated.
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— 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 dispose
of TCDD—contaminated wastes to notify the Agency 60 days prior
to disposal. This policy defines the violation as occurring on
the one day, 60 days prior to a disposal, on which a notification
violation may occur. However, this violation is repeated if
disposal occurs again.
Two disposals that occur in one day constitute one violation.
Two oisposalsthat 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 the type of waste that merits the higher level penalty
(see discussion of the types of waste pages 16—17).
o Marking Violation
Under established Agency policy all marking violations
are considered one—day violations. Therefore posting the
Vertac facility will be considerea a one—Qay violation.
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- 19 -
Appenaix 1: Hypothetical Cases
HYPOTHETICAL 1
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—D
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 required. Region Z assessed a
pena’ty of $91 ,000.
Explanation
Using the one day equals one violation criterion, Region Z.
determined that 7 violations had occurred. Regional enforcement
personnel used the following factors in finding the total
penalty:
1. The amount, 250 drums, placed the violation in the
significant category of the extent axis.
2. The category oI 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.
The penalty at the intersection of the significant extent
axis and the high circumstances range, level 2, is $13,000.
Seven violations, multiplied by $13,000 produced the total
penalty, $91,000.
HYPOTHETICAL 2
Case
A company did not notify the Agency Defore disposing of 600 drums
of 2,4,5-T waste and 300 drums of 2,4-0 waste.
Acti on
Regional enforcement personnel charged the company with failing
to notify the Agency, assessing a total penalty of $38,000.
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- 20 -
Expi anation
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 I, circumstances axis
2,4—0 waste: Significant category, extent axis
High range, circumstances axis
Level 2, circumstances axis
Total Penalty: S25,000
13,000
38,000
Hypothetical 3
Case
A company which manufactures 2,4,5—1 decides to nianufacture 2,4—0
on the same equipment. Before beginning 2,4—0 manufacture the
comany attempts to clean the equipment y rinsing it with iater
into the city sewer. The company did not notify the Agency of the
disposal because it argued that the level of TCDD in the rinsate
was not detectable, even though the company did not test either
the rinsate or the residue on the equipment.
ct ion
CMS targetted the company as part of its routine compliance
monitoring program. The inspection uncovered the violation
and a civil penalty of Sl7,000 was assessed.
Expl anat ion
The company is in violation of the rule because it did not notify
the Assistant Administrator of the disposal, or quailify for the
exemption by testing the waste. Based on production records and
cleaning practices, the volume of rinsate was estimated to be
approximately 20,000 gallons. Therefore, extent of the violation
is “significant”. The waste in question resulted from the nianufac—
ture of 2,4,5—1, so the circumstance of the violation is Level
According to the matrix the appropriate civil penalty $17,000.
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p J —
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
FEB
OFPICC OF
P TICID S AND TOXIC IUUITANCg
MORANDUM
SUBJECT, Permitting of Government—Related
PCB Disposal Activities I
FROMi Denise M. Reehner, Chief
Chemical Regulation Br’
TO: Richard Dubose, Chief
Pesticides and Toxic Substances Branch
Region Iv
Region Iv requested guidance regarding the TSCA policy for
permitting a government agency to dispose of its polychiorinated
biphenyl (PCB) waste when the government agency owns the
incinerator but uses a contractor to operate the incinerator.
The Exposure Evaluation Division’s position on this issue is that
both the owner and operator must appear as the permitted parties
on the PCB disposal permit. The reason for this is that the
operator’s expertise and conduct during the demonstration are
critical parameters in our evaluation of whether or not the
incinerator can be operated in a manner that will not present
unreasonable risks, We are not in the business of permitting a
piece of equipment; but rather, are in the business of permitting
companies to operate a particular piece of equipment in a manner
that will not present unreasonable risks. We faced this issue
several years ago in permitting EPA’s Office of Research and
Development (ORD) to demonstrate its mobile incinerator 1 The PCB
permit we issued on July 23, 1987 listed Envirosponse,
Incorporated as the operator and EPA-ORD as the owner.
There is continuing interest on the part of Congress in both
PCB disposal issues as well as issues of government agency
compliance with environmental laws and regulations. Accordingly,
I strongly advise that in situations where a government agency
owns a PCB disposal technology (e.g., an incinerator) and has
contracted Out its operation, the PCB disposal permit should be
jointly issued to the government agency and the contractor used
during the successful demonstration.
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AGREEMENT
ENVIRONMENT, SAFETY M’D HEALTH
PERMITTING ACTIVITIES
This document delineates the roles and responsibilities of the Department of
Energy (DOE) an Martin Marietta Energy Systems (!2 1ES) regarding Environment,
Safety, and Health (ES&H) permitting activities under Contract DE—ACO5—840R21400.
DOE will:
A. Be the owner, operator* and perinittee, to the maximum extent
practicable, for all ES&H purposes, including permits required
for operation of the facilities for which 1*IES is the manage-
ment contractor.
B. Set overall policy and direction for formal and informal permit
negotiations with regulatory agencies.
C. Serve as principal contact with regulatory agencies.
D. Execute all formal correspondence with regulatory agencies regard-
ing permitting actions and reporting related thereto in a timely
manner unless such authority is specifically delegated to } fZS in
writing.
E. Provide copies of documents involving ES&H matters to lIMES in a
timely manner.
F. Provide oversight of the overall policy and guidance utilized by
) 1ES to assure consistency with the DOE requirements and between
the facilities that I ES manages for the DOE.
lIMES will:
A. implement an ES&H management and information system which will
provide:
1. identification of all ES&H activities and funding needs neces-
sary to comply with all applicable ES&H laws/regulations and
DOE orders;
2. Identification of needed permits and preparation of the assoc-
iated documentation/applications in a timely manner to avoid
adverse prograuatic impacts;
3. Maintenance of complete permit documentation;
4. Coon policies for permitting actions for all facilities which
) 1ES manages for the DOE;
*“Operator” is subject to redefinition by DOE ORO.
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5. tracking of permits and initiation of timely actions regarding
permit renewals;
6. Submittal to the DOE in accordance with agreed—upon schedules
of information (monitoring data. etc.) required to be reported
to the regulatory agencies;
7. Integration of permit constraints with operational activities
to assure compliance with permit requirements; and
8. Trend analysis’of violations and identification of needed
corrective actions.
B. Keep the DOE informed of permit compliance status.
C. Serve as point of contact in technical discussions with regulatory
agencies (MMES will be identified to the regulatory agencies as
technical contact where such identification is approved by DOE) and
promptly report to DOE results of any such discussions.
D. Forward permit applications in a timely manner to the DOE for proces-
sing as the owner/permittee, after signature by the appropriate MMES
line manager.
E. Based upon guidelines agreed to with the DOE, inform media of signif 1—
cant environmental matters.
, 4 .
Kenneth ,J rmolow ‘ Joe La Grone
President, Martin Marietta Energy Manager, Oak Ridge Operations,
Systems, Inc. Department of Energy
Date: € kILU% 1951 Date: __________
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,6 2-
TSCA COMPLIANCE PROGRAM POLICY No. 6-PCB-1
Responsibility for Compliance with PCB Rule
ISCA Section : 6(e)
Is sue :
If PCB—containing equipment is owned by one party but Is
used by another party, or is located on the property of someone
other than the owner, who is responsible for assuring that such
equipment complies with the laws regarding PCBs?
Policy :
In general, the Agency intends to hold the owners of PCB
containing equipment responsible for compliance with the PCB Rule
[ 40 CFR Part 7611]. However, in all cases involving PCB use by a
person who does not own the equipment, or PCB equipment located
on property owned by a third party, the Agency will consider the
facts of each case to determine whether the user or landowner
should be held responsible for compliance, either in addition
to, or instead of, the owner of the PCBs.
With one exception, the owner of PCB—containing equipment
is responsible for compliance with the Interim Measures Program
(46 FR 16090, March 10, 1981). The exception is that a user who
is not the owner of a PCB—containing transformer which poses an
exposure risk to food or feed products has the obligation in comply
with the Interim Measures Program until the user has informed the
owner that the transformer poses an exposure risk to food or feed
products.
Discussion :
Since the decision of the Court in Environmental Defense Fund
v. Environmental Protection Agency (EDF v. EPA), 636 F. 2d 1267
(D.C. Cir. 1980), which invalidated tFiI por 1in of the Agency’s
regulations that characterized transformers, capacitors, and
electromagnets as totally enclosed, electrical equipment con-
taining PCBs can be used legally only by persons observing the
Interim Measures Program. That program, which primarily consists
of inspection and maintenance requirements for transformers,
appeared in the Federal Register on March 10, 1981 (46 Fr 16090).
The Court order which established the Interim Measures Program
stated that the owner of a PCB—contalnlng transformers has the
obligation to comply with the Program, with one exception. A user
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—2-
who is not the owner of a PCB containing transformer which poses an
exposure risk to food or feed products has the obligation to comply
with the Interim Measures Program until the user has informed the
owner that the transformer poses an exposure risk to food or feed
products. Thus, the responsibilities for complying with this
program are clear.
The Interim Measures Program is not the only regulatory
requirement that must be net for PCB containing equipment. The
PCB Rule, 40 CFR Part 761, contains marking and recordkeeping
requirements for in—use equipment. Any uncontrolled discharge
of PCBs from the equipment may constitute improper disposal.
Additionally, leaking equipment is not totally enclosed and
thus cannot be used legally.
The PCB Rule does not contain any precise statement concern-
ing who is responsible for these requirements when the owner is
not the same person as the user. As a matter of compliance program
policy, the Agency intends to hold the owners of PCB—containing
equipment responsible for compliance with the PCB Rule. However, in
all cases involving PCBs used by a person not the owner, or located
on property owned by a person other than the owner of the PCBs, the
Agency will consider the facts of each case to determine whether the
user or landowner should be held responsible for conplia nce, either
in addition to, or instead of, the owner of the PCB —coritairiing
equipment. In determining responsibility for compliance, the Agency
will consider, without limitation, the following factors:
o Written agreements between the parties . Contracts that
provide that the user will service the equipment, or
that the user agrees to comply with all laws argue in
favor of the user’s being responsible.
o Prior actions by the parties . If one of the parties
has traditionally serviced the equipment, or taken
responsibility for compliance with regulations on the
equipment, this will influence the Agency’s decision
on liability.
o Access to the equipment . If one party has restricted
or no access to the equipment, this arguesstrongly
against that party’s responsibility for compliance.
o Reasonable actions in emergencies . Even where the
other factors indicate that the owner is responsible
for regulatory compliance, the Agency expects users of
PCB containing equipment to act reasonably in the event
of a rupture or other environmental emergency. Thus,
the failure by a user to notify the owner promptly of
any rupture might subject the user to liability under
TSCA.
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—3—
As dictated by the specific instance, the Agency will also
consider any other pertinent factors in determining who should be
held accountable for compliance with the law. Any person who uses
PCB—containing equipment or has such equipment on his property, and
is uncertain about his responsibility for compliance is strongly
urged to contact the owner of the equipment to reach an agreement on
this subject. Such persons should also be remained that uncontrolled
discharges of PCBs may result in exposure of workers or members of
the public to PCBs. Such exposure may result in liability under
other Federal law (such as the Occupational Safety and Health Act)
or State or local law.
This memorandum is only a statement of compliance program
policy under TSCA. It is not intended to affect any rights or
liabilities any person may have under any other law or by virtue of
any contract. It also does not change the Agency’s position that
persons may not enter into contracts which absolve them of their
responsibility or liability for violation of the PCB Rule. (See 44
FR 31538—9, May 31, 1979, for the Agency’s position in this regard.)
Key Words :
Responsibility for Compliance
Li ability
Penalties
Unlawful Acts
Noncompi lance
A.
P
ces
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TSCA COMPLIANCE PROGRAM POLICY No. 6-PCD-2
Distillation, Solvent Extraction, Filtration.
and other Physical Separation Methods for PCEs
TSCA Section : 6(e)
ISSUE :
Does the physical separation of PCBs from liquids and solids
require EPA approval?
POLICY :
The physical separation of PCBs from liquids and solids
requires an approval if the use or disposal of these liquids and
solids avoids, or is alternative to, the disposal requirements
that would have applied to the original material before
separation. An approval is required for physical separation
activities that can be construed to be part of, or an initiation
of a disposal activity. However, an approval is not required for
physical separatior activities which process PCBs during
authorized servicing activities and reuse the processed materials
in equipi ient authorized for continued use in the PCB rules. An
approval is also not required for treathent of PCB contaminated
water where the treatment medium is properly disposed of and the
water is discharged in accordance with a NPDES permit.
DISCUSSIO? :
The PCB regulations (40 CFR 761.60, 44 FR 31514) require EPA
approval of activities which dispose of PCBs and PCB Items. In
1979, a ca pany approached EPA for a policy on the use of filters
for physically removing PCBs from transformers. At that time, EPA
interpreted ‘disposal to mean only activities which alter or
destroy PCB molecules, while activities which physically separate
or concentrate PCBs from liquids or solids were judged not to
constitute disposal and not, therefore, to require an
approval. Examples of techniques which physically separate PCBs
from liquids and solids include filtration, distillation, and
solvent extraction.
In 1982, after some experience with this policy, EPA realized
that the application of the above approach to physical separation
methods had the potential to create a major avenue for avoiding
the PCB disposal requirements. The PCB rules require specific
disposal options for materials containing PCBs. Unapproved
alternatives to these disposal requirements have the potential to
circumvent the rules and pose unnecessary risks.
EPA reviewed its interpretation of the PCB regulations
regarding physical separation and found that the original PCB
rules clearly do not exempt PCB proces in .activjties ine ng
physical separation techniques) IrCfl% the aispOSa.L requirem
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2
While activities which process or distribute PCSs for purposes of
disposal are not subject to processing and distribution in
commerce bans, such activities are subject to disposal
regulations. Section 761.20(c)(2) (emphasis added] provides:
‘PCBs or PCS Items may be processed and distributed in commerce in
compliance with the requirements of this Part for purposes of
disposal in accordance with requirements of S761.60 tPCB disposal
requirementsi .N
Accordingly, unless an activity is authorized by the disposal
regulations, one must obtain specific approval for the activities
from the Regional Administrator or the Assistant Administrator for
Pesticides and Toxic Substances in accordance with section
76l,60(e)(1982). Note, however, that it is not the intention of
this policy to require approval of physical separation activities
regarding the clean-up of leaks and spills of PCBs or to require
approval of inadvertant separations due to natural forces (such as
evaporation and gravity) that are not construed to be part of a
disposal activity. It is also not the intention of this policy to
require approval of physical separation activities that are part
of manufacturing processes that incidentally manufacture PCBs.
The physical separation of PCBs from products and waste streams in
manufacturing processes will be considered during the upcoming
rulemaking on the applicability of a regulatory cutoff for the
manufacture of PCBs (the uncontrolled rule).
The following example of the use of a physical separation
technique is applicable. Capacitors must be disposed of by
incineration or by an approved alternate method equivalent to
incineration (40 CFR 761.70). It is theoretically.possible to
develop a capacitor disposal method the first step of which is to
separate the PCBs from the solid materials (e.g., solvent
extraction). The separation process, requires specific prior
approval by the Regional Administrator or Assistant Administrator
for Pesticides and Toxic Substances under section 761.60(e) since
it is part of the disposal method but is not authorized under
section 761.60. If such a method were successful in completely
removing all detectable PCBs fran the solids, the PCB—free solid
materials could later be salvaged without subsequent treatment or
EPA approval. Although the PCBs removed from the solid materials
and any unprocessed materials require incineration, it is also
theoretically possible to obtain approval to use a physical
separation technique to remove PCBs from the liquid materials in a
similar manner.
In contrast, a permit is not required to service electrical
equipment for purposes of reducing PCB concentrations. Physical
separation techniques can be used to service PCB—containing
electrical equipment as long as the processed materials are
ultimately returned to electrical equipment regulated under the
PCB rule. This type of servicing is authorized under 40 CFR
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3
761.30(a). Filtering PCBs from the dielectric fluid ot
transformers and returning that fluid to the tranBformer is an
example of this type of activity. Because the processed liquids
and solids are returned or reused in regulated equipment, EPA
controls the ultimate disposition of all the processed materials
and no disposal requirements are circumvented.
Without an EPA disposal approval, processed liquids and
solids that formerly contained PCBs must be treated as if they
still contain PCB8 and may not be distributed in commerce without
an exemption under section 6(e)(3)(B) of the Toxic Substances
Control Act (TSCA). Therefore, it is possible to physically
separate PCBs.frcun liquids and solids without EPA approval as long
as these liquids and solids are treated (used, stored, disposed
of, etc) as if they still contain their original PCB
concentration. The PCB residue which results from physical
separation activities, as well as any, materials not eventually
reused in regulated electrical equipment, must be disposed of in a
manner which complies with section 761.60. In the event the
separation method results in dilution of the PCBs, the original
PCB concentration determines the required disposal method.
A permit is not required to physically separate an organic
phase from an aqueous phase of collected water (e.g. leachate,
lagoon water, storm water). The organic phase must be disposed of
according to the regulations for its concentration of PCbs. The
aequeous phase may be disposed of by means of filtration to remove
any residual PCBs (e.g. activated carbon) provided the filter
medium is disposed of in accordance with the regulations for
solids containing that concentration of PCBs, and the water, if
discharged to navigable waters, is discharged in accordance with a
National Pollutant Discharge Elimination System (NPDES) permit
granted under the Clean Water Act. Water cannot legally be
discharged from a point source without meeting the permit
conditions. Through this permitting process, EPA limits the
amount of PCBs in the water prior to discharge. Since EPA
controls the amount of PCBs released with the water, and also
controls the disposal of any PCBs physically separated front the
water (40 CFR 761.60), no a4ditional approval under TSCA is
necessary or warranted. This form of physical separation may be
compared to the policy of not requiring approvals for physical
separation methods which result in all materials going to
controlled equipment or proper disposal under the PCB regulations.
Section 761.30 authorizes servicing of electrical equipment
for purposes of reducing PCB concentrations. After such
servicing, this electrical equipment may be reclassified if, after
at least 3 months of in—service use, the PCB concentration is
reduced below the appropriate level.
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4
See Also :
TSCA Compliance Program Policy No. 6—PCB-3
References :
Letter to SED, Inc dated April 2, 1981
Letter to Amtrak dated July 20, 1982
Key Word Readings :
Physical Separation, Dispos
A. E. Conroy I Director
Compliance P1 ni oring Staff
Office of e ticides
and Toxic S stances
Date:
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TSCA COMPLIANCE PROGRAM POLICY No. 6-PCB—3
Residual PCBs in Processed LLQuids and Solids
TSCA Section : 6(e)
Are PCBs at concentrations less than 50 ppm in liquids and
solids that have been physically separated from higher
concentration PCB materials regulated for the purpose of disposal?
POLICY :
PCBB at. concentrations less than SO ppm in liquids and solids
that have been physically, separated from higher concentration PCS
materials are requlated. as if they still contain the original. PCB
concentrations..
DISCUS
Section 40 CPR 761 ,1. states that a substance containing less
tktari 50 ppm PC3a because of any dilution shall be treated for-
disposal purposes as though it contains its original PCB
concentration.. This means that diluted PCDs would be subject to
EPA disposal regulations under 40 CFR 76L.60, even though Other
substances in concentrations less than 50 ppm are not.
Accordingly, if a PCB concentration under 50 ppm resulted from an
activity in which PCBa originally in concentrations. above 50 ppm
re physically separated from other material, any separated PCBs
uld be subject to EPA disposal regulations under
CFR 761.60. This includes those PCBs contained i nf a fraction
with a concentration less than 50 ppm (e.g. the “l kft” fraction
from a distillation process..)
A separator who is servicing, electrical, equipment may dispose
of t1 e “heavy” PCB fraction according to 40 CFR 761.60 and return
the ‘light” fraction to the electrical equipment, in which case
all materials are controlled by the PCB regulation. In the
alternative (if he intends to produce a light fraction which will
not be disposed of according to the PCB rule or reused i t t
electrical equipment), the separator must obtain a disposal
approval from either the Assistant Administrator for Pesticides
and Toxic Substances or a Regional Administrator under 40 CFR
761.60(e). Only after the light fraction has been shown to
contain no detectable PC3s, however, can the activity be approved
by EPA as a disposal activity and considered an unregulated
material.
It has been suggested that the disposal regulations either do
not or should not apply to the light fraction unless the dilution
process was intentionally done to circumvent the EPA disposal
regulations. This interpretation is not correct. Section 761.1
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2
does not permit any dilution of PCBs to affect the applicability
of the PC3 rules, unless the dilution is specifically provided for
Ln the regulation. The regulation also does not provide for
Lnquiry into the intent of the person performing the separation.
See Also :
TSCA Compliance Program Policy No. 6—PCB—2
References :
Letterto SED, mc .. dated April 2, 1981
Letter to Amtrak dated July 20, 1982
Key Word Headings :
Physical Separation, Disposal
A. Conr i, tractor
Compliance- Mc i ng Staff
Office of. Pesticides and
Date: To*ic Substance5
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O3
TSCA COMPLIANCE PROGRAM POLICY No. 6-PCB-4
Disposal Methods for PCBs in Sludge
TSCA Section : 6(e)
Issue :
What disposal method is required for PCB waste in the form
of industrial sludges or slurries?
Policy :
The disposal method for PCB industrial sludges or slurries
(i.e., process wastes, tank sludges, lagoon sludges, and similar
materials) is dependent on the concentration and source of the
PCBs in the waste material. Industrial sludges or slurries
containing 50 ppm to 500 ppm PCBs must be either incinerated
or disposed of in an approved chemical waste landfill. Indus-
trial sludges or slurries containing 500 ppm or greater PCBs
must be disposed of by incineration. PCB industrial sludges or
slurries generated by processing liquid PCBs must be disposed
of in the same manner as required for the original liquid PCBs.
For example, if a commercial PCB disposal/removal process treats
a PCB liquid having a concentration greater than 500 ppm and a
sludge or slurry having a concentration of less than 500 ppm or
or even less than 50 ppm is produced, the sludge or slurry
must be incinerated.
Discussion :
The EPA’s disposal regulations apply for the most part to
substances with PCB concentrations above 50 ppm (40 CFR 761.1(b).
Section 761.60(a)(1) generally requires that all PCB5 over 50
ppm be incinerated unless other disposal alternatives are
provided in the rule. Section 761.60(a)(2) provides for landfill
alternatives for PCB contami r,ated mineral oil diel ectric fluid.
Section 761.60(a)(3) provides a landfill alternative for other
PCB contaminated liquids. Section 761.60(a)(4) provides a
landfill alternative for “ ... non—liquid PCBs in the form
of contaminated soil, rags or other debris ...“ regardless of
concentration.
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—2—
The preamble to the “PCB Marking and Disposal Rule” (43
FR 7152, February 17, 1978) states that the provision allowing
the use of chemical waste landfills for disposal of soil and
debris contaminated with PCBs was added to the regulation to
permit more practical disposal methods. This provision permitted
large volumes of soil and debris, such as trash, trees, lumber
and other rubbish that may be involved in a spill clean—up
operation or in removal or excavation of materials from old
disposal sites to be disposed of in a chemical waste landfill.
However, this provision does not apply to PCB liquids, slurries,
industrial sludges, damaged Pr articles or any production
wastes related to PCB processing or manufacturing.
The preamble to the proposed Polychlorinated Biphenyls
(PCBs), Manufacturing, Processing, Distribution in Commerce,
and Ban Rule (43 FR 24810, June 7, 1978) broadened the disposal
requirements by changing the definition of PCB Mixture from
a mixture containing 500 ppm or more PCBs to one containing
50 ppm or more PCBs. This definition of PCB Mixtures included
sludges and slurries. However, the preamble to the “PCB Ban
Rule” (44 FR 31515, May 31, 1979) combined the definition of
PCB Mixture into the definition of PCBs and PCB Items. This
combination eliminated any reference to sludges or slurries
in the definitions section of the final PCB Ban Rule. While
the regulations do not refer to industrial sludges or slurries,
the preamble resolves any potential ambiguity in that industrial
sludges or slurries are not characterized as solids. Therefore,
all industrial sludges or slurries must be disposed of by
either incineration or in a chemical landfill, depending on
their PCB concentrations.
The preamble to the “PCB Ban Rule” (44 FR 31520, May 31,
1979) explains the authorization for landfilling of non—liquid
PCBs such as rags and other sorbent materials. The PCB Ban
Rule also allows incineration or landfill disposal for dredged
materials and municipal sewerage treatment sludges containing
PCBs. The PCB disposal regulations (40 CFR Part 761.60(a)(1))
state that PCBs must be disposed of by incineration unless
otherwise provided. While no disposal alternative for indus-
trial sludges or slurries is provided in the PCB regulations,
the intent of the regulations indicates that industrial sludges
and slurries be disposed of based on their PCB concentration.
Therefore, industrial sludges and slurries containing 50 to
500 ppm PCBs can be either incinerated or disposed of in an
approved chemical waste landfill. Other industrial sludges or
slurries containing over 500 ppm must be incinerated regardless
of their physical state.
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—3—
The regulations at 40 CFR Part 761 .60(a)(4) require
non—liquid PCBs in the form of soil , rags, or other debris
to be disposed of by: (1) high temperature incineration, or
(ii) in a chemical waste lahdfill. However, 40 CFR Part 761.60
(a)(4)(ii) has an exception which states that PCBs shall not
be processed into non—liquid forms to circumvent the high
temperature Incineration requirements. This means that a
person cannot process liquid PCBs (e.g., industrial sludges
and slurries) into non—liquid PCBs and dispose of such PCBs in
a chemical waste landfill thereby avoiding the high temperature
incineration disposal requirements for PCBs (over 500 ppm).
See Also:
References :
Letter from A. E. Conroy II to Thomas S. West, Esq.,
Degraff, Foy, Conway, Halt—Harris 8 Mealey, dated October 7,
1983.
Key Words :
PCB, industrial sludge, slurries
A E. Conroy II, tar
Office of Compliance Monitoring
Office of Pesticides and Toxic Substances
AU3 I3I9
Date
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TSCA COMPLIANCE PROGRAM POLICY No. 6—PCB—5
ilocation of Enforcement Liability for Violations of the One—Year
Disposal Deadline for PCB Articles or PCB Containers
TSCA Section : 6(e)
Issue :
How does EPA allocate enforcement liability among persons
who violate the requirement that PCB articles and PCB containers
be disposed of within one-year after being placed into storage.
Pol icy :
EPA will allocate enforcement liability for a failure to
dispose of PCB waste within one year after it is placed into
storage between the generator and the ultimate disposal facility
based on the contribution by either party to the violation. A
generator delivering PCB waste to a disposal facility later than
90 days before the end of the one—year disposal deadline will
be held liable if the disposal facility can not dispose of the
waste in time. A disposal facility receiving PCB waste later
than 90 days before the end of the one—year deadline will not be
hold liable if the PCB waste is disposed of within 90 days.
scussi on :
Section 40 CFR 761.65(a) limits storage of PCBs designated
for disposal to one year. This requirement also states that “any
PCB Article or PCB Container stored for disposal before January 1,
1983, shall be removed from storage and disposed of...before
January 1, 1984. Any PCB Article or PCB Container stored for
disposal after January 1, 1983, shall be removed from storage and
disposed of...within one year from the date It was first placed
into storage.”
The one-year time limit is intended to insure prompt
disposal of PCBs removed from service. However, the requirement
does not preclude some waste generators or intermediate waste
handlers from storing the waste for lon . periods of time (up to
12 months) before releasing it for ultimate disposal. As a
result, facilities which receive the waste for ultimate disposal
may not have sufficient time to dispose of the waste within the
one-year time limit.
EPA will allow facilities receiving waste a year after being
put into storage by the generator an additional 90 days after receipt
to dispose of the wastes without incurring enforcement liability.
Because representatives of the two approved, landb ased commercial
:inerators have provided technical data showing that PCB waste
disposed of within 90 days after receipt by the facility, EPA
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—2—
LIAB ILITY
DISPOSER
entire
penalty
none
1 as determined that ninety days is sufficient lead-time for the
lisposer to receive and dispose of PCB waste. Therefore, if a
jenerator delivers waste to a disposal facility with ninety days
or more remaining in the one—year deadline, the aisposer is
responsible for destroying the material before the deadline.
The liability shifts to the generator if the material is delivered
to the disposal facility with less than ninety days remaining In
the one—year allowed for disposal after storage. The disposer,
however, will share in the liability if he does not dispose of the
waste within ninety days from the date it is received at the dis-
posal facility.
EPA will utilize the scale below to allocate liability between
the generator and disposer.
WHEN DELIVERED TO WHEN DISPOSED __________
DISPOSER
GE NERATOR _________
I more than 90 days after 1 yr. none
before 1 yr. deadline deadline
II 90 days before 1 yr. within 1 yr. none
TIl 60 days before 1 yr. 1 mo. late 1/3 penalty none
V 30 days before 1 yr. 60 days late 2/3 penalty none
V last day 3 mos. late entire none
penalty
VI after 1 yr. within 90 days entire none
of receipt penalty
after 90 days entire entire
of receipt penalty penalty
See Also : TSCA Compliance Program Policy 6—PCB—7.
References:
Key Words :
PCBs, ultimate disposal facility, disposal deadline.
A. E. Conro ii Dtrector
Compliance M I oring Staff
Office of Pesticides and Toxic Substances
c ,-.I’ u-’ 3
Date
VII after 1 yr.
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ISCA COMPLIANCE PROGRAM POLICY No. 6-PCB—7
rence Date for Violations of the One—Year Storage for Disposal
weadline for PCB Waste Resulting From PhysialSe aratlon.
TSCA SectIon : 6(e)
Issue :
What date will EPA use as a reference date for violations
of the one—year storage for disposal deadline for PCB waste
resulting from physical separation?
Policy :
The one—year storage limit art PCB.s resulting from physical
separation begins on the. data the originaT PCI articles or PCI
containers were placed trvta storag. for dtsposah Drums or bins
containing PCBs resulting front physical separation shall be
required to be marked with the date corresponding to the earliest
dated PCI material In the drumfr
Discussion :
The PCB Storage for disposal requirements (40 CFR 761.65)
cribe that any PCI article or PCI container “shell be removed
from storage and disposed of ,.. within one year 7r / he date It,
was first placed into storage.’ This provision I i’fltended to
prevent long—term storage of PCI mater1al To help insure prompt
disposal, Incoming P B articles end containers are required to
be dated when they arriv, at the storage facilIty (40 CFR 761 .65),.
Some disposal firms, particularly metal recovery and salvage
operations, physically separate the PCI—contaminated core from
the article or container, recycle the metal portion after rinsing,
and Store the remaining PCB portion In drums for disposal by
Incineration or other treatment. The drums may contain PC3 wastes
that result from physically separated articles or containers that
were placed into storage on- different dates. There Is some con-
fusion imong physical separators regarding the correct date to apply
to these drums.
A similar problem arises at Incineration facilities which shred
PCB articles and other solid materials and place these shredded parts
In drums before feeding them to the Incinerator. Componints of many
PCI articles may be placed In the same drum.
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- a-
EPA has never articulated a policy regarding the storage for
)osal requirernentS and how they apply to PCB waste that results
n physical separation. However, the Agency has developed a
policy on disposal of PCBs that have been physically separated
from regulated liquids and solids 1 This p llcy has direct bearing
on the storage for disposal requirements.
EPAaS position is that PCBs at concentrations less than 50 ppm
in liquids and solids that have been physically separated from
higher concentration PCB materials are regulated as If they still
reflect the original PCB corrcentratlorts. Operations such as dis-
tillation and solvent extraction have the effect of diluting the
PCB concentrat1on In the orlgfnal material. Section 40 CFR 161.1
states that a substance containing less than 50 ppm PCBs because of
any dilutlonshall be treated for disposal purposes as though It
contains the original PCB concentrations. This means that diluted
PCBs. would be subject to EPA disposal regulations (40 CFR 761.60),
as well as the storage for disposal requIrements (40 CFR 761.65).
PCB Articles have specific disposal requirements (40 CFR 761.60)
and all parts of the article are controlled by the rule.
The date used as the starting data for the one year storage
for disposal dea dl1r e an- a PCB article or PCB container prior to
physical separation shaTl be the earliest date of the PCB Items in
ntalner. Such PCB items must be disposed of within one-year
the earliest dated Item.
See Also : TSCA Compliance Program Policy 6uCFC.6. ‘f” P
References:
Key Words :
PCB, physical separation.
A. E. Cor(roy I , Director
Complianc Moni oring Staff
Office of Pesticides d Toxic Substances
A 4 -
( J Uate
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TSCA COMPLIANCE PROGRAM POLICY No. 6-PCB-1O
First In/First Out Standard for Meeting the
PCB One-Year—Storage-for—Disposal Requirement
TSCA Section : 6(e)
Issue :
how will EPA apply the one—year—storage-for—disposal require-
ment of 40 CFR Section 761 .65(a) to facilities that use bulk
storage tanks to hold PCBs that were placed into storage for
disposal on different dates?
Policy :
EPA will consider that a facility has complied with 40 CFR
Section 761.65(a) if its records demonstrate that, in any 12 month
period, the quantity of PCBs removed and disposed of from each of
the facility’s bulk storage containers equals or exceeds the
quantity of PCB5 that were placed into the container for storage
prior to disposal during the same 12 month period.
Discussion :
Section 761.65(a) of the PCB regulations provides that “any
PCB Article or PCB Container stored for disposal after January
1, 1983, shall be removed from storage and disposed of .
within one year from the date It was first placed into storage.”
On August 16, 1983, EPA issued TSCA Compliance Program
Policy No. 6—PCB-7, which provided that
the date used as the starting date for the
one year storage for disposal deadline on a
PCB article or PCB container prior to physical
separation shall be the earliest date of the
PCB items in a container. Such PCB items must
be disposed of within one year from the earliest
dated item.
EPA has received inquiries from operators of bulk PCB storage
and disposal facilities regarding the application of Policy
No. 6-PCB-7 to their operations. Their concern stemmed from the
possible interpretation that the policy requires all bulk storage
tanks containing PCBs to be emptied and decontaminated on an
annual basis, and all removed PCBs disposed of at that time in
accordance with the disposal requirements of the PCB regulations.
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-2-
The purpose of the one-year—storage—for—di sposal requi rement
is to ensure the prompt disposal of PCBs removed from service.,
EPA has determined that this purpose will be met without undue
hardship on the regulated community if EPA adopts a “first mi
first out” (FIFO) policy for facilities whose operations depend
upon the bulk storage of PCBs. That is, EPA will consider that
a facility has complied with 40 CFR Section 761.65(a) if its
records demonstrate that, in any 12 month period, the quantity
of PCBs removed and disposed of from each of the facility’s bulk
storage containers equals or exceeds the quantity of PCBs that
were placed into the container for storage prior to disposal
during the same 12 month period.
This policy retains the allocation of enforcement liability
provided in TSCA Compliance Program Policy No. 6-PCB—6. That
is, a generator may avoid liability for a failure to meet the
one-year-storage—for-disposal deadline of 40 CFR Section 761 .65(a)
only if PCBs were delivered to a disposal facility within nine
months after the actual or imputed date on which they were placed
in storage for disposal. Likewise, a disposal facility may
avoid such liability only where PCBs were disposed of within 3
months after the date on which they were delivered for disposal
The FIFO system will require the use of inventory controls
and recordkeeping to ensure the complete tracking of PCBs to the
date on which they were first placed into storage for disposal.
Such recordkeeping requirements are contained in 40 CFR Section
761.65(c)(8). Compliance with this provision should be assessed
routinely during inspections.
Under the FIFO system, PCBs In concentrations greater and
less than 500 ppm may not be mixed in the same tank in order to
avoid the more Stringent disposal requirements applicable to
PCB5 of concentrations greater than 500 ppm. Section 761.60(g)(2)(ii)
of the regulations provides that, where such mixing occurs, the
resulting mixture “must be considered as having a PCB concentration
of 500 ppm or greater” for disposal purposes.
Similarly, PCB5 in concentrations greater and less than
50 ppm may not be mixed in the same tank in order to avoid the
disposal requirements applicable to PCBs in concentrations of
between 50 and 500 ppm. Section 761.1(b) of the regulations
provides that any such mixing will produce material that, regard-
less of its actual PCB concentration, must be treated as if it
contained greater than 50 ppm PCBs.
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-3—
See Also : TSCA Compliance Program Policy Nos. 6-PCB-6 and 6-PCB-7.
References : 40 CFR Part 761.
Key Words : PCB, storage, disposal.
A E. Conroy II, i ctor
Office of Compliance Monitoring S
Office of Pesticides and Toxic Substances
MJG I3I9
Date
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,q P P

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION IV
345 COURTLAND STREET N E
ATLANTA GEORGIA 30365
MEMORANDUM
SUBJECT: Final PCB Penalty Policy
FROM: Richard D. Stonebraker, Chief
Pestic ides & Toxic Substances Branch
TO: Addressees
Attached is a copy of the final PCB Penalty Policy that was
issued on March 30, 1990, and went into effect on April 9,
1990. The 1980 policy will apply to those cases issued before
April 9, 1990. The new policy will not affect those cases
issued prior to April 9, 1990. However, cases that have been
drafted, but not issued will be reviewed. The existing cases
will be amended only if application of the new policy warrants a
lower proposed penalty.
Any questions regarding the new PCB Penalty Policy should be
directed to Robert G. Stryker or Aifreda Freeman of my staff.
Attachment
Addressees:
James R. Sargent, ORC
Toxics Unit Staff
Susan Taylor, KY DER
I
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UNITED STATES ENVIRONMENTAL PROTECTION A Ncy .‘ Dt’PS ON
WASHINGTON, D.C. 20460 ‘
30 !99C APR Z 99O
SUBJECT: Communication Strategy for
FROM: A. E. Conroy II,
Office of Compliance
TO: Linda J. Fisher
Assistant Administrator (TS—788)
BACKGROUND
On March 10, 1980, EPA issued interim guidance for the
determination of penalties for violations of the Polychlorinated
Biphenyls (PCB) rules. That interim policy was published in the
Federal Register on September 10, 1980, with a statement that the
Agency would review its experience with the policy before issuing
a final penalty policy.
Since developing the March 10, 1980 interim guidance,
numerous PCB regulations have been promulgated concerning
various use authorizations, incidental generation, regulations to
address fires involving PCB electrical equipment, notification
and manifesting for PCB waste activities, and many other aspects
of PCBs. Amendments, interpretations and revisions to the
interim guidance have also been developed. The revised penalty
policy incorporates the enforcement-related provisions of all PCB
rules and policy revisions to date. It also sets higher
penalties for most violations of the PCB regulations.
ACTION
The revised policy supersedes the 1980 interim guidance. It
incorporates all enforcement provision of the PCB rules and
Agency policies by updating the Circumstances section of the
policy (wher• all possible violations are ranked according to
probability for causing harm), and sets higher penalties by (1)
raising the Circumstance level for certain types of violations
(2 -. t t - . .. . —— M.
Signitica ic, or 1ajor .Atent leveis in the penalty matrix, a .-i
(3) assessing penalties for each violation of the regulatory
requirements of 40 C.F.R. Part 761, instead of for the broader
violation of its Subparts.
P .nr.den R yc
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2
Higher penalties will also be assessed for facilities that
have more than one location where violations exist. Under the
old r-’icv. tnar” Regiorie were rriiy,tir rT e ’ faciltv a 1’ -
—— -- -— -
facility. The new policy counts each separate site within a
facility as a separate location. Thus, if a facility has five
sites with the same violation, it will be assess five separate
counts instead of one. Also, the policy adopts the Agency
general policy of assessing the economic benefit of
noncompliance, i.e., a violator viii not pay a penalty that is
less than the economic benefit of the violation.
Other significant changes include a refinement of what
constitute’s a violator’s “history” of violations for purposes of
increasing penalties for repeat violators; new penalties for
refusing entry of an EPA inspector where delay of entry could
result in disappearance of the violation; and substantially
reduced penalties for voluntary disclosure of violations.
Higher proposed penalties will mean greater opportunities
for penalty mitigation through environmentally beneficial
expenditures. Environmental mitigation projects to offset
penalties, such as pollution prevention activities by violators,
should become more significant under the new policy.
The revised policy strengthens EPA’s enforcement of TSCA and
the PCB regulations by generally increasing penalties, and by
establishing a concise and uniform policy for the Regions.
Penalties for certain types of violations, most notably
violations of use and disposal requirements, will increase
significantly. Violations of the notification and manifesting
requirements will be penalized at similarly high levels. The
increased penalties should increase compliance with TSCA and the
PCB regulations, and will provide greater opportunity for penalty
mitigation through environmentally beneficial activities on the
part of violators.
ANTICIPATID RZACT!ON
It is anticipated that Congress and environmental groups
will laud the Agency’s increased emphasis on enforcement. The
regulated community’s reaction is expected to be mixed.
cc: Address List
Attachments (2)
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,‘eu
UNITED STATES ENVIRONMENTAL. PROTECTION AGENCY
/ WASHINGTON. D.C. 20460
4L*SO #
O.YICI O
PCITIC1OIU AND TOXIC IU•1 TANCU
3O 9O
#‘I’L
SUBJECT:
FROM:
TO:
I am pleased to announce the completion of the enclosed
licv, and its companion,
new
0! Llity.
Copies of the Policy, will be sent to some
300 addressees on the Agency’s PCB mailing list beforehand and
will also be available to the regulated community through the
TSCA Hotlin. (a communications strat.gy discussing this and other
outreach activities has been sjint to the Rsaion*L
‘ ke __ j l’ r’”i a n14... e ku 4..ii4 h*c I.f 1r 1 i1 9.
For such existing cases, the Regions should determin, if the new
policy would result in lower proposed penalties, and if so, the
complaint be amended to assess the lower penalties. The new
policy iso apply to all cases issued on or after April 9 .
Revising the Policy was a major undertaking. From the New
York Division Dir’ctor’s meeting in early 1988 that triggered the
revision to the policy, to our “closure” in Seattle this month,
you hay. provided crucial input to the process. In keeping with
that process, among the agreements made at the Division Director
level w•re to elevate major, unresolvable issues to the
•. “ . 4 i rjp- ‘ion -
is - . . . . - .. nai.J, dL. eattit..
was agreed that all would abide by those decisions. I greatly
appreciate your input and patience throughout the three
- iterations we undertook on this document. I especially commend
the Regional and HQ workgroup members for their efforts.
Final PCB Penalty Policy
John 3. Neylan III, Director
Policy and Grants Division
Offic. of Compliance Monil
Addressees
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—2—
Attached are OcM’s responses to the more significant or
recurrent comments. If you have any questions about these
responses, or about OcX’s consideration of any that are not
addressed hers, pisas. contact Mr. Cary Secrest of my staff at
8—475—7006.
Attachments (2)
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A. E. Conroy It, Director
Chuck Elkins, Director
Off ic. of Toxic Substances (TS-792)
Frederick Stishl
Associate Enforcesent Counsel
Pesticides and Toxic Substances (LE-134P)
Office of Enforcsssnt and Coaplianc. Monitoring
Mark Greenwood
Associate General Counsel (LE-132P)
Pesticides and Toxic Substances Division
Office of General Counsel
Susan Bzo , Director
R RA Enforcesent Division
Of f ic. of Waste Progra2s Enforcesent (08-520)
Lloyd Guerci, Director
CERCLA Enforces.nt Division
Office of Waste Progra3s Enforce .nt (08-510)
Recional Division Directors
I Louis F. Gitto
II Barbara Metzger
III Thoas Maslany
IV Winston A. Saith
V Williaa H. Sanders III
VI Robert E. Hannsschlagsr
VII Willian A. Spratlin
VIII Irvin L. Dickitsin
IX David Hovekaip
X Gary O’tlsal
I Marvin lossastein
It Ernest na
II! Larry Miller
IV Richard Stonsbraker
V Phyllis Reed
VT
40 Aerm
VIII Alvin Yorke
IX Davis Bernstein
X Kenneth Feigner
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Penalty Policy Workarou
Jim Curtin, 0CC (LE-132)
- ‘- c.. ‘ ‘
av a HanneL.ann, OTS (TS—798)
Jon Jacobs (LE-134P)
Cary Sscrsst, OCX (EN 342)
Dan Kraft/David Grunlav (Region 2)
Johnathan Allen (R.qion 3)
Scott Disaukea/Suzanns Glade (Region 5)
Donna Mullins (Rgion 6)
CourtesY Cooi.s
Richard Rafter, OPTS (TS-778)
Joseph J. Mer.nda, OTS (TS—792)
Dian. D. Ba1, OTS (TS-792)
Elizabth F. Bryan, OTS (TS-798)
John 3. N.ylan III, OCX (EN-342)
Michael F. Wood, OCX (EN-342)
Gerald B. Stubbe, 001 (EN-342)
Sherry Sterling, OCX (EN -342)
Michael 3. Walker, OEOI (LE-134P)
Mary Ellen Levine, 0CC (LE-132P)
Tony Baney, OTS (TS-798)
Janet Bearden, OCX (EI1-342)
David C. Batson, OECX (LE-134P)
Jonathan Libbr (12-133)
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p _o -7
POLYCHLORINATED BIPH YLS (PCB) PENALTY POLICY
UIf SbJ. Ei ü s.eataI Protidlas A s q
AprU9, 199.
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POLYCHLORINATED BIPHENYLS (PCB) PENALTY POLICY
Introduction i
Explanation of the Policy 2
Nature 2
Extent 3
Circumstances 9
Penalty Ms ment for Multiple Violatioi 12
Continuing or Repeat Violadoes 13
Mjt ting the Gravity Based Penalty 14
Culpability 15
H toy of Prior Violationa 15
Ability to Continue in Buineas 16
Other Factoix as Ji Iice May Require 17
Auitu 17
Volun’azy D cIesuie 18
Cost of Violation to the Oo rnment 18
Economio Bmc& of Nca.Compli.nce 19
Sttl’ ” With Cca tlona 19
Appendk A L the Guilty Based Penalty MitrE 3)
Appendk B al.th$ Proportional Penalties 23
Appendla C. TSCA Civil Penalty Worksheet 24
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PCB PENALTY POLICY
INThODUCI’ION
Backgroud
In 1980, the Environmental Protection Agency (EPA) issued interim guidance for the
determination of penalties for violations of the Polychiorinated Bipheny (PCB) rules. That
interim policy was published in the Federal Register on September 10, 1980, with a statement
that the Agency would review its experience with the policy before issuing a final penalty policy.
Since developing the 1980 interim guidance, numeroue PCB regulations have been
promulgated, including but not limited to regulations for use in closed and controlied waste
manufacturing processes, various use authorizations, incidental generation, regulations to address
fires involving PCB electrical equipment and the non cadon and m nifassing of PCB waste
activities. ts, interpretations and revisions to the interim guidance have aim been
developed. This revised penalty policy intended to incorporate the enforcement-related
provbions of all PCB rules and policy revisions to date, including the Notification and
Manifesting Rule, and all future applicable rules.
The purpose of this PCB Penalty Policy i to ensure that penalties for violations of the
various PCB regulations are fair, uniform, and consistent, and that persons will be deterred from
committing PCB violatices. This policy is immediately applicable and will be used to calculate
penalties in all administrative actions concerning PC issued after the date of this policy.
regardless of the date of the violation.
This policy implements a s)11c5 for determining penalties in M Ith ,C1’. J actions
brought punuant to Section 1601 the Toxic Substances Control Act CA). Penalties are
determined in t ats m (1) drl&mination of a ‘gravity basf 4 penalty (GBP) and (2)
adjus’meni te pavfty b..d penalty.
To ds the gravity besed penalty, the following factors affecting a violation’s gravity
are considesi
o the ‘nature’ of the violation,
o the ‘extent’ of potential or actual environmental harm Irons a pen violation, and
o the ‘circumetances” of the violation.
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2
These factors are incorporated in a matrix which allows determination of the appropriate
proposed GBP.
Once the GBP has been determined, upward or downward adjustments to the proposed
penalty amount may be made in consideration of these other factors, either before issuance of
a civil administrative complain or during settlement negotiations:
o culpability,
o histoiy of such violations,
o abilitytopay,
o ability to continue in business, and
o other matters as justice may require, such as environmentally beneficial
cpenditurea.
TSCA is a strict liability statute, and there is no requirement that a violator’s conduct be
willful or bowing for it to be found in violation of TSCA or its ünplementing regulations. The
exntence of a violation is to be determined without consideration of the particular culpability
of a violator; this factor is to be considered only as an adjustment to the 0BPS The initial GBP
may increase, decrease , or rem n the same when considering the violators culpability as an
adjustment to the proposed penalty.
Penaldes
The PCB regulations include a ban on the manufacture, proceasing, and distribution in
commerce of PCBI, as Il requirements for proper i e, storage, dispo.aL recordkeeping . and
marking. EPA has se ral enfor emene options available for dealing with PCB Rule vioLations
For miivw violations EPA’s Regional offices will ha the discretion to eme a Notice of
Noncompliance. In many cur - EPA will issue civil administrative complaints, using this policy
to calculate the appropriate civil penalty. In addition, Section 17(a) of TSCA, 15 U.S,C Sec.
2616(a), authorises Federal Jlu ct courts to issue injunctive relict to restrain violations of TSCA
or the PCB rules . Finally, in some instances EPA may seek criminal sanctions in accordance
with Section 16(b) of TSCA, 15 U.S.C Sc 2615(b), for knowing or willfUl violations of TSCA
or the PCB r”
EXPIANATIIR m NJUCY
Cisaslesi Cas uI 14s s d the RaguIadaus
The PCB regulations reduce the chance that additional PC will enter the environment.
and limit the harm to health and the environment when entry does occur . Therefore, these
regulations are chemical control regulations as defined by the TSCA CMI Penalty Policy. The
d njtions of the esn’ and “circunatsnces categories below re&ct the chemical control
nature of tl violatioi
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3
Exteit
The greater the quantity of PCBs there is in a violation, the greater the degree and
likelihood of harm from the conduct or activity violating the PCB rules. Therefore, the amount
of PCB involved in a specific violation will determine whether the Major, Significant, or Minor
extent category is used in assessing a penalty based on the GBP Matrix. Since the concentration
of the PCBs involved in a violation will also affect the potential for harm, this factor must also
be considered in determining which estent category is applicable.
1. Amout of Material lavolved
For the purpose of this policy, violations of the PCB rules fall into t broad categories:
non-disposal violations and disposal violations. Non-disposal violations include but are not
limited to, unauthorimd use, failure to mark the access to PCB Transformers, failure to keep
records, failure to provide adequate curbing at PCB storage areas, manufacturing PCB without
an exemption, and imil*r actiona where the violator possesses PCB that have not escaped into
the environment. Disposal violations occur when PCBs are disposed of in a manner not
permitted by the PCB regulations. Examples of such violations tnclude, but are not limited to,
the immediate rrlrase of PCBS from leaks or spi 11 s, or delayed release, such as when non-
leaking PCB Equipment is improperly disposed of in a non-TSCA landfilL Because the degree
of harm or potential harm is generally different for disposal and non-disposal violations, separate
categories of extent are signed, as described below.
a. Exteit r Non-Disposal Violations
The regulations pertaining to non-disposal requirements such as use, storage, and
manifesting of PC& and KB home , reduce the potential for harm, help the Agency determine
complience, and track the movement of PCBs from use to disposaL For example, a major use
of KB. is in electrical ansfarmers. The conditions for using transfarmers, such as inspection,
keeping records of inspection , marking, and notification of fire response personnel and adjacent
building owners , reduce the likelihood of improper disposal, minim the potential harm from
fires, and help the Agency determine a ness compliance. Similarly, the conditions for storing
KB llq KB Articles such transformers and capacitors, and PCB.contsminated sod,
conerete, and de nis help Agency determine compliance and reduce the likelihood that PCB
will escape into the cnvhv et. Compliance with the notification and m’n ’esting requirements
also serves_
The o tebl. alternative to compliance with the non-disposal requirements of the
KB rules is diposi. A rdingly, a fair penalty for violating the non-disposal
requirements can be based on the cost of proper disposal of KB. or KB flen, - This should
provide adequate incentive to comply with the non-disposal requirements.
In cases involving non-disposal violations, the Agency will calculate the penalty using
weight , or if unavailable, other units of measure that most closely fit the penalty scheme. For
example, if KB liquid is imported or manufactured, the penalty will be based on the weight of
liquid. If KB. unlawfully appear us a produc the penalty will be based on the weight of the
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4
product, as adjusted for concentration. If weight is unavailable, other units may be used, such
as the quantity al 55-gallon drums that the total production of the product would fill.
The following table identifies the quantities of PCBs that define the Minor, Significant,
and Major extent categories. The Agency has set the upper limit of the Minor extent category
at 1,200 kilograms (220 gallons) of PCB liquid, because it is approximately the amount contained
in the average transformer. It should be noted that the primaiy unit of measure is weight,
adjusted for concentration. Alternate measures include gallons for liquid, and 55-gallon drums
for solids.
Miner Eztea Noa-Dlsposal Violations
Unit Amount Less Than
2O0
220
Large Capaototl 50
55-gallon drume (solids) 15
Drained Transformers 5
SI leesit Fxtsit, NosDiapsul Violadass
Unk Amount
1,20010 6,000
220 to 1,100
50 to 250
55-gellon drusne (solids) IS to 75
Drained Transformers 5 to 25
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5
Major Exteit, Non-Disposal Violations
Unit Amount More Than
kilograms 6 000
gallons 1,100
Large Capacitors 250
55-gallon drums (solids) 75
Drained Transformers 25
b. Extent f w Disposal VIols Ions
Improper disposal of PCB generally presents a greater risk of harm to human health and
the environment than non-disposal violations. Also, it is usually more apensive on a per-gallon
basa to clean an area continunited by PCB, and to dispose of the contrnninated materials, than
it is to incinerate the liquid alone. Penalties for such disposal violations are based on the
appro ivnite cost of ilesnup and disposal of the materials cont*min2ted by KB.
For n ample, fresh spills onto non-porous surf such metal or tile can often be
deconthminsted by rinsing and weduing. The cost of such tecont minition , including the need
to take wipe samples for verification, is the bis of the Minor disposal category for non-porous
surfaces. Spills onto porous surfaces, such a concrete, often result in cont2minntion to some
depth, depending on many (scion such a porosity, the rate of spillage, and the type of PCB
liquid. For the purpose of determbthll eaten the Agency arrived at a d posal cost estimate
based on a nominal depth of contamination c i one’eughth inch of concrete, concrete being the
most common porous surface Involved. The cost of removing the concrete, taking wipe samples
for verification, dkp thug of the coni minated materiaL and encapoulating the area is the basis
of the Minor eatent category (or porous surfaces.
For soil, the Agency bases its cost estimate on a spill onto relatively level ground with
a nominal depth ci ci 10 inches to obtain sufficient decontamination. This should cover
spills on a r ci from days to sands, The square footage asigncd for spills onto soil
reflects the ipp mat ci removal and disposaL
Where the un” ’don is measured in cubic feet, the ‘cent quantity is based on the
cost of incinerating contaminated soil and concrete. The Agency has tied available data and
esperienos suggesting that a gallon of KB liquid could contaminate about 2 drwns of soil or
concrete, which have a keown average cost of disposaL While actual costs may in some cases
be Ion, particularly if the material is loss dense than sod or is suitable for Iandflulng, the costs
assumed in this policy arc generally applicable and should provide adequate incentive for
compliance.
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6
There are, of course, possible disposal violations that do not correlate exactly to the
quantities listed below, such as landfilling or surface disposal of PCB Large Capacitors or PCB
Transformers. In such cas it is presumed that improper disposal will ultimately result in
leakage and environmental cont2mination. In the event that equipment containing PCBs is
improperly disposed, the violator should be penalized on the basis of the amount of PCB
contained in the equipment, regardless of whether the PCB was leaking at the time of discovezy.
Penalties for improper disposal of drained PCB Transformers can be reasonably assessed using
the approximate cubic footage of the transformer. Penalties for improper abandonment of PCB-
contaminated pipeline could be assessed by calculating the square footage of the interior surface.
This should provide adequate incentive to comply with the disposal requirements for PCB and
PCB.ant2ining equipment and materiais.
It should be noted that when known, the source kilograms or gallons will be used to
determine the extent for disposal violations. Square and cubic footage which are based on
gallons as described in the pr oeding paragraphs arc to be used when the kilograms or gallons
arc unknow
Minor Extent, Disposal Violadoss
Unit Amount Less Than
25
5
sq. ft. 625 (non-porous surface)
60 (sod)
20 (porois surface)
cu .ft. 60(aleria )
S1 I osnt Extent, Disposal VIolallems
25 to 125
5 to 25
sq. ft. 625 to 3,125 (non-porous surface)
60 to 300 (so Il)
2010100 (porous surface)
cu.IL 60to300(allmaterisis)
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7
Major Extea Disposal Vlolatlou
Unit Amount More Than
kilograms 125
gallons 25
sq. ft. 3,125 (non-porous surface)
300 (soil)
100 (porous surface)
CU. ft. 300 (all materials)
For both disposal and non-disposal violations, the Agency has structured the extent
portion of the penalty policy to approsimate the costs of disposal and cleanup and to remove any
economic incentives to violate the rules, The violator will not only pay a penalty for vioLations,
the violator will also pay any additional costs necessity to come into compliance.
The Agency notes that the cost-based extent figures for disposal and non-disposal
violations 1ude some ts such as transporting response personnel and contaminated
materials, and do not a imt for potential variations in spill scenarios that cause greater or
lesser actual costs of cleanup. Also, actual ts may macme or de reue during the time this
policy is in effect However, the objecthe of the policy is not to estimate actual costs for a
specific case , but to provide a sufficient and reasonable basis for calculating penalties that will
encourage compliance with the KB rules. The Agency beliewa that the quantities selected for
each atent categoty accomplish this objective.
2. Casi dag volume to WII$I*
For converting volume to weight, the Agency us” the average d ity of KB liquid
to be approdmassly 12 Ibe, per pUce. If the actual density of the fluid involved in a violation
is lmow , th the actual dm.Ity should be uset
3. to est Catopey
Spit into waler create a substantial risk of hnman esposure, either
directly fros the eutir, or tbough the food chain. Also, since it is virtually_impossible to
rem all PC torn surftce or pound water once a spill occurs, iii harm is
assured. Therefore, whets any improper disposal results in the contamination of surface or
ground water, or any conduits leading to same, such as draia ditches, and walk, the ent will
alwti)1 be considered Major, regerdlemi of the amount and concentration.
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8
Spilk into Food and Feed. Spills into food and feed. if not quickly detected, will result
in human . e.po ire . Even if the problem is detected before humans (or anim*ls ) eat the
contaminated food it Is likely that the cost of finding and destroying the contaminated products
will bC high. Where any improper disposal results in the contamination of food or feed, such
as spills onto vegetable gardens, pastures, or food storage areas, the extent is always Major.
acestratlos Adjastaseata
The Agency recogT r that the concentration of PCBs is relevant to the potential or
actual harm from violating the PCB regulations. Obviously, a spill of high concentration PCBs
puts more contaminants into the environment than a spill of low concentration PCB&
Nonetheless, because PCB can be t c at very tow concentrations, a spill of a large amount of
low concentration PCB material could cause widespread harm. Thus, a system that would reduce
the total weight of PCB material involved in a spill in direct proportion to the concentration of
that material would severely undermine the regulatory scheme, and result in penalties that may
not reflect the harm or deter improper disposaL
To determine the atent of probable damage for a particular violation, the total ameunt
of PCB material involved in an incident should be reduced by the following percentage..
Concentration ( nom) Reduction of Amount (%
1) 0.49 50
2) 50.499 30
3) 500 or above None
5, espdau to Cesesatradon Mjuss.sat CIICUIItIO.
The cont Urat1on adjustment factors are not used in the following circunwanccs:
Dispersed Use. The use of wnsto oil that contains detectable concentrations of PCBS for heat
recovery in noa.ccáfotming boilers or a sealant, coating, or dust control agent, which is
prohibited by 40 C.P.R. Se iIoo 761.20(d), is one situation where the concentration reduction
would net . The AIm chose to prohibit these uses whenever any delectable level of
PC its pem license such use of PC is likely to result in widespread environmental
and health d . I , .I lng any reduction of the a unt of PCB used by virtue of low
concentration d be asy to the regulatory scheme.
Failure to Test . The concentration reduction does not apply where the violation is the failure
to test Liquid when required such the contents of a heal transfer system that has contained
PC3i (40 C.FJ. Section 761.30(d)(1)). In such eases . the risk is that the fluid may contain a
high concentration of KB, and that this material will continue to be used . These persons
should not obtain a fortuitous benefit when the liquid is finally tested and found to be of some
lower concentration.
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9
Alternative Meure ftr Solids . The concentration adjustment shall not be used when the PCB
material is meamred by a measure for solids other than weight. These aLternative measures,
which mclude square footage cubic footage, capacitors, drums, or drained transformer,, were
chosen to establish economic incentives for proper disposaL The cost of disposal of such
materials is not dependent on their concentration of PCBs. Accordingly, to allow adjustments
for lower concentration might remove the economic incentives to dispose of these materials
properly.
Dilution . The concentration adjustment does not apply where the PCB have been diluted in
violation of the PCB rules.
Chimatsiess
The other variabLe for determining a penalty from the GBP Matrix is the circumstance
of the violation, which reflects its probability of causing harm to hnm*n hea,th or the
environment. The circumstance. are ranked high, medium, and low. Each of these ranges in
turn has iwn different levels, for a total of six levels of circumstance, as shown on the GBP
Matrix below. All violations of the PCB regulations fall into one of the circumstance categories
identified in thia policy.
GRAViTY BASED PENALTY MATRIX
Circumstan Extent of Potential Damage
(probability of dmuiages)
A - Major B-Significant C - Minor
Hlgk Rugs
Level 1 $25,000 $17,000 $ 5,000
Level 2 ),000 13,000 3,000
Media. Rugs
Level 3 15,000 10,000 1,500
Level 4 11000 6,000 1,000
IAwRugs
Level 5 5,000 3,000 500
Level 6 2000 1,300
The different types of PCB violatione within each of the circumstan (or degree of
probability of damag ) on the GB? Matrix are discussed below. Note that the adjectives
major, significant, and minor’ used in the circumstance Levels are not related to those terms
in the GB? Matrix.
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10
High Rugs
Level one:
1) Major disposaL This includes any significant uncontrolled discharge of PCBs, such as any
leakage or spills from a storage container or PCB Item, failure to contain contaminated
water from a (ire-reLated incident, or any other disposal of PCBs or PCB ftems.ü a
manjier that is not authorized by the KB regulations, including unauthorized export
Failure to comply with the conditions of a TSCA approval for KB disposal or alternative
treatment, other than recordkeeping, also constitute, a Level 1 violation.
2) Manufacturing KB. without an exemption or in violation of any condition of an
wption, including unauthorized Import
3) Unauthorized incidental generation of PCBs.
4) Major manifesting. Failure to notify EP4¼ for commercial storers 1 submitting false
information upon application or operating without an approval or in violation of approval
conditions; and failure to manifest or major manifesting errors .
5) Refusal to permit entry of an EPA inspector, in violation of TSCA Section 1.5. The
proposed penalty will be Major, level 1 when the Agency h reeson to believe that
KB. edited at the time of refusal and that KB violations could have disappeared
betwace the time of refusal and inspection. A Level 1, Significant or Minor extent may
be appropriate if mitigating information subsequently provided showing that the amount
of KB. present at the time of refusal warrants the reduction of extent. The penalty for
refusal will only be applied when the statutory requirements of Section 11 of TSCA, is
U.S.C Section 2610 have been met, which are
a) presentation of proper credentials:
b) written notice to iier , operator, or agent in charge showing scope of inspection;
C) impection attempted to be commenced and completed with remonable promptness;
d) inspection attempted to be conducted at remonable ‘ in (daylight business
hews), with______ limits, and in a reesonable manner.
1) Proc wlthou* an euipsion or in violation of any condition of an exemption.
2) Ditsibutice In omm tcs of KB. without an inption or in violation of any condition
of an einption.
3) Major use. Unauthorized use of KB. or using PCBI in violation of any condition of
authorization. Eumpha of such violations include, but are not limited 1o
a. Failure to register KB Transformers with the local fire jurisdiction or the building
k -i
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11
owners within the required time.
b. Storage of combustible organic solvents or other combustible liquids in or near
the transformer area.
c. Failure to report a flre.reLated incident.
d. Failure to inspect PCB Transformers or to keep records of such inspections.
4) Major marking. A major marking violation is a situation where there is no indication to
someone unfimiliar with PCB that PCB are present, such as failure to label the access
to a PCB Transformer or failure to label the transformer.
5) Major storage. A major storage violation means a situation where a significant portion
of spilled material would not be contained in the event of an accident, or wbme PCBs
could be exposed to precipitation or overland flow of water. Examples of such situations
are storage in areas with: no roof no curbing, curbing that is pervio a to PC&, or
curbing that does not mcci the volume or height requirementa non.continuous or no
flooring unsealed floor drains, or flooring that is pervious to PCB.
Mediam Rugs
1) Macr recordkeeping. No records, or major recordkeeping violations, at disposal facilities,
including incinerators, high efficiency or industrial boileta, landfllis and other approved
alternate disposal facilities. No records, or major reaxdkeeping violations by transporters
or commercial storess. Major recordkeeping violations would include failure to keep
records or substantial dlarepa&ics in records on disposal procon operating parameters.
landfill disposal locations or disposal quantities or dates, or incomplete records on the
receipt, inventoty, or dispniithin of waste by commercial sicrete .
2) MlaordispcsaL M ampleo(aminordispoialviolationsaleakinwhichaPCB
Articis bm on et portion of its external surface, but the PC did not run off the
3) S11 ns. This includes failure to prepare or submit an annual report or
an esx repoit
Le four
1) Minor use violations. These include the following:
a. Failure to provide complete transformer rejuaiion , but the fire department or
adjacent building owners are aware of the transformer locations
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12
b. Failure to remove combustible materials other than organic soLvents or other
combt iible liquids.
c. Failure to conduct all required visual inspections, but where a significant
percentage was conducted.
d. Incomplete records of PCB Transformer inspections such as omitting the
inspector’s name, or omitting the specific location of the Leak on the transformer.
2) Minor storage. E mples of these violations are small cracks in an otherwise impervious
floor or curbing, and failure to conduct all required visual inspections, but where a
significant percentage was conducted. Storage of PCBs in e ceas of 1 year, including
failute to date PCB ftema placed in storage.
3) Significant recordkeeping. No records, or major rcoordkceping vioLations, by persons who
manufacture, pro , or usc PCBs, except commercial storers, transporters, and disposers.
Major rccordkceping violations would include the absence of data on PCB Transformers,
or the absence of records on any transfer of PCBs from the site.
LAW Rug,
fl
1) Minor marking violations These are situations in which some requirements of the rule
have not beco foilcued, but there is sufficient indication that PCB are present and the
PCB Itema can be identified.
Level
1) Minor recordkeeping and manifesting. E mples of such violations are the occasional
oiiliinn of minor data due to clerical error, or partially ming records where the person
icaponsible can subs ”th’ she correct records upon request.
2) Failure to label small capaciters, fluorescent light ballasts , or large low voltage capacitors
wtth a ‘ne label requited by4O CF.R. Section 761.40(g).
P ’4AL1Y Iffil iW11 Ot MULTIPLE VIOLATIONS
Whea to Assess Miltipis Vialadsis
A penalty shall be e.ed for each violation of the regulations, and for each separate
location where violations occur . A violation of the regulations is defined as coo-compliance with
any requirement of 40 C.F.R. Part 761. regardless of categol7 or subpart. A separate location
is any area where the violation presents a distinct rtsk to humin health and the environment.
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13
In short, penal will be assessed as follows:
o One count for each violation of the regulations. regardless of categories. For exampLe,
if a PCB Transformer is not marked, and the means of access is not marked, then there
are t violations and two counts.
o One count for each location that presents a separate and distinct risL PCBs arc in
separate Locations when they are in separate buildinga or separate roo . In large rooms,
or outside, they are separate when they arc at least 100 feet from any other PCBs. The
EPA inspector shall determine whether a particular location is separate based on the
above, and may consider other factors relevant to the risk associated with the violation
and location.
11m1t oi Miltipic Vloladoaa
Some acts of compliance are completely dependent on other acts, such as keeping recorth
of transformer inspections. Thus, the lack of inspections will normally result in the Lack of
recorth of inspection. In such cases, only one violation should be charged, namely, failure to
—t.
Other acts of compliatice affect a number of separate locations within a facility. For
ample it takes a single act of compliance to register PCB Transformers with the tire
department or adjacent building owners, regardless of the number of transformer locations.
Thus, failure to re ter with the fire department is a single violative act per f cllity, as is the
failure to register with an adjacent building owner.
Further, the Agency han determined that Limits are appropriate for iti ting penalties for
violations of some periodic requirements, as followE
a A separate count ahaU be charged for each quarterly
missed, with the limitation of assessing up to 4 mitied
is less .
I
or r rd of inspection
or *2*000, whichever
o A isparMs co shal be charged for each annual document or annual inspection missed
durIng pe 3 and one count for all documents or inspections mi e4 from
years 4 bs,cnd.
) *j
P 4AL11 fOR CONTIMJING OR REPEAT VIOlATIONS
Under Section 16o1 TSCA, the Agency has the discretion to mess civil penalties up to
$25,000 per violation, with each day that a violation continues constituting a separate violation.
Macunsent of such pcr.day penalties is reserved for repeated , or acts that present
considerable risk or harm, such as where som ne improperly disposes of PCBs on mere than
one occion, or when somenne illegally imports PCB on separate occasions Each day of such
violations is significant and warrants a separate penalty.
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14
On the other hand, under the per-day principle, someone who stores an intact, 240.
gallon PCB Tram rmer improperly for 30 days could be liabLe for $390,000, an cessive penalty
in the absence of aggavating facto. such as a history of violations or a risky storage
environment. In such a case the Agency muld usually not assess penalties for each day of
violation.
The Agency calculates penalties for continuing and repeat violations two different ways,
either by combining the total quantity of PCBs involved during the period of the violation, or
by multiplying the OBP by the number of days the violation occurred. To calculate the penalty
using the former method, the Agency has developed the “proportional penalty calculation,”
whereby the penalty is proportional to the amount of material involved multiplied by the duration
of the violation, subject to the limitation of $25,000 per day per violation. This method is usually
reserved for continuing violations, and is explained in detail in appendix B. Using the latter
ir ,thod, the penalties are often larger than when proportional penalties are uset The Agency
reserves the discretion to amess penalties using the latter method for repeated acts of violation,
or when the circumatances, taking into consideration the serio of the violation or the
severity of potential or actual environmental harm, warrant such penalties.
When the proportional penalty calculation yields more than $25,000 per day for any one
violation, the penalty should be $25,000 per day for that violation, the Inmomum allo d by
statute. The proportional penalty should be used in the same way as any other penalty derived
from the GBP Matrix, i.e., the per-day penalty should be entered on lice I of the TSCA Civil
Penalty Msasment Worbheet (see appendix C). Re m should um the proportional penalty
calculation as opposed to one day ‘ e”menta for those violations where it can be documented
that violations ate continuing, such as failure to clean up after improper disposal of PCB. For
violations that have not been corrected by the time of reiripection, EPA may either use the
proportional penalty calculation or maria penalties on a per-day basis. Note that the
proportional penalty method does not always result in smaller penalties than the per-day method.
For large amounts of PC it may be higher than a straight per-day multiplication of the GBP.
ADJUSI1NG ThE cuvrrv IAS ) P 4ALTY
The O re c the smrlotaneu of the violation’s threat to health and the environment.
TSCA aiso ruØu the Amay to consider certain other factors in assessing the violator’s
condu T tma sbWty, titory of 1 iniil r violations, and ability to pay and to continue
in b’ in - k os the Act authoiiaea the Agency to iae discretion in considering “other
factors justice may require.’ Under this lest authorization, additional factors are considered
and balanced: attitude; veluntiry disclosure; the cost of the violation to the gevernment; the
nomic benefits ie zived by the violator due to his non-compliance and the environmentally
beneficial measures that a violator may perform in enchange for a reduction in penalty (see
Settlement with Conditions). These factors are considered as follows.
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15
C.lpsbWty
The two principal criteria for assessing culpability are (a) the violator’s knowledge of the
particular requir ment and (b) the degree of the violator’s control over the violative condition.
(a) The violator’s knowledge . The lack of knowledge of a particuLar requirement does
not necessarily reduce culpability, since the Agency has no intention of encouraging ignorance
of the PCB rules. The test will be whether the violator knew or should have known of the
reLevant requirement or the possible dangers of his actions. As a general matter, any electric
utility, and any company with PCBs, is deemed to have knowledge of all aspects of TSCA and
the PCB regulations. Furthermore, a reduction in the penally based on lack of knowledge can
only occur when a reasonably prudent and responsible person would not have known that the
conduct w dangeroim or in violation of TSCA or the PCB regulations.
(b) Degree of control over the violation . The Agency expects PCBa to be handled
prudently and that all reasonable measures will be taken to ensure compliance with the
reguiations. The Agency also ccpecls that, when violations are discovered, the persons
responsible for the facility or location will immediately take all n ssaiy steps to come into
compliance. Neverthelem, there may be situations where the violator Less than fully
responsible for the violation’s occurrence. For c ample, another person or company may have
had some role in creating the violative condition and must thet e share the responsibility.
Similarly, a discharge o( PC into the environment can occur accidentally, even though the
violator took prudent measures to aicid it. Such situations might warrant a reduction of
penalties.
Three levels of culpability have been assigned for calculating penalties, as follows:
Level 1 The violation w willfuL Mjust the GBP upward by 25 percent.
Level th The violator had (or should have had) knowledge g controL No
adjustment to GBP.
l’he violator lacked sumci nt wIedge of the potential hazard
crested by his or another’s conduct, and also ‘ control over
the situation to prevent om ence of the violation. 11 violator’s
conduct w reasonably prudent and responsible. A4ust the GBP
downward by 25 percent .
IllaCory .1 PrIor Vlskdses
The 03? MattE is designed to apply to firu oftenden, Where a violator has
demonstrated a hisloty of ‘prior such’ violations as stated in TSCA, the penally will be adjusted
upward to incree his motivation to comply. Also, repeat violatoes are penalized more severely
because additional enfurcement resources are spent on the same violator.
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16
The Agency’s policy ii to consider only prior violations of TSCA or its ruLes, even though
a violator could have a histoiy of violations of other EPA statutes, or remedial statutes in general
(e &, OSHA, CPSC). Congress did not expressLy state that it wanted the Agency to go beyond
TSCA Section 15 prohibited acts in determining violation history.
The fouowing considerations apply when evaluating a history of “prior such” violations:
(a) In order to constitute a prior violation, the prior violation mint have resulted in:
a flgj order . either en a result of an uncontested complaint, or en a result of a contested
complaint which is finally resolved against the violator, a consent order . resolving a contested or
uncontested complaint by the esecution of a consent agreement; or the payment of a civil penalty
by the alleged violator in response to the complaint, whether or not the violator admits to the
allegations of the complaint.
Violations litigatec! in the Federal courts, under the Act’s imminent h’mrd (Section 7),
specific enforcement and seizure (Section 17), and criminal (Section 16(b)) prov ions, are part
of a violator’s “history for penalty aus ”ment purposes 1 en are violations for which civil penalties
have been previously assessed. However, a notice of noncompfilncie dees not constitute a prior
violation for the purposes of penalty ment, since no opportunity ben been given to contest
the notice.
(b) To be considered a “prior such” violation, the violation must have occurred within
five years of the present violation. This five-year period begins on the date of a final order,
consent order, or payment of a civil penalty.
(C) Generally, companies with multiple establishments are considered en one when
determining histoty. If one establishment of a company commits a TSCA violation, it counts as
history when another estab hmens of the same company, anywhere in the country, commits
another TSCA violation. In moss cenes of violations by wholly, or partly-owned subsidiaries, the
histoty of the parent corporation shall apply to its subsidiaries and the subsidiaries to the parent,
particularly when the parent ben a majority share of ownership. 1 eption weuld be where
two a mpsni are held by the , atne parent corporation. The may not necessarily
affect each other’s hissosy if they are in substantially di rent linne of business, and they are
substantially independent of one another in their___ ___t, and in the functioning of their
Boarcis of Disnaloss.
(d) Vths ‘pifor such’ violation is of a non.PCB.relaled TSCA provuaon or regulation,
then the penally should be upuardly adjusted 25 peruent for a first repetition aM 50 percent for
a second repetition of the violation. If the prior such” violation is of any PCB.related TSCA
provulon or regulation, the penalty should be upwardly adjusted by 50 pereent for the first
repetition and 100 pe aat for the second repetitioo.
AbUfty to Costa.. 1* Bulama
Normally, EPA will not seek a civil penalty that exceede the violator’s ability topsy and.
therefore, to continue in businne The agency will assume that the respondent hen the ability
, ,T T!T:t, _ ,,’.. ,
b* IIi, III —
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17
to pay at the time the complaint is issued if information concerning the alleged violator’s ability
top is not readily available. The respondent will be notified in the civil complaint of its right
under the statute to a consideration of its ability to continue in business. Any alleged violator
canraisethe issucOf itsabilityropayandtocontinue inbusiness in its answer tothecivil
complaint, or during the course of settlement negotiations.
If an alleged violator ranes the inability to pay as a defense in its answer, or in the course
of settlement negotiations, it shall present sufficient documentation to permit the Agency to
establish such inability. Appropriate documents will include the following, as the Agency may
request, and will be presented in the form used by the respondent in its ordinary course of
business.
1. Tax returns
2. Balance sheets;
3. Income statements;
4. Statements of changes in financial position;
5. Statements of operations;
6. Retained esrnmp statements;
7. Loan applications, financing agreements, security agreements
& Annual and quarterly reports to shareholdera and the SEC, including 10 K reports
9. Business serviom reports, such as Compusat, Dun and Brat treet , or Value Line.
Such recorth are to be provided to the Agency at the respondents espense and must
conform to generally recognimd accounting procedures. The Agency reserves the right to
request, obtain, and review all underlying and supporting financial documents that form the basis
of these recorde to verify their accuracy. If the alleged violator falle to provide the necessary
information, and the information is not readily available [ rote other sources, then the violator
will be prcs imed to be able to pay.
On FACTORS AS JUSTICE MAY REOUIEE
Attlads
In violator’s attitude, the Agency will inok at the following factora whether
the violater la gend faith efforts to comply with the appropriate regulations; the
prumpteme of Ilaktm’s Corrective actiote and any actions taken to miiiti ’ harm to the
cnvmaInIPlF ed by the violation.
This adjustment applies equally to companies that voluntarily dic’cie violations and to
those that do not. A company uld generally qualify for a downward adjustment of a m imum
of 15% if it mmed 1 . .ly halts the violative activity and t stepa to rectify the situation. An
up* rd adjustment ala m.Nmum of 15% may be justified where company offlciaio continue the
violative activity after being notified to stop, do not act in good faith, hinder EPA’s progr
cause incressed government expenditures. or are otherwise uncooperative.
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18
Voliatagy Disclosure
The Agency encourages voluntary disclosure of PCB v olationa. To be eligible for a
penalty reduction for voluntary disclosure, a firm must make the disclosure pnor to being notified
of a pending inspection. The disclosure cannot be one that is required by the PCB regulations
or that is made after EPA has received information relating to the alleged violation.
Penalty amounts for violations of PCB regulations will be reduced when the violations are
voluntarily disclosed by the company. This penalty reduction is separate from and in addition
to the penalty reduction for culpability and attitude. For PCB violations, the penalty reductions
for voluntary disclosure are as follows:
Voluntary disclosure: 25%
Tmmedjate disclosure within
30 days of discovery AND takes
all required steps
Total 40%
The penalty reduction oilS pereent may be given to a company which reports the
potential violation to EM within 30 days of having reason to believe that they may be in
violation, and if the company takes all steps reonably apected or requcs$ed by EPA to mitigate
the violation, This includes ‘ iuiely submission of information necessary for EPA to ass s the
violation. Timely submission means within 30 days or a time period agreed upon by EPA and
the company. This reduction can be in addition to penalty reductions for environmental
apenditures above and beyond that required by the law. This reduction is only applicable to
companies which have voluntarily disclosed the violation and may be taken in addition to other
adjustments.
The rediwtlon for volimiaty disclosure and immediate 4i’ 4 oiiire may be made prior to
issuing the c14 cospls . 1 clvii complaint should state the original penalty and the reduced
penalty and for the reduction.
Cost d tie te thu Girsuwut
There mey be tw ns where it is neo usly for the Agency to mitigate the effects of
a violation, such the cleanup of a dangerous spill where the violator will net take timely action
or the violator is unbown at the ‘ i An adjustment factor not specified in the statute, but
which the Agency feela justice requires, is reimbursement to the government for funds apended
to in tipte, cleanup, or otherwise mitigate the effects of a violation.
Generally, the cleanup apeme of a violator is to be borne by the violator as a necessary
a of violation in addition to any civil penally assesact Where the government deems it
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19
necessaiy to undertake dean-up, the government could recover funds which it expended in an
adminjstrative proceeding under Section 16 of TSCA.
EcoaoipIc Beadt of Noacompilaice
The GBP is dc gned for deterrence and is effective where there is no overriding financial
incentive to violate the rules. In some cases the GBP may not be sufficient to deter in the face
of strong economic incentives to violate. Where a violation involves significant economic benefit,
the Agency will macas penalties that emove any benefit, subject to the statutoiy limitation of
$25,000 per day. This will be in addition to the GBP and any relevant adjustment factors.
Economic benefits can be gained by avoiding an expenditure. Economic benefita can also
be gained by delaying an expenditure, whereby the violator gains an economic benefit because
the firm, or nonprofit entity, earns a return on the money that should have been used for
compliance. An example of an avoided cost is a spill into witer, which may be impossibLe to
clean up. Delayed expenditures that could result in significant gm’ may include, but are not
limited to: failure to replace PCB Transformers or to install enhanced electrical protection;
leaving PCBs in storage for disposal longer than 1 year; failure to provide sk,quatc facilities for
storage; failure to make neceawy improvements to disposal facilities; failure to det2min2t
an area after a spill; and (allure to decontaminate or replace P onf2min2ted equipment in
unauthorized inc.
In applying the economic b n flt component, the Agency will use the most likely
presumptions and the beat information available to the case development team . For example 1
in a case where a finn p timinited equipment that is not authorized for use, the
Agency need not estimate the cost of deconI n’inRting the equipment or the eco mie value of
the equipment to the firm. Instead , the Agency may simply determine the cost of replacing the
subject equipment by contacting the equipment manufacturer, and calculate the benefit of the
— replacement co
Settlemeet Will Ceedidees
The Agency may a a civil pe for a violation of the PCB
regulations in mahenge for specific environmentally beneficial actions perfowed by the
- Ths asStI of a cass under terms which commit the respondent to perform
specified ac I p reducing a portion of the penalty is a ‘ Settlement with Conditions.”
I I
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20
Appendix A IJim the GEP Matrix to Find a PC8 Penalty
In order to determine a penalty for a specific PCB violation, the following steps should
be followed:
1) Determine the violation. If more than one violation is invohed, repeat the calculation
in steps 2 through 8 for each vioLation.
2) Find which level the violation fits on the circumstance axis of the GBP Matrix.
3) Calculate the total amount of PCB invohed in the violation. If there are several
matenala involved which fall into different concentration ranges, do a separate calculation
for each concentration.
4) Apply the concentration adjustment. Note the exoeptions to use of the concentration
adjusimait
5) If different concentration ranges are present, add up the figures from step 4.
6) Determine which tcnt categoty (Major, Siguificant, or Miner) ix applicable to the
amount from step 5.
7) Use the level from step 2 and the t nt from step 6 to locate the penalty on the GBP
Matrix (e.g., Level 3, Siguifl’int I $10,000).
8) Enter the amount from step 7 on line 1 of the Clvii Penalty M.eMment rksheet
attached to the ThCA Civil Penalty Policy. Use that werbhect to complete the
calculation of the penally accounting for factoia such se culpability, hixtory of vioLations,
economic benefit of ncneompllance etc.
Ezample: An inspection of Company X reveala that the following items are all stored for
dilposal in a room with ilnuoun curbing
Than —
8O pUoa tank of PCB liquid
All three espialters ate KB Large Capacitors with a volume of S pines each. One
transformer contaIns 300 pines, and ix tested at 700 ppm. The second tranafor contains ‘00
gallons, and ix an atkarel unit and therefore contains over 500 ppm PC . It ix leaking, and 70
square feet of co ese I contaminated. The &)0.pllon tank I not leaking and the liquid is
tested at ppm. The density of the fluid in the 300.pllon transformer and the 800jalIon
tank ix found to be 85 poun per gallon, and the density of the 500.gallon atkarel unit s 12
poun per p 0 o e .
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21
1) Determine the violations; these are disposal and storage. Because there are two
violations a calculation is needed for each.
Calculation for Disposal Violation
2) Find the “circumstances” level. This is level 1, for disposal.
3) Find the total amount involved. Since the leakage cont2minAted 70 square feet of
concrete, no calculation is required to find the extent. (Note: where the quantity of PCB
is known, the extent will always be based on weight in kilograms.)
4) Make concentration adjustment. No adjustment for alternative measure for solids.
5) Not applicable because spill was from a single source.
6) Determine ‘ent categcty 70 square feet of concrete (porous surface) is Si ri cant .
7) Find penalty from matris Level 1, Significant $17,000
8) Enter $17000 on line 1 of the workahect.
Calculation for Non-Disposal (Storaas Violation
2) Find “c l i cumetances” level. Major storage
3) Find total amount involved
(a) Over 500 pp
(i)M12lbs k
curbing) is level 2.
One 50 p&n ss&rmer
3capasitors x5pLes.—ISpUou.
500+ 15—Sl5pL
515 gaLa 12 1b.IpL - 6,l8Olbs .
(I) At 8.5 lbs l: One 300 .plloo trv fwmer
300gaLx8.5lbsJgaL —2,SSOths.
Subtotak6,l8Olk +2,555 lbs. 8,7301b..
8,730 1bs.x.4SlbsJlcg-3mkg
(b) Under 500 ppm (8.5 IbsJgaL only): One SOOgallon tank
Subtotal: gaL a 8.5 IbsJgaL — 6800 lbs.
6800lbs.x.4SlbsJtg —
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22
4) Make c itration adjustment.
(a) The transformers were both over 500 ppm, therefore there is no
adjustment. Total remains at 3.929 kg.
(b) The tankage was 200 ppm, which ii under 500 ppm, but more than 49.
Therefore, the quantity s reduced 30% as foUows
3,060 kg x (1.0. .30) — 2.142 kg
5) Md figures from step 4
3,929 kg + 2,142 kg - 6,071 kg
6) Determine tent category 6,071 kg - Major (non-disposal)
7) Find the penalty from the matr Level 2, Significant - $20,000
8) Md $20,000 to line I of the worksheet.
$17,000 ( disposal ) + $20,000 (storage) — $37,000.
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23
Appendix B ilathi Pronortional Penalti
The proportional penalty is used for continuing v olationa. It is calculated by muLtiplying
the quantity of PC involved by the number of days of the vrolation. The sum of the PCBs
times the duration is the basis for calculating the GB?. The proportional penalty is caLculated
in the following manner
1) Multiply the amount of PCBs involved in the violation (reduced by the concentration
adjustment) by the number of days the violation continued.
2) If the amount from step 1 is Less than or equal to t thn the Major extent category,
use this amount to determine the extent category and obtain a penaLty from the GB?
Matrix, If the amount from step 1 Is peeler than l times the Major extent category,
proceed to step 3.
3) Divide the total amount from step 1 by the Major extent category limit. Multiply the
result by the dollar amount in the Major category. This yiel the proportional penalty.
4) Divide the total penalty by the number of days involved. Enter this amount on Line I of
the TSCA Civil Penalty Auessment Worksheet.
Exam$es
(a) 5kgspillo(askarelontoconcrete. Spillwn’esnedupfcr30dayu.
1) 5 kg of askarel, no 000Qentratioo adjuatment
Skgx3odays— 150kg
2) 150 kg is l than t Hiui Major extent (Major • 125 kg). Therefore, penalty
i sfo r150kg(Major, l eveI1)—S2 ,
3) Not app1icsbl
4) $25,0OOdM mdby30da s-$833.33perday.
(b) 3lkgd d concrese. Spillw noielrsned uptor 3Odayi
1) 21 kg of no concentration adjuatment.
21kgz3Odayi • 600kg
2) 600kg i x more than t limes Major extent (125 kg). Therefore go to step 3.
3) ó00kgdMdedby l25k$a4.8
4.Sz$25,000 (Major, level 1) •
4) S 1*000 dMded by 30 days a $4,000 per day.
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24
Appendix C
Name of Respondent:
Address of Respondent:
Civil Penalty Assessment Worksh
7.
&
9.
10.
11.
[ 2.
13.
$__
$_____
$
$
$
$_____
$______
$______
$______
Note: tine 13 should be the proposed penalty for a given violation. The procedure is repeated
for each violation.
(1)
(2)
(3)
(4)
(5)
(6)
(7)
1.
2.
3.
S.
6.
Complaint LD. Number _________
Date Complaint Issued: __________
Date Aas er Received: __________
Date Default Order Sent: __________
Date Consent Agreement Signed:
Date Final Order Sent: __________
Dale Remittance Received: __________
Gravity B cd Penalty (GBP) from matrix:
Percent increase or decrease for culpability:
Percent increase for violation history
Md lines2 and 3:
Multiply GB? by percentage total on Line 4:
Md linas 1 and S (subtract Line S from line I
if negative erceatage):
Enter tIne 6 amount or $23,0OO whichever
Multiply U n . 7 by the number of days or violstlom
Government clesn.up caste, if any:
Ecaaa s om xn .compUsnce, if appropriate:
- S
Total of as j atice may reqwre
Md (or subtract) line 12 to (from) line 11:
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Federal Register I Vol. 55 , No. 7: I Friday, April13. 1900 1 NotIces
13933
Written comments may be submitted
to the person above by thirty (30) days
from date of publication.
Joe R. F’- the..
AcSzng Aegio o!Adnthilsbvtor. US £PA—
Reg:on I V
FR Dec. 904635 FIled 4-12-9 145 am
•ti ipis coes
Proposed Settlement; Jones
Chemicals, Inc.
&oiucv: U.S. Eiwlror.ntectal Protection
Agency.
*c’no.c Request for public comment .
SUMUASY In accordance with the
requirements of section 12 (l)(1) of the
Comprehensive Environmental
Response. Compensation, and Uability
Act, as amended (“ CLA”), notice Is
hereby gwen of a proposed settlement
under section 122 (h) concernIng the
lone. Chemical. Inc. Site in Monon.
! diana. The proposed settlement
reqt1res Jones Cb.Iv Ii .lL Inc. to pay
3333.060,00. plus Interest. of the
3337. 542.37 In costa Incurred during U.S.
EPA’s removal action,
OAT! Comments must be provided on
or before May14. 1990.
aoouuum Comments should be
addressed to the U.S. Environmental
Protection Agency. Region V. 230 South
Dearborn Street Chicago. Illinois 6O6OL
and should refer to: In the Matter ofi
nes Chemicals, Inc.. Monon. Inili .
P05 V5ThU P I*?ION COIITACT
Laur e Donlon Adams, U.S. EPA, Once
ef Regional Counsel. 3C3-TUB-$. 230
South Dearborn Street Chicago. I l linois
C ’0604. (312)989.0014
Notice of section 1 . 2 2 (h) Cost Recovery
Settlement In accordance with section
:22(IJ(1) of the Comprehensive
Environmental Rasponesh
C mpenudon, . LI4gft 1 Act of 1191.
as amended ( .A”J, notice I .
Saleby given th.toni7tlobir19, 1919a
ropned admlnlaesdspu” 1 1 —rt wee
agreed to by Jones Ai’ aI . Inc. Tb.
o;osed settlement reqeiree James
c: micaIa. Inc. to pay 133’ ’ L phi.
:r teresL of the 3357,t43.37 In cost.
i ured during U.S. EPA’s removal
ac:ion at ti Monon. Indiana. Site,
C S. E?. is entering u to this
a :ee nent under the authority of
sections 122(h) and 107 of CERCLA.
tie:tion 1 22(h) avthor.zes ad”inistrative
set t ement of a claim under section 107
where total response coils incurred by
United States of the facs ily
concerned do not exceed $500000
(e cItading Interest). .snei Chemicals.
hc. signed the l 2(h) Consent
Agreement on October 20.1089 and U.S.
EPA signed on February 9. 1990. Under
the terms of the Consent Agreement,
Jones Chemicals. Inc. will pay 550.000
thIrty (30) days following the entering of
the Consent Agreement and the
remaining 3283.000.00 plus interest in
fifteen (15) equal monthly installments
on the first day of each month.
beginning on the first d.y of the second
full calendar month alter the entering of
the Consent Agreement. Eased on
current interest rates. these 15 monthly
payments will be $20000 each.
The Environmental Protection Agency
will receive, for a period of thIrty (30)
days from the date of this publication.
comments relating to the proposed
settlement agreement.
A copy of the proposed administradve
settlement agreement may be obtained
In person or by mall from the Office of
Regional Counsel. U.S. Environmental
Protection Agency, Region V. 230 South
Dearborn Street. Chicago. IllinoIs 60604.
Additional background information
relating to the settlemsnt is available for
review at this address.
Aathes4t i The Compiel..ns&ve
Eanronmeetal Rispouss. Compensation, sad
Liability Act. as amended. C U.S.C. 8001.1
Dei.d March29. 1030.
Funk M. Covioglee,
Agdr gR oaroJAdn,jni.buz r.
[ FR Dcc. 10.803* Flied 4-i2-6 &45 am)
coer
(OPT$.I1000I; FRL—374O. . I
N! va Wtyol
Environmental Protection
Agency (EPA).
a uu . Notice of . vailabili!y.
0UM1 ’ This notice announces he
availability of the Pulyckionnated
Blphsnyls Penaity Policy Policy). The
Policy U an EPA e f cem . nt document
for determining cv:i per ..i cs er
vtolatlcns of the T3 ’d .t .tanc3s
Control Act (TSCAJ a i 40 CFR part
701. It supersede, the PCB Penalty
Poilcy published in the Federal Register
of September 10.1980.
Acomesamer Persos ‘r .teres!eJ in
receivu ga copy c i the Pu:ic sbou!d
cont3c Environmental Aiitstan:a
Division (TS—7gtfl. Enviroanernal
Protection Agency, .401 M St. SW.,
%Vaah:ngtun, DC 23160. (. C) 531-140.1.
CR V5ThIR IIIFOnMATION CCNTAC?
Michael M. StahL Direc or.
Environmental Assistance Division (1’S-
709). Environmental Pr’tection Agency.
Pm. E .$439. 401M $L SW..
Washington. DC 20460, (202) 5!4—1404
and 11)0 (202) 354-0551.
IUPPI.IMIIITARY lN?ORMATION: On
March 10. 1960. EPA issued interim
guidance for the determination of
penalties for violations of the
Polychiorinated Biphenyls (PCB) rules.
That interim policy was published ira the
Federal Register of September 10. 1980
(45 FR sg7ra), with a statement that the
Agency would review its experience
with the policy before iss’ñng a final
penalty policy.
Since developing the Much 13. 1980
interim guidance. numerous PC3
regulations have been promulgated.
Amendments. interpretations, and
revisions to the Interim guidance aave
also been devaloped. The revised PoUcy
is intended to incorporate the
enforcement-related provisions of all
PCB rules and policy revisfor to date.
including the Notification and
Manifesting Rule. The Policy is effective
as of AprIl 9,19* and will be used to
calculate penalties In all a biiini.trative
actions concerning PCBs Issued after the
date of the Policy, regardless of the date
of the violation.
The Policy implements a systeni for
determining penalties an adntirais:retrie
civil action, brought pursuant to secton
16 of TSCA. Penalties are determined an
two stagem (1) determInation of a
“gravity based penalty” (Gap), and (2)
adjustments to the GBP.
To determine the CEP. the followw.g
factors affecting a violation’s gravity a e
considered the nature of the violation,
the extent of environmental harm that
could result from the violation. and ti e
clrvunthtances of the violation, These
factors are Incorporated In a matr’.x
which allows determination of the
appropriate proposed GEP.
Once the GBP has been determined.
upward or downward adtustments to
the proposed penalty amount may be
made In consideration of other factcrs.
either before issuance of a civil
administrative complaint. or dur i3
settlement negotiations. thcludi g
culpability, history of such v’ula’: — .
abilky to psy and to continue in
business. mad other mitten as jus ::e
may requ e. -The revised ?olicy
updates the Circumstance sect:3n cf ‘:e
policy (where all posai le vaola . : e
ranked according to pr ca ii:’y
causiI $ harm), end sets en’ ra.) i er
penalties by (1) raisin; the C rc_i :.3- e
level for certain types of v’oiatzons. I
reducing the threshold le els ci PCSs for
the Minor, S.grilflcant, or Major Cx’i r
levels in the penalty matrix, and (31
assessing penalties for each vio atuon ul
the regulatory requirements of 40 CFR
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13958
Federal Register / Vol. 55. No. 72 / Friday. April 13. 1990 I Notices
part 761. Instead of for the broader
violation of Its subparts.
Higher penalties will also be assessed
for facilities that have more than one
location where violations exist. Under
the 1980 policy, each facility was
generally counted as a single location.
regardless of the number of violative
!ocatior’.s within that facility. The
revised Policy counts each separate
location within a facility separately.
Thus. if a facility has five sites with the
same vola lion, it will be assessed five
separate counts instead of one. Also. the
Policy adopts the Agency general policy
of assessing the economic benefit of
noncompliance. I.e.. a violator will not
pay a penalty that Is less than the
economic benefit of the violation.
Other sigeificant changes include a
refinement of what constitutes a
violator’s history of violations for
purposes of increasing penalties for
repeat violators; and penalties for
refusing entry of an EPA inspector after
proper notification has been provided to
the facility In accordance with TSCA
section 11. The Agency ii also. through
this Policy, providing an opportunity for
facilities to come into compliance by
substantially reducing penalties for
voluntary disclosure of violations.
Dated: April 9. 1990.
Caunis S. M.. .,.. ,
ACVI7g Director. Office of Compliance
Monitojrrtg. Offic, of Pesticides and Toxic
Substances.
(FR D c c. 904644 Filed 4-12-on 9.45 am)
5 1UJIS CCCI INS ND
(0PTS-4454 FRI. 37 2 8-il
TSCA CPiasnlc Tu1hs Receipt f
Test 0i
AG*NCY Egwironntental Protection
Agency (EPA).
A IP0 Notics.
su This notice announces the
receipt of test data on bis(2.
chiorosthoxy) msIIan. (CAS No. 111—
91-1). sad 1butyI phosphate (CAS 4o.
128.73.4) submItted pursuant to a final
test rut .. Test data was also received on
alkyl phthalates (CAS No.. 68515—42—4.
84-. 3—3 ad 88513—50.4) and triethylene
gl col mor.cmethyl moncethyl and
r ut’i e:her, (C. S Nos. 112—35.4.
IIZ-53—3 aid 143—22-6) pursuant toa
testing ccr.sent order. All test data were
submit!e under the Toxic Substances
Cor.trol Act (TSCA). Publication of this
notice is a ccmpliance with section 4W)
of TSCA.
os ,u.mga ØWORM*1ION corsracvt
Michael M. Stahl. Director.
Environment rI Assistance Division (TS—
799), Office of Toxic Substances.
Environmental Protection Agency. Rat.
E-5438, 401 M St.. SW.. Washington. DC
20480. (202) 554-1404. TDD (202) 554—
0551.
3U t.IMVSTAIY INPONSATIOIC Section
4(d) of TSCA requires EPA to publish a
notice in the Federal Register reporting
the receipt of test data submitted
pursuant to test rules promulgated under
section 4(a) within 15 days after it is
received. Under 40 CFR 790.60, all TSCA
section 4 consent orders must contain a
statement that results of testing
conducted pursuant to these testing
consent orders will be announced to the
public in accordance with section 4(d).
L Test Data Subml.,Iens
Test data for bis(2-chloroethoxy)
methane was submitted by Morton
International pursuant to a test rule at
40 CFR 799.5055. It was received by EPA
on January 30. 1990. The submission
describes a 90-day oral gavage study.
Subchronic toxicity testing Is required
by this test rule.
Test data for tributyl phosphate was
submitted by the Tributyl Phosphate
Task Force on behalf of the test
sponsors and pursuant to a test rule at
40 CFR 799.4380. It was received by EPA
on March 28. 1990. Th. submission
describes a skin sensitization study In
guinea pigs. Dermal sensItIzatIon testing
is required by this test rule. This
chemical I . used primarily In hydraulic
fluids and In the extraction process of
plutonium and other metals.
Test data for alkyt phthalates was
submitted by the Chsmic l
Manufacturers Association on behalf of
the test sponsors and pursuant to a
testing consent order at 40 CFR 798.3800.
It was received by EPA on March 28.
1990. The submissions describe the
analytical characterization of unlabelled
and ( C)-labelled phthalate esters for
dl(heptyl. noisy). undecyl) and dthexyl
phthalats. These tests are required by
this consent order. These chemicals are
used primarily as plasticizers.
Test data for triethylene glycol
mottomethyl. mortoethyl and monobutyl
ethe., was submitted by the Chemical
Manufacturers Association on behalf of
the yIcol ethers panel and pursuar.t to a
testing consent order at 40 CFR 799.5000.
It was received by EPA on March : 9.
1900. The sub.nissior.s describe the
evalua!.ori of triethylene glycol
monomethvl ether an: (1) The ames
assay. (2) the CHO/HGPRT forward
mutation assay and (3) the mouse bone
marrow micronucleus test. This, tests
are required under this consent order.
These chemicals are used primarily as
diluents for brake fluids.
EPA has initialed its revie
evaluation process for these
submissions. At tins time. th
unable to provide any deter
to the completeness of the a
II. Public Record
EPA has established a put
for this TSCA section 4(d) ri
data notice (docket number
44549). This record includes
studies reported in this notu
record is a’. aila’oe for inspe
am. to 4 p.m.. Monday throt
except legal holidays, in the
Public Docket Office. Rrn. N
M St.. SW.. Washington. DC
Authority: 13 U.S.C 2603.
Dated: April 4. 1990.
James 3. Willis.
.4 cling Director. Ex:st:ng Cherni
Assessment Dar,s,on. Office of
Substances.
(FR Dcc. 90-8357 F Iled 5-12-90;
mwun cool sun-tao
(FRL-37 53-8l
Public Water Supervision F
Program Revision for tha S
Rhode IslaM
su uaaY: Notice is hereby
the State of Rhode Island as
approved State Public Wale
Supervision Primacy Progra
Island has adopted (1) dnn1
regulations for eight volatile
chemicals that correspcnd
National Primary Drinking
Regulations for eight volatal
chemicals promulgated by I
8. 1987(52 FR 25690) and (2)
notice regulations that corn
revised EPA public notice ru
promulgated on October 18.
41534). EPA has determined
Iwo sets of State program ri
no less stringent than the cc
Federal regulatior.s. Thereic
tentatively decided o app:
State program revisions.
All interested part.es are
request a publ;c hear’r.9. A
public heari s: be sucr
May 14. 1990 ‘0 : e ior.3
Adman:s ra:: ’ :l’e a d:e
belcw. Fr: r . ‘s ..bst
requests for a ie2;ins -n I
the Regional . n.r.:s’:itor.
a substantial req e t f r a
hearngisrrudeb M_y ii.
public hear:rg U i e
and apprcpr :ate reqtcst fur
received and the Regcr.. l
does not elect to ld a
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RESPONSE TO COMMENTS
Multi 1. P.nalties -
‘ u]’ ‘ - w - —-‘ ses -t
M 1 1iO. tWi. . . . nearing. This will s.rain
Agency resources.
Response:
o The Agency will still consider the violator’s ability
to pay.
o The increased penalties should increase the compliance
rate, thereby reducing the number of cases.
o Region’s have the discretion to issue MOMS for Levels
4, 5, and 6, thereby saving enforcement resources for
more serious violations.
2. The size of the penalty doesn’t make a difference, and
networking is sufficient to ensurs communication of
penalties from a violator to others in the community.
Response:
o The low complianc, rate indicates that violators are
not deterred by the current penalties.
o Higher penalties will likely mean more publicity,
thereby increasing the regulated community’s interest
in compliance.
o There will be a significant movement away from use of
PCBI to disposal b.causs of the new regulations.
Multiple violations of storage and disposal
requirements may be found at larger firms that are in
the PCB business. Larger penalties will be needed to
deter violations.
3. Tbs Policy should not set specific standards or distances
for determining what is a separate location for purposes
of multiple penalty assessments; that should be decided by
the inspector.
Response:
— 11• w -
s s teu to alleviate am .LguA , c.aure
separate counts for separate locations at risk, and
achieve better uniformity throughout the country. The
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Enforcement Committee decided that a separate
location/separate risk is a separate building, separa€e
room , or if in a large room or outside, more than 100
feet away.
u Iz ..ectoz d c tion i.s ctilowed. if in the
inspector’s judgement the policy doesn’t describe a
“separate risk” for that location and violation, the
inspector may use judg.ment to dst.rmins separate
location.. An exampl. is given in the guidance
document.
4. import and export violations are similar to manufacturing
and disposal, respectively, and should therefore be moved
from level 2 to level 1.
Response:
Agr.ed. Th. policy was changed to reflect this comment.
5. For storag. violations, use Level 3 for non -commercial
storer’s, and Level 1 for commercial storers.
Response:
All violation, of storage requirement. (curbing, floor,
etc.) should be the same regardless of the status of the
violator; commercial storers will be assessed higher
penalties because there will likely be more locations and
greater extent.
6 • Because physical storage violations can release PCB into the
environment, move major storage from Level 3 to Level 2.
Response:
Agreed. Thu will also make penalties for physical storage
violations one level higher than recordkeeping violations.
7. Inclm 5 lat registration” in level 4, minor use.
Resp s
Failure to register with the fire department or building
owners will be kept at lmvel 2. The A’,r—v considers such
— -. 1 -4’
no reduce pena.ities for violators whose attention to this
matter is lax.
8. Storage of all combustibles near transformers should be
level 2.
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Response:
Tb. Agency recognizes that combustible organic liquids, such
as solvents or fuels, are far more hazardous than wood.
- r” ” ‘, ar : . e I
v_. .atLon. .Lt 1.5 - copriate to dist .&gu1.sh these two
very different levels of risk in the policy.
9. Remove “Significant Marking.” Two levels of Marking (major
and minor) ar. enough.
Response:
Agreed. Failure to mark will be major, minor will be
applied where labels don’t conform to the requirements, or
are obscured, damaged, etc.
10. Recordkeeping penalties for notification and manifesting at
storage facilities should be the same as ether storage
records.
Response:
They are (Level 3). However, complete failure to manifest
or making major manifesting errors is more serious than
failure to keep otherwis. legitimate manifests, and is
therefore Level 1.
11. While false manifesting indicates willful violation, and
should be Level 1, failure to manifest should be Level 2,
not level 1.
Response:
From the Agency’s standpoint, false manifesting and failure
to manifest have the same result: no manifest. Level 1
should apply to ensure the highest possible penalty for
violating this important rule.
12. A generator failing to notify under the Notification and
Manifesting Rule should not be Level 1. That’s a high
penalty for ignorance of the Rule.
o The Rule requires that generators with PCB storage
areas notify EPA, and that they us. the g.’eric Agency
;er
. 1 n.. a s ic ID issued. Otherwise, a
transporter who complies with the Rule won’t accept his
waste. Therefore, failure to notify will likely be a
deliberate violation.
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a Notification is a vital part of the Agency’s tracking
system, and should be penalized on par with other major
manifest violations.
- , — - ti..aS O .
art and sfloul be reserved for extent and the TSCA civil
penalty matrix. Us. synonyms for these adjectives when
describing circumstances (e.g. major marking, minor
storage).
Response:
The adjectives “major, significant, and ainor are always
used in the context of either extent or circumstance., so
there is no question what they mean • As such, the Agency
has become accustomed to using them; using their synonyms
would cause at least some temporary confusion. More
importantly, the adjectives’ location on the TSCA matrix
gives them a quantitative relationship which makes them
useful for expressing the seriousness of violations under
the circumstance levels. For example, what would he the
relationship between ‘substantial, important, and
insubstantial’ or ‘chief, important, and small?’ One might
argue that the Agency shouldn’t penalize for ‘insubstantial’
violations, or that ‘chief’ is close in meaning to
“important.’ The adjective ‘minor,’ on the other hand,
doesn’t mean ‘insubstantial’ because it connotes that some
penalty is justified; similarly, ‘significant,’ although
considered a synonym of ‘major,’ is clearly not an equal. in
the context of the Policy.
14. No policy should require penalties for refusing to allow
entry of an inspector. Adjust the penalty upward 15% for
bad attitude.
Response:
It is a violation of TSC& Section 11 to refuse entry of an
inspector. Doing so could allow the violator to remove PCB
violations whils the Agency seeks a warrant.
The psliay provides guidance to ensure the Agency’ s conduct
is within legal requirements (including notification of
inspection) for assessing penalties, and discusses how to
determine whether the extent is minor, significant, or
major. No penalty can be issued for refusing surprise
insoectie ’-
. Why not inalizs for refusal to supply documents requested
in a subpoena?
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Response:
Although TSCA Section 11. requires a respondent to supply
such documents, the delay caused by refusal does not
,, ter1*11v affect th vjo’ ‘Ion. ‘ er or . ‘-“p- -‘ cur-
u t.. :ely c 1 . .. .. ed b 4 acy,
can be adequately considered under the adjustment for
attitude.
16. The extent for disposal should be based on the amount of
debris actually generated by cleanup, not on an estimate
made at the time of inspection.
Response:
While knowing the actual amount would give the Agency better
figures for extent, it may reduce th. incentive to clean up
completsly. Verifying the quantity would also be
troublesome. Using estimates derived at the time of
inspection should provide an adequate basis for penalties.
17, The extent for disposal should not have different square
footages for diff.rent surfaces. Use one figure like the
old policy. The risk is the same regardless of surface, and
it’s simpler.
Response:
The extent quantities are selected to encourage compliance
and to create a fair basis for assessing penalties. Since
each surface has different cleanup costs, each surface will
require different penalties to encourage compliance.
Further, while the risk may be the same, the Agency will
still be increasing penalties in general becaus the lowest
extent, which is 625 square feet for non-porous surfaces, is
still 125 square feet less than the old policy.
18. For disposal onto soil, increasing gallonage may not
necessarily correspond to increasing cubic footage of
contamination.
—3
True. In fact, on uneven terrain, especially if the soil is
saturated with water, PCB5 could remain puddled on the
surf-- ‘ a tone t’— duci -
—. . - these re . sea o
the results of a Southern California Edison study suggesting
that, when sot] is dry and level, 1 gallon of PCBs will
contaminate 16 cubic feet of soil. Using this assumption
results in a maximum figure: there is no justification for
using a lesser figure to benefit violators.
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19. The following quantities for minor extent, disposal, were.
suggested in the comments.
lega than:
-- - 30.U.)
30 sq. ft. (porous surface)
100 sq. ft. (non—porous surface)
Response:
Five gallons should contaminate more than 10 square feet of
soil, 30 square feet of concrete, and 100 square feet of
tile or steel. The policy’s figures, which are 60, 20, and
625 sq. ft., respectively, are based on ths Southern
California Edison study and some unpublished EPA analysis
done in preparation for the Spill Cleanup Policy. The
figures should reflect at least a rough relationship between
gallons spilled and area contaminated.
20. The disposal extents should use Spill Cleanup Policy
terminology, i.e., use the term “porous” instead of
“concrete •“ Similar consistency should be made by changing
the depth of soil assumption for spills from 12 to 10
inches.
Response:
Agreed. The change has been made.
21. Why not have a piece count for disposed equipment where
cubic feet is not available, such as disposal of capacitors
in a municipal landfill?
Response:
o In the event that PCI Articles are known to be
improperly disposed, then it should be possible to get
a description of those Articles. Assumptions could
then be made about the y.jg of PCI within those
Articles, and the extent could be calculated.
o U information about the size of the Articles is not
a ailable then the Region has at least two options;
(1) assume a size for penalty purposes, and (2)
encourag, the violator to remove the improperly
disposed Articles before settlement.
- .. e - _hlg o QL-alneQ an zormei
equal the penalty for a spill the size of a quarter?
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Response:
Assuming that the drained transformer is less than 60 cubic
c- P (reugP’’ a qal -- orr h i..
• .. , - . ...Lty may øe - rent, d .aus
adjustments are made for culpability and other factors. A
quarter—size spill can happen even when one is in compliance
with the regulations, while improper disposal of a
transformer carcass is a violative act that may be willful,
or may have a significant economic benefit component. 0CM
notes that with only thre. levels of extent, and a wide
range of possible quantities of improper disposal, each
extent level must have a fairly wids range.
Ability to Pay
23. ABEL involves a great deal of time and resources. Who runs
ABEL wnen we need it dons?
Response:
ABEL is a relatively simple program to operate and requires
little training or input time. Mr. Jonathan Libb.r, OECM
Office of Compliance Analysis and Program Operation., is
scheduling ABEL training sessions for Regional personnel.
He can be reached at FTS 475-8777.
24. If the 4% rule is a valid accounting principle, we should
keep it as our sole method of calculating ability to pay.
Response:
The 4% rule is a rul. of thumb developed in practice by the
Agency. It is a rough assessment of ability to pay, not a
true indication for every case. Until the Regions are
comfortable with ABEL, the 4% rule will provide sufficient
guidance.
25. The Policy should specify procedures for dealing with
munic plities, universities, cooperatives, charities, and
other ass-prof it entities.
Rssp s
There is an Agency-wide effort to devise a policy for
ass.ssing the ability of non-profit organizations to pay.
. ‘owev- -.
i o Tn. problem is not simple
because non—profit organizations vary substantially in their
ability to pay and their’ capacities for penalty mitigation
such as environmentally beneficial expenditures. As in the
past, the case development team will have to make a
judgement on a case by case basis until a uniform Agency
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policy is established.
Economic Ien.f it of Nonco Dlianc .
Tb” ‘ 1e re a’P ‘ ec - - - -
- ..i& pLevenL ng t settl iaent ot
cases that could otherwise be resolved.
Response:
Assessing the economic benefit of noncompliance should be
neither time consuming nor complex. The Agency will, in
addition to the Gravity Based Penalty, include in its
proposed penalty any benefit the violator gained from
noncompliance where the benefit would otherwis. exceed the
penalty. Net all violations result in such economic
benefits, therefore it will not be necessary to calculate
the economic benefit for every case. Also, the Agency’s
consideration iill be limited to situations where the
benef it is reasonably apparent, and can be calculated using
BEN. BEN training will be provided by Mr. Libber in
addition to ABEL training (See 23).
Voluntary Disclosure
‘3..
27. Forty percent is not much incentive to disclose. The
percentage should be increased.
Response:
o Add 15% for attitude and you have a 55% reduction.
With an additional 25% for Level 3 Culpability, that is
an 80% reduction.
o Some recent voluntary disclosures have been the result
of corporate sales of assets where the buyer requires a
guarantee of compliance • The Agency wants to encourage
disclosure in such cases.
Proportional Penalty
28. Props tiosa1 penalties should be used for continuing
vielatioss, per-day should be used for repeat violations.
—I
Agreed. For example, disposal is a single violation per act
-‘a disr .’l. nd I- ‘- - I a i er— -” baui ’ ‘ t
— - .. e .. .. ‘-. .. . . . o .
disposal until cleaned up, a proportional calculation is
also appropriate. The policy contains a disposal example
for proportional penalties.
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CulDability
29. Level I culpability should be “willful,” not “knowledge and
cnntrOl.N Thr 1 ’ r ‘ould ? r lv
- - J CA
penalty guideline..
Response:
Agr..d. As an adjustment factor, Level I culpability should
apply to the violator who willfully violates the
regulations, not simply to violators who had knowledg, of
the regulations and control over the violation. The
distinction is that the willful violator is fully aware of
the violative condition and choose. not to act in accordance
with the regulation.. A violator who had knowl.dg. and
control may, through inattention, violate the regulations.
OC X believes that the 1 BP, as adjusted by other factors such
as attitude and history, adequately penalizes violators who
had knovl.dg. and control without upwardly adjusting the
penalty.
History of Violation .
30. The Agency should not be limited to the past f iv. years when
considering the violator’s history.
Response:
Ths 1980 TSC civil penalty guidelines state that the
Agency’s consideration of the violator’s history should be
limited to the past five years because beyond that, “the
prior violative conduct becomes too distant to require
compounding of the penalty for the present violation.”
While it be argued that f iv. years is arbitrary, it ii
generally consistent vith other agency determinations. As a
general matter, five years is reasonable; however, the
rationale that beyond that, the “violative conduct becomes
too distant,” has been deleted from the policy.
31. The adjustment of 15% for attitude does not go far enough.
Increame it to 40%, using a combination of 10% for
cooperation, and 30% for completeness/promptness of
cor!e’ 4 nq th. - ‘1at 1 - -‘‘ “. ii—- eh “ h’
pp.’I ‘ ‘-—-
Response:
One goal of this penalty policy is to move the regulated
co unity to greater compliance, and to offer an “incsntive”
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to self disclose. The Agency believes that a violator who
suddenly becones contrite after being discovsred in -
violation is not deserving of a 40% reduction in penalties.
By tightening the reductions allowed for good attitude and
4— - 4,-— .. ,e -.- -
-. . s t ..e ... tn ..
action. Further, one of the Agency’s objectives with the
revised policy is to gain greater consistency among the
Regions. A 40% adjustment for these factors could cause
substantial Regional differences in penalties for sinilar
violations.
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HIGHLIGHTS OF THE PCB PENALTY POLICY
cfr
1. MultiDla Penalties
e . k .... -
slHgLe act to register PCB transformers with the fire
department or adjacent building owners, therefore it is one
count regardless of the number of transformer locations.
o A separate count for each violation of the regulations,
regardless of cat.gories.
o A separate count for each quarterly inspection, with the
limitation of assessing up to 4 missed inspections or a cap
of $250,000, whichever is less.
o A separate count for each annual document missed over the last
3 years, and one count fc r all, documents missed from year 4
and beyond (possible total of 4 counts).
o Penalties will be assessed for each location that presents a
separate and distinct risk. Separate locations are:
- separate buildings and separate rooms.
- at least 100 feet away in large rooms or outside.
The EPA inspector shall determin, whether a particular
location is separate based on the above, and may consider
other factors relevant to the risk associated with the site.
2.
Minor Non-Disposal Violations
Less than:
1,200 kg
220 gal
50 1g. capacitors
15 55 ga11 drums (solids)
5 Drained snsforasrs
Minor Disposal Violations
Less than:
25kg
Sgal
50 1g. capacitors
sq. ft. 625 (non-porous)
60 (soil)
20 (porous)
Cu. ft. 60 (all materials)
Note: Extent for Significant and Major non-disposal and disposal
violations increases in P • ratio ‘q 1QRO p&ic ”
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3, Circumstances
Level 1. Major Disposal (includes export)
Manufactu’jna ( “1P1e! “ or ’
. den.
Major Manifesting
- failure to notify
- falls information in storage application
failure to manifest, false manifesting (as opposed
to clerical errors)
storage without approval
Refusal to Permit Entry
Level 2. Processing PCB
Distribution in Commerce
Unauthorized Use or Violation of Use Condition
Major Marking
Major Storage
Level 3. No Records, Major Recordkeeping (disposal and commercial
storage facilities)
Minor Disposal
Minor Manifesting (failure to submit annual
documents/exception reports)
Level 4 • No Records, Major Recordke.ping (use and non-commercial
storag. facilities)
Minor Storage
storage in excess of 1 year (including failure to
date PCS5 in storage)
small cracks in wall, floor, or curbing
- failure to prepare visual inspection reports where
majority were done
Minor Use
failure to provide complete transformer registration
- failure to complete all transformer inspections
where majority were done
- failure to remove combustible materials other than
organic solvents/fuels
Level S. Minor Marking
Level 6. Minor Rscordkeeping
Minor Manifesting
Failure to Label Nib PCB5
4 %I
o Up to 40% reduction for voluntary disclosure
o Regional discretion to use NON5 for Levels 4, 5, and 6
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GUIDA - , opr c, v- i -. f5 ‘‘ ‘y ,r ‘ T (c r _ .
. L)EK L , i L LL AL.L Y PLIL.I JL
Whea to asia Notice. of Nosro.pHaace (NON.)
At the Agency’s discretion, NON. may be issued for where the only violations are
of circumetance levels 4,5, and 6. NON. will not be haued hi eases insvlving violations of levels
1,2, or 3. In determining whether or not to issue a NON, the Agency will take into ac unt
the seriousness of the violation, the sum of the potential penalty, the violator’s history, and other
matters relating to the efficacy of the NON in obtaining compliance and deterring future
violations
liapsctor Dlaaedos, Maltiple Locations
The guidelines in the PCB Penalty Policy for determining a ‘separate location’ shall be
followed, with the eaception that the Agency inspector bas the discretion to determine otherwise
based on whether a location actually constitutes a separate risk, or a separate location for
purposes of compliance. For ‘ mp1e, the access to a PCB Transformer location must be
marked. If in a large room there are t PCB Transformers more than 100 feet apart, but
only one door to the room , the inspector may determine that, even though the guidelines call
for twe separate locations, the failure to mark the access is a single count.
Abliltyto Pay
There are three methode that EPA can use to determine a violator’s ability to pay,
depending on the specifies of the ur a detailed tax, and fin r ial analysis; a cap
of four p eat of a age grom annual sales or ABEL (a computer model) . The latter t are
described below.
Four eaut of MI ‘ - The average gross income ( from g sources of revenue) for the
current year three years will be calculated. Even where the net income is negative,
four percent pom ouar wID be used as the ‘ability to continue in business/ability to pay”
criteria, e with a positive gross income will be presumed to have sufficient cash
flow to pay p a - - - where there have been net kim ’s For corporations, EPA will
consider revenues from the total corporate entity in its deter”in on of ability to pay/ability to
continue in business.
There may be some eases where a respondent argues that it cannot afford to pay the
proposed civil penalty even though the penalty as adjusted does not “ red four percent of gross
sales. In such cues , EPA may consider a delayed payment schedule or a ‘Settlement with
Conditions’ agreement. In aceptional circumstances, EPA may also consider further adjustment
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2
below four pet snt of a company’s gross annual revenue.
‘D T r in : .. -, , r •
- ilty to .iy. The UOi i uaSed On tie strength of thtcrna , -generateo cash
flows. The program uses standard financial ratios to evaluate a violator’s ability to borrow money
and pay current and long-term operating capet ei . ABEL also projects the probable availability
of future internally-generated cash flows to evaluate some of a violator’s options for paying a civil
penalty. Because the program only focuses on a violator’s cash flow, there see other sources of
revenue that should also be considered to determine if a firm a unable to pay the full penalty.
These include:
o certificates of deposit, money market funda, or other liquid assets.
o reduction in business apemes such as advertising entertainment, or
compensation of corporate officers.
o sale or mortgage of non-liquid assets such as company cars, aircraft, or land.
In assessing penalties, TSCA directs EPA to ‘take into account” a violator’s ability to pay
and to continue in busiri , and the Agency will normally r’rdu e the penalty accordingly.
Nevertheless, it is important that the regulated community not see the violation of TSCA or the
PCB regulations as a way of aiding financially troubled businesses. 1 Agency reserves the
option, in appropriate circumstances, of seeking a penalty that migl’t cause bankruptcy or put
the company out of busin.
To ensure full and consistent consideration of penalties that may cause bankruptcy or
closure of a business , the Regions shill consult with the Office of Compliance Monitoring before
the de made to proce oa hearing.
Eammosk Bsssflt of Noos.pIla.os
The economic benefit of a violation is added to the GB? when the penalty would
otherwise net mooed the beoe& To calculate the economic benefit of delayed cos the Agency
will first desermine the - of money involved, and then apply BEN, an Agency computer
modeL to d —- the bc t to the violator. The modal tans discounting techniques to
calculate she st pwsnet veins of on-time and delayed espenditures, and subtracts the delayed
compliance cast boos th on-time cost to derive the benefit to the violator. Generally, the
benefit is calculated m m m i the time between the actual or estimae id date of the violation, and
the actual or estimated date the violation a corrected. For avoided cos such for disposal
into water, the c ’ -’Iatioe will be bas.ai c n ‘h es’imafr’ 1 ‘nit of ‘aw -d den L takini intn
... a . J1dC 4 a.e.. cwcCfl ttIC dLnatcd u a .wa da.c ot c u- * .
and the estimated date of payment of the civil penalty.
Obviously, atessing the benefit component requires a commitm it of the Agency’s
rmour . Therefore, the case development teant has the discretion not to seek the benefit
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3
component where It appears that the amount is likely to be less than $10,000, or the benefit
component would be small relative to the GBP. Furthermore, the Agency need not delve into
-, ‘ ,flfl i( 0 - - r ,t ief’ - -
preL u . Lu . UUC some minor cost factors or to u SC conser uve assumptions. k -iowevcr, in
no case should the total penalty be less than the economic benefit to the violator.
To determine the base economic benefit involved in the violation, the Agency will contact
knowledgeable sources of cost information. For esample, if dredgfr g required to
decontaminate a body of water after a spill, the U.S. Army Corps of Engineers may be consulted
to estimate the cost of dreilging For on-land disposal violations, 1eanup contractors can be
consulted to estimate costs. Similarly, standard estimates should be available from manufacturers
or contractors for installation of eith, ri ed electrical protection, or for replacing transformers or
contaminated equipment in unauthorized use.
Settlement wftk Copdltlou (SWC)
The Agency may choose to reduce a civil penalty assemed for a violation of the PCB
regulations in enchange for specific environmentally beneficial actions _____ by the
respondent. The settlement of a case under terma which commit the respondent to perform
specified acts in eachange for reducing the penalty a “ Settlement with Conditions’ (SWC).
Under a SWC agreement, the violator agrees to take tensive and specific actions, such
as pollo cn prevention projects, rik co iunicidon, remedying ground water hazarth, clean-
up operations, training , etc, in enchange fo the a reduction in the amount of the proposed civil
penalty. These actions mint f 4 those normally espected under the circunW.w g g are
only to be cum dered in the corn of settlement negotiations. Actions in ea of those
required to correct the violation for which the violator was charged, and actions in esceu of
those already required by Federal/Statellocal laws, must be . k fl within a specific time period,
and will be strictly monitored by the Agency (or the Agency’s dmignec). If EPA It not satisfied
that the conditions of the agreement have been met at the end of the term, the full amount of
the proposed penalty, or the penalty abeent the reduction for______ conditions, is due.
A c.h penally must always be collected from the violator regardlem of the value of the
SWC activities wib the rings of penally o et for environmentally beneficial eapenditurca of 1:2
to 1:7 or moi ,d, EPA muss not r the amount of the civil penalty by more than the
after-ta .mo violator spende on the project Calculation of the net present after tax
value of the S &iMiles It necemazy to ensure that the violator cannot o et the cost of the
SWC a Mdes m* income ten deductions (the Agency’s BEN model may be used to
calculste net present after ten value of an SWC).
1. CriterIa *w Cbonslag en SWC
Settlements with Conditions should be employed with some restraint. SWCa should not
be used in a fn nncr which encourages people to violate the PCB regulations until they arc
discovered and then offer to correct actions in hope of a penalty reduction. All SWCs must
describe actions which go beyond correction of violations, The guidelines for implementing a
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4
SWC are — follows.
o The vinlations dn nr t videncewantc n w ’ ‘ wil ”’ - ard fnr
o To remedy harm from a violation, the facility or person may need to plan activities
that require a number of steps over time ;
o The violator has ahibited a goodfaith attitude toward solving the noncompliance;
o The settlement conditions provide clear benefits to the environment or human
health.
2. Penalty Psymeat
Under the Mimellaneous Receipts Act, 31 U.S 1 C Section 3302, once money is due and
owing the United Slates _____I, it must be paid in full. Therefore, the consent agreement
and consent order (CACO) containing SWCs will clearly state that the penalty a due and owing
at the time the CACO a signed. The CACO will contain (1) the specific conditions and
absolute dates for completion of actMties, (2) the entire proposed penalty bmed on the penalty
policy, absent the adjustments, (3) the amount of the reduction for completing the conditions,
and (4) a ssa’ement that the entire proposed penalty a due and owing if the respondent fails to
comply with the tcnns of the CACO.
If the respondent faila to adhere to the conditions of the SWC, the entire penalty a due
and payable within 60 days. If the respondent refuses to pay, the EPA shall iefer the action to
the Department of Justice for collection.
3. Rsfaspsctlo. and Addldsul Esforoseat Adios
Once the Reijon determin that the SWC h i been violated and so notifies the
respondent, EPA should relapses the facility to doc ii,n* additional violations. When
considering additional enforcement actions in response to violations ditcovered upon reinapection,
the Region may give wi $tiOfl to pursuing injunctive action. Clearly, in cans of serious
violations w s , L f ntive enforcement action cannot be apected to achieve compliance,
an injunction may be she duireble enforcement response.
4 daSWC
The Agency la mirnng the procedures for issuing SWC agreements and the necessary
contents of those agreements. Regions will be able to refer to these procedures when final
gu ; avRil&”’ - T- i . !i1 .y T -
(A) a con 4 a3nt and (2) a Cr1 J containing
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POLYCHLORINATED BIPHENYLS (PCB) PENALTY POLICY
UiI 4 S * s Ei Iros.eiIaI
April 9, 199S
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POLYCHLORINATED BIPHENYLS (PCB) PENALTY POLICY
Pate
Introduction 1
Explanation of the Policy 2
Nature 2
Extent 3
Clunistances 9
Penalty M.Aument for Multiple Violations 12
Continuing or Repeat VIOIatIOas 13
Mjtating the Gravity Based Penalty 14
Culpability 15
Hitory of Prior Violations 15
Ability to Continue in Bialneas 16
Other Factors Justice May Require 17
Attitude 17
Voluntary D clomirs 18
Cost of Violation to the O rnment 18
Econoaiic Benath of Non.Complisnce 19
Set”r ” W%th adk1oes 19
Appendle A. t the Gravity Based Penalty Matrix 20
Appendix B. lstht Proportional Penalties 23
Appendix C ISCA Clvii Penalty Workaheet 24
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PCB PENALlY POLICY
INTRODUCTION
Backgroud
In 1980, the Environmental Protection Agency (EPA) issued interim guidance for the
determination of penalties for violations of the Polychiorinated Biphenyls (PCB) rules. That
interim policy was published in the Federal Register on September 10, 1980, with a statement
that the Agency uld review its cipenence with the policy before issuing a final penalty policy.
Since developing the 1980 interim guidance, numerou PCB regulations have been
promulgated, including but not limited to regulations for nc in closed and controlled waste
manufacturing proce es, varioue i e authorizations, incidental generation, regulations to address
fires involving PC! electrical equipment, and the notification and nwiifesting of PCB waste
activities. Amendments, interpretations and revisions to the interim guidance have aiso been
developed. This revised penalty policy is intended to incorporate the enforcement.related
provisions of all PC! rules and policy revisions to date, including the Notification and
Manifesting Rule, and all future applicable rules.
The purpose of this PC! Penalty Policy is to ensure that penalties for violations of the
varioia PC! regulations are fair, uniform, and consistent, and that persons will be deterred from
committing PCB violations. This policy is immediately applicable and will be imed to calculate
penalties in all a Imiithtrathe actions concerning PC!. issued after the date of this policy,
regardless of the date of the violation.
This policy implements a s isem for determining penalties in administrative civil actions
brought pursuant to Sectica 16 of the Toxic Substances Control Act (TSCA). Penalties are
determined a t ats (1) 4rtjP mination of a ‘gravity Liwd penalty (GBP), and (2)
adjtatmeets to the gravity b..d penalty.
To d.4.tuL the gravity bssed penalty, the following factors affecting a violation’s gravity
are coimidereth
o the ‘nature” of the violation,
o . the ‘ ent ’ of potential or actual environmental harm from a given violation, and
o the ‘circwasances” of the violation.
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These f.cton are incorporated in a matrix which allows determination of the appropriate
proposed GBP.
Once the GBP h been determined, upward or downward adjustments to the proposed
penalty amount may be made in consideration of these other factors, either before issuance of
a civil administrative complaint, or during settlement negotiations:
o culpability,
o histoty of such violations,
o abilltytopay,
o ability to continue in business, and
o other matters as justice nay require, such as environmentally beneficial
expenditures,
TSCA is a strict liability statute, and there is no requirement that a violator’s conduct be
willful or knowing for it to be found in violation of TSCA or its implementing regulations. The
existence of a violation to be determined without consideration of the particular culpability
of a violator; this factor is to be considered only as an adjustment to the 0BPS The initial GBP
may increase, decrease or remaln the same when considering the violator’s culpability as an
adjustment to the proposed penalty.
The PCB regulations include a ban on the manufacture, pro ing, and distribution in
commerce of PC , as requirements for proper tan, storage, disposaL recordkeeping, and
mar n& EPA Ian several enforcement options available for dealing with PCB Rule violations.
For mime violations, EPA’s Regional offices will have the discretion to issue a Notice of
Noncompliance. In many case . EPA will issue civil administrative complaints, using this policy
to calc”late the appropriate civil penalty . In addition, Section 17(a) of TSCA, 15 U.S.C. Sec.
2616(a), authorises Federal dLstlct courts to issue InjUnCtive mist to restrain violations of TSCA
or the KB rulns Finally, in some instances EPA may seek cmin .nIl sanctions, in accordance
with Section 16(b) of TSCA, 15 U.S .C Sec. 2615(b), for knowing or willful violations of TSCA
or the KB ruim.
EXP(ANA fl m MDCV
Chemlesi Caslel Na ie ef tho Ruguladoss
The PCB reijulations rcdi the chance that additional PCRu will enter the environment.
and limit the harm to health and the environment when catty does occur . Therefore, these
regulations are chemil!al control regulations, as defined by the TSCA Civil Penalty Policy. The
de6nitiosa of the tent’ and “circuma&snces categories below reflect the chemical control
nature of these violations.
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3
Esteit
The grea’fr the quantity of PCBs there is in a violation, the greater the degree and
likelihood of harm from the conduct or activity violating the PCB rules. Therefore, the amount
of PCB involved in a specific violation will determine whether the Major, Significant, or Minor
extent category is used in assessing a penalty based on the GB? Matrix. Since the concentration
of the PCBs involved in a violation will also affect the potential for harm, this factor must also
be considered in determining which estent category is applicable.
1. Amout of Material lavolved
For the purpose of this policy, violations of the PCB rules fall into t broad categories:
non-disposal violations and disposal violations. Non-disposal violations include, but are not
limited to, unauthorized use, failure to mark the ao .v to PCB Transformers, failure to keep
records, failu’c to provide adequate curbing at PCB storage areas, manufacturing PCB without
an exemption, and similar actions where the violator possesses PCB that have not escaped into
the environment. Disposal violations occur when PCBs are disposed of in a manner not
permitted by the PCB regulations. E mples of such violations include, but are not limited to,
the immediate release of KB. from lenin or spills, or delayed relea.e such as when non-
leaking PCB Equipment is improperly disposed of in a non-TSCA landfilL Because the degree
of harm or potential harm is generally different for disposal and non-disposal violations, separate
categories of extent are assigned, N described below.
a. Eztt for Nos.Dlspossl Violadoas
The regulations pertaining to non-disposal requirements such as use, storage, and
manifesting of PCB and PCB Itema , reduce the potential for harm, help the Agency determine
compliance, and track the movement of KB. from use to disposaL For example, a major use
of KB. is in electrical transformers, The conditions for using transformers, such as inspection,
keeping records o( inspection , marking, and notification of fire response personnel and adjacent
building owners, reduce the likelihood of improper disposaL mmimi, the potential harm from
fires, and help the Agency det .ue a user’s compliance. Similarly, the conditions for storing
PCB liquids PCB Articim stack transformers and capacitors, and PCB-cornam inated soil,
conerete, and dekele help the Agnncy determine compliance and reduce the lik lihood that PCB
will escape into the en kv . Compliance with the notification and minifesting requirements
aim ser S
The o amaptakis aliernadve to compliance with the non-disposal requirements of the
PCB rules is dkposal. Mcocdingly, a fair penalty for violating the non-disposaL
requirements can be based on the cast of proper disposal of PCB. or PCB l’eim This should
provide adequate incentive to comply with the non-disposal requirements.
In cues invelving non-disposal violations, the Agency will calculate the penalty using
weight, or if unavailable, other units of measure that most closely fit the penalty scheme. For
mple. if PCB liquid is imported or manufactured, the penalty will be based on the weight ol
liquid. If KB. unlawfully appear in a produc the penalty will be based on the weight of the
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4
product, as adjusted for concentration. If weight is unavailable, other units may be used, such
as the quantity 55-gallon drums that the total production of the product would filL
The following table identifies the quantities of PCBs that define the Minor, Significant,
and Major extent categories. The Agency has set the upper Limit of the Minor extent category
at 1,200 kilograms (220 gallons) of PCB liquid, because it is approxunately the amount contained
in the a rage transformer. It should be noted that the primary unit of measure is weight,
adjusted for concentration. Alternate measures include gallons for liquid, and 55-gallon drums
for solids.
Miser Exteit, Noi-Dlspossl Violatlois
Unit Amount Less Than
1 0
gallons
Large Capacatois 50
55-gallon drums (solids) 15
Drained Transformers 5
SipiDeist Extsat, Non-Disposel Violadosa
Unk
1,200 to 6000
23) to 1,100
50 to 250
55-gallon drums (solids) 15 to 75
Drained Transformess S to 25
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Major Exteit, Non-Disposal Violatlosa
Unit Amount More Than
kilograms 6,000
gallons 1,100
Large Capacitors 250
55-gallon drums (solids) 75
Drained Transformers 25
b. Extent ir Disposal Viols Io u
Improper disposal of PCB generally presents a greater risk of harm to human heaLth and
the environment than non-disposal violation.. Also, it is usually more expensive on a per-gallon
basis to clean an area cont min ted by PCB, and to dispose of the 000thmin2ted materials, than
it is to incinerate the liquid alone Penalties for such disposal violations are based on the
appro im*te cost of cleanup and disposal of the materiab cont,minRted by PCB.
For e ampIe, fresh spilb onto non-porous surfaces such as metal or tile can often be
decont mirisced by rü mg and washiit& The cost of such d 0 t n in 1 ion, including the need
to take wipe samples for verification, is the basis of the Minor disposal category for non-porous
surface.. Spilk onto porous surfaces, such as concrete, often result in cont tmination to some
depth, depending on many factore such as porosity, the rate of spillage, and the type of PCB
liquid. For the purpose of ‘ Wrsmining extent, the Agency arrhed at a disposal cost estimate
based on a nominal depth of contt.m.i *tion of onecighth inch of concrete, concrete being the
moss common porous surface invelved. The cost of removing the concrete, taking wipe samples
for verification, 1l .po. g of the conf m nated materiaL and encapsulating the ares is the basis
of the Minor extent category for porous surface..
For so, lbs Agency boss its cost estimate on a spill onto relathdy level ground with
a nominal depth of g o el of 10 inches to obtain sufficient decon’ ”i”iion . This should cover
spilla on a r of so from days to sands. The square footage as.i d for spilla onto soil
reflects the cest of removal and disposaL
Where the eimtunIiiath is momured in cubic feet, the ‘cnt quantity is based on the
of incinerating contaminated soil and concrete. The Agency lua used available data and
experience suggesting that a gallon of PCB Liquid could contaminate about 2 drums of soil or
concrete, which have a n average cost of disposaL While actual costs may in some cases
be lom, particularly if the material is Ima dense than sod or is suitable for lsndflhllng, the costs
assumed in this policy axe generally applicable and should provide adequate incentive for
compliance
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6
There axe, of course, possible disposal violations that do not correlate exactly to the
quantities listed below, such as landflllir ig or surface disposal of PCB Large Capacitors or PCB
Transformers. In such cases it is presumed that improper disposal will ultimately result in
leakage and environmental contamination. In the event that equipment containing PCBs is
improperly disposed, the violator should be penAIi7 d on the basis of the amount of PCB
contained in the equipment, regardless of whether the PCB was leaking at the time of discovery.
Penalties for improper disposal of drained PCB Transformers can be reasonably assessed using
the approaimate cubic footage of the transformer. Penalties for improper abandonment of PCB-
contaminated pipeline could be assessed by calculating the square footage of the interior surface.
This should provide adequate incentive to comply with the disposal requirements for PCB and
PCB.containing equipment and materia’.
It should be noted that when known, the source kilograms or gallons will be used to
determine the estent for disposal violations. Square and cubic footage, which are based on
gallons as described in the preceding paragraphs are to be used when the kilograms or gallons
are unknown.
MInor Exte.t Disposal Violations
Unit Amount Less Than
25
5
sq. ft. 625 (non.porous surface)
60 (soil)
21) (porous surface)
60 (all materiak)
Sipliosat tsat, Disposal VI.liduii
23 to 123
5 to 25
sq. ft. 625 to 3,125 (nonsporous surface)
60 to 300 (soil)
20 to 100 (porous surface)
60 to 300 (all materiala)
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Major Extent, Disposal Violations
Unit Amount More Than
kilograms 125
gallons 25
sq. ft 3,125 (non-porous surface)
300 (soil)
100 (porous surface)
C1L ft 300 (all materials)
For both disposal and non-disposal violations, the Agency h structured the extent
portion of the penalty policy to approximate the costs of disposal and cleanup and to remove any
economic incentives to violate the rules, The violator will not only pay a penalty for violations,
the violator will also pay any additional costs ncccuaq to came into compliance.
The Agency notes chat the cost-based extent figures for disposal and non-disposal
violations exclude some costs such as transporting response personnel and arnt2minated
materials, and do not account for potential variations in spill scenarios that cause greater or
kaser actual costs of cleanup. Also, actual casts may increase or decrease during the time this
policy is in effect. H , the o*iive of the policy is not to estimate actual casts for a
specific case but to provide a sufficient and reasonable basis for calculating penalties that will
encourage compliance with the KB rules. The Agency believes that the quantities selected for
each extent categot’y accomplish this objective.
2. Canierdig Volume to Wdght
Ju to weight, the ai rnge density of KB liquid
to be appr msscIy 12 lb., per piloui. If the actual density of the fluid in dved in a vioLation
is biown, then the actual density should be uset
3. to uut Category
Spdk into water create a substantial risk of h” osure , either
directly from the water, or through the food chain. Also, since it is virtually impossible to
rem all PC from surface or ground water once a spill ocoura, environmental harm s
assured. Therefore, where any improper disposal rest un the contamination of surface or
ground water, or any conduits leading to same, such drains, ditches, and wells, the extent will
always be considered Major, regardlom of the amount and concentration.
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Spilk Into Food and çed. Spills into food and feed, if not quickly detected, will result
in human exposwe. Even if the problem is detected before humans (or anun ls ) eat the
contaminated fi’ od, it Is likely that the cost of finding and destroying the contaminated products
will be high. Where any improper disposal results in the contamination of food or feed, such
as spills onto vegetable gardens, pastures, or food storage areas, the extent is always Major.
4 Coaceitratlo. Adjutmeits
The Agency recogni that the concentration of PCBs is relevant to the potential or
actual harm from violating the PCB regulations. Obviously, a spill of high concentration PCBs
puts more cont2minanta into the environment than a spill of low concentration PCBs.
NonetheLess, because PCBs can be toalc at vety low concentrations, a spill of a large amount of
low concentration PCB material could cause widespread harm. Thus, a system that would reduce
the total weight of PCB material involved in a spill in direct proportion to the concentration of
that material would severely undermine the regulatory scheme, and result in penalties that may
not reflect the harm or deter improper disposaL
To determine the extent of probable damage for a particular violation, the total amount
of PCB material involved in an incident should be reduced by the following percentages.
Concentration ( nam Reduction of Amount (% i
1) 0.49 50
2) 50-499 30
3) 500 or above None
S. Euepdoss to CsuemIII&. Adjustment Calculation
concentration adhntment factors are not used in the following ccumetances
D persed Use . The use of wuts oil that contains detectable concentrations of PCB for heat
recovery in xn.caáferming boilers or — a sealant, coating, or dust control agent, which is
prohibited by 40 CP.R. S as 76l. d), one situation where the coi tration reduction
would oat app The A , chose to prohibit these uses whenever any “ .‘ table Level of
PC are prs heem such use of PCBI is likely to result in widespread environmental
and li ihh 1 , alowing any reduction of the amount of PC used by virtue of low
d be nc asy to the regulatory scheme.
Failure to Test . The concentration reduction does not apply where the violation is the failure
to tear liquid when required, such the contents of a heat transfer system that has contained
PC& (40 CF.R. Section 76130(d)(1)). In such cases, the risk is that the fluid may contain a
high concentration of PCB, and that this material will continue to be used . These persons
should not obtain a fortuitous benefit when the liquid is finally tested and found to be of some
Lower concentration.
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9
Alternative Meure for Solids . The concentration adjustment shall not be used when the PCB
material is measured by a measure for solids other than weight. These alternative measures,
which include square footage, cubic footage, capacitors, drums, or drained transformers, were
chosen to establish economic incentives for proper disposaL The cost of disposal of such
materials is not dependent on their concentration of PCBs. Accordingly, to allow adjustments
for lower concentration might remove the economic incentives to dispose of these materials
properly.
Dilution . The concentration adjustment does not apply where the PCBs have been diluted in
violation of the PCB nales.
Clrc.mataiess
The other variable for determining a penalty from the GBP Matrix ii the circumstance
of the violation, which reflects its probability of causing harm to human heath or the
environment. The circumstances are ranked high, medium, and low. Each of these ranges in
turn has t different levels, for a total of six levels of circumstance as shown on the GBP
Matrix below. All violations of the PCB regulations fall into one of the circumstance categories
identified in this policy.
GRAVTI’Y BASED PENALTY MATRIX
Circumstances Extent of Potential Damage
(probability of damages)
A- Major B.Sigi’iflcant C- Minor
High Rugs
Level 1 $25,000 $17,000 $ 5,000
Level 2 20,000 13,000 3,000
Medlam Rugs
Level 3 15,000 10,000 1,500
Level 4 10,000 6,000 1,000
Laid 3 5,000 3,000 500
Laid 6 2,000 1,300 200
The different types of KB violations within each of the circumstan (or degree of
probability of damagii) on the OBP Matrix are discussed below. Note that the adjatives
0 majoc, significant, and minot as used in the circumstance levels are not related to those terms
in the GB? Matrix.
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10
High Rugs
Level one:
1) Major disposaL l’hIS includes any significant uncontrolled discharge of PCBs, such as any
leakage or spills from a storage container or PCB Item, failure to contain contaminated
water from a fire-related incident, or any other disposal of PCBs or PCB Items in a
maimer that is not authorized by the PCB regulations, including unauthorized export.
Failure to comply with the conditions of a TSCA approval for PCB disposal or alternative
treatment, other than recordkeeping, also constitutes a level 1 violation.
2) Manufacturing KBs without an exemption or in violation of any condition of an
exemption, including unauthorized import.
3) Unauthorized incidental generation of PCB.
4) Major m2nifesting . Failure to notify EP4¼ for commercial storers, submitting false
information upon application or operating without an approval or in violation of approval
conditions; and failure to m nifcst or major m nifcsling errors .
5) Refusal to parwis enny of an EPA inspector, in violation of TSCA Section 15. The
proposed penalty will be Major, level I when the Agency h reason to believe that
PCBI edited at the time of refusal and that PCB violations could have disappeared
between the time of refinal and inspection. A level 1, Sigi’i cant or Minor extent may
be appropriate if mitigating information is subsequently provided showing that the amount
of PC& present at the time of refusal warrants the reduction of extent. The penalty for
refusal will only be applied when the statutory requirements of Section 11 of TSCA 15
U.S.C Section 2610 have been met, which are:
a) presentation of proper Credenh k
b) written notic. to owner , operator, or agent in charge showing scope of inspection;
C) insp edon . Iw”pted to be commenced and completed with reasonable promptness;
d) inspection aItnnOted to be conducted at reasonable times (daylight business
howe), with remeesbie limits, and in a reasonable manner.
Level s
1) ProcP without an emption or in violation of any condition of an exemption.
2) Ditnbudon In uo m of PC without an mption or in violation of any condition
of an_______
— —.T.:. • I
3) Major use. Unauthorized use of PCBs or using PCBI in violation of any condition of
authorization. Examples of such violations include, but are not limited to:
a. Failure to register PCB Transformers with the local fire jurisdiction or the building
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11
owners within the required time.
b. Storage of combustible organic solvents or other combustible liquids in or near
the transformer area.
c. Failure to report a fire-related incident.
d. Failure to inspect PCB Transformers or to keep records of such inspections.
4) Major marking. A major marking violation is a situation where there is no indication to
someone unfamiliar with PC& that PCB are present, such as failure to label the access
to a PCB Transformer or failure to label the transformer.
5) Major storage. A major storage violation means a situation where a significant portion
of spilled material would not be contained in the event of an accident, or where PCBs
could be posed to precipitation or overland flow of water. E,r2lnples of such situations
are storage in areas with: no roof; no curbing, curbing that is pervious to PCB or
curbing that does not meet the volume or height requi i.icnls, non-continuoua or no
flooring, unsealed floor drains, or flooring that pervioia to PCBs.
Medisa Rugs
d three
1) Major recordkeeping. No recorde, or major reoordkeeping violations, at disposal facilities,
including mcinerators, high emciency or industrial boilsis, Landfllis and other approved
alternate disposal facilities. No records, or major recordkeeping violations, by transporters
or commercial stores Major recordkceping violations would include failure to keep
records or substantial diserspancics in records on disposal pro operating parameters,
landfill disposal locations or disposal quantities or dates, or incomplete records on the
receipt, inventosy, or disposition of wte by commercial storeri.
2) MinordiipouL Mpleo(aminocdispoulviolation aleakmwhichaPCB
Aiticis bm on e portion of its external surface, but the PC did run off the
3) SlpiI i tMg. This includes failure to prepare or submit an annual report or
an — repast
Le
1) Minor use violations 1 These include the following:
a. Failure to provide complete transformer registration, but the fire department or
adjacent building owners are aware of the transformer locations.
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12
b. Failure to remove combustible materiaLs other than organic solvents or other
combustible liquids.
c. Failure to conduct all required visual inspections, but where a significant
percentage was conducted.
d. Incomplete records of PCB Transformer inspections such as omitting the
inspector’s name, or omitting the specific Location of the Leak on the transformer.
2) Minor storage. Examples of these violations are small cracks in an otherwise impervious
floor or curbing, and failure to conduct all required visual inspections 1 but where a
significant percentage was conducted. Storage of PCBs in weu of 1 year, including
failure to date PC! Itcnn plared in storage.
3) Significant recordkeeping. No records, or major recordkeeping violations, by persons who
manufacture, process , or use PC!., except commercial storers, transporters, and disposers.
Major recordkeeping violations would include the absence of data on PCB Transformers,
or the absence of records on any transfer of PCBa from the site.
L Ranga
1) Minor marking violations. These are situations in which some requirements of the rule
ha not been folloi d, but there is sufficient indication that PC!. are present and the
PC! Itema can be identified.
Level she
1) Minor recordkeeping and manifesting, F .iranipks of such violations are the occasional
om .ioa of minor data due to clerical error, or partially m ing records where the person
responsible can subsfa the correct records upon request.
2) Failure to label small eapacitors, fluorescent light ballasts , or large low voltage capacitors
with a label as required by4O C.F.R. Section 761.40(g).
P ’4AL1Y A T 4 41 VOl MUL11PLE VIOL4TIONS
When to Assess MildpIs Visladass
A penalty shall be macmad for each violation of the regulations, and før each separate
location where violations occur . A violation of the regulations is defined as non .compliance with
any requirement of 40 CF.R. Part 761, regardlem of category or subpart. A separate Location
is any area where the violation presents a distinct risk to human health and the environment.
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13
In short, penalties will be assessed as follows:
o One cotast for each violation of the regulations, regardless of categories. For example,
if a PCB Transformer is not marked, and the means of access is not marked, then there
arc t violations and twn counts,
o One count for each location that presents a separate and distinct risk. PCBs are in
separate locations when they are in separate buildings or separate rooms. In large rooms,
or outside, they arc separate when they arc at least 100 feet from any other PCBs. The
EPA inspector hsll determine whether a particular location is separate based on the
above, and may consider other factors relevant to the risk associated with the violation
and location.
fJ 1tsoa Miltiple VlolatIou
Some acts of compliance are completely dependent on other acts, such as keeping records
of transformer inspections. This, the Lack of inspections will normally result in the lack of
records of inspection. In such eases , only one violation should be charged, namely, failure to
inspect.
Other acts ci compliance affect a number of separate locations within a facility. For
mple, it tak a single act ci compliance to register PCB Transformers with the fire
department or adjacent building owners, regardless of the number at transformer locations.
Thua, failure to register with the fire department is a single violative act per facility, as is the
(allure to register with an atIj. nt building owner.
Further, the Agency lua determined that limits arc appropriate for eswsing penalties for
violations of some periodic , as follows:
o Ascp.ritscountshallbsch.rgcdforeachquartcrly ____orrecordo tinspection
md , with the limi”dcin of wing up 104 m cd inspections or $25O,000 whichever
is less.
o A acp coi shaM be charged for each annual document or annual inspection missed
during —3 yew, and one count (or all documents or inspections missed from
) 5 4 —‘
I •-_ I I
P I*L1IFa 101 cONIThUING OR R !AT VIOIAI1ONS
Under Section 16 ci ISCA, the Agency has the discretion to - = civil penalties up to
$25,000 per violation, with each day that a violation continues cunarfiuling a separate violation.
‘ “ent ci such per.day penalties is reserved for repeated or acts that present
considerable risk or harm, such as where someone improperly disposes of PC& on more than
one oceasion, or when someone illegally imports PCBI on separate oo wnna . Each day of such
violations is significant and warrants a separate penalty.
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14
On the other hand, under the per-day principle, someone who stores an intact. 240-
gallon PCB Tramftrmer improperly for 30 days could be Liabte for $390,000, an cessive penalty
in the absenos of aggravating factors such as a history of violations or a risky storage
environment. In such a case . the Agency would usually not assess penalties for each day of
violation.
The Agency calculates penalties for continuing and repeat violations two different ways,
either by combining the total quantity of PCBs involved during the period of the violation, or
by multiplying the GBP by the number of days the violation occurred. To calculate the penalty
using the former method, the Agency has developed the “proportional penalty calculation,”
whereby the penalty is proportional to the amount of material involved multiplied by the duration
of the violation, subject to the limitation of $25,000 per day per violation. This method is usually
reserved for continuing violations, and is explained in detail in appendis B. Using the latter
rr thod, the penalties are often larger than when proportional penalties are used . The Agency
reserves the discretion to mess penalties using the latter method for repeated ac of violation,
or when the circumatances, taking into consideration the seriousness of the violation or the
severity of potential or actual environmental harm, warrant such penalties.
When the proportional penalty calculation yields more than $25,000 per day for any one
violation, the penalty should be $25,000 per day for that violation, the m mum allowed by
statute. The proportional penalty should be used in the same way as any other penalty derived
from the GBP MitrE, i.e., the per-day penalty should be entered on line I of the TSCA Civil
Penalty A.. -’menI Wor heet ( see appendis C). Regions should use the proportional penalty
calculation as opposed to one day u. ’ments for those violations where it can be documented
that violations are continuing, such as failure to clean up after improper disposal of PC i. For
violations that have not been corrected by the time of reimpection, EPA may either use the
proportional penalty calculation or assess penalties on a per-day basis, Note that the
proportional penalty method do. not always result in smaller penalties than the per-day method.
For large amounts of PC , it may be higher than a straight per-day multiplication of the GBP.
ADJUS11NG Till GRAV IY IAS P ’4ALTY
The OR ielscts th seriousn of the violation’s threat to health and the environment.
TSCA a o r s Asecy to consider certain other factors in essing the violator’s
conduct. Th.t ai sb ty, hissoiy of similar violations, and ability to pay and to continue
in bs b kaM lbs A authorizes the Agency to use discretion in considering “other
factors as jusdee may requlr&’ Under this Less authoriwion, additional factors are considered
and balanced: attiwde voluntary dic’ ure the cost of the violation to the government; the
economic benefits received by the violator due to his non -compliance and the environmentally
beneficial m urea that a violator may perform in eachangs for a reduction in penalty (see
Settlement with Conditions). These factors are considered follows,
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15
C’Ipeblllty
The t principal criteria for aisessing culpability are (a) the violator’s knowledge of the
particular requirement and (b) the degree of the violator’s control over the violative condition.
(a) The violator’s knowledge . The lack of knowledge of a particular requirement does
not necessarily reduce culpability, since the Agency has no intention of encouraging ignorance
of the PCB rules. The teat will be whether the violator knew or should have known of the
relevant requirement or the possible dangers of his actions. As a general matter, any electric
utility, and any company with PCBs, is deemed to have knowledge of all aspects of TSCA and
the PCB regulations. Furthermore, a reduction in the penalty based on lack of knowledge can
only occur when a reasonably prudent and responsible person would not have known that the
conduct was dangerous or in violation of 1 CA or the PCB regulations.
(b) Degree of control over the violation . The Agency expects PC& to be handled
prudently and that all remonable measures will be taken to ensure compliance with the
regulations. The Agency also expects that, when violations are discovered, the persons
responsible for the facility or location will immediately take all necessary steps to come into
compliance. Nevertheless, there may be situations where the violator is less than fully
responsible for the violation’s occurrence. For example, another person or company may have
had some role in creating the violative condition and must theidore share the responsibility.
Similarly, a discharge of PC into the environment can occur accidentally, even though the
violator took prudent measures to avoid it. Such situations might warrant a reduction of
Three levels of culpability have been assigned for calculating penalties, as follows:
Level I The violation was willfuL Adjust the GB? upward by 25 percent.
Levd U The violator had (or should have had) knowledge control. No
adjustment to GB?.
Laid W he violator lacked sufficient knowledge of the potential hazard
orated by his or another’s conduct, and abo lacked control over
tha situation to prevent occurrence of the violation. The violator’s
conduct was reasonably prudent and responsible. Adjust the GBP
nward by 25 percent .
History of Prior Vlokdaa
The GB? MattE is designed to apply to first offenders. Where a violator has
demonstrated a hitery of pdor such’ violations as stated in TSCA, the penalty will be adjusted
upward to in veus hit motivation to comply. Also, repeat violators are piei 1i d more severely
because additional enforcement resources are spent on the same violator.
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16
The Agency’s policy is to consider only prior violations of TSCA or its rules, even though
a violator could have a history of violations of other EPA statutes, or remedial statutes in general
(e.g., OSHA, CPSC). Congress did not expressly state that it wanted the Agency to go beyond
TSCA Section 15 prohibited acts in determining violation history.
The following considerations apply when evaluating a history of “prior such” violations:
(a) In order to constitute a prior violation, the prior violation must have resulted in:
a order . either an a result of an uncontested complaint, or an a result of a contested
complaint which is finally resolved against the violator, a consent order , resolving a contested or
uncontested complaint by the execution of a consent agreement; or the payment of a civil penalty
by the alleged violator in response to the complaint, whether or not the violator admits to the
allegations of the complaint.
Violations litigated in the Federal courts, under the Act’s imminent hazard (Section 7),
specific enforcement and seinue (Section 17), and criminal (Section 16(b)) provisions, are part
of a violator’s “history” for penalty ment purposes, are violations for which civil penalties
have been previously aisessed. However, a notice of noncompliwe does not constitute a prior
violation for the purposes of penalty anacasment, sü ce no opportunity han been given to contest
the notice.
(b) To be considered a ‘prior such’ violation, the violation must have oceurred within
five years of the present violation. This five-year period begins on the date of a final order,
consent order, or payment of a civil penalty.
(c) Generally, companies with multiple establishments are considered an one when
determining history. If one establi,hment of a company commits a TSCA violation, it counts as
history when another establishment of the same company, anywhere in the country, commits
another TSCA violation. In most cues of violations by wholly, or partly-owned subsidiaries, the
history of the parent corporation shall apply to its subsidiaries, and the subsidiaries to the parent,
particularly when the parent hm a majority share of owneruhi The esseption weuld be where
r coinpalues are held by the ‘ ‘ parent corporation. The compaiu may not necessarily
affect each other’s history if they are in substantially different lines of b in and they are
subssandaly indsp lmnt of one another in their management, and in the functio iing of their
Boarde of Dk clc
(d) N prior ash’ violation of a non.PCB .related TSCA provuron or regulation,
then the p i, tha d be upwardly adjusted 25 pwznt for a first repetition and 50 percent for
a second repeskion of the V IOISI IOUL If the “prior such” violation is of any PCB-related TSCA
provision or regulation, the penalty should be upwardly adjusted by 50 pe oent for the first
repetition and 100 percent for the second repetition.
Ability to Candies Ii Bulima
Normally, EM will not seek a civil penalty that f1ce k the violator’s ability topsy and.
therefore, to corninue in businma The agency will assume that the respondent han the ability
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17
to pay at the time the complaint is issued if information concerning the alleged violator’s ability
to pay is not readily available. The respondent will be notified in the civil compLaint of its right
under the statute to a consideration of its ability to continue in business. Any alleged violator
can raise the issue of its ability to pay and to continue in business in its ans r to the civil
complaint, or during the course of settlement negotiations.
If an alleged violator raises the inability to pay as a defense in its am r, or in the course
of settlement negotiations, it shall present sufficient documentation to permit the Agency to
establish such inability. Appropriate documents will include the following as the Agency may
request, and will be presented in the form used by the respondent in its ordinaiy course of
business.
1. Tax returns;
2. Balance sheets;
3. Income statements
4. Statements of changes in financial position;
5. Statements of operations
6. Retained earnings statements;
7. Loan applications, financing agreements, security agreements;
& Annual and quarterly reports to shareholders and the SEC, includIng 10 K reports
9. Busineas setvices reports, such as Compusat, Dun and Bradatreet, or Value Line.
Such records are to be provided to the Agency at the respondents expense and must
conform to generally recognized accounting procedures. 1 Agency reserves the right to
request, obtain, and review all underlying and supporting financial documents that form the basis
of these records to verify their accuracy. If the alleged violator falla to provide the necessary
information, and the information is not readily available from other sources, then the violator
will be p res amed to be able to pay.
OTh FACTORS AS JUSTICE MAY REGUIRE
Altitude
In the vlo1 Vs attitude, the Agency will look at the following factors: whether
ihe vi l le geod faith efforts to comply with the appropriate regulations; the
prompln ci violatoñ coirective actions; and any actions ‘ “n tomiiiini harm to the
envircn by the violation.
This adjustment applies equally to companies that Iuntarily thckise violations and to
those that do not. A company u1d generally qualify for a downward adjustment cia maximum
of 15% if it immediately halts the violative activity and taken steps to rectify the situation. An
upward adjustment of $ maximum c i 15% may be justified where company officiala continue the
violative activity after being notified to stop do not act in good faith, hinder EPA’s progress.
cause incrensed government expenditures or arc otherwise uncooperative.
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Voliatary Duds..,,
The Agency encourags. voluntary disclosure of PCB vioLations. To be eligible for a
penalty reduction for voluntary disclosure, a firm must make the disck ure prior to being notified
of a pending inspection. The disclosure Canflot be one that is required by the PCB regulations
or that is made after EPA has received information relating to the alleged vioLation.
Penalty amounts for violations of PCB regulations will be reduced when the violations are
voluntarily disclosed by the company. This penalty reduction is separate from and in addition
to the penalty reduction for culpability and attitude. For PCB violations, the penalty reductions
for voluntaiy disclosure are as follows:
Voluntaty disclosure: 25%
Immediate disclosure within
30 days of discovery AND t k
all required steps:
Total 40%
The penalty reduction c i 15 per©eat may be given to a company which reports the
potential violation to EPA within 30 days of having reoa to believe that they may be in
violation, and if the company takes all steps reasonably expected or requested by EPA to mitigate
the violation. This includes timely submimion of information necessary for EPA to assess the
violation. rimely subu,thiion meai within 30 days or a time period agreed upon by EPA and
the company . This reduction can be in addition to penalty rcductkina for environmental
______ above and beyond that required by the law. This reduction is only applicable to
companies which have voluntarily 4iselo ed the violation and may be taken in addition to other
aditn’n
C-
The reduction for voluntaty closure and immediate ithdo,ure may be made prior to
issuing the th The civil complaint should state the ongis”l penalty and the reduced
— and the teatos for the reduction .
Cast c i the Gsveruaent
There may be o ioen where it is necessary for the Agency to mitigate the effects of
a violation, such at the cleanup ci a dangerous spill where the violator will not tiki timely action
or the violator is unbtown at the thv M adjustment factor net specified in the statute, but
which the Agency feela justice requires, is reimbursement to the governmt for funth expended
to investigate, clean-up, or otheuwiss mitigate the effects of a violation.
Generally, the clean-up apeese of a violator is to be borne by the violator at a necessary
cost of violation in addition to any civil penalty assessed. Where the government deems it
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19
necessaly to undertake dean-up, the government could recover funds which it expended in an
administrative proor ding under Section 16 of TSCA.
Ecoloink Be.e t of No.coollaaea
The GB? is designed for deterrence and is effective where there is no overriding financial
incentive to violate the rules. In some cases, the GBP may not be sufficient to deter in the face
of strong economic incentives to violate. Where a violation involves significant economic benefit,
the Agency will assem penalties that remove any benefit, subject to the statutory limitation of
$25,(X)O per day. Thla will be in addition to the GB? and any relevant adjustment factors.
Economic benefits can be gained by avoiding an expenditure. Economic benefits can also
be gained by delaying an apenditure, whereby the violator game an economic benefit because
the firm, or nonprofit entity, earns a return on the money that should have been used for
compliance. Meramplc of an avoided cost a spill into water, which may be impossible to
clean up. Delayed expenditures that could result in significant gains may include, but are not
limited to failure to replace PCB Transformers or to install enh noed electrical protection;
leaving PC!. in storage for disposal longer than 1 year failure to provide adequate facilities for
storage failure to make necessaly improvements to disposal facthties failure to decontaminate
an area after a spill; and failure to decontaminate or replace PCB.cont2ulin*ted equipment in
unauthoriacd use.
In applying the economic b n fit component, the Agency will use the most likely
presumptions and the best information available to the ome dcveiopmeut ‘ earn . For example,
in a case where a firm h PCB.comarninated equipment that not authoitsed for use, the
Agency need not estimate the cost ci decontaminating the equipment or the economic value of
the equipment to the firm. Instead, the Agency may simply determine the cost of replacing the
subject equipment by contacting the equipment manufacturer, and calculate the benefit of the
— replacement cea
Settlement Wlt Casdltloee
The Agency may choose to adjust a civil penalty emessed for a violation of the PC!
regulations in emhoege for specific environmentally beneficial actions _____ by the
responds . 1 oatdsma ci a case under terma which commit the respondent to perform
specified - — _ la ge for reducing a portion of the penalty is a Settlement with Conditions
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Appendix A Ualnç the GBP Matrix to Find a PCB Penalty
In order to determine a penalty for a specific PCB violation, the following steps should
be followed:
1) Determine the violation. If more than one violation is involved, repeat the calculation
in steps 2 through 8 for each violation.
2) Find which level the violation fits on the circumstance axis of the GB? Matrix.
3) Calculate the total amount of PCB. involved in the violation. If there are several
materials involved which fall into different concentration rangcs do a separate calculation
for each concentration.
4) Apply the concentration adjustment. Note the eptiona to use of the concentration
adjustment.
5) If different concentration ranges are present, add up the figures from step 4.
6) Determine which utcnt cataguty (Major, Significant, or Minor) is applicable to the
amount from step 5.
7) Use the level from step 2 and the extent from step 6 to locate the penalty on the GBP
Matrix (e.g., Laid 3, SIgnificant s $10,000).
8) Enter the amount from step 7 on line I of the CMI Penalty Air”ment worksheet
attached to the TSCA Cvii Penalty Policy. Use that wccbheat to complete the
calculation of the penalty accounting for factors such a culpability, history of violations,
economic benefit of______
ctn.
Example An
dispomlin a room with
I • — III
c i Company X reveals that the following items are all stored for
— —I •
1 rmtrs
O 800.pllon tank of PCB liquid
All three aipedmois are KS Large Capacitors with a volume of 5 galIona each. One
tranefcrmer con 300 phone, and is tested at 700 ppm. The second tranalormer contaim 500
gahlone, and is an akard unit and there re containa over 500 ppm PC It is lashing. and 70
square feat of conasse is cont miiiated. The SOOgahlon tank is not lashing and the liquid is
teated at 200 ppm. The demity of the fluid in the 300 .phlon traneformar and the 800 .gallon
tank is found to be 85 poun per gallon, and the demity of the 500 .phloo akarel unit is 12
pounth per gahost.
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1) Determ the violations; these are disposal and storage. Because there are two
violations a calculation is needed for each.
Calculation for Disi,osal Violation
2) Fuid the “circumelances” leveL This is level 1, for disposaL
3) Find the total amount involved. Since the leakage contaminated 70 square feet of
concrete, no calculation is required to find the extent. (Note: where the quantity of PCB
is known, the extent will always be based on weight in k1logran .)
4) Make concentration adjustment No adjustment for alternative measure for solide.
5) Not applicable because spill was from a single source.
6) Determine extent categoty 70 square feet of concrete (porous surface) is Si ifkant
7) Find penalty from maLrE Level 1, Significant - $17,000
8) Enter $17,000 on line 1 of the worksheet
cm AL U lbsdgak
Calculation for Non-Disposal (Storage Violation
2) Find “circumetances” leveL Major storage (discontinuous curbing) is level 2.
3) Find total amount involved;
(a) Over 500 ppm
(I) AL 12 Ibs/gak One 500.gallon transformer
3capscitors zipLea.—l5gsllons
500+ 15—Sl5pL
515 gaLx l2LbsJpL - &1801k
One 30 galion nsf mer
300 gaL a 8.5 Lbs/gaL s 2,550 lbs.
Subtotahö,lSOlbs. +2,555 Lbs. -87301bs
8 ,73OLb s .x.45LLkg -L k$
(b) Under 500 ppm (8.5 lbsJgsL only): One 800 .pllon tank
Subtotak gaL * 8..5 lbs/gaL — 6,800 Lbs.
6,800lbs.z.45 Lbs /kg
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22
4) Make 4xlncentration adjustment.
(a) The traisformeii were both over 300 ppm, therefore there is no
adjustment. Total remains at kg.
(b) The tankage was 200 ppm, which is under 500 ppm, but more than 49.
Therefore, the quantity is redu d 30% as (ollows
3,060 kg x (1.0. .30) — 2.142 kg
5) Md figures from step 4.
3,929 kg + 2,142 kg - 6,071 kg
6) Determine estent category; 6,071 kg - Major (non.dispo.al)
7) find the penalty from the matr Level 2, Significant $20,000
8) Md $2O 0O0 to line I of the rbheet ,
S 17.000 ( dI.poul ) + $20,000 (storage) — $37,000.
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Appendix B ( akuIatiny Proportional Penafti
The proportional penalty is used for continuing violation& It is calculated by muftiplying
the quantity of PC involved by the number of days of the violation. The sum of the PCBs
tün the duration is the basis for calculating the GB?. The proportional penalty is calculated
in the following manner
1) Multiply the amount of PCBII involved in the violation (reduced by the concentration
adjustment) by the number of days the violation continued.
2) If the amount from step 1 is l i than or equal to t tim i the Major atent category,
use thk amount to determine the atent category and obtain a penalty from the GB?
MattE. If the amount from step I is geater than t timea the Major Ient category,
proceed to step 3.
3) Divide the total amount from step 1 by the Major eatent category limit. Multiply the
reault by the dollar amount in the Major category. Thix 4elds the proportionaL penalty.
4) Divide the total penalty by the number of days involved. Enter this amount on line 1 of
the TSCA Civil Penalty Au mcnt Worksheet.
(a) 5kgsplllotasbrelontoconcrete. Spill was notcicaned up for 3Odays .
1) 5 kg of karel, no concentration adjus nt.
Skgx3odays’. 150kg
2) 150 kg ix l then t tiw Major “t (Major - 125 kg). Therefore, penalty
isfor lSOkg(Msjor, laid 1)— $2
3) Not applicable.
4) vidmdby30days -$& 3.33perday.
(b) 20kg Sof. doconciete. Spill Was notciesned up for 30dI I.
1) of a d, no concentration adjustment.
20kgz3Oda . — 600kg
2) 600kg ix more then t time Major extent (125 kg). Therefore, go to step 3.
3) 600kgd lvldedby l25kij —4.8
4 .8z$25,000(Major, level 1)— $J
4) 1120.000 dIvided by 30 days — $4,000 per day.
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Appendix C Civil Penakv Assa!’*mcnt Worksheet
Name of Respondent: ________________
Address of Respondent: ________________
(1) _______________________
(2) ___________________
(3) ___________________
(4)
(5) ___________________
(6) _____________
(7)
1. $_____
2. __
3. ______
5. $_____
6. ___
Complaint LD. Number: ___________
Date Complaint Issued: ___________
Date Answer Received: ___________
Date Default Order Sent: ___________
Date Consent Agreement Signed: ___________
Date FInal Order Scat: ________
Date Remittance Received: ____________
Gravity Bssed Penalty (GBP) from matr
Pewent increme or dcacase for culpability
Peivcnt ui zeaie for violation hato
Add lines 2 and 3:
Multiply GBP by perocatage total on line 4:
Add lin 1 and S (subtract line S from line 1
if negative pe antage)
Enter line 6 amount or $25,000, whichc
Multiply line 7 by the number c i days or violstloim
GQvcrnmcnt cleaa.up cmv, if any
Eeau — from ne ___
Add
Total ci ot — jiatice may require
Add (or subtract) line 12 to (from) line 11:
- . .T. ft -
$_____
$_____
$_____
$______
if appropristet $____
$_____
$_____
$_____
Note Un . 13 should be the proposed penalty for a pven violation. The procedure repeated
for each violation
7.
&
9.
10.
11.
12.
13.
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Federal Register / Vol.55 . No. 7Z I Friday, April13, 1990 I Notices
13933
Written comments may be submitted
to the person above by thirty (30) days
from date of publication.
}c. L
4cWgReriôaa/i4dmiftisb’etor. U.S EPA —
R g;oa IV.
FR Dcc. 904635 Filed 1-12-9( ass am)
siwils cose
FR-3755—Il
Proposed Setttement Jones
Chemicals, Inc.
AGINC,t U.S. Environmental Protection
Agency.
ACTIOIC Request for public comment .
SUMMARY in accordance with the
requirements of sectIon 122(1)(1) of the
Comprehensive Environmental
Response, Compensation. and Liability
Act. as amended (“C CLA”). notice Is
hereby given of a proposed settlement
under section 122(h) concerning the
!ones Chemical, Inc. Site in Monon,
! diana. The proposed settlement
requires tones Chemicals. inc. to pay
S333.060.00. plus interest, of the
S357.842,37 in costs incurred during U.S
EPA ’s removal action.
DA?tt Comments must be provided on
or before May14, 1990.
acoenaseni Comments should be
addressed to hi U.S Environmental
Protection Agency. Region V 230 South
Dearborn Street, Chicago, Illinois 60104 ,
and should refer to: In the Matter ot
j’fl15 chemicals, Inc.. Monon. Indiana.
FOR PURTIi ÜIPOIIM*TtOlJ CCIITACT
Laurie Donlon Adams. U.S. EPA, O cs
cf Regional Counsel SCS-TU3-3, 230
South Dearborn Street Chicago, flhlnois
corns. (312)686-0114.
Notice of section 122 (b) Cast Recovery
Srttlemsn In accordance with section
:21(l)(1) of the Comprehensive
Environmental Resgons.,
C m;ensation, u LiabilIty Act of 1I6
s amended ( A”), a.&s Is
eieby given that as Cueb 20,19161
ropued adminisbadve seI”——I was
a greed to by Jones .iiiai , Inc. The
oposed settlemsut requires Jonas
micsl& Inc. to pay S 0 ’1 )0 . plus
teresL of the 3357.C4L37 in costs
I wTsd during U.S. EPA’s removal
ac::on at its Monon. Indiana. Sits.
C S. EP. 1 is entering uto this
i :eenettt under the authority of
‘actions 123(b) and 107 of C CLA.
e:tion 122(h) .uthor.zes administrative
lettiament of a claim under section 107
vhere total response costs incurred by
.e L’ruted States of the facility
:oncernsd do net exceed $500000
e diading interest). Jones Chemicals.
c. signed the 1 2 2(h) Consent
Agreement on October 20.1989 and U.S.
EPA signed on February 9. 1990. Under
the terms of the Consent Agreement.
fones Chemicals. Inc. will pay 550.000
thirty (30) days following the entering of
the Consent Agreement and the
remaining $283,060.00 plus interest in
fifteen (15) equal monthly installments
on the first day of each month.
begmn(ng on the first day of the second
full calendar month after the entering of
the Consent Agreement. Based on
current Interest rates. these 15 monthly
payments will be $20000 each.
The Environmental Protection Agency
will receive, for a pertod of thirty (30)
days from the date of this publication.
comments relating to the proposed
settlement agreement.
A copy of the proposed adminictradve
settlement agreement may be obtained
in person or by mail from the Office of
Regional Counsel. U.S. Environmental
Protection Agency, Region V. 230 South
Dearborn Street Chicago. flilnais 60604.
Additional background information
relating to the setdem3nt is available for
review at this address.
AatLiIIy. The Comprehensive
Environmental Response. Coapensation. and
LIability Act, as amended. 42 U.S.C. 9601 at
Dated: March24. 1030.
Fresh M. Certeglos,
Ac ting RqiorwJAdmirdstmt ar.
(FR D c c. 60-1635 Flied 4-1-6t 545 am)
coma aa
(CPT$.1I1001; FRL—3740—2 1
ISoec. of Availability of
Pu udnated 8?phsnyls Pinatty
Policy
£IINCY Environmental Protection
Agency (EPA).
acnwc Notice of . vailabilfty.
This nGftca announces he
availability of the Putycb oruiated
Biphsnyls Penalty Policy ‘Policy). The
Policy I .. an EPA enf c m.mt locument
for determining cv:l oen.1:ce for
vtolaticu of the T ’ i S .aecas
Cir vol Act (TSCA) atvi 40 CYR part
711. It supersedes the FCB Pen.alty
Policy published :n ‘he Fddaral Register
of September 10.1950
*coezssem Prso’s ‘ teres’eJ in
receiving a copy of tr.a Pu 1c7 should
cont3CP. Environmental A iststan e
Division (TS-79 ). Enviroentul
Protection Agency, 401 M SL. SW..
Wasltngtini. DC 23160. (2C 53 I-.1404.
FCR FURThIN INFORMATION CCiSTACT
Michael M. StahL Director.
Environmental Assuatar.ce Division fl’S —
759). Environmental Pr tcction Agency.
Rin. E-543B. 401 M SL SW..
Washington. DC 20460. (202) 554—1404
and TDD (202) 554-0551.
SUPFLIMtIITARY INFORMATIOIt On
March 10.1980. EPA Issued intenm
guidance for the determination of
penalties for violations of the
Polychlorlnated Biphenyhs (PCB) rules.
That interim poiicy was published in the
Federal Register of September 10. 1980
(45 FR 59778), with a statement that the
Agency would review its experience
with the policy before issiung a nrtai
penalty policy.
Since developing the March W. 1980
interim guidanca. numerous PCS
regulations have been promulgated.
Amendments. interpretations, and
revisions to the interim guidance iave
also been developed. The revi5ed Policy
is intended to Incorporate the
enforcement-related provisions of all
PCB rules and policy revisions to date.
including the Notification and
Manifesting Rule. The Policy is effective
as of April 9. 199O. and will be used to
calculate penaltie, in all acbnim.trative
actions concerning PCB issued after the
date of the Policy, regardless of the date
of the violation.
The Policy Implements a system for
deter n4nbvg penalties in aduii ustrntive
civil actions brought pursuant to secton
11 of TSCA. Penalties are determined in
two stages (1) determination of a
“gravity based penalty” (GaP), and (2)
adluatments to the GBP.
To determine the CaP. the followir.g
factors affecting a violations gravity a e
considereth the nature of the violation.
the extent of environmental harm that
could result from the violation, and the
cireumitances of the violation. These
factors are Incorporated In a matr.x
which allows determination of the
appropriate proposed GBP.
Once the GBP baa been determined.
upward or downward adjustments to
the proposed penalty amount may be
mads in consideration of other factors.
either before issuance of a civil
adi iInistrative complaint. or du. -th3
settlement negotiations. includ.ag
culpability, history of such v’ola’ : - .
ability to pay and to continue in
business, and other matter, as ;us ::
may require. —The revised ?oPcy
updates the Circumstance sect:3n ci ‘: e
policy (where all pO13i k viola ire
ranked according to pr cdoII:’y f
causing harm). end sets en ’ r3. , h.;: er
penalties by (1) mum; the Circ: e
level for certli n typo. of voiations. (
reducing the threshold le els ci PC s for
the Minor. Significant, or Maior x en:
levels in the penalty miitrtx. end )
assessing penalties for each violation of
the regulatory reqvirerta’!s of so CTR
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13958
Federal Register / Vol. 55. No. 72 / Friday, April 13. 1990 I Notices
part 761. instead of for the broader
violation of Its subparts.
Higher penalties will aLso be assessed
for facilities that have more than one
location where violations exist. Under
the 1980 polIcy, each facility was
generally counted as a single location.
regardless of the number of violative
locations within that facility. The
revised Policy counts each separate
location within a facility separately.
Thus, if a facility has five sites with the
same v olatlon. it will be assessed five
separate counts instead of one. Also. the
Policy adopts the Agency general policy
of assessing the economic benefit of
noncompliance. I.e.. a violator will not
pay a penalty that Is less than the
economic benefit of the violation.
Other sigeificant changes include a
refinement of what constitutes a
violatdr’s history of violations for
purposes of increasing penalties for
repeat violators and penalties for
refusing entry of an EPA inspector after
proper notification has been provided to
the facility in accordance with TSCA
section 11. The Agency Ii also, through
this Policy. providing an opportunity for
facilities to come into compliance by
substantially reducing penalties for
voluntary disclosure of violation..
Detsth April 9.1990.
Cousle S. Mu.,.....,
AaingDii.cWr. Office of Compliance
Monitonn Office of Pesticida and Toxic
Substances.
(FR D cc. 90-8S 4 Filed 4-12-Sn 5:45 am)
u &nm cons wo
(OPTS-44 54 FRL 373941
TSCA C1tsmlc TuUn R.c.Ipt of
Test O
ASINCY: Environmental Protection
Agency (EPA).
wiusn Notice.
miN iV This notice announces the
receipt of test data on b la(2-
chicresthoxy) methane (CM No. 111-
91.4). and inbutyl phosphate (CM No.
1 -73.4) submitted pursuant to a final
test ruts. Test data was also received on
alkyl phthatates (CAS Nos. 68515.42—4.
84— ’5—3 and 68513—50.4) and triethylene
gl col mor.cmathyl moncethyl and
r ; c ut’:l ether, (CAS Nos. 11—35—6.
1 -5 5 a d 143—2 -e) pursuant to a
testing Ccr.sent order. All test data were
submitted under the Toxic Substances
Cor.trol Ac! (TSCA). Publication of this
notice is ;n ccmpliance with section a(d)
of TSCA.
FOR FURThU INFORMATION coisi’ac’r
Michael M. Stahl. Director.
Envi:onment*I Assistance Division (IS—
799). Office of Toxic Substances.
Environmental Protection Agency. Rm.
E-3438. 401 M St.. SW.. Washington. DC
20460. (202) 554—1404. TDD (202) 554—
0551.
SUPPI.IMSNTARY INPONMATIO 5 Section
4(d) of TSCA requires EPA to publish a
notice In the Federal Register reporting
the receipt of test data submitted
pursuant to test rules promulgated under
section 4(a) WIthin 15 days after it is
received. Under 40 CFR 790.60, all TSCA
section 4 consent orders must contain 3
statement that results of testing
conducted pursuant to these testing
consent orders will be announced to the
public in accordance with section 4(d).
1. Test Data Submi,.Inns
Test data for bis(2.chloroethoxy)
methane was submitted by Morton
International pursuant to a test rule at
40 CFR 799.5058. It was received by EPA
on January 30. 1990. The submission
describes a 90-day oral gavage study.
Siibchronic toxicity testing Is required
by this test rule.
Test data for tributyl phosphate was
submitted by the TributyL Phosphate
Task Force on behalf of the test
sponsors and pursuant to a test rule at
40 CFR 799.4380. It was received by EPA
on March 28. 1990. The eubmiseton
describes a skin sensitization study In
guinea pigs. Derinal sensItIzation testing
is required by this test rule. This
chemical Is used primarily In hydraulic
fluida and In the extraction process of
plutonium and other metals.
Test data for aikyt phthalates was
submitted by the Chemical
Manufacturers Association on behalf of
the test sponsors and pursuant to a
testing consent order at 40 CFR 799.5000.
It was received by EPA on March 26.
1980. The subnilulona describe the
analytical characterization of unlabelled
and (“Cl-labelled phthalate esters for
di(heptyl. nonyl. undecyt) and dthexyl
phthalate. These tests are required by
this consent order. These chemicals are
used pru artly as plasticizers.
Test data for triethytene giycol
monomethyl. monoethyl and monobutyt
ethers was submitted by the Chemical
Manufacturers AssociatiOn on behalf of
the gytcol ethers panel and pursuant to a
testing consent order at 40 CFR 799.5000.
It was received by EPA on March 29.
1900. The subntissior.s describe the
evaluat ;on of trtethylene glycol
monomethyl ether in: (1) The ames
assay. (2) the CHO/HCPRT forward
mutation assay and (3) the mouse bone
marrow micronucleus test. These tests
are required under this consent order.
These chemicals are used primarily as
dituents lot brake fluids.
EPA has iniui ted its revis
evaluation process for these
submissions. At this time. ft
unable to provide any deter
to the completeness of the s
11. Public Record
EPA has established a pu
for this TSCA sec:ion 4(d) ri
data notice (docket number
44349). This :ecord inciddes
studies reported in this notii
record is a ailabie for inspe
a.xn. to 4 p.m.. Monday throt
except legal holidays, in the
Public Docket Office. Rrn. N
M St.. SW.. Washington. DC
Authority: 15 U.S.C. 2603.
Dated; April 4. 1600.
James B. Willis,
.icfing Director. ExJstu7g Cherni
.4ssessnient D:r s ion. Office of
Substances.
(FR Dcc. 904557 Filed 4-1-90:
SIWN. cOOS UIS-Ie-O
(FRL-3753 ’41
Public Water Supervision F
Program Revision for the I
Rhode Island
SUMMARIt Notice is hereby
the Stats of Rhode Island is
approved State Public Wats
Supervision Primacy Progra
Island has adopted (1) drinli
regulations for eight volatilt
chemicals that correspond
National Primary Drinking I
Regulations for eight volacil
chemicals promulgated by 1
8. 1987 (52 FR 25690) and (21
notice regulations that corn
revised EPA public notice ri
promulgated on October 18.
41534). EPA has detersnir.ed
two sets of State program ni
rio less stringent than the cc
Federal regulations. Thereic
tentatively decided o appi
State progra i re isior.s.
All interested part.es are
req iest a pi bIic heer r.g. A
public heari ; ri s ; be s ici
May 14. 1600 ‘0 the or
Adr n st:a :: : : ea :e
below. Fr: 3cts c
requests for a hea in
the Regior.al . Jr.:r’s’ tor.
a substantial reqi.est fa- a
hear.r.g is made b M ..y 14.
public hear:rg .11 e he’d
and appropriate request for
received and the Reg’c l
does not elect to h d a
-------
S74P
to
UNITE DdSTATES ENVIRONMENTAL PROTECTION AGEI’CY
WASHINGTON D C 20460

t4AR 4j &
O ICL OF
PESTICIDES AN TO IC S.JBSTANCES
MEMORAN DUM
SUBJECT: Disposal Requirements for PCB Small Capacitors
FROM: John A. Moore )
Assistant Administrator _- -
for Pest ic ides
and Toxic Substances (TS-788)
TO: Gary O’Neal, Director
Air & Toxics Division
EPA — Region X
Introduction
This memorandum is in response to your memorandum of
February 1, 1985, requesting Headquarters to clarify two issues
concernir disposal of fluorescent light ballasts which contain
PCB small capacitors. The issues will be discussed separately as
follows.
Issue 1 Can fluorescent light ballasts which are leaking
PCBs be disposed of as municipal solid waste, pursuant to 40 CFR
§761.60(b) (2) (ii)?
40 CFR §76l.60(b)(2)(ii) provides that “Any person may
dispose of PCB small capacitors as municipal solid waste, unless
that person is” a manufacturer of PCB equi rnent.
Once a PCB small capacitor starts leakin , it should be
treated as a PCB Article, which must be disposed of according to
the PCB Article disposal rules in 40 CFR §761.60(a).
There are two reasons why a leaking PCB small capacitor may
not be disposed of in the same manner as an intact PCB small
capacitor.
-------
2
The first is that throuqhout the proposed and final rule
preambles addressing disposal of PCBs, PCB small caoacitors in
fluorescent lighb- ballasts are presumed to be intact, so that
PCBs are used in an intact and nonleaking manner. Once a PCB
small capacitor starts leaking, it is no longer the type of PCB
small capacitor referred to in the rules. ) leaking PCB small
capacitor may not be disposed of as municipal solid waste under
40 CFR §761.60(b)(2)(ii). Instead, a leaking PCB small capacitor
is classified under PCB Articles, as defined at 40 CFR
§761.03(t), and must be disposed of according to the PCB Article
disposal rules in 40 CFR §761.60(a); that is, in an EPA—approved
PCB incinerator or in an EPA—approved chemical waste landfill.
The second is that a leak or spill of PCBs fran a small
capacitor is considered an illegal form of disposal of PCBs,
unless adequate cleanup and repair measures are initiated within
48 hours. See 47 FR 37342, 37354, August 25, 1982. A leaking
PCB Article should be either disposed of or repaired and cleaned
up within 48 hours, to avoid violating the disposal rule at 40
CFR §761.60(d). If a PCB small capacitor starts leaking and is
not repaired within 48 hours, it must be discarded in an approved
manner.
Iss 2 Can any volume of fluorescent light ballasts
containing PCB small capacitors be disposed of as municipal solid
waste?
EPA stated in the February 17, 1978 Federal Register , that
disposal requirements for small capacitors were not required (for
other than manufacturers of that equipment) because of: (1)
practical difficulties with enforcement; (2) the expense of
collecting a large number of small capacitors and concentrating
them for disposal; and (3) difficulties in determining who should
be responsible for paying for the costs of disposal. In the
rule, EPA contemplated that persons other than capacitor
manufacturers would dispose of only one or a few PCB small
capacitors at a time. A PCB Support I cument published for EPA
in April, 1979, stated, as well, at page 22, that “PCBs are
rather immobile in material with high organic content and would
not be expected to leach out of municiDal waste if present in low
concentrations. ” (emphasis in original).
In the May 31, 1979 final rule, EPA retained that regulatory
provision, but inserted a paragraph in the Preamble of the rule
which “encourages canmercial and industrial firms that use and
dispose of large quantities of [ intact and nonleaking] small PCB
capacitors to establish voluntarily a collection and disposal
program that would result in the waste capacitors going to
chemical waste landfills or high temperature incinerators.”
44 FR 31528, May 31, 1979. This encouragement was reiterated in
the August 25, 1982 final rule at 47 FR 37342, August 25, 1982.
The Headquarters determination was based on weighing the
risks posed by disposal of large quantities of (intact and
-------
3
nonleaking) PCB small capacitors in municipal, solid waste
landfills against the costs of alternative disposal requirements
and enforcement difficultiesona nationwide basis .
At the regional or local level, it may be reasonable in
certain situations to evaluate whether the risks posed by the
disposal of a quantity of PCB small capacitors outweigh the costs
of such disposal in EPA—approved PCB disposal facilities.
Considerations at the regional or local level si.ch as the
quantities being disposed of, the availability/proximity of EPA—
approved PCB disposal facilities, and the location and security
of municipal landfills could indicate that in certain situations
the disposal of PCB small capacitors as municipal solid waste
could be considered to pose an unreasonable risk to public health
and the enviror!nent.
We are able to suggest two approaches for deciding at the
regional or local level what quantities of PCB small capacitors
may be disposed of in a municipal solid waste landfill. One
approach is to weigh the above—mentioned factors and, if viable
alternatives are available, to consider that EPA usually requires
incineration or chemical waste landfilling of any quantity of
fluids which contains >500 ppm PCBs. A second approach may be to
consider that a PCB small capacitor, by definition, contains less
than 1.36 kg (3 lbs.) of dielectric fluid. 40 CFR
§761.3(d)(l). Because in the PCB small capacitor rule EPA
contemplated that only one or a few PCB small capacitors would be
disposed of at one time, 40 CFR §761.60(b)(2)(ii) could be
interpreted to mean that no more than three pounds of PCBs should
be disposed of as municipal solid wastes at one time. These two
approaches are offered as suggestions. If the regional or local
regulators have other approaches which have a rational policy
basis, please feel free to proceed under those approaches.
If this memorandum does not adequately address your concerns,
or if your have questions, please contact Amanda Ralph of my
staff at FTS—382—3959.
cc: EPA Regions I — IX
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UNITEi.. JTATES ENVIRONMENTAL PROTEC N AGENCY
REGION IV — ATLANTA, GEORGIA
OATE MAy 2 2 1979
SUBJECT Final PCB Disposal and Marking Regulations
PROM Director
Enforcement Division
TO Bruce Diamond
Office of General Counsel
In effectuating our enforcement program concerning viola-
tions of the Toxic Substances Control Act, the Enforcement
Division, Region IV, has encountered a problem in inter-
preting certain provisions of the February 17, 1978, “Final
PCB Disposal and Marking Regulations” and the subsequent
August 2, 1978, “Clarification.” Through recent telephone
communications you have informed Ms. Gwyn Newsom of my legal
staff that soil and debris which have been contaminated with
PCBs as a result of placement of’ PCBs in a disposal site or
as a result of a spill prior to February 17, 1978, would be
considered to be “in service” and would not be required to
be disposed of in accordance with the regulations, unless
such soil and debris are physically disturbed or removed
from the disposal site.
Region IV currently has three pending cases involving trans-
former companies which have soil, debris and water contami—
- nated with greater than 500 ppm of PCBs. Since it may be
difficult to prove In each of these cases that the PCB con-
tamination occurred after February 17, 1978, it is essential
that we receive as soon as possible a written interpretation
of these regulations pertaining to a spill and/or placement
in a disposal site prior to February 17, 1978. We will be
forced to postpone a scheduled meeting with one of’ the above-
mentioned companies unless we receive further guidance by
May 25, 1979.
Based upon thorough examination and discussion of these final
regulations, my legal and technical staffs have formulated the
following interpretation. According to S761.lO(b)(3),
soil and debris which have been contaminated
with PCB’s as a result of a spill or as a
result of placement of PCB’s in a disposal
site prior to the publication date of these
regulations shall be disposed of
EPA Penn 1320-6 (R.t.. 3-76)
-------
2
Ci) In an incinerator which complies
with Annex I, or
(ii) In a chemical waste landfill (emphasis
added).
Furthermore, according to Section 761.lO(e)(l), “spills
and other uncontrolled discharges of PCB chemical substances
or PCB mixtures constitute the disposal of PCB chemical
substances or PCB mixtures.”
Please note that in S76l.lO(b)(3), the terms “spill” and
“placement in a disposal site” are each specifically enu-
merated, thus leading to the apparent conclusion that these
two terms are considered to be distinct, separate phenomena.
However, the August 2, 1978, clarification does not mention
the term “spill;” rather, the clarification only addresses
the term “placement in a disposal site,” and even more spe-
cifically, the term “landfill.” The exact language employed
in the clarification is the following:
PCB—containing soil and debris which
have been placed in a disposal site are
considered to be “in service” for pur-
poses of the applicability of the Note
discussed in the last paragraph. There-
fore, S761.lO(b)(3) does not require
PCB—contaminated soil or debris landfilled
prior to February 17, 1978 , to be removed
for disposal. However, if such soil or
debris is removed from the disposal site,
it must be disposed of in accordance with
the regulation. (emphasis added)
We believe that a legitimate interpretation of this fore-
going paragraph is that S761.1O(b)(3) would not require
PCB—contaminated soil or debris that had been landfilled or
otherwise placed in a disposal site prior to February 17,
1978, to be removed for disposal. However, in the case of a
spill which occurred prior to February 17, 1978, the result-
ing contaminated soil or debris would have to be disposed of’
in accordance with the regulations.
It would seem that the justification for not requiring
proper disposal of PCB—contaminated soil or debris which had
been placed in a disposal site prior to February 17, 1978,
would not similarly apply to PCB contamination resulting
-------
3
from a spill. For example, suppose that a transformer
company’s activities had produced PCB waste or PCB—contami—
nated soil or debris prior to February 17, 1978. If such a
company had disposed of this contaminated material in a
disposal site prior to February 17, 1978, then the com-
pany could assert that, at that time, it had disposed
of the PCB-contaminated material in a legally and envi-
ronmentally responsible manner. To subsequently require
such a company to dig up the disposed PCB material from
one disposal site and take it to a now-approved PCB
disposal site would seem to be unreasonable.
On the other hand, soil and debris contamination resulting
from a spill or other uncontrolled discharge is evidence
of irresponsible and possibly negligent handling of PCB
substances or mixtures. Since PCE contamination resulting
from a spill often is not confined to a definite disposal site
or area, such contamination presents a much greater hazard to
human health and the environment than PCB—contaminated soil and
debris which have been placed in a disposal site. Furthermore,
a company which has on its property PCB—contaminated soil and
debris which are not contained in a “disposal site,” obviously
has not taken any action to dispose of the contaminated soil and
debris in any manner, whether it be by a method acceptable prior
to or after February 17, 1978. In such a case, the continued
presence of soil and debris contaminated with greater than 500
ppm PCBs could be considered to be improper disposal. Such
improper disposal continues until the contaminated soil or
debris is cleaned up and disposed of’ properly.
In conclusion, I would appreciate your written interpreta-
tion of the above—discussed regulations. Specifically, we
need written guidance concerning enforcement of these
regulations in the following situations:
(1) Soil and debris contaminated with PCBs as a result
of placement of PCBs in a disposal site which is not
a landfill prior to February 17, 1978.
(2) Soil and debris contaminated with PCBs as a result
of a spill prior to February 17, 1978.
(3) Soil and debris contaminated with PCBs as a result
of a spill after February 17, 1978.
-------
(14) The current presence on a person’s property of
water, oil and other liquids contaminated with
PCBs.
In each situation, assume that the PCB contamination is
in excess of 500 ppm, and after the new regulations, in
excess of 50 ppm.
Since an expeditious response by you is essential to our
current enforcement program, please respond in writing no
later than May 25. 1979.
m 4 /
Sanford W. H y, Jrt Y
-------
D 7q
____ UNITED STATES ENVIRONMENTAL PROTECTION AGENt t4/RECio5PT\,
/ WASHINGTON. D.C. 20460
Au 7
b
3 MIS 1979
OFFICE OF
MEMORANDUM GENERAL COUNSEL
SUBJECT: Applicability of PCB Regulations
to Spills Which Occurred Prior
to the Effective Date of the
1978 Regulation
FROM: John W. Lyon, Attorney
Toxic Substances Division (A—l32T)
THRU: Richard J. Denney, Jr., Associate
General Counsel, Toxic Substances
Division (A—132T)
TO: Sanford W. Harvey, Jr., Director
Enforcement Division, Region IV
BACKGROUND
On February 17, 1978, EPA promulgated a regulation (43
FR 7150) for the disposal and marking of polychiorinated
biphenyls (PCBs) pursuant to Section 6(e) of the Toxic
Substances Control Act (TSCA). The regulation was super-
seded by a 1979 PCB regulation (44 FR 31514, May 31, 1979)
which imposed additional disposal requirements by lowering
the definition of PCBs from a minimum concentration of 500
ppm to 50 ppm. Your memorandum of May 22, 1979 requests our
opinion as to the applicability of the 1978 PCB regulation
to situations in which the PCB disposal or spill occurred
prior to the effective date of the 1978 regulation.
QUESTION
Under what circumstances can EPA regulate PCB
contamination of soil or debris caused by PCB spills or
other uncontrolled discharges of PCBs which were in place or
disposed of prior to the effective date of the 1978 PCB
regulation?
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CONCLUS ION
The 1978 and 1979 PCB regulations are prospective in
application. They do not regulate conduct which occurred
prior to the dates (April 18, 1978 and July 2, 1979) when
the two regulations became respectively effective. How-
ever, the regulations (Section 761.10(e), 43 FR at 7158 and
Section 761.10(d), 44 FR at 31547) contain provisions
relating to discharges from spills and disposal of PCBs.
Thus, if continued PCB leaching or runoff occurs after the
respective effective dates of the regulations, such leaching
or runoff would violate the regulations even though the
spill or disposal may have occurred before the effective
dates.
DISCUSSION
It was the intent of both the 1978 and 1979 PCB
regulations to be prospective in application. PCBs land—
filled prior to February 17, 1978 do not have to be dug up and
redisposed of in accordance with the regulation. However,
if the PCB—contaminated soil and debris are removed from
the substandard disposal site, they must be disposed of
in accordance with the regulations. This prospective
intent was clarified as to PCB—containing soil and debris by
an August 2, 1978 addendum to the preamble for the 1978
regulation. In the addendum, EPA stated:
the regulations do not
require the removal of any PCBs from
service earlier than would otherwise
be the case. However, when they are
removed from service and disposed of,
disposal must be in accordance with
the regulation.
PCB—containing soil and debris
which have been placed in a disposal
site are considered to be “in service t ’
for purposes of [ this regulation] . .
43 FR 33918, 33919, August 2, 1978. See similar language
in 44 FR at 31545, May 31, 1979.
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In effect, EPA gave individuals and disposers subject
to the regulation a choice as to PCBs disposed of prior to
February 17, 1978.1/ They could either (1) dig up the PCBs
disposed of prior to February 17, 1978 and redispose of them
pursuant to the 1978 regulation or (2) they could leave the
PCBs in place and treat them as being “in service” while the
PCBs remain in the substandard disposal site.2/
If the second option is selected, an individual is
responsible for proper disposal of any uncontrolled dis-
charges from the “in service t ’ PCBs if such discharges occur
after April 18, 1978, the effective date of the 1979 regula-
tion. This follows from Section 761.l0(d)(l), 44 FR at
31547, May 31, 1979, which states:
Spills and other uncontrolled
discharges of PCBs constitute the
disposal of PCBs.
Emphasis added. See also Section 761.10(e), 43 FR at 7158,
February 17, 1978.
Leaching of PCBs into a medium such as soil or water
would constitute an uncontrolled discharge of PCBs in terms
of the regulation if the discharge occurred after April 18,
1978. Therefore, for purposes of enforcement, EPA must show
PCB contamination by leaching or other means which occurred
after April 18, 1978. Leaching or other PCB contamination
(500 ppm or greater after April 18, 1978 and 50 ppm or
greater after July 2, 1979) would constitute a violation of
1/ Most aspects of the 1978 PCB regulation became effective
April 18, 1978, not February 17, 1978. However, all soil
and debris contaminated with PCBs which are disposed of
after the publication date of the regulation (February 17,
1978) must be disposed of in accordance with the regulation.
See 43 FR 33918, August 2, 1978.
2/ A site where a PCB spill ocurred before April 18,
1978 is considered a substandard PCB disposal site.
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the regulation as improper disposal of an uncontrolled
discharge of PCBs.
This opinion considers only Section 6(e) of TSCA.
Remedies under other statutes or under other sections of
TSCA may also be available.
cc: Gwyn Newsom
Heather Gray
Harold Snyder
David Pepson
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