6EPA Toxic Substances Control Act
COMPLIANCE/ENFORCEMENT
GUIDANCE MANUAL
U.S. ENVIRONMENTAL PROTECTION AGENCY
Washington DC 20460
Prepared by
Pesticides .and Toxic Substances
Compliance Monitoring Staff
and
Office of Enforcement and Compliance Monitoring
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TabIe of Contents -
Chapter One Overview
1 Purpose of the Manual 1—1
2 Overview of the Act 1—3
3 The Toxic Substances Control Act 1—11
4 Regulatory Elements 1—57
5 Glossary 1—67
Chapter Two General Operating Procedures
Chapter Three Compliance Monitoring Procedures
1 Introduction 31
2 Inspect ions 33
2a Records and Establishment Inspections 3—7
2b TSCA Notification Letters 3—11
2c Warrants 3—13
3 Subpoenas 3—23
Chapter Four Documentation of Evidence
I Introduction 4—1
2 Inspection File RevIew 4—3
3 Review of Adequacy of Evidence 4—7
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Table of Contents
Chapter Five Determination of Appropriate
Enforcement Response
1 Introduction 5—1
2 Level of Action Policy 5—3
Chapter Six Administrative Enforcement Actions:
Notices of Violation and Administrative Orders
1 Introduction 6—1
2 Administrative Enforcement Procedures 6—3
Chapter Seven Administrative Enforcement Actions:
Civil Penalty Proceedings
1 Introduction 7—1
2 Elements of a Violation: Administrative 7—3
3 Complaint Preparation and Filing 7—13
4 Prehearing Stage 7—29
5 Hearing Stage 7—47
6 Post—Hearing Stage 7—65
Chapter Eight Judicial Enforcement: Civil Actions
1’ Introduction 8—1
2 Elements of a Violation: Civil 8—5
3 Procedures for Filing Actions 8—9
4 Injunctive Actions 8—21
5 In Rem (Seizure) Actions 8—37
6 Settlement Agreements 8—43
Chapter Nine Judicial Enforcement: Criminal Actions
Chapter Ten Post—Settlement Enforcement
TSCA Conpliance/ iforcement ii Cialdance Menual 1984
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Table of Contents
Chapter Eleven Special Considerations
Appendices
1 Collection of Civil Penalty Assessments A—i
2 Expert Witnesses A—57
3 Enforcement Response Policies and Penalty Policies A—63
4 Settlement With Conditions A—123
5 Additional Sources of Compliance/Enforcement Information A—161
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Table of Cimteut.
TSCA p1iancefEi forceaent lv i1dnce Manual 1984
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1 Overview
j
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1 Overview
)
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Chapter One
Overview
Chapter Contents Page
I Purpose of the Manual 1—1
Reservation 1—1
The Update System 1—1
Common Acronyms and Abbreviations Used in This Manual 1—2
2 Overview of the Act 1—3
Purpose and Scope 1—3
Authorities and Responsibilities 1—4
Synopsis of the Act 1—4
3 The Toxic Substances Control Act 1—11
4 TSCA Regulatory elements 1—57
The Friable Asbestos—Containing Material in Schools Rule 1—57
The Fully Halogenated Chiorofluoroalkanes (CFCs) Rule 1—59
The Polychiorinated Biphenyls (PCBs) Rule 1—60
The Preinanufacture Notification (PMN) Rule 1—61
The Tetrachlorodibenzo—p—dioxin (TCDD) Rule 1—64
5 Glossary 1—67
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Chapter One Contente
TSC& Coiipliance/Enforce.eut 1—li CuiJaà e Manual 1984
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Chapter One
1 Purpose of the Manual
The purpose of this manual is to provide guidance to compliance/enforcement
personnel on the substantive and procedural requirements necessary for
ensuring compliance and preparing enforcement cases under the Toxic Sub-
stances Control Act (TSCA).
The manual describes the processes of case development and judicial pro-
ceedings including: analyzing evidence collected during a compliance
inspection to determine its sufficiency in documenting a suspected
violation; issuing an enforcement action; presenting evidence in an
adjudicatory hearing; and monitoring compliance with consent decrees.
Reservation _____ _____ ________________ __________
The policies and procedures set forth herein and the internal office proce-
dures adopted pursuant hereto are intended solely for the guidance of
United States Environmental Protection Agency personnel. These policies
and procedures are not intended to be relied upon to create a right or
benefit (substantive or procedural) enforceable at law by a party to liti-
gation with the United States Environmental Protection Agency. The Agency
reserves the right to take any action that is alleged to be at variance
with these policies and procedures or that is not in compliance with inter-
nal office procedures.
The Update System ______ _______——_________
As revised or additional material is developed for the manual, it will be
distributed to all manual holders. A transmittal form will accompany and
explain these changes. The revised or additional pages will be identical
to the original page, but with added identification at the bottom of the
page.
TSC& CospUancs/&zforc iizt Page Uda ee aauaI (Year)
Rviead
- r iiii 1 i s
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Chapter One Purpose of the P nual
When revisions entail the addition of pages into the manual ( i.e. , when
three pages in the manual are replaced by five pages), the additional pages
will be numbered as follows:
Original numbering: 3—3, 3—4, 3—5, 3—6, etc.
Addition of pages: 3—3, 3—4, 3—Sa, 3—5b , 3—Sc , 3—6, etc.
This system will allow updates to be made quickly and easily and will avoid
disruption of the chapters. New material will be numbered sequentially by
chapter.
Common Acronyms and Abbreviations Used in This Manual
CFC —— Chiorofluorocarbon (Fully Halogenated Chiorofluoroalicane)
C.F.R. —— Code of Federal Regulations
CROP — Consolidated Rules of Practice
EPA — — United States Environmental Protection Agency
FATES —— FIFRA and TSCA Enforcement System
FDA —— Food and Drug Administration
HQCDO —— Headquarters Case Development Officer
NON —— Notice of Noncompliance
OECM —— Office of Enforcement and Compliance Monitoring
PCB —— Polychiorinated Biphenyl
PMN — — Premanufacture Notice
PTSCMS —— Pesticides and Toxic Substances Compliance Monitoring Staff
RCDO —— Regional Case Development Officer
TCDD — Dioxin (Tetrachlorodibenzo—p—dioxin)
TSCA —— Toxic Substances Control Act
U.S.C. —— United States Code
TSC liance(Noforcement 1-2 Guidance Manual 1954
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Chapter One
2 Overview of the Act
The Toxic Substances Control Act, Public Law 94—469, was passed by Congress
in 1976 to “regulate commerce and protect human health and the environment
by requiring testing and necessary use restrictions on certain chemical
substances.’ The Act, referred to as “TSCA,” became effective on January
1, 1977, and is codified at 15 U.s.c. §2601 et Regulations promul-
gated pursuant to the Act are found at 40 C.Y R. Parts 702 through 775.
Purpose and Scope
TSCA was enacted to correct the lack of health and safety information that
had previously existed concerning chemical substances and mixtures and to
prevent unreasonable risk of Injury to human health and the environment
from harmful chemicals. The Act, therefore, is designed to:
• Ensure that industrial data on the production, use, and resultant
health and environmental effects of chemical substances or mixtures
are obtained by EPA so that the degree of risk associated with such
substances or mixtures can reasonably be determined; and
• Provide (if this information shows that controls are warranted) the
means by which EPA may regulate the manufacture, processing, dis-
tribution in commerce, use, and disposal of chemical substances’ or
mixtures.
Excluded from the Act are,:
• Pesticides (as defined in the Federal Insecticide, Fungicide, and
Rodenticide Act) when manufactured, processed, or distributed in
commerce for use as pesticides.
• Tobacco or tobacco products;
• Source material, special nuclear material, or byproduct material
(as such terms are defined in the Atomic Energy Act of 1954 and
regulations issued under such Act);
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Chapter One —- - — -- Overview of the Act
• Articles whose sale is subject to the tax imposed by Section 4181
of the Internal Revenue Code of 1954 (firearms and anisunition); and
• Food, food additives, drugs, cosmetics, or devices (as such terms
are defined in Section 201 of the Federal Food, Drug, and Cosmetic
Act) when manufactured, processed, or dist-r1 buted in coerce for
use as food, food additives, drugs, cosmetics, or devJ ces.
Authorities and Responsibilities
The Administrator of EPA is authorized to administer the Act in a reason-
able and prudent manner, often considering the economic, social, and envi-
ronmental costs and benefits of actions taken under TSCA. Within EPA,
several offices are responsible for providing national guidance for TSCA
compliance/enforcement activities. Chapter Two contains a discussion of
these offices and their responsibilities.
Synopsis of the Act - —
TSCA authorizes the Administrator to establish regulations that govern
testing of chemical substances and mixtures, premanufacture notification
for new chemical substances or significant new uses of existing substances,
chemical substances or mixtures that pose an imminent hazard, and record—
keeping and reporting requirements. The Act also defines TSCA’s relation—
shi p with other federal laws; authorizes research and development; and
provides specific authoritie8 for inspections, subpoenas, and injunctive
relief. tn addition, TSCA provides for the protection of confidential
business Information submitted to the Agency. These provisions of the Act
are briefly reviewed below (from a compliance/enforcement perspective).
Testing of Chemical Substances and Mixtures (Section 4 )
The Administrator may, by regulation, require the testing of new and exis-
ting chemical substances or mixtures that may present an unreasonable risk
to human health or the environment if available data on such substances or
mixtures is inadequate to determine the risk. The testing of chemical sub-
stances or mixtures may consist of health and environmental effects such as
carcinogenesis, mutagenesis, teratogenesis, chronic toxicity, behavioral
disorders, cumulative effects or synergistic effects, or other effects that
may present an unreasonable risk of injury to human health or the environ-
ment. The Agency is to set and review the standards for the tests; manu-
facturers and processors of chemical substances or mixtures have the burden
of performing the required tests.
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Chapter One Overview of the Act
Manufacturing and Processing Notices (Section 5 )
Manufacturers of new chemical substancea and manufacturers and processors
of existing chemical substances for significant new uses must notify EPA 90
days before manufacturing or processing such substances. The notification
should include the name 1 formula 1 uses, production volume, and other facts
that the Agency may require. Any chemical eubstance not listed in the TSCA
Chemical Substance Inventory [ see Section 8(b) of the Act] is considered
“new” under this section. (Mixtures are not covered under this require-
ment, and there are exemptions for small quantities of chemicals used for
research.) The Agency may limit the production or even prohibit the manu-
facture, processing, or distribution of a chemical substance that pre-
sents——or that, in the absence of sufficient information on which to base a
decision regarding environmental and human health effects, may present——an
unreasonable risk of injury to human health or the environment.
Regulation of Hazardous Chemical Substances and Mixtures (Section 6 )
Where there is a reasonable basis to conclude that a chemical substance or
mixture presents or will present an unreasonable risk of injury to human
health or the environment, the Administrator is empowered to take a wide
variety of regulatory actions that:
• Prohibit or limit the manufacturing, processing, or distributing in
commerce of such substance or mixture;
• Require, by labeling and other means, appropriate warnings and
instructions with respect to the use, distribution in commerce, or
disposal of the chemical substance or mixture;
• Require recordkeeping and testing of euch substance or mixture;
• Regulate the manner of disposal of the substance or mixture;
• Direct manufacturers or processors of such substance or mixture to
give notice of the unreasonable risk or to replace or repurchase
the substance or mixture; or
o Impose quality control procedures.
Section 6 also regulates the use, distribution, manufacture, and processing
of polychiorinated biphenyls (PCBs). PCBs are the only chemical substances
that are specifically addressed in the Act.
Imminent Hazards (Section 7 )
The Administrator may commence an action in an appropriate district court
for the seizure and/or other immediate relief against an imminently hazar-
dous chemical substance or mixture (which is defined as one that “presents
an imminent and unreasonable risk of serious or widespread injury to health
or the environment”).
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Chapter One Overview of the Let
Reporting and Retention of Information (Section 8 )
The Agency may require the submission and maintenance of records and
reports necessary for the effective implementation of TSCA. Under Section
8(b) of the Act, EPA is required to compile and maintain an inventory of
each chemical substance manufactured or processed in the United States.
The initial TSCA Chemical Substance Inventory va s published on June 1,
1979.
Section 8(c) requires any person who manufactures, processes, or distri-
butes in commerce a chemical substance or mixture to maintain records of
significant adverse reactions to human health or the environment alleged to
have been caused by the substance or mixture. Section 8(e) requires iam —
diate reporting of any information that reasonably supports the conclusion
that a chemical substance or mixture presents a su1 stantial risk of injury
to human health or the environment.
Relationship to Other Federal Laws (Section 9 )
If a chemical substance or mixture presents or m y present an unreasonable
risk of injury to human health or the environment and such risk may be pre-
vented or reduced to a sufficient extent by In ctioü taken under a federal
law not administered by EPA, EPA may refer the matter to the agency that
would administer that particular law. Actions taken by EPA under TSCA are
to be coordinated with the other federal laws administered by the Agency.
EPA is also required to coordinate with other federal agencies for purposes
of TSCA enforcement.
Research and Development (Section 10 )
EPA may, in consultation with other agencies, conduct or support research,
development, and monitoring activities to carry out the purposes of the
Act.
inspections and Subpoenas (Section 11 )
The Act authorizes, upon presentation of proper credentials and notice, the
inspection of establishments, facilities, and other premises where chemical
substances or mixtures are manufactured, processed, stored, held, or con-
veyed. The inspection may extend to all things within the premises or con-
veyance that bear on whether the requirements of the Act are complied
with. Financial, sales, pricing, personnel, or research data may not be
inspected unless specified in the notice of inspection. In carrying out
the Act, the Administrator has the authority to subpoena witnesses and
documents.
TSCA Co ip1iance1Enforcement 1-6 GUidance N aii1 1984
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Chapter One Overview of the Act
Exports and Imports (Sections 12 and 13 )
TSCA authorizes the regulation of exported chemical substances or mixtures
and articles containing chemical substances or mixtures if it can be shown
that the substances, mixtures, or articles present an unreasonable risk of
injury to health within the United States or the environ nt of the United
States. EPA may also require the testing of any exported chemical sub-
stance or mixture to determine whether such a risk exists. Any person who
exports, or intends to export, a chemical substance or mixture for which
the submission of testing or premarket data is required must notify the
Agency of such exportation or intent to export. Notification is also re-
quired if the exported substance or mixture is subject to a regulatory
order or action. The Agency is responsible for notifying the goverTnuents
of importing countries of any regulatory restrictions. The recordkeeping
and reporting requirements of Section 8 apply to exports.
Imported chemical substances or mixtures and articles containing chemical
substances or mixtures are subject to all the requirements of TSCA. The
United States Treasury Department (U.S. customs Service) is responsible for
establishing, in cooperation with EPA, procedures to ensure compliance with
the Act.
Disclosure of Data (Section 14 )
This section of the Act provides for the protection from disclosure of any
confidential business information, such as trade secrets and privileged
financial data. Any health and safety studies that have been submitted
under the Act may be subject to disclosure. EPA employees are subject to
criminal penalties for the willful disclosure of confidential business
information.
Prohibited Acts (Section 15 )
It is unlawful for any person to:
• Fail or refuse to comply with any rule promulgated or order issued
under Section 4, 5, or 6 of the Act, or any requirement prescribed
by Section 5 or 6;
• Use for commercial purposes a chemical substance or mixture that
such person knew or had reason to know was manufactured, processed,
or distributed in commerce in violation of Section 5 or 6, a rule
or order under Section 5 or 6, or an order issued in an action
brought under Section 5 or 7;
• Fail or refuse to establish or maintain records; submit reports,
notices, or other information; or permit access to or copying of
records, as required by the Act or a rule promulgated thereunder;
or
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Chapter One Overview of the Act
• Fail or refuse to permit entry or inspection as required by Section
11.
Penalties (Section 16 )
Any person who violates a provièion of Section 15 is Subject to a civil
penalty of up to $25,000 for each violation. Each day such a violation
continues constitutes a separate violation of Section 15.
Any person who knowingly or willfully violates any provision of Section 15
may, in addition to or in lieu of any civil penalty, be subject, upon con-
viction, to a fine of not more than $25,000 for each day of violation, or
to imprisonment for not more than one year, or both.
Specific Enforcement and Seizure (Section 1. )
The district courts of the United States have jurisdiction over civil
actions for the following purposes:
• To restrain any violation of Section 15;
• To restrain any person from taking any action prohibited by Sec-
tion 5 or 6 or by a rule or order issued under Section 5 or 6;
• To compel the taking of any action required by or under TSCA; and
o To direct any manufacturer or processor of a chemical substance or
mixture manufactured or processed in violation of Section 5 or 6 or
a rule or order issued under Section 5 or 6 and distributed in com-
merce to give notice of such fact to distributors, to give public
notice of such risk of injury, and to either replace or repurchase
such substance or mixture.
The Agency may also proceed against, by process of libel for seizure and
condemnation, any chemical substance or mixture tI at was manufactured, pro-
cessed, or distributed in comaerce in violation of TSCA or any rule promul-
gated or order issued under the Act or any article containing such a sub-
stance or mixture. Such an action may be brought in any district court of
the United States in which such substance, mixture, or article is found.
Pre—emption (Section 18 )
A state, or political subdivision of a state, is pre—empted from regulating
toxic substances in two circumstances. First, no state may establish or
retais any requirement for testing chemical substances or mixtures that is
similar to a requirement promulgated under Section 4 of TSCA. Second, no
state may establish or retain a rule regulating chemical substances or
mixtures that are subject to a Section 5 or 6 rule or order [ other than a
rule under Section 6(a)(6)J unless the state or local law (1) is identical
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Chapter One Overview of the Act
to the requirement prescribed by the Administrator, (2) is adopted pursuant
to another federal law, or (3) prohibits the end use of such substances or
mixtures on that state or political subdivision.
Section 8(b) establishes a procedure in which a state, or politic 1 sub-
division of a state, may petition the Administrator for an exemption from
those situations where pre—emption would apply.
Judicial Review (Section 19 )
Not later that 60 days after the date of the promulgation of a rule under
Section 4(a), 5(a)(2), 5(b)(4), 6(a), 6(e), or 8, any person may file a
petition for judicial review of such rule with the United States Court of
Appeals for the District of Columbia Circuit or the circuit in which the
person resides or has his or her principal place of business.
Citizens’ Civil Actions (Section 20 )
Subject to certain limitations, any person may commence a civil action
against:
• Any person who is alleged to be in violation of TSCA or any rule
promulgated under Section 4, 5, or 6 or order issued under Section
5 to restrain such violation; or
• The Administrator to compel the Administrator to perform any non—
discretionary act or duty under TSCA.
Attorney’s fees and other court costs may be awarded if it is determined by
the court that such an award is appropriate.
Citizens’ Petitions (Section 21 )
This section of the Act contains the procedures by which a person may peti-
tion the Administrator to initiate a proceeding for the issuance, amend-
ment, or repeal of a rule under Section 4, 6, or 8 or an order under Sec-
tion 5(e) or 6(b)(2).
National Defense Waiver (Section 22 )
The Administrator must waive compliance with any provision of TSCA upon a
request and determination by the President that the requested waiver is
necessary in the interest of national defense.
State Programs (Section 28 )
For the purpose of complementing (but not reducing) the authority of, or
actions taken by, the Administrator under TSCA, the Administrator may make
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Chapter One Overview of the Act
grants to states for the establishment and operation of toxic substances
programs. Such programs are intended to prevent or eliminate unreasonable
risks to human health or the environment associated with a chemical
substance or mixture within the states.
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Chapter One
3 Toxic Substances Control Act
THE TOXIC SUBSTANCES CONTROL ACT
(PL 94-469; Enacted by Congress September 28. 1976
and Signed by the President October 11, 1976; Amended
by PL 97-129. December 29, 1981)
Public Law 94—469
94th Congress
An Act
To regulate commerce and protect human health and rite envirnnoi. u,t l ’ Oct Ii. I ’)Tt .
requiring testing and necessary use restrictions on certain chemical subt’tances. f
and for other purposes.
Be t eviacted by the S’enate and IlouMe of Repi ’etsentatiues o/the
Uni Ied State., of .4rnerir in Con gicee a88embted, T ’t ic ubStar .
SECTION 1. SHORT TITLE AND TABLE OF CONTENTS.
This Act may be cite(I a the “Toxic Substances Control Act”. note
TABLE OF CONTENTS
See. 1. Short title and table of contents.
Sec. 2. Findings, policy, and intent.
See. 3. Deitnitioiis.
Sec. 4. Testliig it t ehemicul sub tniices and titixtures.
Sec. 5. Manufacturing and processing notices.
See. 6. Re ulntinn lit h zarthjus chemical ubstancea and mixtures.
Sec. 7. Imminent hazards.
Sec. 8. Reporting and retention of information.
See. 9. ReIart . ’miliip to other Federal laws.
Sec. it). Resenrch, development, collection. dissenunation, and urtltatitii.n i f tiuli
Set 11. Iii’pectioiie and subpoenias.
SetS 12 I Z ’Orts.
Sec. 18. Entry into customs territory of the United States.
Sec. 14. Dlxchnwre of data.
Sec. 15. ProhIbited acts.
Sec. 16 PenaltIes.
Sec. 17. Specific enforcement and seizure.
$ec. 18. l’reemptlon.
See. Ii). Judicial review.
Sec. 20. CitIzens cl iii actions.
See. 21. (‘Itlzens’ petitions.
Sec. 22. National defense waiver.
See. 23. Employee protection.
Sec. 24. Employment effects.
Sec 2 . Studies.
See. 26. AdmInistration of the Act.
S c 27 Development and evaluation of test methods,
Sec. 25. State programs.
Sec. 29. Authorization for appropriations.
Sec. 30. Annual report.
Sec. Si. Effective date.
SEC. 2. FINDINGS, POLICY. AND INTENT.
(a) FINDIN .s.—The(’ongress finds that— 15 1 ( 2( (Jl
(1) human beings and the environment are being expnse .l i adi
year to a large number of chemical eubstanees and mixt it ri-:
(2) among the many chemical substances and nii turc hi’•Ii
are constantly being developed and produced, there au’ ‘ui’c
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Chapter One TSC&
whose manufacture, processing, di tribiitioii in commerce, use, or
disposal may present an unreasonable risk of injury to health or
the environment; and
(3) the effective regulation of interstate commerce in such
chemical substances and mixtures also necessitates the regulation
of intrastate commerce in such chemical substances and mixtures.
(b) Por.icy.—It is the policy of the United States that—
(1) adequate data should be developed with respect to the effect
of chemical substances and mixtures on health and the environ-
nient and that the development of such data should be the Respon-
sibility of those who manufacture and those who process such
chemical substances and mixtures;
(2) adequate authority should exist to regulate chemical sub-
stances and mixtures which present an unreasonable risk of injury
to health or the environment, and to take action with respect to
chemical substances and mixtures which are imminent hazards;
and
(3) authority over chemical substances and mixtures should be
exercised in such a manner as not to impede unduly or create
unnecessary economic barriers to technological innovation while
fulfilling the primary purpose of this Act to assure that such inno-
vation an(l commerce in such chemical substances and mixtures
do not present an unreasonable risk of injury to health or the
environment.
(c) INTENT or CoNoaxss.—It is the intent of Congress that the
Administrator shall carry out this Act in a reasonable and prudent
manner, and that the Administrator shall consider the environmental,
economic, and social impact of any action the Administrator takes or
proposes to take under this Act.
SEC. 3. DEFINITIONS.
15U 5C2602. AsusedinthisAct:
(1) the term “Administrator” means the Administrator of the
Environmental Protection Agency.
(2) (A) Except as provided in subparagraph (B), the term “chexn-
ical substance” means any orpnic or inorganic substance of a particu-
lar molecular identity, including—
(i) any combination of such Mibstances occurring in whole or
in part as a result of a chemical reaction or occurring in nature,
and
(ii) any element or uncombined radical.
(13) Such term does not include—
(i) any mixture,
(ii) any pesticide (as defined in the Federal Insecticide, Fungi-
7 USC 136 imte. dde, and Rodenticide Act) when manufactured, processed, or
distributed in commerce for use as a pesticide,
(iii) tobacco or any tobacco product,
(iv) any so mrce material, special nuclear material, or byproduct
material (as such terms are defined in the Atomic Energy Act
42 USC 2011 of 1954 and regulations issued under such Act),
(v) any article the sale. of which is subject to the tax imposed
26 Usc 4181. by section 4181 of the Internal Revenue Code of 1954 (aeter-
mined without regard to any exemptions from such tax provided
26 USC 4182. by section 4182 or 4221 or any other provision of such (‘ode). anti
4221. (vi) any food, food additive, drug, cosmetic, or device (as such
terms are defined in seition 201 of the Federal Food. Drug, and
21 USC 321 Cosmetic Act) when maim factu red. processed, or distributed in
commerce for use as a food, food additive, drug. cosmetic, or
device.
The term food” as used in rIan c (vi) of this subparagraph includes
poultry and poultry products (as defined in sections 4(e) and 4(f)
21 USC 453 of the Poultry Products Inspection Act.). meat and meat food prod-
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Chapter One ‘ISCL
ucts (as defined in section 1(j) of the Federal Meat Inspection Act), 21 USC 601.
and eggs and egg products (as defined in section 4 of the Egg Prod.
ucts Insnection Act). 21 USC 1033
(3) The term “commerce” means trade, traffic, transportation, or
other commerce (A) between a place in a State and any place outside
of such State, or (B) which effects trade, traffic, transportation, or
commerce described in clause (A).
(4) The terms “distribute in commerce” and “distribution in corn.
inerce when used to describe an action taken with respect to a chem-
ical substance or mixture or article containing a substance or mixture
mean to sell, or the sale of, the substance, mixture, or article in corn-
rnerce; to introduce or deliver for introduction into commerce, or the
introduction or delivery for introduction into commerce of, the sub-
stance, mixture, or article; or to hold, or the holding of, the substance,
mixture, or article after its introduction into commerce.
(5) The term “environment” includes water, air, and land and the
interrelationship which exists among and between water, air, and land
and all living things.
(6) The term “health and safety study” means any study of any
effect of a chemical substance or mixture on health or the environ-
inent or on both, including underlying data and epidemiological
studies, studies of occupational exposure to a chemical substance or
mixture, toxicological, clinical, and ecological studies of a chemical
substance or mixture, and any test performed pursuant to this Act.
(7) The terni “manufacture” means to import into the customs
territory of the United States (as defined in general headnote 2 of
the Tariff Schedules of the United States), produce, or manufacture. 19 USC 1202.
(8) The term “mixture” means any combination of two or more
chemical substances if the combination does not occur in nature and
is not, in whole or in part, the result of a chemical reaction; except
that such term does include any combination which occurs, in whole
or in part, as a result of a chemical reaction if none of the chemical
substances comprising the combination is a new chemical substance
and if the combination could have been manufactured for commer-
cial purposes without a chemical reaction at the time the chemical
substances comprising the combination were combined.
(9) The term “new chemical substance” means any chemical sub.
stance which is not included in the chemical substance list compiled
and published under section 8(b).
(10) The term “process” means the preparation of a chemical sub-
stance or mixture, after it manufacture, for distribution in
conunerce—
(A) in the same form or physical state as, or in a different
form or physical state fr’om that in which it was received by the
person so preparing such substance or mixture, or
(B) as part of an article containing the chemical substance
or mixture.
(11) The term “processor” means any person who processes a chemi-
ctil substance or mixture.
(12) The term “standards for the development of test data” means
a prescription of—
(A) the—
(i) health and enviromnental effects. and
(ii) information relating to toxicity, persistence, and other
c.haracteristics which affect health and the environment,
for which test data for a chemical substance or mixture are to
be developed and any analysis that is to be performed on such
data, and
(B) to the extent necessary to assure that data respecting such
effects and characteristics are reliable and adequate.—
(i) the manner in which such data are to be developed,
TSC& Gump1iance/Enforcez nt 1-13 Guidance )tanual 1984
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Chapter One TSC&
(ii) the specification of any test protocol or methodology
to be employed in the development of such data, end
(iii) such other requirements as are necessary to provide
such assurance.
(13) The term “State” meaiis any State of the United States, the
District of Columbia, the Commonwealth of Puerto Rico, the Virgin
Islands, Guam the Canal Zone, American Samoa, the Northern
Mariana Islazu s, or any other territory or possession of the United
States.
(14) The term “United States”, when used in the geographic sense,
means all of the States.
SEC 4. TESTING OF CI1EI tJCAL SUBSTANCES AND MIXTURES.
15 USC 2603. (a) TE5TU4o Rx uIRE tuw1s.—If the Administrator finds that—
(1) (A) (i) the manufacture, distribution in commerce, proc.
easing, use, or disposal of a chemical substance or mixture, or that
any combination of such activities, may present an unreasonable
risk of injury to health or the environment,
(ii) there are insufficient data and experience upon which the
effects of such manufacture, distribution in commerce, processing,
use, or disposal of such substance or mixture or of any combina-
tion of such activities on health or the environment can reason-
ably be determined or predicted, and
(iii) testing of such substance or mixture with respect to such
effects is necessary to develop such data; or
(B) (i) a chemical substance or mixture is or will be produced
in substantial quantities, and (I) it enters or may reasonably be
ant icipated to enter the environment in substantial quantities or
(II) there is or may be significant or substantial human exposure
to such substance or mixture,
(ii) there are insufficient data and experience upoh which the
effects of •the manufacture, distribution in commerce, processing,
use, or disposal of such substance or mixture or of any combina-
tion of such activities on health or the environment can reason-
ably be determined or predicted, and
(iii) testing of such substance or mixture with respect to such
effects is necessary to develop such data; and
(2) in the case of a mixture, the effects which the mixture’s
manufacture, distribution in commerce, processing, use, or dis-
posal or any combination of such activities may have on health or
the environment may not be reasonably and more efficiently deter-
mined or predicted by testing the chemical substances which com-
prise the mixture;
Rules. the Administrator shall by rule require that testing be conducted on
such substance or mixture to develop data with respect to the health
and environmental effects for which there is an insufficiency of data
and experience and which are relevant to a determination that the
manufacture, distribution in commerce, processing, use, or dispesal
of such substance or mixture, or that any combination of such activities,
does or does not present an unreasonable risk of injury to health or
the environment.
(b)(1) TESTINO REQUIRE 1ENT Rina.—A rule under subsection (a)
shall include—
(A) identification of the chemical substance or mixture for
which testin2 is required under the rule,
Standird. for (B) standards for the development of test data for such sub.
deveIopn ei ,t of stance or mixture, and
t.st dita. (C) with respect to chemical substances which are not new
chemical substances and to mixtures, a specification of the period
(which period may not be of unreasonable duration) within
which the persons required to conduct the testing shall submit to
TSCA Conpliance/Enforceeent 1—14 Guidance Manual 1984
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Chapter One TSCA
the Administrator data developed in accordance with the stand-
ards referred to in subparagraph (B).
In determining the standards and period to be included, pursuant to
subparagraphs (B) and (C), in a rule under subsection (a) the
Administrator’s considerations shall include the relative costs of the
variOu8 test protocols and methodologies which may be required under
the rule and the reasonably foreseeable availability of the facilities
and personnel needed to perform the testing required under the rule.
Any such rule may require the submission to the Administrator of pre-
liminary data during the period prescribed under subparagraph (C).
(2) (A) The health and environmental effects for which standards
for the development of test data may be prescribed include carcino-
genesis, mutagenesis, teratogenesis, behavioral disorders, cumulative
or synergistic effects, and any other effect which ma resent an unrea-
sonable risk of injury to health or the environment. e characteristics
of chemical substances and mixtures for which such standards may
be prescribed include persistence, acute toxicity, subacute toxicity.
chronic toxicity, and any other characteristic which may present such
a risk. The methodologies that may be prescribed in such standards
include epidemiologic studies, serial or hierarchical tests, in vitro tests.
and whole animal tests, except that before prescribing epidemiologic
studies of employees, the Administrator shall consult with the Director
of the National Institute for Occupational Safety and Health.
(13) From time to time, but not less than once each 12 months. the Review of
Administrator shall review the adequacy of the standards for develop- et.edarã.
mnent of data prescribed in rules under subsection (a) and shall, if
necessary, institute proceedings to make appropriate revisions of such
standards.
(3) (A) A rule under subsection (a) respecting a chemical substance
or miicture shall require the persons described in subparagraph (B)
to conduct tests and submit data to the Administrator on such sub-
stance or mixture, except that the Administrator may permit two or
more of such to designate one such person or a qualified third
party to conduct such tests and submit such data on behalf of the per-
sons making the designation.
(13) The following persons shall be required to conduct tests and
submit data on a chemical substance or mixture subject to a rule under
subsection (a)
(1) Each person who manufactures or intends to manufacture
such substance or mixture if the Administrator makes a finding
described in subsection (a)(1)(A)(ii) or (a)(1)(B)(ii) with
respect to the manufacture of such substance or mixture.
(ii) Each person who processes or intends to process such sub-
stance or mixture if the Administrator makes a finding described
in subsection (a)(1) (A) (ii) or (a)(1)(B)(ii) with respect to
the processing of such substance or mixture.
(iii) Each person who manufactures or processes or intends to
manufacture or process such substance or mixture if the Adminis-
trator makes a finding described in subsection (a) (1) (A) (ii) or
(a) (1) (B) (ii) with respect to the dlistribution in commerce, use,
or disposal of such substance or mixture.
(4) Any rule under subsection (a) requiring the testing of and
mibmissioii of data for a particular chemical substance or mixture
Nhall expire at the end of the reimbursement period (as defined in sub-
section Ic) (3) (B)) which is applicable to test data for such substance
or mixture unless the Administrator repeals the rule before such date:
and a rule under subsection (a) requiring the testing of and submission
of data for a category of chemical substances or mixtures shall expire
with respect to a chemical substance or mixture included in the cats
gory at the end of the reimbursement period (as so defined) which is
applicable to test data for such substance or mixture unless the Adnnn-
TSCA Coapliance/Enforceaent 1—15 Guidance )Ian”nl 1984
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Chapter One rsc&
istrator before such date repeals the application of the rule to such
substance or mixture or repeals the rule.
(5) Rules issued under subsection (a) (and any substantive amend-
inent thereto or repeal thereof) shall be promulgated pursuant to
Oral preeentanon section 553 of title 5, United States Code, except that (A) the Admin-
and wnuen istrator shall give interested persons an opportunity for the oral pres-
subiniee ous. entation of data, views, or arguments, in addition to an opportunity to
Tranecnpt. make written submissions; (B) a transcript shall be made of any oral
Publication, presentation; and (C) the Administrator shall make and publish with
the rule the findings described in paragraph (1) (A) or (1) (B) of
subsection (a) and, in the case of a rule respecting a mixture, the
finding described in paragraph (2) of such subsection.
Application. (c) ExEMrr!ow.— 1) Any person required by a rule under subsec-
tion (a) to conduct tests and submit data on a chemical substance or
mixture may apply to the Administrator (in such form and manner
as the Administrator shall prescribe) for an exemption from such
requirement.
(2) If, upon receipt of an application under paragraph (1), the
Administrator determines that—
(A) the chemical substance or mixture with respect to which
such application was submitted is equivalent to a chemical sub-
stance or mixture for which data has been submitted to the Admin-
istrator in accordance with a rule under subsection (a) or for
which data is being developed pursuant to such a rule. and
(B) submission of data by the applicant on such substance or
mixture would be duplicative of data which has been submitted
to the Administrator in accordance with such rule or which is
being developed pursuant to such rule,
the Administrator shall exempt, in accordance with paragraph (3)
or (4), the applicant from condtictiiig tests and submitting data on
such substance or mixture under the rule with respect to which such
application was submitted.
Feir and (3) (A) If the exemption under paragraph (2) of any person from
equitable the requirement to conduct tests and submit test data on a chemical
substance or mixture is granted on the bas,is of the existence of previ-
ouslv submitted test data and if such exemption is granted during the
reimbursement period for such test data (as prescribed by subpara-
graph (B)), then (unless such person and the persons referred to in
clauses (1) and (ii) agree on the amount and method of reimburse-
ment) the Administrator shall order the person granted the exemption
to provide fair and equitable Feimbursement (in an amount deter-
mined under rules of the Administrator)—
(i) to the person who previously submitted such test data. for
a portion of the costs incurred by such person in complying with
the requirement to submit such data, and
(ii) to any other person who htto been required under this sub-
paragraph to contribute with respect to such costs, for a portion
of the amount such person was required to contribute.
Rulee. In promulgating rules for the determination of fair and equitable
reimbursement to the persons described in clauses (i) and (ii) for
costs incurred with respect to a chemical substance or mixture, the
Administrator shall, after consultation with the Attorney General
and the Federal Trade Comminnion, consider all relevant factors,
including, the effect on the competitive position of the person required
to provide reimbursement in relation to the person to be reimbursed
and the share of the market for such substance or mixture of the per-
son required to provide reimbursement in relation to the share of such
market of the persons to be reimbursed. An order under this sub-
paragraph shall, for purposes of judicial review, be considered final
agency action.
TSCA CoiapliancelEnforceiiient 1-16 Guidance Manual 1984
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Chapter One
(B) For purposes of subparagraph (A), the reimbursement period Reünbursement
for any test data for a chemical substance or mixture is a period— p Od
(i) beginning on the date such data is submitted in accordance
with a rule promulgated under subsection (a), and
(ii) ending—
(I) five years after the date referred to in clause (a), or
(II) at the expiration of a period which begins on the date
referred to in clause (i) and which is equal to the period
which the Administrator determines was necessary to develop
such data,
whichever is later.
(4) (A) If the exemption under paragraph (2) of aity person from
the requirement to conduct tests and submit test data on a chemical
substance or mixture is granted on the basis of the fact that test data
is being developed by one or more persons pursuant to a rule promul-
gated under subsection (a), then (unless such person and the persons
referred to in clauses (i) and (ii) agree on the amount and method
of reimbursement) the Administrator shall order the person granted
the exemption to provide fair and equitable reimbursement (in an
amount determined under rules of the Administrator)—
(1) to each such person who is developing such test data, for a
portion of the costs incurred by each such person in complying
with such rule, and
(ii) to any other person who has been required under this sub-
paragraph to contribute with respect to the costs of complying
with such rule, for a portrnn of the amount such person was
required to contribute.
In promulgating rules for the determination of fair and equitable
reimbursement to the persons described in clauses (i) and (ii) for
costs incurred with respect to a chemical substance or mixture, the
Administrator shall, after consultation with the Attorney General and
the Federal Trade Commission, consider the factors described in the
second sentence of paragraph (3) (A). An order under this subpara-
graph shall, for purposes of judicial review, be considered final agency
action.
(13) If any exemption is granted under paragraph (2) on the basis
of the fact that one or mote persons are developing test data pursuant
to a rule promulgated under subsection (a) and if after such exemp-
tion is granted the Administrator determines that no such person has
complied ‘aith such rule, the Administrator shall (i) after providing
written notice to the person who holds such exemption and an oppor-
tunity for a hearing, by order terminate such exemption, and (ii)
notify in writing such person of the requirements of the rule with
respect to which such exemption was granted.
(d) No’rIE.—Upon the receipt of any test data pursuant to a rule Publication in
under subsection (a), the Administrator shall publish a notice of the Federal Register.
receipt of such data in the Federal Register within 15 days of its
receipt. Subject to section 14, each such notice shall (1) ident zfr he
ehemical cubstance or mixture for which data have been recelied:
(2) list the uses or intended uses of such substance or mixture and the
inforiation required liv the applicable standards for the development
of t t (lata: and ( ) àescribe the nature of the test data developed.
as otherwise provided in section 14, such data shall l x ’ made
:L :tihil ,lt ’ liv the . thninistrator for examination by any person.
I i ) I ‘RIORITY LIST.— (1) (A) There is established a committee to Committee to
m:ik. tiiommnt ’ndntions to the Administrator respecting the chemical make
il Ial1tt ’s and mnixtni es to which the Administrator should give recommendations
priulir eonsideratrnn for the promulgation of a rule under subsec- tO
i iou ia . In u.tkiii y such a rt’comniendation with respect to any diem- AdministratOr.
rscA Compliance/Enforcement 1—17 Guidance M nnai 1984
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Chapter One ‘rsca
ir:LI iili&taiice or mixture, the committee shall consider all relevuiit
fail ors. inc I uding—
(I) tli quantities in which the substance or mixture i oi ill
lie manti factured,
ii) the quantities in which the substance oi mixture enters or
ill enter the environment,
(iii) I lie nuniLiet of individuals who are or will be exposed to the
stilistance oi• mixture in their places of employment and the dnrn-
t ion of Mith QX 1 )OS(IiC ,
(iv) the extent to which human beings are or will be exposed to
liii’ substance or mixture.
(v) the extent to which the substance or mixture is closely
melated to a eliemical substance or mixture which is known to
prv ent an imnren onable risk of injury to health or the environ-
ment,
(vi) the existenee of data concetning the effect of the substance
or mixture on health or the environment,
(vii) the extent to which testing of the substance or mixture
am y m ’—ult in the development of data upon which the effects of
the siil ta ce 01 mixture on ht’alth or the environment can rca-
sonahly be determineil or predicted. and
iii) t lit. icasonalily foreseeable availability of facilities an(l
iiei nimt ’l for performing testing on the substance or mixture.
Net ummend.. Tue i tttiiiimin’mnlat a ins of the rouluuilt lee skill e iii time form tif a 1 i t
uon,. li u of ,f iht iiiieai substances and mixtures which shall be set forth. cithem liv
hemical ) l i t am m• m i tumre ni by groups of substances or mix—
sub’.tanees and turn. in the order in which the committee iletermitines the Aihmuiuuistia-
m.xIure t or —univ Id take action under subsection (a) with respect to lie
iuI i tiuia .e iiiitl mixtures. In establishing such list, the comniittee hialI
g ’ lrirnity attention to tho e chemical anlistitmices and uiiixtnmvs
whimrli tire known to euu e or contribute to or which are su lwelcd (if
eaIi iii or tout mihuting to timeei. gene mutations, or hutth def ets. Tue
eniiimnitti’e shiiihl ilt ’ i nnte chemical substances and mixtures on the lii .t
w itlu mi’s icet to wit ich the (()imimnitk ’e deteriut inca tl . tlmimiistrator
sh,iiuilil. withtimi 1? iiionrhs nf the date on which such substances and
viii ‘ i U rt ’ a me first le ignatt’d. initiate a proceeding muler siih eet hut
(a’). The total umitlur of chemical suihistnnce and mixtures on the list
Ii tub tire tlesignate.l vimitler the preceil hug sentence mutay not. at any
11110’. t% eepd 50.
Publication in ( J ) ‘ c t m s uu aetjefll)lI ’ ii t not ltiti’r thtiuvu nine miutinthis after
federal Register: t he etheetit v date of tit s Act. the ennimnittee shall publish in the Fed—
transmittal to I r ’ ist ’i a mud t flu misi iii t to the Adin iii i t rotor the list a ml designa —
dministrator. fl .9W i ’l ii’ uil)pa t:i rfl 1 dt (A) toget her vitlt the reasons for the
c mii ii iittce ’ i itihvision of (‘fidi ehemi jemu I suihustanee or mnixtu me on the hict.
. t hi ’a’ t irt s x mu tout Its after the date nfl he t ii i visuitissinmi to flue Ad—
111111 1Sf iiitot of the list liii i unnt to the p ii .ei’ediuig sent nice, the ecutimli if-
tee hiall iiu.tkc such re isions in the his as it ulett’iuiihnes to 1w’ neiessarv
and shall t mitmismit them to the Admnimiistratoi tottt’ther with thin coin—
I i — i revision. viiittecs i i’asiins for the revisions. Vpnmt receipt of any such revisinhi.
publication in ho Adimi in ist r u ot shin II pul ii ish in tile Fet let,u I Register thit’ list w i iii
lederal Register. such revision, the reasons for such revision, anti the desi natioiis uuiaik’
under subpamiigraphi (A). The Adminiatmator shall provide reasonable
Lomments. opportunity to any vuitemesteci person to file with the Administrator
ritten coimivitemits on the. couiiinittce ’s list, any revision of such list
I ty i hue COfliuiiitti•v. timid designatiomis tiiadt by the committee, and shall
viiakt. sudi comments available to the public. Within the 12-mont Ii
Publication in Lieu-toil h ’gumiIiimig out the date of the first inclusion on the list of a
Federal Register chevutucal substance or uvixture designated by the committee tivider stub-
pam-agruph (A) the Administrator shall with respect to such cheuutical
snb tavice or mixture either initiate a rulemaking proceeding under
suLisectuimu (a) or if such a proceeding is not initiated within such
TSCA Compliance/Enforceisent 1—18 Guidance Nanual 1984
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Chapter One TSCL
period, ;mblish in the Federal Register the Administrator’s reason for
not initiating such a proceeding.
(2) ( . ) The eoiiiisiitteo established by paragraph (1) (A) shall eon- Membership.
sist of eight members as follows:
(i) One member appointed by the Administrator from the
En vi ronmenta I Protettion Agency.
(ii) One member appointed by the Secretary of Labor from
officers or enmployees of the Department of Labor engagi’d in the
Secretary ’s activities under the Occupational Safety and Health
Act of 19TH.
(iii) One member iq)pomted by the Chairman of the (‘outwit
on Environmental Quality from the Council or its officers or
etmil)loyet’s.
(iv) One ineinbc’r appointed by the Director of the National
Institute for Occupational Safety and Health from officers or
emuployses of the Institute.
(v) One itiember appointed by the Director of the National
Institute of Environmental Health Sciences from officers or
employees of tIme Institute.
(vi) One mi ’imiber appointed by the Director of ’the National
CluI(’er Institute from officers or employees of the Institute.
(vii) One member appointed by the Director of the National
Science Foumulatiomi from offleets or emimplovees of the Foundation.
(viii) One member appointed by the ecretary of (‘ornmerce
from officers or i’nmployet’s of the Department of Commerce.
B) ( i) An appointed muvnml*r nuty designate an individual to serve
on the coluntittec on the members behalf. Such a designation nay be
made only with the apl)rOt ’itl of the applicable appointing authority
and only if the individual is from the entity from which the member
WAS iiI)floilitNl.
(ii) No individual may serve as a member of the committee for more
than four yenls iii the aggregate. If any member of the committee
leaves the entity front which the member was appointed. ucli member
may not continue as it member of the committee, and the member’s
position shall be considered to be vacant. A vacancy in the committee
shall be filled in the same manner in which the original appointment
was made.
(iii’l Initial apponitmente to the conunittee shall be made not later
than the &)th day after the effective date of this Act. Not later than
the 94)th day after such date the members of the committee shall hold a
meeting for the selection of a chairperson from among their number.
(C) (i) No member of the committee, or designee of such member.
shall accept employment or compensation from any person subject to
any requirement of this Act or of any rule promulgated or order issued
thereunder, for a period of at least 12 months after termination of
service on the committee.
(ii) No person, while serving as a member of the committee, or des-
ignee of such member, may own any stocks or bonds, or have any
pecuniary interest, of substantial value in any person engaged in the
manufacture, processing, or distribution in commerce of any chemical
substance or mixture subject to any requirement of this Act or of any
rule promulgated or order issued thereunder.
(iii) The Administrator, acting through attorneys of the Environ-
mental Protection Age;cy, or the Attorney General may bring an
action in the appropriate district court of the Pnited States to restrain
any violation of this ubpnragraph.
(D) The Administrator shall provide the committee such admin-
istrative support services as may be necessary to enable the committee
to carry out its function under this subsection.
(f) ftEQUIRED AcTioNs.—U on the receipt of—
(1) any test data required to be submitted under this . ct, or
1’SCA Coapliance/Enforcement [ -19 Guidance Manual 1984
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Q apter One TSC&
(2) any other information available to the Administrator,
which indicates to the Administrator that there may be a reasonable
basis to conclude that a chemical substance or mixture presents or will
present a significant risk of serious or widespread harm to human
beings from cancer, gene mutations, or birth defeèts, the Adnunistra-
tor shall, within the 180-day period beginning on the date of the receipt
of such data or information, initiate appropriate action under section
. 6. or 7 to prevent or reduce to a sufficient extent such risk or publish
in the Fedeial Register a finding that such risk isnot’unreisdnable For
good cause shown the Administrator may extend such period for an
Publication in additional period of not more than 90 days. The Administrator shall
Federal Register. publish in the Federal Register notice of any such extension and the
reasons therefoi. A finding by the Administrator that a risk is not
unreasonable shall be considered agency action for purpoee of judicial
5 Usc 701. review under chapter 7 of title 5, rnited States Code. This subsection
shall not take effect until two years after the effective date of ‘this Act.
(g) PETm0N FOR STANDARDS FOR TIlE DEVELOPMENT OF TEST DATA.—
A person intending to manufacture or process a chemical sübsta nce
lefts, for which notice is required under section (a) and who is not required
iindei a rule under subsection (a) to condiwttescs and submit data
on such substance may petition the Admin strator to prescribe stand-
irds for the development of test data for suc’i substance. The Admin-
i rrator shall by order either grant or deny any such petition within
t days of its receipt. If the petition is granted. the Administrator
shall prescribe such standards for such substance within Th days of
Publication , the date the petition is granted. If the Petition 18 denied, the Admin-
Federal Register. istrator shall publish, sub jeet to section 14. in the Federal Register the
reasons for such denial.
SEC. 5. MANUFACTURING AND PROCESSING NOTICES.
15 USC 260& (a) IN GENEIttL—(1) Except l)ro i(led in subs ction (h). no
person may—
(A) manufacture a new chemical sul)stallce on or after the 30th
day after the date on which the Administrator first publishes the
list required by section 8(b). or
(B) manufacture or process any chemical substance for a use
which the Administrator has determined, in accordance with
paragraph (2). i’ asignifican new use, -
unless such person submits to the Administrator, at least 90 days before
such manufacture orprocessing. a notice, in accordance with subsection
(d), of such person’s intention to manufacture or process such sub-
stance and such person complies with any applicable requirement of
subsection (b .
(2) A determination by the Administrator that a use of a chemical
substance is a significant new use with respect to which notification
is required under ragra h (1) shall be made by a rule promulgated
a fier a roiisidcratipn of all relevant factors, including—
(A) the projected volume of manufacturing and processing of
a chemical substance,
(B) the extent to which a use changes the type or form of
exposure of human beings or the environment to a chemical
substance,
(C) the extent to which a use increases the magnitude and
duration of exposure of human beings or the environment to a
chemical substance. and
(D) the reasonuihlv anticipated manner and methods of manu-
facturing. proces .ing, distribution in commerce, and disposal of
a chemical substance.
(b) SUBMISSION OF TEsT DAT. .—(1) (A) If (i) a person is required
by sub.section (a) (1) to submit a notice to the Administrator before
beginning the maiiufactiii -e or processing of a chemical substance,
and (ii) such person is required to submit test data for such sub-
TSCA Coispliance1Enforcer ent 1-20 Guidance Manual 1984
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Chapter One TSCL
stance pursuant to a rule promulgated under section 4 before the
submission of such notice, such person shall submit to the Adminis-
trator such data in accordance with such rule at the time notice is
submitted in accordance with subsection (a) (1).
(B) If--
(1) a person is re9uired by subsection (a) (1) to submit a
notice to the Administrator, and
(ii) such person has been granted an exemption under section
4(c) from the requirements of a rule promulgated under section
4 before the submission of such notice,
such person may not, before the expiration of the 90 day period which
begins on the date of the submission in accordance with such rule of
the test data the submission or development of which was the basis
for the exemption, manufacture such substance if such person is
subject to subsection (a) (1) (A) or manufacture or process such
substance for a significant new use if the person is subject to subsection
(a) (1) (B).
(2)(A) Ifaperson—
(1) is required by subsection (a) (1) to submit a notice to the
Administrator before beginning the manufacture or processing
of a. chemical substance listed under paragraph (4), and
(ii) is not required by a rule promulgated under section 4
before the submission of such notice to submit test data for such
substance,
such person shall submit to the Administrator data prescribed by
subparagraph (B) at the time notice is submitted in accordance with
subsection (a)(1).
(B) Data submitted pursuant to subparagraph (A) shall be data
which the person submitting the data believes show that.—
(i) in the ease of a substance with respect to which notice is
required under subsection (a) (1) (A). the manufacture, process-
ing, distribution in commerce, use, and disposal of the chemical
substance or any combination of such activities will not present
an unreasonable risk of injury to health or the environment, or
(ii) in the case of a chemical substance with respect to which
notice is required under subsection (a) (1) (B), the intended
significant new use of the chemical substance will not present an
unreasoniible risk of injury to health or the environment.
(3) Data submitted under paragraph (1) or (2) shall be made
available, subject to section 14, for examination by interested persons.
(4) (A) (i) The Administrator may, b r rule, compile and keep
current a list of chemical substances with respect to which the
Administrator finds that the manufacture, processing, distribution in
commerce, use, or disposal, or any combination of such activities,
presents or may present an unreasonable risk of injury to health or
the environment.
(ii) In making a finding under clause (i) that the manufacture,
processing, distribution in commerce, use, or disposal of a chemical
substance or any combination of such activities presents or may present
an unreasonable risk of injury to health or the environment, the
Administrator shall consider all relevant factors, including—
(I) the effects of the chemical substance on health and the
magnitude of human exposure to such substance; and
(II) the effects of the chemical substance on the environment
and the magnitude of environmental exposure to such substance.
(B) The Administrator shall, in prescribing a rule under subpara-
rapli (A) which lists any chemical substance, identify those uses,
if any, which the Administrator determines, by rule under subsection
(a) (Ei), would constitute a significant new use of such substance.
(C) Any rule under subparagraph (A), and any substantive
amendment or repeal of such a rule, shall be promulgated pursuant
TSCA Oa pliance/Enforcewent 1—21 Guidance Manual 1984
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Chapter One TSC&
to the procedures specified in section 553 of title 5, United States
Oral Code, except that (1) the Administrator shall give interested persons
presentation, an opportunity for the oral presentation of data, vj ws, or arguments,
TF$I I SCTIPI. in addition to an opportunity to make written submissions, (ii) a
Pubhcatioa. transcript shall be kept of any oral presentation, and (iii) the Admin-
istrator shall make and publish with the rule the finding described
in subparagraph (A).
(c) EXTENSION OF NoTIcE PxmuoD.—The Administrator may for
good cause extend for additional periods (not to exceed in the aggre-
gate 90 days) the period, prescribed by subsection (a) or (b) before
which the manufacturing or processing of a chemical substance sub-
ubication is joeL to such subsection may begin. Subject to section 14, such an
Federal Register, extension and the reasons therefor shall be published in the Fedoral
Re ister and shall constitute a final agency action subject to judicial
review.
(d) Co?1rssl OF NoTIcE; PUBLICATIONS IN TUE FEDERA l 4 REGI5IER.—
(1) The notice required by subsection (a) shall include—
(A) insofar as known to the person submitting the notice or
insofar as reasonably ascertainable, the information described in
subparagraphs (A), (B), (C), (D), (F), and (6) of section
8(a) (2),and
(B) in such form and manner as the Administrator may pre-
scribe, any test data in the po iion or control of the person
giving such notice which are related to the effect of any manu-
facture, processing, distribution in commerce, use, or disposal of
such substance or any article containing such substance, or of an
combination of such activities, on health or the environment an
(C) a description of any other data concerning the environ-
mental and health effects of such substance, insofar as known to
the person making the notice or insofar as reasonably ascertain-
able.
Such a notice shall be made available, subject to section 14. for exam-
ination by interested persons.
(2) Subject to section 14, not later than five days (excluding Satur-
days, Sundays and legal holidays) after the date of the receipt of a
notice under subsection (a) or of data under subsection (b), the
Administrator shall publish in the Federal Register a notice which—
(A) identifies the chemical substance for which notice or data
has been received;
(B) lists the uses or intended uses of such substance; and
(C) in the case of the receipt of data under subsection (b),
describes the nature of the tests performed on such substance and
any data which was developed pursuant to subsection (b) or a
rule under section 4.
A notice under this paragraph respecting a chemical substance shall
identify the chemical substance by generic class unless the Administra-
tor determines that more specific identification is required in the
public interest.
(3) At the beginning of each month the Administrator shall pub.
lish a list in the Federal Resister of (A) each chemical substance for
which notice has been received under subsection (a) and for which
the notification period prescribed by subsection (a), (b),or(c) hasnot
expired, and (B) each chemical substance for which such notifica-
Lion period has expired since the last publication in the Federal Regis-
ter of such list.
(e) REGULATION PENniNG DEVEWPMENT OF I NFOR3IATION.— (1) (A)
If the Administrator determines that—
(i) the information available to the Administrator is insuf-
ficient topermit a reasoned evaluation of the heafth and environ-
mental effects of a chemical substance with respect to which notice
is required by subsection (a) ; and
TSCA Coispliance/Enforc nt 1 ’22 Guidance Manual 1984
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uiapter One
(ii) (I) in the absence of sufficient information to permit the
Administrator to make such an evaluation, the manufacture,
processing, distribution in commerce, use, or disposal of such
substance, or any combination of such activities, may present an
unreasonable risk of injury to health or the environment, or
(II) such substance is or will be produced in substantial quan-
tities, and such substance either enters or may reasonably be
anticipated to enter the environment in substantial quantities or
there is or may be significant or substantial human exposure to the
substance,
the Administrator may issue a proposed order, to take effect on the Proposed order.
expiration of the notification period applicable to the manufacturing
or processing of such substance under subsection (a) 1 (b), or (c), to
prohibit or limit the manufacture, processing, distribution in com-
merce, use, or disposal of such substance or to prohibit or limit any
combination of such activities.
(B) A proposed order may not be issued under subparagraph (A)
respecting a chemical substance (i) later than 45 days before the
expiration of the notification period applicable to the nianufacture or
processing of such substance under subsection (a), (b), or (c), and
(ii) unless the Administrator has, on or before the issuance of the
proposed order, notified, in writing, each manufacturer or processor,
as the case may be, of such substance of the determination which
underlies such order.
(C) If a manufacturer or processor of a chemical substance to be
sub ject to a proposed order issued under subparagraph (A) files with
the Administrator (within the 30-day period beginning on the date
such manufacturer or processor received the notice required by subpar.
agraph (B) (ii)) objections specifying with particularity ihe provi-
sions of the order deemed objectionable and stating the grounds
therefor, the proposed order shall not take effect.
(2) (i) (i) Except as provided in clause (ii), if with respect to a Injunction.
chemical substance with respect to which notice is required by subsec- application.
tion (a), the Administrator makes the deternunation described in
paragraph (1)(A) and if—
(I) the Administrator does not issue a proposed order under
paragraph (1) respecting such substance, or
(II) the Administrator issues such an order respecting such
substance but such order dot... not take effect because objections
were filed under paragraph (1) (C) with respect to it,
the Administrator, through attorneys of the Environmental Protection
Agency, shall apply to the United States District Court for the Dis-
trict of Columbia or Le United States district court for the judicial
district in which the manufacturer or processor, as the case may be, of
such substance is found, resides, or transects business for an injunction
to prohibit or limit the manufacture, processing, distribution in com-
merce, use, or disposal of such substance (or to prohibit ..r limit any
combination of such activities).
(ii) If the Administrator issues a proposed order under paragraph
(1) (A) respecting a chemical substance but such order does not take
effect because objections have been filed under paragraph (I) (C) with
respect to it, the Administrator is not required to apply for an injLuic-
tion under clause (i) respecting such substance if the Administrator
determines, on the basis of such objections, that the determinations
under para iaph (1) (A) may not be made.
(B) A district court of the United States which receives an appli-
cation under subparagraph (A) (1) for an injunction respecting a
chemical substance shall issue such injunction if the court finds that—
(i) the information available to the Administrator is insufficient
to permit a reasoned evaluation of the health and environmental
TSCA Conp1iance [ ntorceaent 1-23 Guidance Mann 1 1984
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Chapter One TSC&
effects of a chemical substance with respect to which notice is
isquired by subsection (a) ; and
(ii) (I) in the absence of sufficient information to permit the
Adiniiiisttiitor to make such an evaluation, the manufacture, proc-
es in . distribution in commerce, use, or disposal of such
iub-tuuce. or any combination of such activities, may present an
u;ireasonable risk of injury to health or the environment. “1
(II) st.ch substance is or will be produced in substantial iuan-
tities, and such substance either enters or may reasonably be
anticipated to enter the environment in substantial quantities or
there is or may be significant or substantial human exposure to
he substance.
(C) Pending the completion of a proceeding for the issuance of an
injunction tinder subparagraph (B) respecting a chemical substance,
the court may, upon application of the Administrator made through
attorneys of the Environmental Protection Agency, issue a temporary
restraining order or a preliminary injunction to prohibit the manu-
facture, processing, distribution in commerce, use, or disposal of such
a substance (or any combination of such activities) if the court finds
that the notification period applicable under subsection (a), (b), or
(c) to the manufacturing or processing of such substance may expire
before such proceeding can be completed.
(D) After the submission to the Administrator of test data sufficient
to evaluate the health and environmental effecta of a chemical sub-
stance subject to an injunction issued u ider subparagraph (B) and
the evaluation of such data by the Administrator the district court
of the fnited States which issued such injunction afiali. upon petition,
dissolve the injunction unless the Administrator has initiated a pro-
ceeding for the issuance of a rule under section 6(a) respecting the
substance. If such a proceeding has been initiated, such court shal [ con-
tinue the injunction in effect until the effective date of the rule pro-
mu Igated in such proceeding or, if such proceeding is terminated
without the promulgation of a rule, upon the termination of the pro-
ceeding, whichever occurs first.
(f) Pncn r1oN Aoaz rr TJNREASONABLE Rzs s.—(1) If the Admin-
istrator finds that there is a reasonable basis to conclude that the menu-
fiicture, processing, distribution in commerce, use, or disposal of a
chemical substance with respect to which notice is requiredhy subsee.
tion (a), or that any combination of such activities, presents or will
present an unreasonable risk of injury to health or environment before
a rule. promulgated under section 6 can protect against such risk, the
Administrator shall, before the expiration of the notification period
applicable under subsection (a), (b), or (c) to the manufacturing or
processing of such substance, take the action authorized by paragraph
(2) or (3) to the extent necessary to protect against such risk.
Proposed rule. ( ) The Aduiiuistrntor may issue a proposed rule under section
6(n) to apply to a chemical substance with respect to which a finding
was made tinder paragraph (1)—
(A) a iequirenwnt limiting the amount of such substance
which may be manufactured, processed. or distributed in
commerce,
(B) a requirement described in paragraph (2), (3), (4), (5),
(6) or (7) fseetion8(a),or
(C) auiv combination of the requirements referred to in sub-
paragraph (B).
Pubhcition in Such a proposed rule shall be effeetit’e upon its publication in the Fed-
Federal Register. emal Register. Section 6(d) (2) (B) shall apply with respect to such
rule
(3) (A) The Administrator may—
Proposed order. (i) issue a 1 iroposed order to prohibit the manufacture, process-
ing. or distrituition in comrneiDe of a nbstance with respect to
TSCL CompliancelEaforceaent 1-24 Guidance Manual 1984
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Chapter One TSC&
which a finding was made under para graph (1), or
(ii) apply, through attorneys of the Environmental Protection Injunction
Agency, to the T T iuted States District Court for the District of application.
(‘olumbia or the ITnited States district court for the judicial dis-
trict in which the manufacturer, or processor, as the case may be,
of such substance, is found, resides, or transacts business for an
injunction to prohibit the manufacture, processing, or distribu-
tion in commerce of such substance.
A proposed order issued under clause (i) respecting a chemical
substance shall take effect on the expiration of the notification period
applicable under subsection (a), (b), or (c) to the manufacture or
processing of such substance.
(B) If the district court of the United States to which an applica-
tion has been made under subparagraph (A) (ii) finds that there is a
reasonable basis to conclude that the manufacture, processing,
distribution in commerce, use, or disposal of the chemical substance
with respect to which such application was made, or that any combina-
tion of such activities, presents or will present an unreasonable risk
of injury to health or the environment before a rule promulgated
under section 6 can protect against such risk, the court shall issue
an injunction to prohibit the manufacture, processing, or distribution
in commerce of such substance or to prohibit any combination of such
activities.
(C) The provisions of subparagraphs (B) and (C) of subsection
(e) (1) shall apply with respect to an order issued under clause (i)
of subparagraph (A) ; and the provisions of subparagraph (C) of sub-
section (e) (2) shall apply with respect to an injunction issued under
subparagraph (B).
(I)) If the Administrator issues an order pursnnqt to subparagraph
(A) (1) respecting a chemical substance and oblections are filed in
accordance with subsection (e) (1)(C), the Administrator shnll seek
an injunction under subparagraph (A) (ii) respecting such substance
unless the Administrator determines, on the basis of such objections,
that such substance doss not or will not present an unreasonable risk
of injury to health or the environment.
(g) TArExENT or Rs.tsozss ron Nor TAKING .tcrzos.—If the
Administrator has not initiated any action under this section or section
6 or 7 to prohibit or limit the manufacture, processing. distribution
in commerce, use, or disposal of a chemical substance, with respect to
which notification or data is required by subsection (a) (1)(B) or (b),
before the expiration of the notification period applicable to the manii-
facturing or processing of such substance, the Administrator shall
publish a statt•inent of the Administrator’s reasons for not initiating
such action. Such a statement shall be published in the Federal Beg- Publication in
ister before the expiration of such period. Publication of such state- Federal Resister.
ment in accordance with the preceding sentence is not a prerequisite
to the manufacturing or processing of the substance with respect to
which the statement is to be_published.
(h) E’uxrrioNa.—(l) The Administrator may, upon application,
exempt aiiy person from any requirement of subsection (a) or (b) to
permit such person to manufacture or process a chemical substance
for test marketing purposes—
(A) upon a showing by such person satisfactory to the Admin-
istrator that the manufacture, processing, distribution in
commerce, use, and disposal of such substance. anti that any coin-
bination of such activities, for such purposes will not present any
unreasonable risk of injury to health or the environment, and
(B) under such restrictions as the Administrator considers
approp! iate.
( ) (A) The Administrator may. upon application, exempt any per-
son from the requii ment of subsection (b) (2) to submit data for a
TSCA Co p1iance/Ruforceiaent 1—25 Guidance anua1 1984
-------
Chapter One TSC&.
chemical substance. If. upon receipt of an application under the pre .
ceding sentence, the Administrator determines that—
(I) the chemical substance with respect to which such apphca-
tion was submitted is eon iwnlent to a chemical substance for which
data has been submitted to the Administrator as required by sub-
section (h)(2) and
(ii ) submission of data hr the applicant on such sub ance
would be duplientive of data which has been submitted to the
Administrator in accordance with such subsection.
the Administrator shall exempt the applicant from the requirement
to sulnnit such data on such substance. No exemption which is granted
under this subparagraph with respect to the submission of data for a
‘liernical substance may take effect before the beginning of the reim-
hiusement period applicable to such data.
Fair and (B) If the Administrator exempts any person. under subparagraph
equitable (A). from submitting data required under subsection (b) (2) for a
reimbursement. chemical substance because of the existence of previously submitted
data and if such exemntion is granted durin rthe reimbursement period
for such data, then (unless such person and the persons referred to in
clauses (i) and (ii) agree on the amount tund method of meiniburse—
ment) the Administrator shall order the person granted the exemption
to provide fair anti e uiitable reinh [ )IIrsrmuent (in an amount determined
under ruule of tii ’ . dunimuistrator) —
(i ) to the person who previously submitted the data on which
the exemption was based. for a portion of the costs incuried by
such person in cotiuplying with the requirement under subsection
h (2) to uhmiiit su.li data, and
ii) to aiiy other person who has been required under this stub—
panigrapli to contribute with respect to stuli enitts. for a portion
of the itinount such peI on required to contribute.
In proutinlgmit ing iiiles for the deterinination of fair and equitable
r i iiiil Pit I —eu t’tit tii flit’ )e lSOIi (hise iii it’d in datuM’s ( i ) and ( ii) for
u niliurt’. I ith r .’ i it t to a elieni ucuil suli)stnflct ’. the . duiiinistrtitor
lial I. a ft .’r rim.nltnt imi j 1 ii the . ttnrnev Gt’nt’ntl and the Fv(leral
Tr;i .h ( niiipi , is—ion. roii u,ivr all r .’h.’vttnt Iaetms. imliul ing the t’ffe .i
oil tin’ iiimn 1 )i.tjtivt ’ position of the Ix’Ison rt ’quiri ’d to provide ri’im.
liii rst ’miit’nt in uilnt ion to the persons to be ireimlmrued mid tin’ share of
In ’ tim rket for —tehi stil . tit are of the rM n required to provide reim—
I ii ii irlut iii m nit loll (ii t lit’ liari. of such market of the persons to bc
u ‘inihit Ned. For puiI’ rn i ’ of judicial review, an order uiidi’r this
sulparngraph slut Ill e tiuisidered final agency action.
Reimbursement ( ( ‘) For )tI ri us .’ of t him pa nigraph. thi ’ riimlnirseinent period for
period. ;uiy previoui lv submitted data for a chemical substance is a period—
m ) liegiuini,ig on t he date of the termination of the prohibition.
1IIi med mu mmder t it i ’ set ion. on lie niminufact nr c or proee sing of
‘4i .•h ‘.iibstiitire by the person who submitted such data to the
A(ITIilIii ft8tfl,’. and
iii) ending—
(I) ti’ . yen N after t in ’ date referred to in clause ( i ), or
I I I) at the i’xpiratmmi of a period which begins out the
dame i . ‘feurctl to in clause (i) and is equal to the period which
hi . ditiutu 1St ratnu (leIPiunines was necessa rv to develop s uch
data.
whi ii}ie er i, lati’,’.
:t ) ll me. 1 ul ietmieitt— of sitb ett louis (a) afl(l ( b) tin iiot atml)lv with
rt’spe .’t to the uiuunuifnrturiuig oi processing of any chemical sub—
huh is mitaumimifati ured or processed. or proposed to be mann—
fit. t iut’i’cl 01 l) 1(k, , ’tl. rnilv iii small qu untitiec (as defined by the
.t ilnimnist u :mtnr by rule) olelv for purposes of—
. i ) S ( ‘Iii ifir *‘ )t ’iIflft’uitat Iflfl 01’ analysis. at’
TSCA Co p11ancefEnforceaent 1—26 Guidance Manual 1984
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Chapter One
(B) chemical research on. or analysis of such substance or
another substance, including such research or analysis for the
development of a product,
if all persons engaged in such experimentation, research, or analysis
for a manufacturer or processor are notified (in such form and manner
as the Administrator may prescribe) of any risk to health which the
manufacturer, processor. or the Administrator has reason to believe
may be associated with such chemical substance.
(4) The Administrator may. upon application and by nile, exempt
the manufacturer of any new chemical substance from all or part of
the requirements of this section if the Administrator determines that
the manufacture, processing, distribution in commerce, use, or dis-
posal of such chemical substance, or that any combination of such
activities, will not present an unreasonable risk of injury to health or
the environment. A rule promulgated under this paragraph (and any
substantive amendment to, or repeal of, such a rule) shall be prontul-
gated in accordance with paragraphs (2) and (3) of section 6(c).
(5) The _tilniiiiistrntor nluv. upon application, iiiake the require-
ments of subsections (a) antt Ib) inapplicable with respect to the-
manufacturing or processing of any chemical substance (A) which
exists temporarily as a result of a chemical reaction in the manufac-
turing or processing of a mixture or another chemical substance, and
(B) to which there Ia no. tiul will not be, human or environmental
CX1)08U1tl.
(6) Imnietliatelv upon reveipt of an akplicution tinder paragraph Publication
(1 or ( ) thc A lniinistrator sluill publish in the Federal Rturister Federal Register.
notice of the reet’ipt of such apj lietitiou. The .tdniinistrator shahigive Comments.
interested persons an opportumtv to comment upon any such applica—
tioui iiiiil hiall. within 4: days of ts receipt, either approve or deny the
;Ll)lihi(’i%tiOn. Thv ’ .tdmiiiistnitor shall pithhieh in the Federal Register Publication in
notice of the approval or denial of such au application. Federal Register.
(i) DErIxITto? .—l ’or IILrloses of this section, the terms “manufac-
tiire’ and iiwe s ” mean manufacturing or processing for comniereini
1)11 li)OM( ’ ..
SEC. S. REGULATION OF HAZARDOUS CHEMICAL SUESTANCES AND
MIXTURES.
a) (oI’E 1*’ RKnri.. Tms.—I f the . dmini it rntor finds that there is 15 USC 2605.
a rv i niiaIihi ’ hiin..b , In conclude that the iunnui fucture, procesi ing. di —
t ribiution in i -otiiuiwrre. ii e. or di po al of ii chemical substance or
niixtnre. or that any combination of titlt activities. presents or will
present a a in rea .i mahhi ’ riMk of injury to hit•u Ith or the environment,
the .Wuuiinii..tratnr hahl by rule apply one or more of time following
reqiiirrment to uiehi uul) tnnI -e rn• mixture to the extent net ’et sury to
pri t rt iilei 1 iiittm .ly igmi inst ‘ .uih risk musing time least buriIen oiimi’
rr. iui it ’uiiemit .
(1) A requsim uiiemmt (A) prohibit lug the munmifueturing. proee —
ing. or thi tmibuitiou in ioiiuuulerte of nch uhstance or mixture, or
B) limiting the auimouuit of uch suhatanee or mixture which may
lie ii inn ii fiutu ted, proec’ d. nr tlistvilnuti’d in commerce.
( ) A rI ’qumimeuiit .nt_
(A ) pmluliirimig the iiuiiinifacture. processing. or distribum.
finn in commerce of muh umlu.tuin e or miuixture for (i) a
n e or (ii) a l)aI icuular nip in a concentration in
t ’ eec’ of i le el peeificil by the Aihmiuinii4rator in the rule
muIi )n umIg the requirement, or
(13) hitmiltimug the amount of such substance or mixture
which may Is. mnamifactured. processed. or distributed in
( -oh llmm ’r(•e for ( i) IL particular us e or (ii) a particular use
iii a romiti-mitration iii excess of a level specified by the
.tdimnistiator in the rule imposing the requirement.
TSCA CoRpliance/Enforceaient 1-27 Guidance M isua1 1984
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Chapter One TSC&
(3) A r& uireiiient that such substance or mixture or any
arn(le containing such substance or mixture be marked with 0?
accompanied by clear and adequate warnings and instructions
with respect to its use. distribution in commerce, or disposal or
with re peet to any combination of such activities. The form and
content of such warnings and instructions shall be prescribed by
the Administrator.
(4) A requirement that manufacturers and pmcessors of such
substance or mixture make and retain records of the processes
used to manufacture or process such substance or mixture and
monitor or (ofl(luct ti sts which are reasonable and necessary to
assure compliance with the requirements of any rule applicable
under this subsection.
) A requirement prohibiting or otherwise regulating any
irrannet’ or method of commercial use of such substance or
mixture.
(fi) (A) A requirement prohibiting or otherwise regulating any
wanner or method of disposal of such substance or mixture, or
of any art inc containing such substance or mixture, by its manu-
facturer or irocessor or by any other person who uses, or disposes
of, it for commercial J)urposeP .
(B) A requirement under subparagraph (A) may not require
any person to take any action which would be in violation of
any law or requirement of. or in effect for, a State or political
subdivision, and shall require eacth person subject to it to notify
each State awl political subdivision in which a required disposal
fllflV (Ketir of iiclt disposal.
(7) A requirement. (Iirectmg manufacturers or lrneessors of
sueb ribstaitce or mixture (A) to give notice of such unreasonable
risk of injury to distributors in commerce of such substance or
mixture anil. to the extent reasonably ascertainable, to other per-
sons in Ix session of such substance or mixture or exposed to such
sub taiice ni mixture, (B) to give public notice of such risk of
injury, and (C) to replace or repttreliasa such substance or
mixture as eh’cteil by the person to which the requirement is
directed.
— nv requi rernent (ot conibination of requ i renients) irn))05e41 tinder
this bubsection ma be Imuted in application 11) pccified geographic
a
(b) Qt .u.rrv (‘uxmoi.—If the Administrator hits a reasonable
basis to conclude that a particular manufacturer or processor is mitnu—
fncnuring oi processing a chemical silL)stanee or mixture in a manner
which unintentionally causes the chemical substance or mixtureS to
present or which will cause it to l)resel lt an unreasonable risk of
Injury to health or the environment—
(1) the Administrator nuty by order require such manufac-
turer or processor to submit a dNcriptinn of the relevant quality
ontml procedures followed in the manufacturing or processing
of such chemical substance or mixture; and
(2) if the .tduninistrator determines—
(A) that such quality control procedures are inadequate
to prevent the chemical substance or mixture from presenting
such risk of injury, the Administrator may order the manti-
facturer or processor to revise such quality control procedures
to tlit’ extent necessary to remedy such inadequacy: or
(B) that the use of such quality control procedures has
resulted in the distribution in commerce of chemical substances
or mixtures which present an unreasonable risk of injury to
health or the environment, the Administrator may order the
manufacturer or processor to (1) give notice of such risk to
processors or distributors in commerce of any such sub-
TSCA Coepliance/Euforcement 1-28 Guidance ) ai ’a1 1984
-------
Chapter One ‘rsca
stance or mixture, or to both. and, to the extent reasonably
ascertainable, to any other person in possession of or exposed
to any such substance, (ii) to give public notice of such risk,
and (iii) to provide such replacement or repurchase of any
such substance or mixture as is necessary to adequately pro-
tect health or the environment.
A determination under subparagraph (A) or (B) of paragraph (2) Heating.
shall be niade on the record after opportunity for hearing in accord-
ance with section 554 of title 5, United States Code. Any manufacturer
or processor subject to a requirement to replace or repurchase a chem-
ical substance or mixture may elect either to replace or repurchase
the substance or mixture and shall take either such action in the man-
ner prescribed by the Administrator.
(c) PROMULOATIOX OF StrrisEcrlott (a) Rvr.xs.—(1) Iii promulgat- Statement.
ing any rule under subsection (a) with respect to a chemical substance publication.
or mixture, the Administrator shall consider and publish a statement
with respect to—
(A) the effects of such substance or mixture on health afld the
magnitude of the exposure of human beings to such substance or
mixture,
(B) the effects of such substance or mixture on the enviromitent
and the magrntude of the exposure of the environment to such
substance or mixture,
(C) the benefits of such substance or mixture for various uses
and the availability of substitutes for such uses, and
(D) time reasonably ascertainable economic consequences of the
rule, after consideration of the effect on the national economy.
small business, technological innovation, the environment, and
public health.
if the Administrator determines that a risk of injury to health or the
environment could be eliminated or reduced to a sufficient extent by
actions taken under another Federal law (or laws) administered in
whole or in part by the Administrator, the Administrator may not
promulgate a rule under subsection (a) to protect against such risk
of injury unless the .%dministnitor finds, in the Adimnistrator’s dis-
cretion. that it is in the public interest to protect against such risk
under this Act. In making such a finding the Administrator shall con-
sider (i) all relevant aspects of the risk, as determined by the .tdmninis-
trator in the Adminii trator’s discretion, (ii) a comparison of the
estimated co s of complying with actions taken under this Act and
under such law (or iaws . and (iii) the relative efficiency of actions
under this Act and under such law (or laws) to protect against such
risk of injury.
(2) When prescribing a rule under subsection (a) the Adminis-
trator shall proceed in ucc’ordanre with section 3 of title , United
States Code (without regard to niw reference in such section to sec-
tions 56 and T of such title). imnd shall also (A) publish a notice of S USC 556. 557.
proposed rulemaking stating with lmam ie,Ilarity the reason for the Notice.
proposed rule: (B) allow interested Liet ’sons to submit written data. pub1m on.
views, amid arguments, and make all such submissions publicly avail- !1uutehl data.
able; (C) provide an oppottunitv for an informal hearing in accord- views. arguments.
mince with l)atagtaph (:5) : (I)) pronmulgate, if appropriate, a final
rule based on tIme nmtter in the rulemaking record (as defined in section C
19(a)), and ( E) make mind pmi 1 ii isli with t hi’ rule the finding described Final rule
in subsection (a).
(:3) Informal hearings required by paragraph (2) (C) shall be con- Informal
ducted hr th Administrator iii accordance with the following hearings
requirements:
A) Subjet to subparagraph (13), an interested person is
entitled—
TSCA Co p1iancefEnforceiaent 1—29 Guidance IQanual 1984
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Chapter One TSC&
1) to present such person’s position orally or by docti—
inentarv submissions (or both), and
(ii) f the Administrator determines that there are dis-
1 )iited issues of ateria1 fact it is necessary to resolve, to
present such rebuttal submissions and to conduct (or have
conducted mnkr sidparagrimph (B) (ii)) such cross—examina-
tion of persons as the Administrator determines (1) to be
appropriate, and (II) to be required for a full and true dis-
closure with respect to such issues.
Rules. (B) The Administrator may prescribe such rules and make such
rulings concerning procedures in such hearings to avoid unneces-
sary costs or delay. Such rules or rulings may include (1) the
imposition of reasonable time limits on each interested person’s
oral presentations, and (ii) requirements that any cross-examina-
tion to which a petson ma y be entitled under subparagraph (A)
he conducted by time Administrator on behalf of that person in such
manner as the Administrator determines (I) to Lie appropriate,
and (11) to be required for a full and true disclosure with respect
to disputed issues of material fact.
(C) (i) Except as provided in clause (ii). if agroup of persons
each of whom under subparagraphs (A) and (B) would be
entitled to conduct (or have conducted) cross-examination and
who are determined by the Administrator to have the same or
similar interests in the proceeding cannot agree upon a single
representative of such interests for purposes of cross-examninat ion,
the Administrator may make rules and rulings (I) linmiting the
representation of such interest for such purposes. and (11) gov-
erning the manner in which such cross-examination shall be
limited.
(ii) When aiiv person who is a member of a group with respect
to which the Ailministrator has made a determination under
clause (i) is unable to agree upon group representation with the
at her iimemnbers of the group, then such pemomi shall not be denied
imndem• the authority of clause (i) the opportunity to conduct (or
have conducted) cross-examination as to issues affecting the per-
son’s particular interestg if (I) the person satisfies the Adnmin-
istrator that the person has immade a reasonable and good faith
effort to reach agreement upon group representation ith the
other members of the group and (II) time Administrator deter-
mines that there are simbstantii’l and relevant issues which are not
a(lequately presented by time group representative.
Verbatim (D) A verbatim transcript shall be taken of any oral pre en-
transcopi. tation made, and cross-examination conducted in any informal
hearing under this subsection. Such transcript shall be available
to time public.
Cumpensation (4) (A) The Administrator nmny. pursuant to rules prescribed by the
Ad Ifl In 1st rim toi, provide coin pensat ion for reasonable attorneys’ fees,
expert witness fees, and other costs of participating in a rulemaking
proeeetling for time prommiulgatmoim of a rule under subsection (a) to
aims *rSoii—
(i) who represents an interest which would substantially con-
tribute to a fair determination of the issues to be resolved in the
proceeding, and
(mm) if—
(I) the economic interest of Such person is small in corn-
pimrison to time costs of effective participation in the proceed-
ing by such person, or
(II) such person demonstrates to the satisfaction of the
Administrator that such ereon does not have sufficient
resources adequately to participate in the proceeding without
compensation under this subparagraph.
TSCA CospliancelEntorce iaeut 1—30 Guidance Manual 1984
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Chapter One
In determining for purposes of clause (i) if an interest will subetan-
tially contribute to a fair. determination of the issues to be resolved in
a proceeding, the Administrator shall take into account the number
and complexity of such issues and the extent to which representation
of such ititerest will contribute to widespread public participation in
the proceeding and representation of a fair balance of interests for
the resolution of such issues.
(B) In determining whether compensation should be provided to
a person under subparagraph (A) and the amount of such compensa-
tion, the Administrator shall take into account the financial burden
which will be incurred by such person in participating in the rule-
making proceeding. The Administrator shall take such action as
may he necessary to ensure that the aggregate amount of compensa-
tion paid under this paragraph in aity fiscal year to all persons who,
in ruieniaking proceedings in which they receive compensation, are
persons who either—
(i) would be regulated by the proposed rule, or
(ii) represent persons who would be so regulated,
not exceed 25 per centuiti of the aggregate amount paid as colit-
pensation under this paragraph to all persona in such fiscal year.
(5) Paragraph (1), (2), (3), and (4) of this subsection apply
to the promulgation of a rule repealing, or making a snbstantive
amendment to, a rule promulgated under subsection (a).
(d) Emcr lvE l)ATF..—(1) The Administrator shall specify in an
rule under subsection (a) the date on which it shall take effect, whie
date shall be as soon as feasible.
(2) (A) The Administrator may declare a proposed rule under sub-
section (a) to be effective upon its publication in the Federal Register PubLicatt n a
and until the effective date of final action taken, in accordance with Federal egister.
subparagraph (B), respecting such rule if—
(i) the Administrator determines that—
(I) the manufacture, processing, distribution in com-
merce, use, or disposal of the chemical substance or mixture
subject to such proposed rule or any conthination of such
activities is likely to result in an unreasonable risk of serious
or widespread injury to health or the environment before
such effective date; and
(II) making such proposed rule so effective is necessary to
• protect the public interest; and
(ii) in the ease of a proposed rule to prohibit the manufacture,
processing, or distribution of a chemical substance or mixture
because of the risk determined under clause (i) (I), a court has
in an action under section 7 granted relief with respect to such
risk associated with such substance or niixture.
Such a proposed rule which is made so effective shall not, for pur-
poses of judicial review, be considered final agency action.
(B) If the Administrator makes a pmioeed nile effective upon its Notice.
publication in the Federal Register. the Administrator shall, as expe-
ditiously as possible, give interested persons prompt notice of such
action. provide reasonable Ol)l)Ortnnity. in accordance with paragraphs
(2) and (3) of subsection (e), for a hearing on such rule, and either
promulgate such rule (as proposed or with modifications) or rt’voke
it: and if such a hearing is requested. the Administrator shall corn-
menee the heating within five days front the date such request is made
unless the Administrator and the person making the request agree
upon a later date for the hearing to begin, and after the hearing is
eniwluded the Administrator shall. within ten days of the conclusion
of the hearing, either promulgate such rule (as proposed or with
niodificatiom,) or revoke it.
TSCA Camp1iance/Enforc nt 1—31 Guidance Nanual 1984
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Chapter One . TSC&
Rules. (se) POL CiILORIN. TED B IPHENrLs.—( 1) Within six months after
the effective date of this Act the Administrator shall promulgate
rules to—
(A) prescribe methods for the disposal of polychlorinated
biphenyls, and
B) Require polychiorinated biphenyls to be marked with clear
and adequate warnings, and instructions with respect to their
processing, distribution in commerce, use, or disposal or with
I ’sl)ect to any coiiibinat ion of stidi activities.
Requiremmuts prescribed by mimics tinder this paragra )h shall be con—
u ith the leqni remnents of itit ragraphs ( ) and (3).
2) ( .‘t ) 1:xtt’pt as provided under sub ut ragnq)h (13), effective one
sear tifter the effecti e date of this . rt no person may ninitufticture,
or distribute iii commerce oi use atnv polychlorniated biphenyl
in any manner other thiut in a totally enclosed manner.
(13) ‘I’lie .tdliiimlibtlntol iiiay by rule authorize the iiianufacture,
processing, distribution ut tonuuierce or use (or any combination of
such activities) of any polychloiizmted bi lieny1 in a maimer other than
iii at totally eiitlosetl mininner if the Admimiistratur linds that such niaiau—
tactitre. distribtttion in commiiiwree. or use (or combination
of such net ivities) will not piesemit atit unrensoiiabie risk of injury to
health OL tilL environment.
Totally enclosed (() For the 1)Ll LX)SCS of thi. patagiapli. the term “totally enclosed
nanner.” iuaumwr ” ineitfls ttity I II IU II 1L’l v hick ill ensure that any exposure of
hutmuan hemgs ni the emiviromunent to a polyclilorinated biphenyl will
he msignihrnnt as determined by thit’ Administrator by rule.
(3) ( A ) Except as provided in subparagraphs (13) and (C)—
(i) ito person may mntinufact ii ic any polycitiotinated biphenyl
after two years after the effective date of this Act, and
( Ii) HO pemsoll may process or distribute iii coimimimerce any poly—
thlornutted biplunyl after two and one—half years after such date.
Petition for I B) Any person may 1)etitiou the Administrator for iait exemption
exemption. fiomii the retiui ireutents of subparagraph (A), and the Administrator
mmi v grant l iv rule such an exemption if the Administrator finds
thud—
i ) an iimtmeatsoitah,le rii,k of injury to health or environment
t wild mint result, and
(ii) good faith efforts have been made to dt’ elop a clienneal
.,iljstmtnce which dot’s not present nit unmi’asonable risk of i ltjtuy
to health or the environment and which may be substituted for
such poiyehlori nated biphenyl.
Terms and Au exeuiiptioit granted under this uimpnragraph sluill l x’ subject to
conditions. such ternis amid coinhitiouis as the . dmuinistrator may prescribe and
shall be in effect for such period ( but not niore than one year from
I he ilate it is granted) itS hit Administrator may l)me eribe.
(u 4uh rnragvmtph (A) shall not apply to the distribution iii voimi•
ineree of a nv polychlnmuiati’d I )iplwnyl if such polychiorinated
hiplienvl was sold for piirix es other than resale before two and one
half years after the date of eminctmnent of this Act.
4t . ny mule under paragraph (1), (2) (B). or (3) (II) hmill lw
promiiulgattd in accordance with paragraphs (2), (3), and (4) of nh-
section (c)
( ) This subsection does not limit the authority of the Adminis-
t minor. under any other provision of this Act or any other Federal luw.
to take act mu respecting any polyehlorinated biphenyl.
SEC. 7. IMMINENT HAZARDS
(:1.11 dction. (a) Ac:imo s . ,. tIIOI 1IZEJ) . NI) Ri:(ji mitiO).—( I) The .td,uiiiiisttator
15 L ,C 26O IIIaLV (0 niCe a civil net ion iii itit al)l)ropriflte ulistriet court of the
I nmted States—
(. , ) for ‘ iizuiru of ;uii immuuiiiemitly haizim rilons chemical sub—
TSCA CoispliancefEnforceiseut 1-32 Guidance )Ia ”e1 1981.
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Chapter One TSCL
stance or mixture or any article containing such a substance or
mixture,
(B) for relief (as authorized by subsection (b)) against any
person who manufactures, processes, distributes in commerce, or
uses, or disposes of. mt imminently hazardous chemical substance
or uuiixtnre or any article containing such a substance or iiiix-
ture,or
• ((‘) for both such seizure and relief.
A civil action may be commenced under this paragraph notwith-
standing time existence of a rule under section 4, 5, or 6 or an order
under section 5, and notwithstanding the pendency of any adminis-
trative or judicial proceeding under any provision of this Act.
(2) If the Administrator has not made a rule under section 6(a)
inituediately effective (as authorized by subsection 6(d) (2) (A) (i))
with respect to an imminently hazardous chemical substance or mix-
t ii ri’, the Administrator shall commence in a district court of the United
States with respect to siudi substance or mixture or article containing
such substance or mixture a civil action described in subparagraph
(A), (B),or (C) of paragraph (1).
(b) Riri.izp AuTlIomnzzo.—(t) The district court of the United lurlidiction.
States in which an action under subsection (a) is brought shall have
jurisdiction to grant such temporary or permanent relief as may be
necessary to protect health or the environment from the unreasonable
risk associated with the chemical substance, mixture, or article involved
in such action.
(2) In the case of an action under subsection (a) brought against
a person who manufactures, processes, or distributes in commerce a
chemical substance or mixture or an article containing a chemical sub-
itance or mixture, the relief authorized by paragraph (1) may inelude
the issuance of a mandatory order requiring (A) in the case of pur-
chasers of such substance, mixture, or article known to the defendant,
notificution to such purchasers of the risk associated with it; (B) pub-
lic notice of such risk; (C) recall; (D) the replacement or repurchase
of smidi substance, mixture, or article; or (E) any combination of the
actions ilescribed in the preceding clauses.
(3) In the case of an action under subsection (a) against a chemi-
cal substance, mixture, or article, such substance. mixture, or article
may be proceeded against by process of libel for its seizure and con-
demunut ion. Proceedings in such an action shall confonn as nearly as
possible to proceedings in rem in admiralty.
(c) VI NUE txo CoNsoz.nwrxorr.—(1) A) An action under subsec-
tion (a) against a person who manufactures, processes. or distributes a
chemical substance or mixture or an article containing a chemical sub-
stance or mixture may be brought in the ‘nited States District Court
for the l)istrict of Columbia or for any judicial district in which any
of the defendants is found, resides, or triutsacts business: and process
in such an action may be served on a defendant in any other district
in which such defendant resides or may be found. An action under sub-
section (a) against a chemical substance. mixture. or article may be
brought. in any United States district court within the jurisdiction of
which the substance, mixture. or article is found.
(R) In determining the judicial district in which an action may be
brought under subsection (a) in instances in which such action may
he brought in mmmore than one judicial district, the Administrator shall
take into aecoilmit the eoiweitience of tile Purties.
(C) ibpconas requiring attendance of witnesses in nil action
Lirouglmt mmdcc subsection (a) may be eived in any judicial district.
(2) \\beiivvci procee(lings under subsection (a) involving iilenti—
cal cheimmiemil substances. mixtures. or articles are pending in courts in
two or niorc juulirmmd districts, they shall be comisolitlateil for trial by
TSCL Couap1iance/Enforc.a nt 1-33 Guidance I4anu l 1984
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Chapter One TS
or l r of any such court tip u ftpt)IiCfitiOfl fl’ftSOhlftl)ly made by aiiv
parR in interest, upon notwe to nil patties in interest.
(d) ACTION UNIn:n SEIrwx 6.—Where appropriate. concurrently
with the filing of an action under subsection (a) or as soon theren fttr
as iiiav lie 1 ),fletiettble , the Administrator shall initiate a proceeding
for titi’ protititigaf ion of a rule under section 8(a).
(e RErIwsi NT.tTIOX.—XOtWithStanding any other provision of law,
in any aetion under i ihseetlon, (a). the Administrator may direct
attorneys the Environniental Protection Agency to appear and
ret)re!.eIIt t he A ihnimstrator in inch tin action.
fl 1)i:riNrrIox.—For the purposes of subsection (a), the term
“imiiiiiii’ntiy hn .ai’dous elt i ’mienl substance or mixture ” mantis a ehc’mi .
al iul) 4;IiiCi ’ or niixt tre which presents an imminent anti unreason-
able risk of serious or widespread injury to health or the environment.
Such a risk to hi’uilth or the environment shall 1* lered iunmiticnt
if it i show i i that the manufacture, processing, distribution in coni—
mercy. ilse, or ilkpositl of the chemical sub tanee or mixture. or that any
cnmnhuiu;utiniu of such activities, is likely to result in such injur’ to
health or tIme i’nvironnwnt before a final rule under section 6 van
1 )niti ’ t ;tga iit t ‘ .tii1i risk.
SEC. 8. REPORTING AND RETENTION OF INFORMATION.
I uIes (a) REi Imr1 ’s.—( 1) The Administrator shall promulgate rules
15 USC 2607. iuiuiii’u’ which—
(A ) yacht pem oii (otht’r thait a small mnanufnctnm ’r or proc.
es.’.or tIio mnanuifaetnt’es or processes (U’ proposes to manufacture
or i t•twcs a diu’tutieiml substiuitri’ (other than a chemical substance
ikserilwd in suubpnrmigt ’aph (B) ii)) shall maintain such ree—
orils. and shall iul.nnit to the A(llmmnstrator such reports, as the
. dnuini trator may reasonably require. and
(1 eadi person (oilier tfiaii a snuill manufacturer or proc.
i ” . .OL ’) who manufactures om i em ses or proposes to tuitiinfttctiire
or
( i :1 i ii u’ ture. oi
(ii) a chemical .substnnee in small quantities (as defined
liv the .‘idministi’ator by rule) soh1y for purposes of eie tific
1 j y utiomu ot• analysis or chemical rest’ rehi on. or
anui sis of. such substance or another substance. including
any such m ’e enrch or analysis fo ,’ the development of a
product.
shall mammitaimi records and suibniit to tia’ Administiutom’ reports
but only to ha’ extent the Administrator determines the main-
tenance of recorils or subniission of reports or both. Is necessary
for the efteeti e enforcement of this Act.
The .tclnuinistrator may not require in a rule promulgated under this
)arngrnplI the maintenance of 1:c .cords or the submission of reports
with respect to changes in the proportions of the components of a
mixture unless the Administrator finds that the maintenance of such
records or the submission of suit h reports. or both, is necessary for
the effective enforcement of this Act. For purposes of the compilation
of the list of chemical substances required under subsection (b), the
Administrator shall promulgate rules pureuant to this subsection not
later than 180 days after the effective date of this Act.
(2) The Administrator may require under paragraph (1) mnainto-
nance of records and reporting with respect to the following insofar
as known to the person making the report or insofar as reasonably
ascertainable:
(A) The common or trade name, the chemical identity, and the
molecular structum e of each chemical substance or mixture for
which such a report is required.
TSCA Gozap1iance/Enforc nt 1-34 Guidance 1984
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Chapter One TSC&
(B) The categories or proposed categories of use of each such
substance or mixture.
(C) The total amount of each such substance and mixture
manufactured or processed, reasonable eatunates of the total
amount to be manufactured or processed, the amount manufac-
tured or processed for each of its categories of use, and reasonable
estimates of the amount to be manufactured or processed for each
of its categories of use or proposed categories of use.
(D) A description of the byproductd resulting from the manu-
facture, processing, use, or disposal of each such substance or
mixture.
(E) All existing data concerning the environmental and health
effects of such substance or mixture.
(F) The number of individuals exposed, and reasonable esti-
mates of the number who will be exposed, to such substance or
mixture in their places of employment and the duration of such
exposure.
(G) In the initial report under paragraph (1) on such substance
or mixture, the manner or method of its disposal, and in any
subsequent report on such substance or mixture, any chai ge in
such manner or method.
To the extent feasible, the Administrator shall not require uniter
paragraph (1), any reporting which is unnecessary or duplicative.
(3) (A) (i) The Administrator may by rule require a small manu-
facturer or processor of a chemical substance to submit to the Admin-
istrator such information respecting the chemical substance as the
Administrator ma require for publication of the first list of cheini-
cal substances required by subsection (b).
(ii) The Administrator may by rule require a small manufacturer
or processor of a chemical substance or mixture—
(I) subject to a rule proposed or promulgated under section 4,
5(b) (4), or 6, or an order in effect under section 5(e), or
(II) with respect to which relief has been granted pursuant to
a civil action brought under section 5 or 7,
to maintain such records on such substance or mixture, and to submit
to the Administrator such reports on such substance or mixture, as
the Administrator may reasonably require. A rule under this clause
requiring reporting may require reporting with respect to the matters
referred to in paragraph (2).
(B) The. Administrator, after consultation with the Administrator Standards.
of the Small Business Administration, shall by rule prescribe stand-
ards for determining the manufacturers and processors which qualif
as small manufacturers and processors for purposes of this paragrap
and paragraph (1).
(b) IXVENTORY.—( 1) The Administrator shall compile, keep cur-
rent., and publish a list of each chemical substance which is manufac-
tured or processed in the United States. Such list shall at least include
each chemical substance which any person reports, under section 5 or
subsection (a) of this section, is manufactured or processed in the
United States. Such list may not include any chemical substance
which was not manufactured or processed in the United States within
three years before the effective date of the rules promulgated pur.
suaiit to the last sentence of subsection (a) (1). In the case of a chemi-
cal substance for which a notice is submitted in accordance with
section 5, such chemical substance shall be included in such list as of
the earliest date (as determined by the Adiiiinistrator) on which such
substance was manufactured or processed in the United States. The
Adnunistrator shall first publish such a list not later than 315 ilays
Lftel the effective date of this Act. The Administrator shall not include
in such list any chemical substance which is manufactured or processed
only in small quantities (as defined by the Administrator by rule)
TSCA Coiap1jance/Enforc ent 1—35 Guidance ?( na1 1984
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Chapter One
solely for purposes of scientific experimentation or analysis or ehemi-
cal rt earcli on. or analysis of, such substanee or another substance.
including iieh research or analysis for the development of a product.
(2) To the extent consistent with the purposes of this Act, the
Administrator may. in lieu of listing, pursuant to paragraph (1), a
chemical substance individually, list a category of chemical substances
in which such substance is included.
(c) REcorws.—Any person who manufactures, processes. or distrib-
utes in commerce any chemical substance or mixture shall maintain
records of significant adverse reactions to health or the environment,
its determined by the Administrator by rule, alleged to have been
utused hr the substance or mixture. Records of such adverse reactions
to the health of employees shall be retained for a period of 30 years
front the date such reactions were first reported to or known by the
person tititintaining such records. Any other record of such adverse
reactions ihiahl be retained for a period of five years front the date
rhe information contained in the record was first reported to or known
by the person maintaining the record. Records re nired to be main-
tuned under this subsection shall include records of consumer allega-
ions of personal injury or harm to health, reports of occupational
disease or injury, aiid reports or complaints of injury to the environ-
ment submitted to the manufacturer, processor, or distributor in coin-
atierce trout any source. Upon request of any duly designated
Iel)resentative of the Administrator, each person who is required to
maintain records under this subsection shall permit the inspection of
smidi records and shall submit copies of such records.
Rules. (d) HLtLTII .tNI) S.tr .—rr STVDIES.—The Administrator shall pro-
uiaulgute rules under which the Administrator shall require any person
who manufactures. processes, or distributes in commerce or who pro-
poses to mnaiuifacture. process, or distribute in commerce any chemical
.ubstance or mixture (or with respect to paragraph (2), any person
who hats possession of a study) to submit to the Administrator—
(1) lists of health and safety studies (A) conducted or initiated
by or for such person with respect to such substance or mixture
at any time. (B) known to such person, or (C’) reasonably ascer-
tainable by such person, except that the Administrator may exclude
certain types or categories of studies from the requirenients of this
subsection if the Administrator finds that submission of lists of
such studies are unnecessary to carry out the purposes of this Act;
and
(2) copies of any study contained on a list submitted pursuant
to paragraph (1) or otherwise known by such person.
(e’) NmIcE To ADMINI5ritiToR ov SUIISTANTIAL Risis.—Any person
who mannfactures processes, or distributes in commerce a chemical
substance or mixture and who obtains information which reasonably
supports the conclusion that such substance or mixture presents a
substantial risk of injury to health or the environment shall imme-
ahiately inform the Administrator of such mforimiation unless such
ieisoI l has actual knowledge that the Administrator has been ade-
iuatclv informed of such information.
(f) bEnNIT1o 8.—FOr purposes of this section, the terms “manufac-
nate” and ‘i)rocess ” mitean tiiaiiufneture or process for commitercial
SEC. 9. RELATIONSHIP TO OTHER FEDERAL LAWS.
is usc 2608. (ii) J oT AI)MINISTV.REI) KY TIlE Ai)MiX1$TELtTOR.—( 1) If
the Adiiimnistratnr has reasonable basis to conclude that the manufac-
titre. prnei’ ing. distribution in commerce, use, or disposal of a chemical
or mixture, or that any combination of such activities, pre-
ents or will present an unreasonable risk of injury to health or the
nv lrnuiumiemit amid determines, in the Administrator’s discretion, that
mchi riLk may he prevented or reduced to a sufficient extent by action
TSCA Comnpllance/Enforcenent 1—36 Guidance “n*1 1984
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Chapter One
taken under a Federal law not administered by the Administrator,
the Administrator shall submit to the agency which administers such Report.
law a report which describes such risk and includes in such description
a !.perifieation of the activity or combination of activities which the
drninistrator has reason to believe so presents such risk. Such report
shall also request such agency—
(A)(i) to determine if the risk described in such report may
be nrevented or reduced to a sufficient extent by action taken under
such law. and
(ii) if the agency determines that such risk may be so prevented
or reduced. to issue an order declaring whether or not the activity
or combination of activities specified in the description of such
risk presents such risk; and
(B) to respond to the Administrator with respect to the matters
described in subparagraph (A).
Any report of the Administrator shall include a detailed statement of Publication n
the information on which it is based and shall be published in the Federal Ragieter.
Federal Register. The agency receiving a request under such a report
shall make the requested determination, issue the requested order.
and make the requested response within such time as the Administrator
4pevihes in the request. but such time specified may not be less than
90 days from the (late the request was made. The response of an agency
shall be accompanied by a detailed statement of the findings and
eonclusions of the agency and shall be published in the Federal Regis-
ter.
( 2) If the Administrator makes a report under paragraph (1) with
respect to a chemical substance or niixture and the agency to which
‘melt report was made either—
(A) issues an order declaring that the activity or combination
of activities specified in the description of the risk described in
the report does not present the risk described in the report. or
(13) initiates, within 90 days of the publication in the Federal
Register of the response of the agency under paragraph (1). action
under the law (or laws) administered by such agency to protect
against such risk asaoeintcd with such activity or combination of
activities.
the . drninistrator may not take aity action under section 6 or I with
respect to such risk.
(3) If the Administrator has initiated action under section 6 or 7
with respect to a risk aesocinted with a chemica’ substance or mixture
which was the subject of a report made to an agency under paragraph
(1), such agency shall before taking action under the law (or laws)
administered by it to protect against such risk consult with the Admin-
istrator for the purpose of avoiding duplication of Federal action
against such risk.
(b) L*ws ADMINiSTERED BY THE ADUINISTRATOR.—The Administra-
tor shall coordinate actions taken under this Act with actions taken
under other Federal laws admittistereil in whole or in part by the
Administrator. If the Administrator determines that a risk to health or
the environment associated ithi a chemical substance or mixture could
be eliminated or reduced to a sufficient extent by actions taken under
the authorities contained in such other Federal laws, the Administrator
shall use such authorities to protect against such risk unless the Admin-
istrator determines, in the . dmiuistiutor’s discretion, that it is in the
public interest to protect against such risk by actions taken under
this Act. This subsection shall not be construed to relieve the Admin-
istrator of any requirement imposed on the Administrator by such
other Federal laws.
(c) OcCUr. TrnNM S. n.-ry ND Hc. i.i’ii.—In exercising any author.
uty under this Act, the Ad:niuuistrator shall not. for purposes of section
4(b) (1) of the Occupational Safety and Health Act of 1910. be 29USC651 note.
TSCA Comp1iance/Enforc eut 1-37 Guidance $ niia1 1984
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Chapter One
deemed to be e eivising statutory authority to prescribe or enforce
standards or ri ’gulations affecting oteupational safety and health.
(d) Cooiwi cxrui .—I a administt ’ring this Act, the Administrator
shall consult and coordinate with the Secretary of Health. Education.
and Welfare and the heads of any other appropriate Federal execu-
twe department or agency, any relevant independent regulatory
agency, and any other appropriate instrumentality of the Federal Gov
ernnient for the purpose of achieving the maximum enforcement of this
.\rt ‘hiih’ imposing the least burdens of duplicative requirements on
those subject to the Act and foi other purposes. The Administrator
shall, in the report required by section 30. report annually to the
Congress on actions taken to coordinate with such other Federal
departments. ftgt’neies, or itistrunientahities, and on actions taken to
coordinate the authority under this Act with the authority granted
under other .tct . . referred to in subsection (b).
SEC. 10. RESEARCH. DEVELOPMENT. COLLECTION, DISSEMINATION,
AND UTILIZATION OF DATA.
15 Usc 2609 (a) ArTlIuInTy.—The Adtninistrntu shall. in consultation and
cooperation with the Secretary of Health. Education, and Welfare
and with othii ’r heads of appropriate departments and agencies, con—
duet such research. development, and monitoring as is necessary to
carry out the purposes of this Act. The Administrator may enter into
contracts and may make grants for research. development, and moni-
toring under this uhsect ion. Contracts may be entered into under this
subsection without regard to sections 3648 and 3701) of the Revised
Statutes (31 i ’.S.C. 529. 14 U.SC. 5).
(b) DATA SvsrzM .—( 1) The Adniinistrtttor shall establish. admin-
ister, and be responMible for the continuing activities of an interagency
committee which shall design, establish. anti coordinate an efficient and
effective system, within the Environmental Protection .tgencv. for
the collection, dissemination to other Federal departments and agen-
cies. and use of data submitted to the .tilnministrator under this Act.
(2) (A) The Administrator shall, in consultation and cooperation
with the Secretary of Health, Education, and Welfare and other heads
of appropriate departments and agencies design. establish, and coordi-
nate an efficient and effective system for the retrieval of toxicological
and other scientific data which could be useful to the Administrator in
carrying out the purposes of this Act. Systematized retrieval shall be
developed for use by all Federal and other departments and agencies
with responsibilities in the area of regulation or study of chemical
substances and mixtures and their effect on health or the environment.
(13) The Administrator, in consultation and cooperation with the
Secretary of I-Iealtli, Education, and Welfare, may make grants and
enter into conti acts for the development of a data retrieval system
described in subparagraph (A). Contracts may be entered into under
this subparagraph without regard to sections 8648 and 3709 of the
Reviscd Statutes (31 tJ.S.C. 3 9 ,41 U.S.C. ).
(c) Scnr. xINo 1’ ciiN1Qc-I.s.—’1 ’hIe Administrator shall coordinate,
ith the Assistant Secrcqa,v for Henithi of the I)epartment of Health.
Education. and Welfare. r search undertaken by the Administrator
.imul ihir nil to ard the development of rapid, reliable, and economical
screening techniques for carcinogenic, mutagenic. teratogenic. and
( ‘(olligleal clYeets of chemical substances and mixtimi4s.
(d) MiN rrnu l\t; —The Administrator shall, in consultation and
i(kqwrat ion it Ii the eeit’tury of Health. Education, and Welfare,
i’ ibhi hi atud be wspnnsibie for research aimed at the development, in
.ooI)ei.at ion ithi local. State, and Federal aFencies. of monitoring
lecltitiques 1111(1 ii .t riiniiiit hith iumny hO USt (l iii the detection of toxic
chemical sul)staflees and mixtures and which are reliable, economical,
anil apabhi of being implemented under a wide variety of conditions.
TSCA Coiap1iancefEnforcesi nt 1—38 Guidance Manual 1984
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Chapter One TSC&
(e) BASIc R sE. RcH.—The Administrator shall, in consultation and
cooperation with the Secretary of Health. Education, and Welfare,
establish research programs to develop the fundamental scientific basis
of the screening and monitoring techniques described in subsections
(c) and (d), the bounds of the reliability of such techniques, and the
opportunities for their improvement.
(f) TwNIN0.—The Administrator shall establish and promote
programs and workshops to train or facilitate the training of Federal
laboratory and technical personnel in existing or newly developed
screening and monitoring techniques.
(g) LXCRANOE ov REs tncn AND DEVELOPMENT R suLm.—The
Administrator shall, in consultation with the Secretary of Health,
Education, and Welfare and other heads of appropriate departnients
9 11(1 agencies. establish and coordinate a system for exchange aiuiong
Federal, State, and local authorities of research and development
results respecting toxic chemical substances and mixtures, including
ii system to facilitate and promote the development of standard data
format and analysis and consistent testing procedures.
SEC. 11. 1NSPEC IONS AND SUBPOENAS.
(a) IN GENERAr...—For purposes of administering this .tct. the 15 USC 2610.
Administrator, and any duly designated repre entative of the Admin-
istrator, may inspect any establishment, facility, or other premises in
which chemical substances or mixtures are inanufactureil, proces. ’ cd,
stored, or held before or after their distribution in commerce and any
conveyance being used to transport chemical substances, mixtures, or
such articles in connection with distribution in comiiieree. Such .in
inspe(tion may only be made upon the pre ’ntatioit of appropriate
credentials and of a written notice to the owner, operator, ot agent in
charge of the premises or conveyance to be inspected. A eparnte notice
shall be given for each such inspection, but a notice shall nut be
required for each entry made during the period covered by the inspec-
tion. Each such inspection shall be commenced and completed with
reasonable promptness and shall be conducted at reusoimabli’ tilimes.
within reasonable limits. and in a reasonable manner.
(b) ScorF..—(1) Except as provided in paragraph (2), an inspec-
tion conducted under subsection (at) shiamil extend to all things within
the premises or conveyance inspected (including records, files, paperm..
processes, controls, and facilities) bearing on whether the requirements
of this Act applicable to the chemical substances or mixtures within
such premises or conveyance have been complied with.
( ) No inspection under subsection (a) shall extend to—
(A) financial data,
(B) sales data (other than shipment data),
(C) pricing data,
(D) personnel data, or
(E) research data (other than data requited by this Act or
under a rule promulgated thereunder),
unless the nature and extent of such data tue described with reasonable
pccificity in the written notice required by subsection (a) for such
inspection.
Ic) SuTIIrOEN s.—In cairying out this Act, the Administrator may
b subpoena require the attendance and testimony of witnesses and
Iii ’ p 11)dnCt ion of reports, papers, documents, answers to questions.
;tiid other information that. the Administrator deems necessary. Wit-
nesses shall be paid the sante fees and mileage that are paid whnesses
iii the (0 11115 of the ITn ited States. In the event of contumacy, failure,
‘u refusal of any person to obey any such subpoena. any disiriet court
of the United States in which venue is proper shall have jurisdiction
mu order any such person to comply with such subpoena. Any failure
to obey such an order of the court s punishable by the court as a con-
t t1i 1 )t thereof.
TSCA Coapliance/Enforceaent 1—39 Guidance Manual 1984
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Chapter One TSC&
SEC. 12. EXPORTS.
15 USC 2611. (a) IN GItNERAL.—(l) Except as provided in paragraph ( 2) and
subsection (b), this Act (other than section 8) shall not apply to any
chemical substance, mixture, or to an article containing a chemical
substance or mixture, if—
(A) it can be shown that such substance, mixture, or article is
being manufactured, processed, or distributed in commerce for
export from the United States, unless such substance, mixture, or
article was, in fact, manufactured, processed, or distributed in
commerce, for use in the United States, and
(13) such substance, mixture, or article (when distributed in
commerce), or any container in which it is enclosed (when so dis-
tributed), bears a stamp or label stating that such substance, mix-
hire, or article is intended forexport.
(2) Paragraph (1) shall not apply to tiny chemical substance, mix-
tine, or article if the Administrator finds that the substance, mixture,
or article will present an unreasonable risk of injury to health within
the ITnuted States oi to the environment of the United States. The
Administrator may require, under section 4, testing of any chemical
substance or mixture exempted from this Act by paragraph (1) for
the purpose of determining whether or not such substance or mixture
presents an unreasonable risk of injury to health within the United
States or to the environment of the United States.
(b) NorricE.— (1) If any person exports or intends to export to a
foreign country a chemical substance or mixture for which the submis-
sion of data is required under section 4 or (b), such person shall
notify the Administrator of such exportation or intent to export and
the Administrator shall furnish to the govermuent of such country
notice of the availability of the data submitted to the Administrator
under such section for such substance or mixture.
(2) If any person exports or intends to export to a foreign country
a chemical substance or mixture for which an order has been issued
iitidi’t section f ol ii mule limis been propose(l or inrnulgati’d under sec—
Ion m IS, ni wit I i respect to %vlIiIlI an action is pending, or relief has
liemi !ziahited Lmnder section i or 7, such person shall notify the Admin—
i trator of such exportation or intent to export and the Administrator
in I I fit rnish to the government of such count rv notice of such title,
order, action, or relief.
SEC. 13. ENTRY INTO CUSTOMS TERRITORY OF THE UNITED STATES.
S Usc 2612 Ia) I ‘ (;I:XEII.%,..—( 1) TIme Si’entiimv of nw Treasury shall refuse
.nt i imito the iiSt() ii territory of the I nmted States (as defined in
9 Usc t202 iui aI hi’ndnote to tin’ Tariff Sdti ’tliilt .s of the United states) of
.iii .Iu ’miuual substance, mixture, or article cnIItuimIIn a hemnical sub—
i .i in ’ o, iiii.’.i ii re atkmi ’d for such cut iv if—
A) it fails to comply with any rule in effect under this Act, or
U) it s offered for entry in violation of ction or 6. a rule or
oitlcr antler section f or 6, or an order issued in a civil action
brought ummier sectIon or 7.
1 oiufucatuon. (2) If i chemical substance, niixture. or article is refw .ed entry
uunikr paragraph (1). the Secrctauy of the Treasury shall notify the
cun guic . of such entry refusal, shall not release it to the consignee,
md shall cause it’. disposal or storage (under such rules as the Seers—
t arv of the Treasumy mua prescribe) if it iia nut been exported by the
i ’iuII. .lgui ’e vithin 90 ilays from the date of receipt of notice of such
refusal. except that the Secretary of the Treasury may, pending a
review liv the Aduiinist rator of time entry refusal, release to the eon—
.igiiec uiciu i.ub’ ,tuiicc. uuuixture, or article on execution of bond for the
amount of the full invoice of such substance, mixture. or article (as
‘.iuii value is set forth in the customs entry). together with the duty
t iert’opi. On fajiumit’ such siihu tance. niixture, or article for
TSCA Coapliance/Enforcea ent 1-40 Guidance Ma’iti*l 1984
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Chapter One
any cause to the custody of the Secretary of the Treasury when
demanded, such consignee sl alI be liable to the United States for liqui-
dated damages equal to the full amount of such bond. All charges for
storage. cartage. and labor on and for disposal of substances, mixtures,
or articles which are refused entry or release under this section shall
be paid by the owner or consignee, and in default of such payment
shall constitute a lien against any future entry made by such owner or
consignee.
(b) Ruiz.s.—The Secretary of the Treasury, after consultation with
the Administrator, shall issue rules for the administration of siibsec-
tion (a) of this section.
SEC. 14. DISCLOSURE O DATA.
(a) I x Gz ELtL—Except as provided by subsection (b). any 15 Usc 2613.
information reported to. or otherwise obtained by, the Administrator
(or any representative of the Administrator) unaer this Act. which is
exempt from disclosure pursuant to subsection (a) of section 552 of
title 5, United States Code, by reason of subsection (b) (4) of such
section, shall, notwithstanding the provisions of any other section of
this Act. not be disclosed by the Administrator or by any officer or
employee of the United States, except that such information—
(1) shall be disclosed to any oflicet or employee of the United
States—
(A) in connection with the official duties of such officer
or employee under any law for the protection of health or
the environment, or
(B) for specific law enforcement purposes;
(2) shall be disclosed to contractors with the United States and
employees of such contractors if in the opinion of the Admninistra
tor such disclosure is necessary for the satisfactory perforimiunce
by the contractor of a contract with the United 4tates entered into
on or after the date of enactment of this Act for the perfominunce
of work in connection with this Act and tinder such comlitions
as the Administrator may specify;
(3) shall be disclosed if the Administrator determines it neces-
sary to protect health or the enviromunent against an unreasonable
risk of injury to health or the environment ; or
(4) may be disclosed when relevant in any proceeding under
this Act, except that disclosure in such a proceeding shall be
made in such manner as to preserve confidentiality to the extent
l)iactical)le without impairing the proceeding.
In any proceeding under section 552(a) of title 5. Vnited States Code,
to obtain information the disclosure of which has been denied because
of the provisions of this subsection, the Admnimstrator may not rely on
section 52(I) (1) of bildi title to sustain the Administrator’s action.
(b) l)Ar.t Fimo i HEALTH AND S.%FETY STVDIES.—(1) Subsection (a)
does not prohibit the disclosure of—
(A) any health and safety study which is submitted undcr this
Act with respect to—
(i) any chemnieal substance or mixture which. on time date
on which such study is to be disclosed has been offered for
commercial distribution, or
(ii) any chemical substance or niixtnre for which testing is
required tinder section 4 or for which notification is required
tinder section 5, and
(B) any data reported to. or otherwise htained by. the Admin.
istrator from a health and safety study which relates to a eheiiiienl
substance or mixture described in clause (I) or (ii) of subpara-
graph (A).
This paragraph does not authorize the releast of any data which dis-
:loses l)I’oeesses used in the manufacturing or processing of a chemical
TSCA CoapliancefRaforcenent 1-41 Guidance ) anua1 1984
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Chapter One TSC&
substance or mixture or. in the case of a mixture, the release of data,
disclosing the j rtion of the mixture comprised by any of the chemical
substances in the mixture.
(2) If a request is made to the Administrator wider subsection (a)
of Section 51 of title S. United States Code. for information which is
(lescribed in the hrst sentence of paragraph (1) and which is not
information described in the second sentence of such paragraph, the
Administrator may not deny such request on the basis of subsection
(b) (4) of stidi section.
e) 1 )i: .io iit ix xn Uhi.p:. tK or (‘nxrtnExrl.tr. 1) t ri.— (I) Iii 1 ub—
mitt ing (hit a under this Act, a manufacturer. 1 )l fl e so! di .tribiitor
iii toninieree may ( A ) designate this data winch such person believes
i etititieti to rmihtlent jul treatment under subsection (a). flfl(l (B)
iil iiuit siutli il(sigItat(9l datn separately from othur darn ubniitttd
uuider rlui t. A designation tinder ths paragraph shall be nuide itt
writ jug intl iii iwli manner as the Administrator may l)Ies iuIw.
A) Except as provided by subparagraph (8), if the Admini.s—
tutor l rnt ot to release for inspect ion (lata which has beeti h’tig—
itateil mmdc , iiara riipli (1) (A). the Administrator shall notify. in
writing utmid by certified mail, the manufacturer. processor, or distrib—
titor in ci)mlner(p sulnmttetl such data of the intent to release such
tiara. if the n ’lt’a t of such data is to be ma c Ic pursuant to a request
made tinder —vet ion (a) of title . iiited states (‘ode, iiehi notice
shall be given iniinediati’ly tuixm approval of such request by the
. tLiiiiii ist rat tir. Titi’ Administrator may not releii. t’ suidu data mit ii
the expiration of 30 clays after the manufacturer, processor. or disuib-
titor in commerce submitting such data has received the notice required
by this subparagraph.
Notificition (B) (i) Subparagraph (A) shall not apply to the release of infor-
mat ion wulet paragraph (1), (2), (3), or (4) of subsection (a), except
that time Adintutistratot’ may not release data under paragraph (3) of
subsection (a) unless the Administrator has notified each manufac-
net. prorc or, antI distributor in commerce who submitted such data
of -itch release. Smirk notice shall be made in writing by certified mail
at least i. ’i .l;u s before the release of such data, except that if the
dnumnusttnioi determimines that the release of such data is necessary
to protect ;iga ium t iii imminent, mirensomuibic risk of injury to health
iii tiit cmii i rituimnent, such notice may be mmitle by such nwans as the
Adumimtiistm•ntni• cLt tem•iimines will provide notice at least 24 hours before
such iekiise is mitade.
(ii) Simh miagraph (A) shall not apply to the release of information
described in tubsertioii (b) (1) other than information described in
time SCCO I I(L euitenci of such subsection.
(dl (muM! .u. I ‘i:x. i rnmi W’mmxn r l)mseT.osvRE.—( 1) A nv
or vumiplovt ’e ot the i’nitt•d States 01 former officer om imipltiv t
of the tnitrtl tates. who by virtue of such employment or oflicia I
ti ul ton has obtamed possession of, or has access to, material the clis-
Iu iiie of which is prohibited by subsection (a), and who knowing
that ihm elosiurv of such material is Prohibited by such subsection. will-
fully discloses the immaterial in any mamierto any person not entitled to
receive it. shall be guilty of a mimisdemneamior and fiuied not more than
.000 or imuprisommed for not more than one year, or both. Section
1905 of title 18, United States Code, does not app 1 y with respect to
the publishing, divulging, disclosure, or making known of, or making
available, imifonnation reported or otherwise obtained under this Act.
(ii) For the purposes of paragraph (1), any contractor with the
ITnited States who is furnished information as authoriaed by subsec-
tion (a) (2), and any employee of any such contractor, shall be con-
sidered to be an employee of the United States.
(e) . ccEss uv ( ‘i ’xoar.ss.—Notwithstmtnding any limitation con-
tained in this section or any other provision of law, all information
TSCA CompliancefEnforceeent 1-42 Guidance ) (nii 1 1984
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Chapter One ‘rs
reported to or otherwise obtained by the Administrator (or any repre-
sentative of the Administrator) under this Act shall be made available,
upon written request of any duly authorized committee of the Con-
gress, to such committee.
SEC. 15. PROIIIBITED ACfS.
It shall be unlawful for any person to— 15 USC 2614
(1) fail or refuse to comply with (A) any rule promulgated or
order issued under section 4 (B) any requirement prescribed by
section 5 or 6, or (C) any rule promulgated or order issued under
section 5 or 6;
(2) use for commercial purposes a chemical substance or mix•
tare which such person knew or had reason to know was manufac-
tured, processed, or distributed in commerce in violation of section
5 or 6, a rule or order under section 5 or 6, or an order issued in
action brought under section 5 or 7;
(3) fail or refuse to (A) establish or maintain records, (B)
submit reports, notices, or other information, or (C) permit access
to or copying of records, as required by this Act or a rule there-
under; or
(4) fail or refuse to permit entry or inspection as required by
sectiOn 11.
SEC. 16. PENALTIES.
(a) Civn..—(1) Any person who violates a provision of section 15 iS Usc 2615.
shall be liable to the United States for a civil penalty in an amount
not to eaceed $25,000 for each such violation. Each day such a viola-
tion continues shall, for purposes of this subsection, constitute a sepa-
rate violation of section 15.
(2) (A) A civil penalty for a violation of section 15 shall be assessed Hearing.
by the Administrator by an order made on the record after oppor-
tunity (provided in accordance with this subparagraph) for a hearing
in accordance with section 554 of title 5, United States Code. Before
issuing such an order, the Administrator shall give written notice to
the person to be assessed a civil penalty under such order of the Adinin-
istrator s proposal to issue such order and provide such person an
opportunity to request, within 15 days of the date the notice is received
by such person, such a hearing on the order.
(13) In determining the amount of a civil penalty, the . dininistra-
tor shall take into account the nature, circumstances. extent, and
gravity of the violation or violations and, with respect to the violator,
abilit ’ to pay, effect on ability to continue to do business, any history
of prior such iolntion . the degree of culpability, iiiid such iiflwr
niattcii4 as justice iiiay require.
(C) The Administrator may compromise, modify, or remit, with
or without conditions, any civil penalty which may be imposed under
this subsection. The amount of such penalty, when finally determined,
or the amount agreed upon in compromise, may be deducted from
itny sums owing by the United States to the person charged.
(3) Any person who requested in accordance with paragraph (2) Petition (or
(A) a hearing respecting the assessment of a civil penalty and who is judicial review
aggrieved by an order assessing a civil penalty may file a petition for
judicial review of such order with the United states Court of Appeals
for the District of columbia Circuit or for any other circuit in which
nch person resides or transacts business. Such a petition may only be
tiled within the 30-day period beginning on the date the order making
uich assessnient was issued.
(4) If any person fails to pay au assessment of a civil penalty—
(A) after the order making the assessment has become a final
order and if such person does not file a petition for judicial review
of the order in accordance with paragraph (3), or
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Chapter One TSC&
(B) after a court in an action brought under paragraph (3)
has entered a tinal judgment in favor of the Administrator,
he Attorney General shall recover the amount assessed (plus interest
at currently prevailing rates from the date of the eXpiration of the 30-
day perlo(I referred to in paragraph (3) or the date of s vli final
judgnwnt. as the case n Ifty he) in an action brought in any appropriate
district court of the United States. In such an action, the validity,
amount. and appropriateness of such penalty shall not he subject to
review.
(b) (“RIM IN.%L—Any person who knowingly or willfully violates
any provision of section 15 shall in addition to or in lieu of any civil
pena’ty which may be imposed under subsection (a) of this section for
ucli violation, be subject. upon conviction, to a fine of not more than
$ 25.OO0 for each day of violation, or to imprisonment for not more
than one year. or both.
SEC. 17. SPECIFIC ENFORCEMENT AND SEIZURE.
15 Usc 2616. (a) SrEc lFIc ENY0RcEMzrr.—(1) The district courts of the United
States shall have jurisdiction over civil actions to—.
(A) restrain any violation of section 15,
(B) restrain any person from taking any action prohibited by
section 5 or 6 or by a rule or order under section 6 or 6,
(C) compel the taking of any action required by or under this
Act, or
(D) direct any manufacturer or processor of a chemical sub-
stance or mixture manufactured or processed in violation of sec-
tion 5 or 6 ot a rule or order under section 5 or 6 and distributed
in commerce, (i) to give notice of such fact to distributors in
commerce of such substance or mixture and. to the extent reason-
ably ascertainable, to other persons in possession of such sub-
stance or mixture or exposed to such substance or mixture. (ii) to
give public notice of such risk of injury, and (iii) to either replace
or repurchase such substance or mixture, whichever the person to
which the requirement is directed elects.
(2) A civil action described in paragraph (1) may he brought—
(A) in the case of a civil action deseribeil in 1 subparagraph (A)
of such paragraph. in the United States district court for the judi.
cial district wherein any act, omission, or transaction constituting
a violation of section 15 occurred or wherein the defendant is found
or transacts business, or
(13) in the case of any other civil action described in such para-
graph, in the United States district court for the judicial district
wherein the defendant is found or trausacts business.
In any such ei il action process may he served on a defendant in any
judicial district in which a defendant resides or may be found: Sub-
poenas requiring attendance of witnesses in any such action may be
served in any judicial district.
(b) SEiztu.—Any chemical substance or iiiixture which was nianu—
factiired. 1)roees sed, or distributed in eomiiiiierce in violation of this Act
or any i’ule promulgated or order issued under this Act or any article
cohltaining such a substance or mixture shall be liable to be proceeded
against, by process of libel for the seizure and condemnation of such
‘uh’ .tnimce, mmnxtiire. or article, in any district court of the United States
within the jurisdiction of which such substance, mixture, or article is
found. S ieh proceedings shall conform as nemii1y as possible to proceed-
ings in mem in admiralty.
SEC. IS. PREEMPTION.
15 SC 2617 (a) Emcr ON STATE LAw.—(1) Except as provided in paragraph
(2). nothing in this Act shall affect the authority of any State or politi-
cal subdivision of a State to establish or continue in effect regulation
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Chapter One TSC&
of any chemical substance, mixture, or article containing a chemical
aubstance or mixture.
(2) Except as provided in subsection (b)—
(A) if the Administrator requires by a rule promulgated under
section 4 the testing of a chemical substance or mixture, no State or
political subdivision may, after the effective date of euch rule,
establish or continue in effect a requirement for the testing of such
substance or mixture for purposes similar to those for which test.
ing is required under such rule; and
(B) if the Administrator prescribes a rule or order under sec-
tion 5 or 6 (other than a rule impcsin a requirement described
in subsection (a) (6) of section 8) which is applicable to a chemical
substance or mixture, and which is designed to protect against a
risk of injury to health or the environment associated with such
substance or mixture, no State or political subdivision of a State
may, after the effective date of such requirement, establish or
continue in effect, any requirement which is applicable to such sub
stance or mixture, or an article containing suc1 substance or mix-
tute, and which is designed to protect against such risk unless such
requIrement (i) is identical to the requirement prescribed by the
Administrator, (ii) is adopted under the authority of the Clean
Air Act or any other Federal law, or (iii) prohibits the use of such
substance or mixture in such State or political subdivision (other
than its use in the manufacture or processing of other substances
or mixtures).
(b) EXEMPrxoN.—Upon application of a State or political subdivi- Application.
sion of a State the Administrator may by rule exempt from subsection
(a) (2), under such conditions as may be prescribed in such rule, a
requirement of such State or political subdivision designed to protect
against a risk of injury to health or the environment associated with
a chemical substance, mixture, or article containing a chemical sub-
stance or mixture if—
(1) compliance with the requirement would not cause the
manufacturing, processing, distribution in commerce. or use of the
substance, mixture, or article to be in violation of the applicable
requirement under this Act described in subsection (a)(2), and
(2) the State or political subdivision requirement (A) provides
a significantly higher degree of protection from such risk than the
requirement under this Act described in subsection (a) (2) and
(B) does not, through difficulties in marketing, distribution, or
other factors 1 unduly burden interstate commerce.
SEC. 19. JUDICIAL REVIEW.
(a) IN (h:NER.u..—( 1) (A) Not later than RO days after the date Petition.
of the promulgation of a rule under section 4(a), 5(a)(2). (l)(4). 15 Usc 2618.
(a), (e), or 8, any person may tile a petition for judicini review of
such rule with the united States Court of Appeals for thc I)istriet of
Columbia Circuit or for the circuit in which such person resides or
which such person’s principal pinee of business is located. Courts
of appeals of the ITnitecl tntes shall have exelusivi jurisdiction of
any action to obtain judicial review (other than in an enforeenient
proceeding) of such a rule if any district court of the United States
would have had jurisdiction of such action but for this subparagraph.
(B) Courts of appeals of the uTnited States shall lm e exclusive Junadiction.
jurisdiction of any action to obtain judicial rt virw (other ritnit in an
enforcement proceeding) of an order issued tinder subpnra taphi (A)
or (B) of section 6(b) (1) if any district court of the United Stntes Petition co ies
would have had jurisdiction of such action but. for this sub 1 iaiagraph. tranSmittal O
(2) Copies of tinY petit ion filed timler aiagmnphi (1) ( A shall Lie Administrator
tramlilLiteil forthwith tn the Administrator and to the Attorney Gen— and Attorney
,iral by the derk of tin court with “ hich such petition was filed. Thc General.
TSCA CosipliancefEuforcemuent 1-45 Guidance Nanual 1984
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provisions of section 2112 of title 28, United States Code, shall apply
to the filing of the rulemaking record of pr eedin s on which the
Adiiiiiiistrator bused the rule being reviewed under tins section and to
the transfer of proceedings between United States courts of appeals.
“Rulerniking (3) For purposes of this section, the term “rulemaking record”
means—
(A) the rule being reviewed under this section;
(B) in the case of a rule under section 4(a), the finding required
by such section, in the case of a rule under section 5(b) (4), the
finding required by such section, in the case of a rule under section
6(a) the finding required by section 5(f) or 6(a), as the case may
be, in the case of a rule under section 6(a). the statement required
by section 6(c) (1), and in the case of a rule under section 6(e),
the findings required by paragraph (2) (B) or (3) (B) of such
section, as the case may be;
(C) any transcript required to be made of oral presentations
iiiade in proceedings for the promulgation of such rule;
(D) any written submission of interested parties respecting the
promulgation of such rule; and
(E) any other information winch the Adllunlstratorcons!ders
to he relevant to such rule and which the Administrator identified.
on or before the date of the promulgation of such rule. in a notice
published in the Federal Register.
(U) ADDITION. L rBMI$$TflN8 .txn PRESENTATIONS; MornP1c rIoNa.—
If in an action under this section to review a rule the petitioner or the
Administrator applies to the court for leavei to make additional oral
snhmi sions or written presentations respecting such rule and shows
to the satisfaction of the court that such snbniissions and presentations
would he material and that there were reasonable grounds for the sub-
missions and failure to make such submissions and presentations in
the proceeding before the Administrator, the court may order the
Administrator to provide additional opportunity to make such sub-
missions and presentations. The Administrator may modify or set
aside the rule being reviewed or make a new rule by reason of the
additional iil ’iu ions and presentations and shall file such modified
or new nile with the return of such submissions and presentatinn .
The court shall thereafter review such new or modified rule.
(c) ST xu.utn OF REVIEw.—(1) (A) Upon the filing of a petition
under ul ..(Mi ion (a) (1) for judicial review f a rule. the court shall
haive jurisdiction (i) to grant appropriate relief, including interim
relief, as provided in chapter 7 of title 5, United States Code, and
(ii) except as otherwise provided in subparagraph (B), to review
such rule in accordance with chapter 7 of title 5, Lnited States Code.
(B) eetmn O6 of title 3. Unit d States C ode. shall apply to review
of a rule under (his section, except that—
(i) in the case of review of a rule under section 4(a), 5(b) (4).
fi(a). or flit’), the standard for review prescribed by paragraph
( ) (E) of such section 106 shall not apply and the court shall
liolti unlawful and set aside such rule if the court finds that the
rule is not supported by substantial evidence in the rulemaking
record (as defined in subsectiQn (a) (3)) taken as a whole;
(ii) in the case of review of a rule under section 6(a), the court
shall hold unlawful and set aside such rule if it finds that—
(I) a determination by the Administrator under section
6(c) (3) that the petitio ier seeking review of such rule is not
entitled to conduct (or have conducted) cross-examination or
to present rebuttal submissions, or
( II) a rule of. or ruling by. the Administrator under see-
tioii 6(c) ( ) limiting such petitioner’s cross-examination or
oral presentations.
Notice.
publication in
Federal Register.
Review.
TSCA Ooiap1iance/Eñforce eit
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Guidance ) Sninaal 1-986
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Chapter One TSCA
has precluded disclosure of disputed material facts which was
necessary to a fair determination by the Administrator of the
rulemaking proceeding taken as a whole; and section 706(2) (D)
shall not apply with respect to a determination, nile, or ruling
referred to in subclanse (I) or (II); and
(iii) the court may not review the contents and adequacy of—
(I) any statement required to be made pursuant to section
6(c) ( 1) . or
(II) any statement of basis and purpose required by sic.
tion 553(c) of title 5, United States Code, to be incorporated
in the rule
except as part of a review of the rulemaking record taken as a
whole.
The term. “evidence” as used in clause (i) means any matter in the “Evidence:
rulemaking record.
(C) A determination, rule, or ruling of the Administrator described
in subparagraph (B)(ii) may be reviewed only in an action wider
this section and only in accordance with such sub angraph.
(2) The judgment of the court affirming or setting aside, in whole
or in part, any rule reviewed in accordance with this section shall be
final, subject to review by the Supreme Court of the United States
upon certior1u i or certification, as provided in section 1254 of title S,
United States Code.
(d) Fxse AND cosm.—The decision of the court in au action coin-
inenced under subsection (a), or of the Supreme Court of the United
States on review of such a decision, may include an award of costs of
suit and reasonable fees for attorneys and expert witnesses if the court
determines that such an award is appropriate.
(e) O riixn nEMEDI .—The remedies as provided in this section shall
be in addition to and not in lieu of any other remedies provided by law.
SEC. 20. CITIZENS’ CIVIL ACTIONS.
(a) Irc G N& a tL—Except as provided in subsection (b), any person 15 Usc 2619.
may commence a civil action—
(1) against any person (including (A) the United States, and
(1%) any other governmental instrumentality or agency to the
extent permitted by the eleventh amendment to the Constitution)
who is alleged to be in violation of this Act or any rule promul-
gated under section 4, 5, or 6 or order issued under section 5
to restrain such violation, or
(2) against the Administrator to compel the Administrator
to perform any act or duty under this Act which is not discre-
tiona y.
Any civil action under paragraph (1) shall be brought in the United
States district court for the district in which the alleged violation
occurred or iii which the defendant resides or in which the defendaiits
l)rinciPal place of business is located. Any action brought under para-
graph ( ) shall be brought in the United States District Court for
the District of Columbia, or the United States district court for the
judicial district in which the plaintiff is domiciled. The district courts Jurisdiction.
of the United States shall have jurisdiction over suits brought under
this section, without regard to the amount in controversy or the citizen-
ship of the parties. In any civil action under this subsection process
may be served on a defendant in any judicial district in wiuch the
defendant resides ot• may be found and subpoenas for witnesses may
be served in any judicial district.
(b) LIMITATION—NO civil action may be commenced—
(1) under subsection (a) (1) to restrain a violation of this Act
ur rule or oider under title Act—
(A) before the expiration of 60 days after the plaintiff Notice.
has given notice of such violation (i) to the Administrator,
TSCA Coispliance/Enforcement 1-47 Guidance Nanuai. 1984
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Chapter One TSC&
and (ii) to the person who is alleged to have committed such
violation, or
(B) if the Administrator has commenced and is diligently
prosecuting a proceeding for the issuance of an order under
section 16(a) (2) to require compliance with this Act or with
such rule or order or if the Attorney General has commenced
and is diligently prosecuting a civil action in a court of the
United States to require compliance with this Act or with
such rule or order, but if such proceeding or civil action is
commenced after the giving of notice, any person giving such
notice may intervene as a matter of right in such proceeding
oraction:or
Notice. (2) under subsection (a) (2) before the expiration of 60 days
after the plaintiff has given notice to the Administrator of the
alleged failure of the Administrator to perform an act or duty
which is the basis for such action or, in the case of an action under
such subsection for the failure of the Administrator to file an
action under section 1’, before the expiration of ten days after
such notification.
Rule. Notice under this subsection shall be given in such manner as the
. (lmimst intot hnl1 Pre ’tibe hr rule.
(e) (r i a. r .—( I) In an action under this section, the Adminis-
trator, if not a party. may intervene as a matter of right.
(2 The court, in issuing any fiuinl otdvr in any action brought pur-
suant to subsection (a). may award costs of suit and reasonable fees
for nttoriiev md cxla’rt w.ith ec if the court determines that such
an award is alpropriate. Any eon it. in issuing its decision in an action
l,rnnght to i ’vieW such an o,ilem, may award costs of suit and reason-
able fees for attorneys if the court determines that such an iward
is : 1 l),)rflh)rilltt’.
) Nothing a this section shall restrict any right which any J)C 1 0fl
(or class of persons) mar have under any statute or common law to
seek enforcenimut of this tet. or any rule or order under this Act
or to seek nn other rellef.
(il) CnN oi .mIi iio .—Wheii two or inure civil actions brought immider
SI1l)Sc(’trnn (a involving the same defendant and the s tiie issues ni
violntinnc are pending in two or more judicin districts, such pending
ct inns, upon npphicntinn of such defendants to such actions which is
made ton court in which any such action is brought, may, if such court
in its discret inn so dec ides. he consolidated for trial by order (issued
after givin all parties reasonable notice and opportunity to he heard)
of such court and tried in—
(1) any district which is selected hr such defendant mmd in
which one of such actions is pending.
(2) a district which is agreed upon 1w stipulation between all
the parties to such actions and in which one of such actions is
pending. or
( ) a district which is sefreted by the court and in which one
of such actions is pending.
The court issuing such an order shall give prompt notification of the
ottler to the other courts in which the civi’ actions consolidated tinder
the order are pending.
SEC. 21. CITIZENS’ PETITIONS.
15 USC 2620. (a) I x GENIR.tl..—Any person may petition the Administrator to
initiate a proceeding for the issuance, amendment, or repeal of a rule
under sectiomi 4. It, or 8 or an order under section 5(e) or (6) (b) (2).
(b) Pnocr.DLnI s.—(1) Such petition shall be filed in the principal
office of the Administrator and shall set forth the facts which it is
daimed establish that it is necessary to issue, amend, or repeal a nile
under section 4, 6, or M or an order under section (e), 6(b) (1) (A),
or 6(b) (1) (13).
TSCA Compliance/Enforceisent 1 -48 Guidance Manii 1 1984
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Chapter One TSC&
(2) The Administrator ma y hold a public hearing or may conduct public hearing.
such investigation or proceeding as the Administrator deems appro-
priate in order to determine whether or not such petition should be
granted.
(3) Within 90 days after filing of a petition described in paragraph
(1), the Administrator shall either grant or deny the petition. If the
Administrator grants such petition, the Administrator shall promptly
commence an appropriate proceeding in accordance with section 4,
5,6, or 8. If the Administrator denies such petition, the Administrator Pubticanon in
shall publish in the Federal Register the Administrator’s reasons Federal Regieter.
for such denial.
(4) (A) If the Administrator denies a petition filed under this Civil action.
section (or if the Administrator fails to grant or deny such petition
within the DO-day period) the petitioner may commence a civil action
in a district court of the United States to compel the Administrator
to initiate a rulemaking proceeding as requested in the petition. Any
such action shall he filed within 60 days after the Administrator’s
denial of the petition or, if the Administrator fails to grant or deny
the petition within 90 days after filing the petition, within 60 days
after the expiration of the 00-day period.
(B) In an action under subparagraph (A) respecting a petition
to initiate a proceeding to issue a rule under section 4, 6. or 8 or an
order under section 5(e) or 6(b) (-2), the petitioner shall be provided
an opportunity to have such petition considered by the court in a
de novo proceeding. If the petitioner demonstrates to the satisfaction
of the court by a preponderance of the evidence that—
(i) in the case of a petition to initiate a proceeding for the
issuance of a rule under section 4 or an order under section 5(e)—
(I) information available to the Administrator is insuffi-
cient to permit. a reasoned evaluation of the health and
environmental effects of the chemical substance to be subject
to such rule or order; and
(II) in the absence of such information, the substance may
present an unieasonable risk to health or the environment,
or the substance is or will be produced in substantial quan-
tities and it enters or may reasonably be anticipated to enter
the environment in substantial quantities or there is or may
be significant or ubstnntial human exposure to it; or
(ii) in the case of a petition to initiate a proceeding for the
issuance of a rule under section 6 or 8 or an order under section
6(b) (2), there is a reasonable basis to conclude that the issuance
of such a rule or order is necessary to protect health or the
environment against an unreasonable risk of injury to health or
the environment.
the court shall order the Administrator to initiate the action requested
by the petitioner. If the court finds that the extent of the risk to
health or the environment alleged by the petitioner is less than the
extent of risks to health or the environment with respect to which
the Administrator is taking action under this .tct and there are
insufficient resources available to the Administrator to take the action
n qiiesred hv hr prtitioner. tlit’ court may permit thr Adiiiiiiistrator
to defer initiating the action requested by the petitioner until such time
as the court prescribes.
(C) The court in issuing any final order in any action brought pur-
suant to subparagraph (A) may award costs of suit and reasonable
fees for attorneys and expert witnesses if the court determines that
such an award is appropriate. Any court, in issuing its decision in an
action broiwht to review such an order, may award costs of suit and
reasonable fees for attorneys if the court determines that such an
award is appropriate.
TSCA Coinpliaoce [ Enforceeaent 1-49 Guidance Manual 1984
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Chapter One TSC&
( ) The remedies under this section shall be in addition to, and not
in lieu of, other remedies provided by law.
SEC. 22. NATIONAL DEFENSE WAIVER.
15 USC 2621. The Administrator shall waive compliance with any provision of
this Act upon a request and determination by the President that the
requested waiver is necessary in the interest of national defense. The
Administrator shall maintain a written record of the basis upon
which such waiver was granted and make such record available for in
camera examination when relevant in a judicial proceeding under
Publication in this Act. Upon the issuance of such a waiver, the Administrator shall
Federal Re i.ter. publish in the Federal Register a notice that the waiver was granted
Notice to for national defense purposes, unless, upon the request of the Presi-
igreaa ioul dent, the Administrator determines to omit such publication because
the publication itself would be contrary to the interests of national
defense, in which event the Administrator shall submit notice thereof
to the Armed Services Committees of the Senate and the House of
Representatives.
SEC. 23. EMPLOYEE PROTECTION.
15 Usc 2622. (a) 1w GEN’ERAL.—NO employer may discharge any employee or
otherwise discriminate against any employee with respect to the
employee’s compensation, terms, conditions, or privileges of employ-
ment because the employee (or any person acting pursuant to a request
• of the employee) has—
(1) commenced, caused to, be commenced, or is about to com-
mence or cause to be commenced a proceeding under this Act;
(2) testified or is about to testify in any such proceeding; or
(3) assisted or participated or is about to assist or participate
in any manner in such a proceeding or in any other action to
carry out the purposes of this Act.
(b) REMEDY.—(l) Any employee who believes that the employee
has been discharged or ot herwise discriminated against by any person
in violation of subsection (a) of this section may, within 30 days after
such allefred violation occurs, file (or have any person file on the
employees behalf) a complaint with the Secretary of Labor (here-
inafter in this section referred to as the “Secretary”) alleging such
Notification, discharge or discrimination. Upon receipt of such a com ilaint, the
Secretary shall notify the person named in the complaint of the filing
of the complaint.
Investigation. (2) (A) Upon receipt of a complaint filed under paragraph (1), the
Secretary shall conduct an investigation of the violation alleged in the
Notification. complait t. Within 30 dayd of the receipt of such complaint, the Seers-
tarv shall complete such investigation and shall notiIy in writing the
complainant (and any person acting on behalf of the complainant)
and the person alleged to have committed such violation of the results
of the investigation conducted pursuant to this paragraph. Within
ninety days of the receipt of such complaint the Secretary shall, unless
the proceeding on the complaint is terminated by the Secretary on the
basis of a settlement entered into by the Secretary and the person
alleged to have committed such violation, issue an order either pro-
vidin the relief prescribed by subparn raph (B) or denying the
Notice, heanug. complaint. An order of the Secietary shalt be made on the record after
notice and opportunity for agency hearing. The Secretary may not
enter into a settlement terminating a proceeding on a complaint with.
out the participation and consent of the complainant.
(B) If in response to a complaint filed under paragraph (I) the
Secretary determines that a violation of sulweetion (a) of this section
has occur red. the Secretary shall order (i) the person who committrd
such violation to take a rmative action to abate the violation. (ii)
TSCA Compliance/Eat orcement 1—50 Guidance Manual 1984
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Chapter One TSCâ
such person to reinstate the complainant to the complainant’s former
position together with the compensation (including back pay), terms,
conditions, and privileges of the complainant’s employment, (iii) com-
pensatory damages, and (iv) where appropriate, exemplary damages.
If such an order issued, the Secretary, at the request of the complain-
ant, shall assess against the person against whom the order is issued a
sum equal to the aggregate amount of all costs and expenses (Jncluding
attorney’s fees) reasonably incurred 1 as determined by the Secretary,
by the complainant for, or in connection with, the bringing of the com-
plaint upon which the order was issued.
(c Rxvixw.—( 1) Any employee or employer adversely affected or
aggrieved by an order issued under subsection (b) may obtain review
of the order in the United States Court of Appeals for the circuit in
which the violation with respect to which the order was issued,
allegedly occurred. The petition for review must be filed within sixty
days from the issuance of the Secretary’s order. Review shall conform
to chapter 7 of title S of the ITnited States Code.
(2) An order of the Secretary, with respect to which review could
have been obtained under paragraph (1), shall not be subject to
judicial review in any criminal or other civil proceeding.
(d) ENroncI Ma .—Whenever a person has failed to comply with Civil action.
an order issued under subsection (b) (2), the Secretary shall file a civil
action in the ITnited States district court for the district in which the
violation was found to occur to enforce such order. In actions brought luriadiction.
under this subsection, the district courts shall have jurisdiction to
grant all appropriate relief, including injunctive relief and compensa-
tory and exemplary damages. Civil actions brought under this sub-
section shall be heard and decided expeditiously.
(e) Excr.usiorr.—Subeection (a) of this section shall not apply with
respect to any employee who, acting without direction from the
employee’s employer (or any agent of the employer), deliberately
causes a violation of any requirement of this Act.
SEC. 24. EMPLOYMENT EFVECrS
(a) IN GENEI1AL.—The Administrator shall evaluate on a continuing Evaluation.
basis the potential effects on employment (including reductions in 15 usc 2623.
employment or loss of employment from threatened plant closures)
of—
(1) the issuance of a rule or order under section 4, 5, or 6, or
(2) a requirement of section 5 orfi.
(b) (1) TNvr.sTToArloNa.—Any employee (or any representative of
an employee) may request the Administrator to make an investigation
of—
(A) a discharge or layoff or threatened discharge or layoff of
the employee, or
(B) adverse or threatened adverse effects on the employee’s
employment,
allegedly resulting from a rule or order under section 4, 5, or 6 or a
requirement of section 5 or 8. Any such request shall be made in writ-
ing. shall set forth with reasonable particularity the grounds for the
request, and shall be signed by the employee, or representative of such
employee, making the request.
(2) (A) Upon receipt of a request made in accordance with para- Public hcannp.
graph (1) the Administrator shall (i) conduct the investigation
requested, and (ii) if requested by any interested person, hold public
hearings on any matter involved in the investigation unless the Admin-
istrator, by order issued within 45 days of the date such hearings are
requested, denies the request for the hearings because the Adminis-
trator determines there are no reasonable grounds for holding such
heanngs. If the Administrator makes such a determination, the NOtjf1ac OD.
Administrator shall notify in writing the person requesting the hear-
ing of the determination and the reasons therefor and shall publish the
TSCA Coepliance/Eaforceinent 1—51 Guidance ?‘ “ 1 1984
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Chapter One
Publication in determination and the reasons therefor in the Federal Register.
Federal Register. (B) If public hearings are to be held on any mater involved in an
investigation conducted under this subsection—
(i) at least five days’ notice shall be provided the person mak-
ing the request for the investigation and any person identified in
such request,
(ii) such hearings shall be held in accordance with section
6(c) (3), and
(iii) each employee who made or for whom was made a request
for such hearings and the employer of such employee shall be
required to present information respecting the applicable matter
referred to in paragraph (1)(A) or (1)(B) together with the
basis for such information.
Recommends. (3) Upon completion of an investigation under paragraph (2), the
tione. Administrator shall make findings of fact, shall make such recom-
mendations as the Administrator deems appropriate, and shall make
avail able to the public such findings and recommendations.
(4) This section shall not be construed to require the Administrator
to amend or repeal any rule or order in effect under this Act.
SEC. IL STUDIES.
15 USC 2624. (a) INDEMNIPIcATI0N Si my.—The Administrator shall conduct a
study of all Federal laws administered by the Administrator for the
purpose of determining whether and under what conditions, if any,
indemnification should be accorded any person as a result of any action
taken by the Administrator under any such law. The study shall—
(1) include an estimate of the probable cost of any indemnifica-
tion programs which may be recommended;
(2) include an examination of all viable means of financing the
cost of any recommended indemnification; and
Submittal to (3) he corn plc’terl and submitted to Congress within two years
Congress. from the effective date of enactment of this Act.
GAO review The General Accounting Office shall review the adequacy of the study
submitted to Congress pursuant to paragraph (3) and shall report the
results of its review to the Congress within six months of the date
such study is submitted to Congress.
Consultation. (b) CLASSIFICATION, STORA(IZ, AND RETRIEVAL. S ’rrmy.—The Council
on Environmental Quality, in consultation with the Administrator,
the Secretary of Health, Education, and Welfare, the Secretary of
Commerce. and the heads of other appropriate Federal departments or
agencies, shall coordinate a study of the feasibility of establishing (1)
a standard classification svsteni for chemical substances and related
substances, and (2) a standard means for storing and for obtaining
Report to rapid access to information respecting such substances. A report on
Congress. such study shall be completed and submitted to Congress not later than
18 months after the effective date of enactment of this Act..
SEC. 26. ADMINISTRATION OF TilE ACT.
15 USC 2625. (a) COOPERATION OF FEDERAL AoElccIEs.—Upon request by the
Administrator, each Federal department and agency is authorized—
(1) to make its services, personnel, and facilities available
(with or without reimbursement) to the Administrator to assist
the Administrator in the administration of this Act; and
(2) to furnish to the Administrator such information, data,
titiiates. and statistics. and to allow the Administrator access to
a4l information in its possession as the Administrator may reason-
ahlv determine to he necessary for the administration of this Act.
h) Fi:,:s..— (1 The Ad ll liniht l’ntcr nmny. hy rule, require the pay.
iiient of ii rea’onatile fee from any pi ’r on required to submit data
tinder ‘.t t’tion 4 or F to defray the cost of administering this Act. Such
riile shall not iirotmclt’ for any fee in excess of $2,500 or. in the case of
a ..uiiall l u .1ne ’.— ron’t ’rn, any fee in of il 100. In setting a fee
TSCA Comapliance/Enforconent 1-52 Guidance nua1 1984
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Chapter One A
under this paragraph. the Administrator shall take into account the
ability to pay of the person required to submit the data and the cost
to the Administrator of reviewing such data. Such rules may provide
for sharing such a fee in any case in which the expenses of testing are
shared under sect ion 4 or .
(2) The Administrator, after consultation with the Administrator oasulia on.
of the Small Business Administration, shall by rule prescribe stand- Rule.
ards for determining the persona which qualify as small business
concerns for purposes of paragraph (1).
(c) Acr iox WITH Rv.iwErr To ( . TEooRIEs.—( 1) Aziy action author-
ized or required to be taken by the Administrator under any provision
of this Act with respect to a chemical substance or mixture may be
taken by the Administrator in accordance with that provision with
respect to a category of chemical substances or mixtures. Whenever
the Administrator takes action under a provision of this Act with
respect to a category of chemical substances or mixtures, any reference
in this Act to a chemical substance or mixture (insofar as it relates
to such action) shall be deemed to be a reference to each chemical
substance or mixture in such category.
(2) For purposes of paragraph (1): Deflanions.
(A) The term “category of chemical substances” means a group
of chemical substances the members of which are similar in molec-
ular structure, in physical. chemical. or biological properties, in
use, or in mode of entrance into the human body or into the
environment, or the members of which are in some other way suit-
able for classification as such for purposes of this Act, except that
such term does not mean a group of chemical substances which are
grouped together solely on the basis of their being new chemical
substances.
(B) The term “category of mixtures” means a group of mix-
tures the members of which are similar in molecular structure, in
physical, chemical, or biological properties, in use, or in the mode
of entrance into the human body or into the environment, or the
members of which are in some other way suitable for classification
as such for purposes of this Act.
(d) ASSISTANCE OFrIcL—The Administrator shall establish in the EstabLishment.
Environmental Protection Agency an identifiable office to provide
technical and other nonfinancial assistance to manufacturers and
processors of chemical substances and mixtures respecting the require-
ments of this Act applicable to such manufacturers and processors. the
policy of the Agency respecting tlu application of such requirements
to such manufacturers and processors. and the means and methods by
which such manufacturers and processors may comply with such
requirements.
(e) FINANCIAL DiscLosunEs.—(1) Except as provided under para-
graph (s). each officer or employee of the Environmental Protection
Agency and the Department of Health. Education. and Welfare who—
(A) performs any function or duty under this Act, and
(B) has any known financial interest (i) in any person subject
to this Act or any rule or order in effect under this Act, or (ii) in
any person who applies for or receives any grant or contract under
this Act,
shall, on February 1, 1978, and on February 1 of each year thereafter,
file with the Administrator or the Secretary of Health, Education. and
Welfare (hereinafter in this subsection referred to as the “Secre-
tary”), as appropriate, a written statement concerning all such inter-
ests held by such officer or employee during the preceding calendar
year. Such statement shall be made available to the public.
(2) The Administrator and the Secretary shall—
(A) act within 90 days of the effective date of this Act—
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chapter One TSCA
(i) to define the term “known financial interests for pur-
poses of paragraph (1),and
(ii) to establish the methods by which the requirement to
file written statements specified in paragraph (1) will be
monitored and enforced, including app ropriate provisions for
review by the Administrator and the Secretary of such state-
ments; and
Report to (B) report to the Congress on June 1, 1978, and on June 1 of
COD T $s. each year thereafter with respect to such statements and the
actions taken in regard thereto during the preceding calendar
year.
(3) The Administrator may by rule identify specific positions with
the Environmental Protection Agency, and the Secretary may by rule
identify specific positions with the Department of Health, Education,
and Welfare, which are bf a nonregulatory or nonpolicymaking
nature, and the Administrator and the Secretary may by rule provide
that officers or employees occupying such positions shall be exempt
from the requirements of paragraph (1).
(4) This subsection does not supersede any requirement of chapter
11 of title 18, United States Code.
Penalty (5) Any officer or employee who is subject to and knowingly vio-
lates, this subsection or any rule issued thereuwler, shall be fined not
more than 12,500 or imprisoned not more than one year, or both.
(f) STATEMZNT OF BASIS AND Puarosa.—Any final order issued
under this Act shall be accompanied by a statement of its basis and
purpose. The contents and adequacy of any t uch statement shall not
be subject to judicial review in any respect.
Appointment. (g) ASSISTANT ADMINISraAToa.—( 1) The President, by and with
the advice and consent of the Senate, shall appoint an Assistant
Administrator for Toxic Substances of the Environmental Protection
Agency. Such Assistant Administrator shall be a qualified individual
who is, by reason of background and experience, especially qualified
to direct a program concerning the effects of chemicals on huitian
health and the environment. Such A aistanL Administrator shall be
responsible for (A) the collection of data, (B) the preparation of
studies, (L ) the making of recommendations to the Admimatrator for
regulatory and other actions to carry out the purposes and to facili-
tate the adniiiiistration of this Act, and (D) such other functions as
the Administrator may assign or delegate.
(2) The Assistant Administrator to be appointed under paragraph
(1) shall (A) be in addition to the Assistant Administrators of the
Environmental Protection Agency authorized by section 1(d) of Reor-
5 USC app. II. ganization Plan No. 3 of 1970, and (B) be compensated at the rate of
P Y authorized for such Assistant Administrators.
SEC. 27. DEVELOPMENT AND EVALUATION OF TEST METHODS.
Consuliation. (a) l x ( xrmt m.—The Secretary of Health, Education, and Welfare,
15 USC 2626. in consultation ith the Administrator and acting through the Assist-
ant Secretary for health, may conduet, and titake grants to public and
nonprofit private entities and enter into contracts with public and
private entities for, projects for the development and evaluation of
inexpensive and efficient methods (1) for determining and evaluating
t}u health and environmental effects of chemical substances and mix-
tures, and their toxicity, persistence, and other characteristics which
atfcet health untl tln emnironnient, and (2) which nitty be used for the
ilevelopmmmeiit of lest data to niect the requirements of rules promulgated
mmdci section 1. The Administrator shall consider such methods in
prescriluimg tinder section 4 standards for the development of test data.
Grants or (b) Ai’i’nov i L IIY SECRET. i RY.—NO grant may be made or contract
contracts. entered into under subsection (a) unless an application therefor has
application rieemi imbmnitted to and approved by the Secretary. Such an application
TSCA Coutpliance/Euforcement 1—54 Guidance Nanii 1 1986
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Chapter One
TSC&
li ill l e subiiiitted in surh form ami manner nitti rontain such informa-
tion as the Sei retary may require. The Secretary may apply such
eoiidit ions to giuiit niul rontruets under siil ction (a) as the ecre—
tarv jeteriiiiiie are cessary to carry out the purposes of such subsec-
i ion. ( ‘uiitract may be entered into under such subsection without
i garil to St’ctii)ItS O48 and 3709 of the Revised Statutes (31 U.S.C.
32h); 41 U.S.C. 3).
(c) REaotrrs.—(1) The Secretary shall prelaie and sub- Report to
mimit to tin’ President and the Congress on or before January 1 of each Pt eident and
year a report of the number of grants imiade and contracts entered into Congress.
imiater this sect ion and the results of such grants and contracts.
?) The Secretary shall periodically publish in the Federal Register Publication in
rep s describing the progress and results of any contract entered Federal Register.
into or grant made under this section.
SEC. 28. STATE PROGRAMS.
(a) IN 1iENiR. I..—For die rpose of coiupIementiu (but not reduc- is Usc 2627.
ng) tho authority of, or actions taken by, the Administrator under
this Act, the Administrator may make grants to States for the estab-
lishumiemit and operation of programb to prevent ot elnuinate unreason-
able risks within the States to health or the environment which are aseo-
cintetL with ii chemical bubstance or mixture and with respect to which
the Administrator is unable or is not likely to take action under this
Act for their prevention or elimination. The amount of a grant under
thib subsection shall be (ktermined by the Administrator, except that
no grant for any State program may exceed 75 per eentuni of time
estiiblislinment and operation costs (as determined by the Admin-
imitrutor) of such program during the 1 eL iod for which the grant is
mm he.
(b) A1’I ’ROV.mL iw Ao3tn IsTRATon .—( 1) No grahit may be made under Grants,
subsectiomi (a) imnle an ajq)iLtatIouL thmerefor is submitted to and apphcanon.
apjmro ed by the Administrator. Such an a phication shall be sub-
muitted in such form and manner as the Administrator may require and
shall—
A ) set forth the need of the applicant for a grant under sub ec—
tion iii I,
U) identify tIme agency or agencie.s of the state which hah1
i ’ r:ilili hi or operate, or both, the program for which the applica.
flohi is Ui)IlI1ttetL,
(C) describe the actions proposed to 1* taken under uchi pro-
grim in.
(T)) i’oimfamn or be supported by assurances satisfactory to time
. lmiiinistrator that such program shall, to the extent femu ihle,
he integrated with other programs of the applicant for environ-
niciital :mnd public health protection,
(E) provide for the making of such reports and evalimntion
as tlti’ Ailminnistrator may reqUire, and
(F) contain such other information as the Administrator III 1 1V
1 i n’qr ribe.
( ) Tin’ . iluumimii—tratrn may approve an application submitted in Application
areoidammee with paragiuph (1) only if the applicant has estnh1i lied to approval
th ‘ ,ntisfartmnn f flit’ Ailmin i i raror a priority necil. a mh’termtii ned
under rules of the . uliniuistrator, for the grant for which the app] i—
at 11)11 hlii I weii uih)iIu itteil. Such rumie4 hia II take into eon uierat ion the
serinuu .-uies of tin’ health effects in ii State which ate assoeiatcil with
chenimv:il suih— tatwe oi mixtures, incluil ing cancer. birth deft’ir.. and
etme immutaf mon . fbi’ extent of the exposure in a State of huuummn hein
amid nit’ emu irnimiimi iit to ihu’mnitai iih, tammi c and mimixtures. ammil the
e temit to u ii itlu ihielum ira I imhu4anees a mu] mixtures are manufiurru red
prni ’es c ’il. usi’iI. a in I I i xu etI of in a t;u te
(iS’) . xi m. Ri i’uirr .—Not later thnmm ix nmnmuths after thm i ’ end of Report to
citch of thit’ tisia 1 Vi ’a N I 9T ) , 19 l). a mmd 19S I. time Amlimi iii i..t rurom —huh Congress
TSCA Cotmmpliance/Enforceaent
1—
Guidance Hanual 1984
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Chapter One TSC&
nbmit to the ( Oh%gIe i report li ’vting tin’ )rngr ills assi tt ’ 1 by
gnili ts ii at her i ii qf unit ( a iii t lie p reeed ing liscal venT iiiicl tin’ (Xtt’nt
to hjhi t he ii ist r:itor has uhi seiiii,iiutetl infonimt ion nlS M ’ctitIg
.IU’iI jiIilgltI1iI .
(d) AUThORIZATION—For the purpose of making grants under subsec-
tion (a) there are authorized to be appropriated Si 500,000 for each of the
fiscal years 1982 and 1983. Sums appropriated under this subsection shall re-
main available until expended.
SEC. 29. AUThORIZATION FOR APPROPRIATIONS.
There are authorized to be appropriated to the Administrator for purposes
of carrying out this Act (other than sections 27 and 28 and subsections (a) and
(C) through (g) of section 10 thereof) $58,646,000 for the fiscal year 1982 and
15 USC 2628. 562,000,000 for the fiscal year 1983. No part of the funds appropriated under
this section may be used to construct any research laboratories.
SEC. 30. ANNUAL REPORT.
Report to ‘Flie . iIministratnr shall prepnve atul ‘mbnuit to the Precident 011(1
President and the C iigre s 011 0 ! lw fore .Tnmiarv 1. 11)8, anti on CU before .Taiiiinrv 1
Congress. of ea(h %I ( ( ’( ’(ling yelir a eomprt”hensi e report on the ndministrat on
5 USC 2629 c f this Act iluring tite preceding fiscal vent. nrii reIw)rt liali itieltide—
(I) a list of the tt ’ ting reqnirc’(l untlet seetu)u) 4 tlnring the year
for which tue report k imule and an i ’ titnnte of the costs incurred
during such year by the persons reqiun il to pi ’rforin such tests;
(2) thu tiiiinber Of lint lIPS IPt ’irt’ (l cititing S !W1 1 yent under
section 5, tin iiiirnher of such tint ire received iluiring such year
urnl r uuli .ectmn for chemical siih tanees suII)ject to a section 4
rule. niul a summary of any action taken during such year under
seetion5(g)
(3) a list of itules issued duiruig such yrat iiuulet section (1
(4) a hi t, with a brief statement of the issues, of enmpl(’tc ’(l or
pending judicial act ions under this Act anti adinnustrative actions
under section 16 during such year;
( ) a summary of major problems eateountered in the adininis-
tration of thia Act ; and
Recommends. (6) such reronunendations for additional legislation as the
noits. Adminiatrutot’ cleutuis ii es aiy to ( 5 1T% out the puirpoac of this
Act.
SEC. 81. EFFECTIVE DATE.
15 USC 2601 Except as pros idtd tn section 4(f). this Act shall take effect on
note. January 1. I9 1.
Approved October 11, 1976.
LEGISLATIVE HISTORY :
HOUSE REPORTS. No. 94—1341 accompanying HR. 14032 (Comm. on Interstate and
Foreign Commerce) and No. 94-1679 (Comm. of Conference)
SEN TE REPORTS: No. 94-698 (Comm on Commerce) and No. 04-1302 (Comm. of
Conference).
CONGRESSIONAL RECORD. Vol. 122 (1976):
Mar. 26. considered and paised Senate.
Aug. 23. considered and passed House. amended, in lieu of H.R. 14032.
Sept. 28. Senate and House aareed to conference report.
WEEKLY COMPILATION OF PRESiDENTIAL DOCUMENTS, Vol. 12. No. 42:
Oct. 12. Presidential ctatement.
TSCA Coapliance/Enforceaent 1-56 Guidance Manual 1984
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Chapter One
4 TSCA Regulatory Elements
The following section discusses the primary regulatory provisions that have
been enacted and that pertain to TSCA’s enforcement/compliance program.
These regulatory elements of the Act are:
o The Friable Asbestos—Containing Material in Schools Rule;
• The Fully Halogenated Chiorofluoroalkanes (CFCs) Rule;
• The Polychiorinated Biphenyls (PCBs) Rule;
o The Premanufacture Notification (PMN) Rule; and
• The Tetrachlorodibenzo—p—dioxin (TCDD) Rule.
The Friable Asbestos—Containing Material in Schools Rule
Overview
The purpose of the Asbestos in Schools Rule (40 C.F.R. §S763.100 through
763.119) is to protect users of school buildings from exposure to concen-
trations of airborne asbestos that occur when friable asbestos—containing
materials are damaged or disturbed. Inhaled asbestos can cause severe
human health effects. Compliance with the rule will both ensure that these
materials are identified and that school users are notified of the
materials’ presence. The rule was needed because many school districts had
not responded adequately to EPA’s effort under the voluntary Technical
Assistance Program (TAP) to encourage schools to identify these materials
and notify employees of their presence.
Summary of Rule
The Asbestos in Schools Rule is directed at local education agencies, which
are defined as:
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Chapter One TSC& Regulatory Elements
o Any local education agency as defined in Section 198(a)(lO) of the
Elementary and Secondary Education Act of 1965; and
• The governing authority of any nonprofit elementary or secondary
school.
The rule consists of the following elements:
• Identification . Inspecting all school buildings for friable
materials;
• Sampling . Collecting samples of the friable materials;
• Analysis . Analyzing the samples to determine whether they contain
asbestos;
• Notification . Informing the Parent—Teachers Association (or
parents), faculty, and other building users of the presence of
asbestos; posting the notice to school employees; and distributing
“A Guide for Reducing Asbestos Exposure” to custodial and main-
tenance personnel;
• Recordkeeping . Maintaining records that describe the actions taken
to comply with the rule. This includes a statement signed by the
person responsible for compliance with the rule that the regulatory
requirements have been satisfied; and
• Exemptions .
—— Schools that were built after December 31, 1978, are exempt from
all requirements of the rule.
—— Schools that can document that no friable asbestos—containing
materials were used in building or renovating the school buil-
dings are exempt from all requirements of the rule. Certifica-
tion, as required by the rule, must be in the school’s records.
—— Schools that completed specific requirements of the rule as part
of the voluntary Technical Assistance Program (see “Compliance
Assistance Guidelines”) need not repeat these activities. If no
asbestos was discovered by the TAP, the appropriate certifica-
tion must be in the school’s records.
—— Schools that have satisfactorily abated (see “Compliance Assis-
tance Guidelines”) asbestos—containing materials before June 28,
1983, are exempt from all requirements of the rule.
—— Schools that certify for the record that all friable materials
will be treated as asbestos—containing materials for the pur-
poses of this rule are exempt only from the inspection, sam-
pling, and analysis requirements of the rule. This certifica-
tion must be in the school’s records.
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Chapter One TSCA Regulatory El ente
The Fully Halogenated Chlorofluoroalkanes(CFCs) Rule
Overview
On March 17, 1978, EPA published a rule that prohibits almost all nianufac—
turing and processing of fully halogenated chiorofluoroalkanes (also
referred to as chiorofluorocarbone or CFCs) for aerosol propellant uses
subject to TSCA.
The intent of the EPA rule is to reduce the emission of CFCs into the
atmosphere. Such emission of CFCs causes depletion of the ozone layer,
which shields the Earth’s surface from harmful ultraviolet radiation. This
depletion poses a serious risk to human health and the environment.
In a related rule [ 43 Fed. Reg. 11,301. (1978)], the United States Food and
Drug Administration has banned the use of CFCs as aerosol prope].lants in
most food, drug, and cosmetic products.
Summary of Rule
CFC manufacturers, processors, importers, and exporters may be subject to
this rule. Prohibitions and specific requirements include:
• Prohibitions . The EPA rule lists prohibition on the manufacture
and processing of CFCs for aerosol propellant use, unless specifi-
cally exempted by EPA. CPCs cannot be:
—— Manufactured for any aerosol propellant use,
—— Imported for any aerosol propellant use,
—— Processed into any aerosol propellant article (including an
article intended for export), or
—— Distributed in commerce for processing into any aerosol propel—
lant article;
o Exemptions . CFCs may be (1) manufactured or imported for aerosol
propellant use, (2) processed or processed for export into an aero-
sol propellant article, or (3) distributed in commerce for proces-
sing into any aerosol propellant article only in the following
cases:
—— For use in an article that is a food additive, drug, cosmetic)
or device exempted under 15 U.S.C. §2602,
— — For those essential uses listed in 40 C.F.R. §762.58, and
—— For special uses listed in 40 C.F.R. §762.59;
TSCA Compliance/Enforcement 1—59 Cuidance )1anual 1984
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Chapter One TSC& Regulatory Elements
• Certification . Manufacturers of CFCs must obtain a signed state-
ment from each person who purchases CFCs. Such statement must
specify whether the CFCs are being purchased for aerosol or other
uses; and
• Reporting . Manufacturers and processors of CFCs are required to
file annual reports with EPA on March 31, 1980, 1981, and 1982.
The Polychiorinated Biphenyla (PCBs) Rule
Overview
Polychiorinated biphenyls (PCBa) are widely used in transformers, capaci—
tors, hydraulic systems, and heat transfer systems. Although PCB8 have
long been known to be extremely toxic, only in recent years have they been
found in significant concentrations in waterways and sediments throughout
the world.
PCBs have been linked with various health effects including the formation
of malignant and benign tumors, fetal deaths, reproductive abnormalities,
and mutations.
The PCB rule is found at 40 C.F.R. Part 761.
Summary of Rule
TSCA requires that the processing, distribution in commerce, use, and dis-
posal of PCBs be regulated and that PCBs be marked with clear and adequate
warnings. Under the Interim Measures Program, owners of certain PCB units
must visually inspect the units, record all leaks, and begin repair of any
moderate leaks within two days of discovery. These inspections must take
place once every three months, except where the unit poses an exposure risk
to food and feed products, in which case it must be inspected at least once
a week.
o Prohibitions . The following activities are prohibited:
— Processing or distributing in commerce PCBs or PCB items without
an authorization or exemption;
—— Manufacturing PCBs without an exemption;
—— Using PCBs or PCB items without an exemption; and
—— Servicing PCB transformers that require removal of the trans-
former coil.
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Chapter One TSC& Regulatory Ele..ents
• Racordkeeping Requirements . Facilities that keep PCB transformers
or capacitors must maintain annual records showing the weights of
PCBa in containers and transformers, n ber of transformers and
capacitors, dates of transfer of PCBs, and quantities of certain
PCBs and PCB items remaining in service. In addition, PCB disposal
and storage facilities must keep annual records of PCBs and PCB
items that are received, stored, transferred, or disposed of.
o Marking Requirements . PCBs and PC8 items that contain more than 50
ppm of PCBs (except PCB—containinated transformers) and transport
vehicles carrying more than 45 kilograms of PCB liquids over 50 ppm
or carrying one or more PCB transformers must all be marked as con-
taining PCBs.
• Storage Requirements . PCB articles and PCB containers stored for
disposal must be stored in accordance with the PCB regulation.
Specifications for storage facilities include adequate roof and
walls, floor and continuous 6—inch curbing of impervious material,
and a location above the 100—year flood level. Other requirements
include specifications for containers and time periods for tempor-
ary storage.
• Disposal Requirements . PCB liquids and PCB items containing
liquids above 500 ppm PCBs must be disposed in either an EPA—
approved incinerator or any other disposal method approved by the
Regional Administrator. PCB liquids and PCB items containing bet-
ween 50 and 500 ppm PCBs must be disposed in an EPA—approved land-
fill, an EPA—approved high—efficiency boiler, an EPA—approved
incinerator, or any other methods approved by the Regional Mminis—
trator.
The Premanufacture Notification (PMN) Rule ________ ______________—
Overview
Under Section 5 of TSCA, EPA must be notified at least 90 days before a new
chemical substance is manufactured or imported for commercial purposes
(40 C.F.R. Part 720). A “new chemical substance” is defined as a substance
not listed on the TSCA Chemical Substance Inventory (published on June 1,
1979). The Inventory is updated periodically with the addition of new
chemical substances that have undergone Section 5 review and have entered
commercial production. On May 13, 1983, EPA published a final rule cover-
ing the applicability of Section 5 requirements; the general procedure for
submitting notices; information requirements, including a mandatory notice
form; and EPA’s procedures for processing information contained in the
notices, including confidential business Information. On September 13,
1983 (in response to industry petitions of the May 13, 1983, rule), EPA
stayed indefinitely the effective dates of:
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Chapter One TSCL Regulatory E1e euts
• Sections 720.36 and 720.78——Requirements concerning new chemical
substances manufactured under Section 5(h)(3) research and develop—
mient exemption;
• Section 720.3(y)——The definition of “possession or control”; and
• Section 720.50(c)——Data requirements on related chemicals.
Except for the sections that were stayed, the final rule went into effect
on October 26, 1983. All PMNs, therefore, must be submitted to EPA on the
PMN form, and notice submitters arerequired to comply with those provi-
sions of the rule that are currently in effect.
Summary of Rule
In conducting its review of a new chemical substance, EPA assesses the
risks associated with all phases of the life cycle of the substance,
including its manufacture, import, processing, distribution in commerce,
use, and disposal. The review is based on information provided by the sub-
mitter in the notice as veil as information obtained through other
sources. EPA also considers several different factors in conducting its
review, including the potential toxicity to humans and the environment and
the nonrisk factors such as the possible economic benefits and the avail-
ability of substitutes.
Notice Review Process . The notice review process has six major phases:
• Prenotice Communication . EPA provides guidance to submitters on
such topics as the scope of TSCA and the PMN rule, the contents of
the TSCA Chemical Substance Inventory, the notice form, Section 5
exemptions, prenianufacture testing, confidentiality and generic
name development, and notice review procedures.
• Process Start—up . Process start—up begins when EPA receives a
notice; the 90—day review period begins on this date.
• Initial Review . During the initial (90—day) review period, EPA
identifies, those chemical substances that require more detailed
review and that are candidates for possible regulatory action. The
initial review period ends when EPA has determined whether avail-
able data warrant a more detailed review of the substance.
• Detailed Review . The detailed review period allows EPA to assess
the data gathered during the initial review period, to analyze pos-
sible regulatory or other control measures, and, if necessary, to
extend the (90—day) notice review period.
• Regulatory Response . After completion of the detailed review, EPA
may decide to regulate the substance during the review period In
several ways:
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Chapter One TSC& Ragulatory E1e uta
—— Is8ue an order under Section 5(e) if it is found that the sub-
stance may present an unreasonable risk to human health or t e
environment or that it may be produced in substantial quantities
(pending development of additional data);
—— Control the substance under Section 5(f) if it is found that the
substance will present an unreasonable risk; or
—— Identify the substance as a candidate for regulation under Sec-
tion 5(a)(2), 5(b)(4), or 8.
• Process Closeout and Entry on the Inventory . If EPA does not take
action to regulate a substance during the review period, the sub-
mitter may manufacture or import the new chemical substance without
restriction once the notice review period expires. When manufac-
ture or import begins, the submitter must notify EPA of the iden-
tity of the chemical substance, its premanufacture notice number,
and the date on which manufacture or import began.
Research and Development Exemptions . Manufacturers and importers of small
quantities of a new chemical substance are exempt from the PMN rule if the
substance is to be used solely for research and development purposes. The
manufacturer or importer is required to:
• Notify all persons who come into contact with the new substance
of any risk to health that may be associated with the substance;
• Label conspicuously all areas in which exposure may occur;
• Evaluate any information or test data to determine whether there is
any risk to health associated with the substance;
• Evaluate any information concerning any significant adverse reac-
tion by persons exposed to the substance that may reasonably be
associated with such exposure;
• Evaluate any information provided by a supplier or any other person
concerning a health risk believed to be associated with the sub-
stance; and
• Determine whether the substance is subject to any rule or order
proposed or promulgated under Section 4, 5, 6, or 8(e) of the Act
and whether EPA has found, under Section 5(h)(3), that any risk to
health may be associated with the substance.
Test—Marketing Exemptions . Manufacturers and importers may apply for
exemption from Section 5(a) or 5(b) reporting requirements for test—
marketing purposes. The applicant must show that the test—marketing activ-
ities will not present any unreasonable risk to human health or the envi—
ronment. Manufacture or import cannot begin, however, until EPA grants the
exemption.
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Chapter One TSC& legulatory E1 nta
Confidentiality Claims . Section 14 allows the submitter to claim confiden-
tiality for any information submitted to EPA under the Act. However 1 the
Act also makes clear that the public interest in chemical regulation must
also be considered and, in certain cases, outweighs the protection of con-
fidential business information. ThUs, Section 14 also provides that health
and safety studies may be revealed if necessary to protect human health or
the environment from an unreasonable risk of injury.
The Tetrachlorodibenzo—p—dioxin (TCDD) Rule
Overview
TCDD (2,3,7,8—tetrachlorodibenzo—p—dioxin) is an undesirable contaminant
formed during the manufacture of certain substances. TCDD, commonly
referred to as dioxin, is highly toxic and is found to be carcinogenic in
laboratory animals; it has other significant adverse health effects as
well.
On May 12, 1980, EPA promulgated a rule under Section 6 of TSCA prohibiting
Vertac Chemical Company from disposing of certain of its wastes containing
TCDD stored at the company’s Jacksonville, Arkansas, facility. The rule
also requires that all other persons planning to dispose of TCDD—containing
wastes notify the Agency 60 days prior to intended disposal.
Summary of the Rule
Requirements Applicable to Vertac Chemical Company . The TCDD rule prohi-
bits the removal for disposal of certain wastes containing TCDD from the
Vertac Chemical Company’s facility at Jacksonville, Arkansas. Vertac is
required to post notices at the facility that state that contaminated
wastes are being stored on—site and that removal of the wastes for disposal
is prohibited. In addition, Vertac must test all waste materials for TCDD
contamination and dispose of the TCDD—containing wastes in accordance with
EPA’s guidelines for waste disposal.
General Disposal Notification Requirements . Any person who disposes of
chemical substances or mixtures for commercial purposes and who wishes to
dispose of wastes containing TCDD must notify the Assistant Administrator
for Pesticides and Toxic Substances 60 days prior to the disposal of such
wastes. The notification is to be made by certified letter to the Assis-
tant Administrator with a copy to the EPA Regional Administrator for the
Region in which the wastes are currently stored. The notification must
include, at a minimum, the following information:
• The name of the finn involved and the address of both the corporate
headquarters and the specific disposal site;
o The name and telephone number of a company contact person;
TSCA CoapliancefEnforcement 1-64 Guidance Manual 1984
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Chapter One TSC& egu1atory Elements
• The concentration of TCDD in the waste materials and the method of
detection;
• The total quantity of waste material and the number of containers
involved;
• A brief description of the proposed disposal including the method
of disposal and the name of any disposal firm(s) involved; and
• A si*nmary of the present status of the waste including the method
of containment and the presence or absence of:
—— (i) An impermeable pad,
—— (ii) Curbing,
—— (iii) Dikes,
—— (iv) Roof structure, and
— — (v) Accessibility of unauthorized persons.
The Assistant Administrator has the authority to prohibit the intended dis-
posal by notification of the concerned party(ies) by registered mail if it
is determined that:
• The proposed disposal viii present an unreasonable risk; or
• There is insufficient information on which to base a finding that
such an unreasonable risk is absent.
Exclusions . The TCDD rule does not apply to persons who dispose of TCDD—
containing wastes at facilities permitted for disposal of TCDD under Sec-
tion 3005(c) of the Resource Conservation and Recovery Act, 42 U.s.c.
§ 6925(c).
TSCA Coiipliance/Enforceraent 1—65 ( idance Nanual 1984
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Chapter One TSCL Regulatory Ilneanta
TSCA Compliance Enforcement 1—66 Guidance Manual 1984
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Chapter One
5 Glossary
ACT —— When uaed in this manual, the term “Act means the Toxic Substances
Control Act (TSCA), 15 U.S.C. §2601 etseq.
ADMINISTRATIVE LAW JUDGE -— An Administrative Law Judge appointed pursuant
to 5 U.S.C. §3105 ( see also , 5 C.F.R. Part 930, as amended by 37 Fed.
Reg. 16,789).
ADMINISTRATOR -— The Administrator of the United States Environmental Pro-
tection Agency, any employee or authorized representative of the Agency
to whom the Administrator has delegated the authority to carry out his or
her functions, or any other person who shall by operation of law be
authorized to carry out such functions.
AFFIDAVIT — — A written statement made on oath before a notary public or
other person authorized to administer oaths.
AGENCY —— The United States Environmental Protection Agency (EPA).
ARTICLE —— A manufactured item that (1) is formed to a specific shape or
design during manufacture, (2) has end—use function(s) dependent in whole
or in part upon its shape or design during end use, and (3) has either no
change of chemical composition during its end use or only those changes
of composition that have no commercial purpose separate from that of the
article and that result from a chemical reaction occurring upon end use
of other chemical substances, mixtures, or articles. Fluids and par-
ticles are not considered articles regardless of shape or design [ 40
C.F.R. §704.95].
ASBESTOS —— The asbestliorm varieties of chrysotile (serpentine), crocido—
lite (riebeckite), amosite (cimtmingtonite—grunerite), anthophyllite, tre—
moltte, and actinoitte [ 40 C.F.R. §763.103(b)].
BYPRODUCT —— A chemical substance produced without separate commercial
intent during the manufacture, processing, use, or disposal of another
chemical substance(s) or mixture(s) [ 40 C.F.R. § 704.951.
CATEGORY OF CHEMICAL SUBSTANCES —— A group of chemical substances the mem-
bers of which are similar in molecular structure; in physical, chemical,
or biological properties; in use; or in mode of entrance into the human
TSCA Compliance Enforcement 1-67 — Guidance Manual 1981.
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Chapter One Glossary
body or into the environment, or the members of which are in
some other way suitable for classification as 8uch for purposes of TSCA,
except that such term does not mean a group of chemical substances that
are grouped together solely on the basis of their being new chemical
substances (TSCA §26(c)(2)(A)].
CATEGORY OF MIXTURES —— A group of mixtures the members of which are simi-
lar in molecular structure; in physical, chemical, or biological proper-
ties; in use; or in the mode of entrance into the human body or into the
environment, or the members of which are in some other way suitable for
classification as such for purposes of TSCA [ TSCA S26(c)(2)(B)].
CFC(s) —— Fully halogenated chiorofluoroalkanes (also known as chioro—
fluorocarbons) are a family of chemical compounds that were once widely
used as aerosol propellants but are now suspected of depleting the
stratospheric ozone layer.
CHEMICAL SUBSTANCES -— Any organic or Inorganic substances of a particular
molecular identity, including any combination of such substances occur-
ring in whole or in part as a result of a chemical reaction or occurring
in nature, and any chemical element or uncombined radical, except that
“chemical substance” does not include:
—— Any mixture;
—— Any pesticide as defined in the Federal Insecticide, Fungicide, and
Rodenticide Act when manufactured, processed, or distributed in com-
merce for use as a pesticide;
- — Tobacco or any tobacco product;
—— Any source material, special nuclear material, or byproduct material
(as such terms are defined In the Atomic Energy Act of 1954 and
regulations issued under such Act);
—— Any article the sale of which is subject to the tax imposed by Sec-
tion 4181 of the Internal Revenue Code of 1954 (determined without
regard to any exemptions from such tax provided by Section 4182 or
4221 or any other provision of such code); and
—— Any food, food additive, drug, cosmetic, or device (as such terms
are defined in Section 201 of the Federal Food, Drug, and Cosmetic
Act) when manufactured, processed, or distributed in commerce for
use as a food, food additive, drug, cosmetic, or device [ TSCA
§3(2)(A)].
CIVIL COMPLAINT —— A written communication alleging one or more violations
of specific provisions of TSCA or regulations promulgated thereunder [ 40
C.F.R. §22.03]. Each complaint must include:
—— Reference to the provisions of the Act alleged to have been
violated;
C& p1iauce/Euforce t 1-68 Guidiice Manual 1984
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Chapter One Glossary
—— A concise factual statement of the violation;
—— The amount of the proposed penalty;
—— A statement of the appropriateness of the penalty;
—— Notice of the respondent’s right to an adjudicatory hearing; and
—— A statement reciting the section(s) of the Act authorizing the issu-
ance of the complaint [ 40 C.F.R. §22.14].
COMMERCE —— Trade, traffic, transportation, or other commerce (1) between a
place in a state and any place outside of such state, or (2) that
affects trade, traffic, transportation, or commerce between a place in a
state and any place outside of such state [ TSCA §3(3)].
COMPLAINANT —— Any person authorized to issue a complaint on behalf of the
Agency to persons alleged to be in violation of the Act [ 40 C.F.R.
§22.03).
CONSENT AGREEMENT —— Any written document containing stipulations of fact;
conclusions regarding material issues of law, fact, or discretion; and a
specified proposed penalty acceptable to both complainant and respondent
that results from any settlement conference [ 40 C.F.R. §22.18].
CONSENT ORDER —— An order of the Regional Administrator that assesses a
civil penalty and disposes of the civil penalty proceeding.
DEFAULT ORDER —— An order issued pursuant to 40 C.F.R. §22.17 disposing of
a matter of controversy between respondent and the Agency upon (1) the
failure of respondent to file a timely answer to the complaint, (2) the
failure of one of the parties to comply with a prehearing or hearing
order of the Presiding Officer, or (3) the failure of one of the parties
to appear at a conference or hearing without good cause being shown.
DISTRIBUTE IN COMMERCE (DISTRIBUTION IN COMMERCE) — When used to describe
an action taken with respect to a chemical substance or mixture or an
article containing a substance or mixture, means to sell, or the sale
of, the substance, mixture, or article in commerce; to introduce or
deliver for introduction the substance, mixture, or article in commerce;
or to hold, or the holding of, the substance, mixture, or article after
its introduction into commerce [ TSCA §3(4)].
DISTRICT COURT —— A United States district court, the District Court of
Guam, the District Court of the Virgin Islands, and the highest court of
American Samoa.
DUPLICATE SANPLE —— A sample taken at the request of a facility official
that Is in every respect the same as the official sample taken by the
inspector.
TSCA Compliance/Enforcement 1-69 Guidance Manual 1984
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Chapter One Glossary
ENVIRONMENT —— Includes water, air, and land and the interrelationship that
exi8ts among and between water, air, land, and all living thingB [ TSCA
§3(5)].
EPA —— The United States Environmental Protection Agency.
EXPORTER —— The person who, as the principal party in interest in the
export transaction, has the power and responsibility for determining and
controlling the sending of the chemical substance or mixture to a des-
tination out of the customs territory of the United States [ 40 C,F.R.
§707.631.
FACILITY —— Any establishment, site, or other premises subject to TSCA
enforcement activity.
FINAL ORDER —— An order issued by the Administrator after an appeal of an
initial decision, accelerated decision, decision to dismiss, or default
order disposing of a matter in controversy between the parties or an
initial decision under 40 C.F.R. §22.27(c).
HEALTH AND SAFETY STUDY — — Any study of any effect of a chemical substance
or mixture on human health or the environment or on both, including
underlying data and epidemiological studies; studies of occupational
exposure to a chemical substance or mixture; toxicological, clinical,
and ecological studies of a chemical substance or mixture; and any test
performed pursuant to TSCA ETSCA §3(6)].
HEALTh EFFECTS —— Terms referring to the health effects of chemical eub—
stances are defined as follows:
—— Behavioral Disorder is a disturbance of personal function resulting
from exposure to a toxic substance.
— Carclnogenesis is the property of a substance that causes cancer.
— Cumulative Effect is the accumulation of a substance within a
living organism and the increasingly pronounced effects with each
exposure.
— Mutagenesis is the property of a substance that causes changes In
the genetic structure of subsequent generations.
—— Syner istic Effect is the property of a substance that causes mal-
formations or serious deviations from the norm in embryos and
fetuses.
HEARING —— A hearing open to the public provided in Section 16(a)(2)(A) of
the Act and conducted pursuant to the provisions of Chapter 5, Sub-
chapter II of Title 5 of the United States Code, and the rules of prac-
tice found at 40 C.F.R. Part 22.
TSCA Compliance/Enforcement 1—70 Guidance Manual 1984
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Chapter One Glossary
HEARING CLERK —— The Rearing Clerk, United States Environmental Protection
Agency, Washington, DC. 20460.
IMPORTER —— Any person who imports any chemical substance or any chemical
substance as part of a mixture or article into the customs territory of
the United States and includes (1) the person primarily liable for the
payment of any duties on the merchandise, or (2) an authorized agent
acting on his or her behalf [ 40 C.F.R. §710.21.
IMPORT IN BULK FORM —— To import a chemical substance (other than as part
of a mixture or article) in any quantity, in cans, bottles, drums, bar-
rels, packages, tanks, bags, or other containers, if the chemical sub-
stance is intended to be removed from the container and the substance
has an end use or commercial purpose separate from the container [ 40
C.F.R. §704.95(c)(5)1.
IMPURITY — A chemical substance that is unintentionally present with
another chemical substance.
INITIAL DECISION —— The decision issued by the Administrative Law Judge
based upon the record of the hearing out of which the decision arises or
upon the rendering of an accelerated decision. An initial decision is
supported by findings of fact and conclusions regarding all material
issues of law, fact, or discretion. This decision will become the final
decision and order of the Administrator without further proceedings
unless the decision is appealed or the Administrator orders a review of
the case.
INJUNCTION — A court order forbidding or commanding a person to perform a
particular act.
INSPECTOR —— A duly designated representative of the Administrator author-
ized to conduct inspections, make investigations, collect documents and
samples, and otherwise monitor compliance with TSCA.
INTERMEDIATE —— Any chemical substance that is consumed in whole or in part
in a chemical reaction(s) used for the intentional manufacture of
another chemical substance [ 40 C.F.R. §723.175(9)1.
JUDICIAL OFFICER —— An officer or employee of the Agency designated as a
judicial officer who shall meet the qualifications and perform functions
provided for in 40 C.F.R. §22.04.
KNOWN TO OR REASONABLY ASCERTAINABLE —— All information in a person’s pos-
session or control, plus all information that a reasonable person simi-
larly situated might be expected to possess, control, or know, or could
obtain without unreasonable burden or cost [ 40 C.F.R. §723.175(10)J.
MANUFACTURE —— To produce or manufacture in the United States or to import
into the customs territory of the United States.
TSCA Oii p1iance/Enforcement 1—71 Guidance Manual 1984
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Chapter One Glossary
MIXTURE —— Any combination of two or more chemical substances if the com-
bination does not occur in nature and is not, in whole or in pert, the
result of a chemical reaction; except that such term does include any
combination that occurs, in whole or in part, as a result of a chemical
reaction If none of the chemical substances comprising the combination
is a new chemical substance and if the combination c)uld have been manu-
factured for commercial purposes without a chemical reaction at the time
the chemical substances comprising the combination were combined. -
NEW CHEMICAL SUBSTANCE —— Any chemical substance that I; not included in
the inventory compiled and published under Section 8(b) of TSCA.
PARTY — Any person, group, organization, agency, or department that parti-
cipates in a hearing as complainant, respondent, or Intervenor.
CB(s) —— Any chemical substance that is limited to the biphenyl molecule
and has been chlorinated to varying degrees, or any combination of sub-
stances that contains polychiorinated biphenyls.
ERSON —— Any natural or juridical person including any individual, firm,
company, corporation, joint venture, partnership, sole proprietorship,
association, or any other business entity; any state or political sub—
division thereof; any municipality; any interstate body; and any depart—
ment, agency, or Instrumentality of the federal government.
ETITIONER —— Any person adversely affected by a notice of the Administra-
tor and who requests a public hearing.
PHYSiCAL SA}IPLE —— A sample that is representative of a chemical substance
a8 drawn from a container or as contained in a medium such as soil or
solvent and is used to confirm the presence and concentration of a chem-
ical substance.
PRESIDING OFFICER —— The Administrative Law Judge designated by the Chief
Administrative Law Judge to serve as the Presiding Officer of an
administrat -t.ve hearing arising out of the Act.
PROCESS —— The preparation of a chemical substance or mixture, after its
manufacture, for distribution in commerce:
—— In the same form or physical state as, or in a different form or
physical state from, that in which it was received by the person so
preparing such substance or mixture; or
—— As part of an article containing the chemical substance or mixture
[ TSCA §3(10)].
PROCESS FOR COMMERCIAL PURPOSES —— To process (1) for distribution in com-
merce, including for test—marketing purposes, or (2) for use as an
intermediate.
TSCA CompliancefEnforcement 1-72 Guidance Manual 1984
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Chapter One Glossary
PROCESSOR —— Any person who processes a chemical substance or mixture [ TSCA
§ 3 (.1.1) 1.
PROGRAMMED INSPECTION —— An inspection requiring the selection of a speci-
fic program activity that is subject to routine compliance monitoring
and that results from an enforcement strategy based upon objective
selection criteria.
REGIONAL ADMINISTRATOR -— The Administrator of a Regional Office of the
Agency or his or her delegatee.
REGIONAL HEARING CLERK —— An individual duly authorized by the Regional
Administrator to serve as hearing clerk for a given Region. Correspon-
dence may be addressed to the Regional Hearing Clerk, United States
Environmental Protection Agency (address of Regional Office.)
REGIONAL JUDICIAL OFFICER —— An Officer or employee of the Agency duly
authorized by the Regional Administrator to serve as the Judicial
Officer for the Region as provided in the Consolidated Rules of Practice
(CROP).
RESPONDENT —— Any person proceeded against in a complaint.
SEtZURE —— The initial step in a condemnation proceeding consisting of the
taking of any substance, mixture, or article manufactured, processed, or
distributed in commerce in violation of TSCA.
STANDARDS FOR THE DEVELOPMENT OF TEST DATA —— A prescription of (I) the
health and environmental effects and (2) the information relating to
toxicity, persistence, and other characteristics that affect health and
the environment, for which test data for a chemical substance or mixture
are to be developed and any analysis that is to be performed on such
data. These data also include, to the extent necessary to assure that
data respecting such effects and characteristics are reliable and
adequate:
—— The manner in which such data are to be developed;
—— The specification of any test protocol or methodology to be employed
in the development of such data; and
—— Such other requirements as are necessary to provide such assurance.
STATE —— Any state of the United States, the District of Columbia, the
Commonwealth of Puerto Rico, the Virgin Islands, Guam, the Canal Zone,
American Samoa, the Northern Mariana Islands, or any other territory or
possession of the United States.
TOXICITY — — The property of a chemical substance or mixture to cause any
adverse physiological effects.
UNITED STATES —— When used in the geographic sense, means all of the
states.
TSCA Compliance/Enforcement 1-73 — Guidance Manual 1984
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Chapter One Glossary
UNPROCRANMED INSPECTION (“FOR CAUSE” INSPECTION) —— An inspection in which
probable violations of the Act are observed or brought to the attention
of the Agency through, for example, an employee’s complaint or a com-
petitor’s tip.
TSCA Compliance/Enforcement 1-74 Guidance Manual 1986
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2 General
Operating Procedures
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i o
;fl1
2 General
Operating Procedures
_____ )
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Chapter Two
General Operating Procedures
Chapter Contents Page
Primary Office ResponsibilitIes 2—1
Concurrence Procedures 2—4
State and Federal Interagency Cooperation 2-5
Organizational Charts 2—7
Exhibit 2—1: TSCA Administrative/Civil Case Flow 2—19
TSCA Coi.pliance/Enforceaent 2-i Qildance Mawi 1 1984
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Chapter Two Coatenta
TSC& Coiipliance/Enforceiment 2—il Qiidance Nanual 1984
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Chapter Two
General Operating Procedures
Primary Office Responsibilities
The basic framework setting forth the responsibilities of each EPA office
participating in enforcement activities was established by the Administra-
tor’s memorandum of July 6, 1982, entitled “General Operating Procedures
for the Civil Enforcement Program” (GOP), and Memorandum of October 27,
1982, entitled “General Operating Procedures for the Criminal Enforcement
Program,” (See EPA’s General Enforcement Policy Compendium. ) This chapter
describes the respective roles and relationships of the various EPA offices
that are involved with TSCA administrative/civil enforcement. For proce-
dures relating to criminal enforcement, consult Chapter Nine.
EPA’s administrative/civil enforcement program includes both compliance—
oriented and legal—oriented activities. The compliance—oriented activities
are primarily the responsibility of EPA’s program offices, and the legal—
oriented activities are principally charged to OECM and the Regional
Counsel’s office. Because many enforcement activities involve several
aspects, these activities cannot be defined as strictly “compliance” or
“legal.” (See, TSCA Case Flow Diagram (Exhibit 2—1), which illus-
trates the various enforcement components involved in TSCA case develop—
inent.J Where both elements are present, the EPA attorney must be especial-
ly diligent in coordinating the legal aspects with the functions of the
other participating offices. The basic relationship between the attorney
and the program office is that of attorney—client.
The basic administrative/civil enforcement functions are divided among the
participating offices as follows:
Regional Administrator.
Program Office
• Identifies instances of noncompliance;
• Establishes priorities for handling instances of noncompliance;
TSC& Coepii icefE forcement 2-1 idsnce Mamual 1984
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Chapter Two General Operating Procedures
• Evaluates the technical sufficiency of actions designed to remedy
violations;
• Identifies for formal action those cases that cannot be resolved
Le85 formally;
• Provides technical support necessary for developing cases and con-
ducting litigation;
• Issues written notices of noncompliance;
• Issues routine civil administrative complaints;*
• Evaluates the appropriateness of civil penalties;
• Negotiates and prepares consent agreements memorializing settle—
ments between the Agency and respondents prior to the alleged vio-
lator’s filing of an answer or failing to file an answer to a corn—
plaint;* and
• Monitors those conditions in consent decrees that require further
reporting, compliance, etc.
Regional Counsel
• Acts as attorney for ‘client” program offices;
• Assists program office in drafting or reviewing notices of non-
compliance, administrative orders, or administrative complaints;
• Ensures consistency of action with OECM guidance;
• Attends negotiations whenever outside parties are represented by
counsel
• Serves as lead attorney for the Agency in administrative proceed-
ings originating in the Region; and
• Refers requests for equitable relief through the Regional Adininis—
trator to Headquarters for review and further referral to the
Department of Justice and the appropriate United States Attorneys
Of fice.*
* Consultation with other offices is required.
TSCA Compliance/Enforcement 2-2 Qzidance NRImnl 1984
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Chapter Two General Operating Procedures
Headquarters
Program Off ice——PTSCMS
• Manages national program matters;
• Establishes national enforcement compliance priorities;
• Provides overall direction to and accountability measures for the
enforcement compliance program;
• Provides technical support (including support for litigation
activities);
• Takes lead role in preparing guidance and policy decisions on
enforcement compliance issues;
• Takes lead in issuing administrative orders regarding new programs
such as Section 5(a) PMN cases, asbestos cases, etc.;
• Consults with the Regions, on enforcement actions at the earliest
possible stage in the case development process for the following
actions:
—— “Non—routine’ cases of first impression or those of national
significance,
—— Injunctions, and
—— Seizures;
• Consults with the Regions on enforcement actions if proposed civil
penalty settlements involve monetary reductions of greater than 40
percent; and
• Works with OECM in preparing joint guidance for areas in which com-
pliance and legal issues overlap.
Office of Toxic Substances
o Has lead responsibility for rule development under TSCA;
• Determines status of whether or not a TSCA chemical is on the PMN
inventory; and
• Provides technical advice as appropriate.
OECM
• Provides legal advice regarding enforcement matters to the Assis-
tant Administrator for Pesticides and Toxic Substances;
• Acts as lead counsel on cases of national significance;
TSCA Comp1iance/ forcement 2-3 Qaidance anua1 1984
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Chapter Two _______________— General Operating Procedures
• Develops legal and enforcement policies and guidance;
• Confers with the Department of Justice on the potential impact of
enforcement policy on litigation matters;
• Evaluates and analyzes strategies and program accomplishments as
national manager of EPA’s enforcement and compliance monitoring
functions;
• Cooperates with the Assistant Administrator for Pesticides and
Toxic Substances in the development of enforcement policies invol-
ving both enforcement compliance and enforcement legal activities;
and
• Assists and supports the Regional Counsel lead attorneys and Depar-
tment of Justice attorneys by coordinating legal activity and con-
tributing case information to the development process.
Office of General Counsel
• Provides legal Interpretation of applicable statutes and regula-
tions to support the TSCA enforcement programs; and
• Has lead responsibility, in consultation with OEQ1, for defensive
litigation arising out of enforcement actions federal court
challenges to EPA’s civil penalty proceedings).
National Enforcement Investigations Center (NEIC )
NEIC is located in Denver, Colorado, and functions as a national technical
resource and investigative unit. NEIC’s expertise in investigation and
evidence discovery can assist case development and provide litigation sup-
port. The OECM establishes NEIC’s priorities and its availability.
Regional Administrators and the Assistant Administrator for Pesticides and
Toxic Substances are requested to involve NEIC on a priority basis in cases
that have precedential Implications, national significance, or are multi—
regional In nature.
Concurrence Procedures _____________ _____________
Generally, Headquarters has waived concurrences in routine administrative
civil cases. However, consultation is required in the following instances:
• Cases of first impression;
• Cases of unusual national significance;
• Requests for reduction of civil penalties greater than 40 percent;
TSC& Compliance [ Enforeeaent 2-4 Geidance Manual 1984
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Chapter Two Ge era1 OperatiDg Procedurea
• Requests for equitable relief (e.g., seizures and injunctions); and
• Civil penalty appeals to the Administrator.
The consultation procedures relating to each of the above actions are dis-
cussed in the section of the manual pertaining to the individual subject
matter.
State and Federal. Interagency Cooperation
TSCA charges EPA with the responsibility of protecting public health and
the environment from the risks associated with exposure to chemical sub-
stances or mixtures. In order to fulfill this responsibility, EPA seeks
cooperation with appropriate state and federal agencies.
TSCA Pilot Enforcement Grants
Section 28 of TSCA authorizes EPA to enter into grants with states for
purposes of complementing (but not reducing) the authority of the
Administrator under the Act. In July of 1981, a Pilot State TSCA
Enforcement Grant Program, involving five states, was initiated. The five
states (California, Connecticut, Maryland 1 Michigan, and Ohio) conduct
compliance monitoring activities related to the asbestos and PCB programs.
Federal Interagency Cooperation
United States Department of Justice (DOJ) . EPA ’s working relationship with
the Department of Justice and the United States Attorneys Office continues
to be governed by the June 1977 Memorandum of Understanding between the DOJ
and EPA. All criminal cases, collection and seizure actions, and warrants
for inspections under TSCA must be filed by the DOJ or the United States
Attorneys Office. EPA Headquarters and regional components are expected to
use their best efforts to ensure that a constructive working relationship
is maintained with DOJ and to provide assistance to DOJ in the preparation
of those actions. (For the procedures for referring actions involving
criminal cases, collection, seizure, or warrants, see the individual topics
in this manual.)
Food and Drug Administration (FDA) . Under the terms of an Interagency
Agreement, EPA and FDA cooperate closely on a laboratory Inspection/data
audit program. As part of the Interagency Agreement, FDA investigators may
Inspect laboratories that conduct tests pursuant to TSCA;
• To determine compliance with the Good Laboratory Practice
Standards;
• To ensure that the tests were conducted in accordance with accepted
protocols; and
TSCA ompliance/Enforcewant 2-5 Q idance Nanual 1984
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Chapter Two General Operating Procedures
• To ensure that final study reports fully and accurately reflect the
teat results.
These FDA inspections are conducted at the request of EPA.
TSCA Compliance/Enforcement 2—6 Guidance Manual 1984
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Chaoter Two
Ornaizational Charta
U.S. BWJ5EMt snuaiia JCY
TSC& Coapliance/Xnforcentent
2—7
Guidance Manual 1984
-------
Chapter Two
rganizatio jaj.as
OffICE OF PESTICIDES All) TOXIC SOOSTAICES
OF nr ASSISTI IT A l lI I IISTUTU
OFFICE OF PESTICIDES
AND TOXIC SUBSTANCES
ASSISTANT ADMINISTRATOR
TSCA CoapliancefEifàrceaeut
2—8
Guidance Manuài1984
-------
Chapter Two
anizatjona1 arta
GION I REPORTS TO
HQ OFFICE OF LEGAL AND
ENFORCEI NT COUNSEL
__________ ___________ A
REGIONAL ADMINISTRATOi ] REGIONAL
DEPUTY ‘4 (advIsory to) COUNSEL
REGIONAL ADMINISTRATOR
I
I
WATER PWIAGEMENT
ENVIRONMENTAL
DIVISION
-.
SERVICES
DIVISION
DEPUTY DIRECTOR
TSC& Co ipliance/Enforce ent.
2—9
Guidance t4anual 1984
I OFFICE OF
I INTERGOVERNMENTAL
LIAISON
r
ADMINISTRATIVE
SERVICES DIVISION
I OFFICE OF
PUBLIC AFFAIRS
AIR MANAGEMENT
DIVISION
WASTE MANAGEMENT
DIVISION
EEO OFFICER OFFICE OF
STATE
WASTE
OFFICE OF
PESTICIDES AND
PROGRAMS
BRANCH
PROGRAM SUPPORT
TOXIC SUBSTANCES
PLANNING AND
EVALUATION
BRANCH
PERSONNEL
BRANCH
STATE
PROGRAMS
AIR WASTE RESPONSE
BRANCH AND COP LIANCE
BRANCH
MUNICIPAL II SURVEILLANCE
FACILITIES 14 BRANCH
BRANCH
TECHNICAL SUPPORT
BRANCH
r
TECHNICAL SUPPORT
BRANCH
GRANTS ADM. AND
FINANCE BRANCH
WATER SUPPLY
BRANCH
WATER QUALITY
BRANCH
-------
Oria i atioua1 iart
r EEO OFFICER
PERSONNEL & ORGANIZATION
BRANCH
INFORMATION SYSTEMS
BRANCH
ENVIRONMENTAL IJPACTS —
BRANCH
AIR AND WASTE
MANAGEMENT
DIVISION
DEPUTY DIRECTOR
FINANCIAL MANAGEMENT
BRANCH
FACILITIES I ADMINISTRATIVE
MANAGEMENT BRANCH -
GRANTS ADMINISTRATION
BRANCH
PERMITS ADMINISTRATION
BRANCH
GION II
1 GIGNAL ADMINISTRATOR
DEPUTY REGIONAl.
ADMINISTRATOR
WATER MANAGEMENT
DIVISION
DEPUTY DIRECTOR
1 ’CARIBBEAN
4 WATER PROGRAMS
BRANCH
MEW YORK WATER
_ [ OGRAMS BRANCH
IWATER FACILITIES
B RANCH
[ ATER SUPPLY
1 BRANCH
CONGRESSIONAL M d l
INTERGOVERNMENTAL LIAISON
OFFICE OF -
PUBLIC AFFAIRS
CARIBBEAN
FIELD OFFICE
ENVIRONMENTAL
SERVICES DIViSION
Chapter Two
REPORTS TO
IIQ OFFICE OF LEGAL AND
ENFORCEMENT COUNSEL
____ A _____
(advisory to)
ASSISTANT REGIONAL
ADMINISTRATOR
FOR POLICY AND
MANAGEMENT
DEPUTY DIRECTOR
I.
POL ICY & PROGRAM
INTEGRATION BRANCH
I PLANNING & EVALUATION
— BRANCH
I AIR PROGRAMS
BRANCH
PESTICIDES BRANCH
L DEPUTY DIRECTOR
SURVEILLANCE &
MONITORING BRANCH
MONITORING
MANAGEMENT BRANCH
EMERGENCY
RESPONSE & HAZAR-
DOUS MATERIALS
INSPECTION BRANCH
[ SOLID WASTE
B RANCH
HAZARDOUS WASTE
SITES BRANCH
AIR FACILITIES
BRANCH
TECHNICAL
RESOURCES
BRANCH
RADIATION
REPRESENTATIVE
TECHIIICAJ.. SUPPORT
BRANCH
IMARIME & WETLANDS
• PROTECT ION BRANCH
L __-
TSC& Co p1iance/Enforcement
2—10
Guidance ) anua1 1984
-------
Chapter Two
O a i ational arts
ASSISTANT REGIONAL
ADMINISTRATOR
FOR POLICY AND
MANAGEMENT
EEO OFFICER
MANAGEMENT
ADMINISTRATION
BRANCH
COP TROLLER
GION III
REPORTS TO
NQ OFFICE OF LEGAL AND
ENFORCEMEN1A COUNSEL
REGIONAL
COUNSEL
4(advlsory to)
PERSONNEL
MANAGEMENT
BRANCH
STATE
PROGRAMS
BRANCH
ENV IROMIENTAL
IMPACT
BRANCH
I-
AIR AND WASTE
WATER
PROGRAM
ENVIRONMENTAL
MANAGEMEN
I DIVISION
DIVISION
I SERVICES DIVISION
DEPUTY
DIRECTOR
L D J Y
DIRECTOR
L DIRECTOR
AIR PROGRAMS AND
ENERGY BRANCH
AIR AND WASTE
COMPL lANCE
WATER SUPPLY
BRANCH
WATER PERMITS
BRANCH
REGIONAL ADMINISTRATOR
DEPUTY
REGIONAL ADMINISTRATOR
OFFICE OF
CONGRESSIONAL AND
INTERGOVERNMENTAL
LIAISON
OFFICE OF
PUBLIC AFFAIRS
WATER RAM
MANAGEMENT &
SUPPORT BRANCH
WESTERN REGIONAL
LABORATORY AND
ENVIRONMENTAL
CENTER
WHEELING, WV
MO/DE/VA/OC
BRANCH
WASTE
MANAGEMENT
BRANCH
PA/WV
BRANCH
CENTRAL REGIONAL
LABORATORY
ANNAPOLIS, MD
ENVIRONMENTAL
EMERGENCY
BRANCH
AIR QUALITY
MONITORING BRANCH
WATER QUALITY
MONITORING STAFF
TSCA Co p1iance/Enforce ent
2—11
Guidance Nanual 1984
-------
Chapter Two
Or2ani2atioual O arts
ASSISTANT REGIONAL
ADMINISTRATOR
FOR POLICY AND
MANAGEMENT
I --
WATER MANAGEMENT
DIV IS ION
FACILITIES
PERFORMANCE
BRANCH
FACILITIES
CONSTRUCT! ON
BRANCH
ION I V
REPORTS TO
HQ OFFICE OF LEGAL AND
ENFORCEMENT COUNSEL
A
REGIONAL
REGIONAL ADMINISTRATOR COUNSEL
(adv1sory to)
DEPUTY
REGIONAL ADNINI STRATOR
-J
OFFICE OF
CONGRESSIONAL AND
EXTERNAL AFFAIRS
EEO OFFICER
PERSONNEL AND
ORGANIZATION
BRANCH
ENVIRONMENTAL
ASSESSMENT
BRANCH
POLICY AND
PROGRAM
EVALUATION BRANCH
MANAGEMENT
BRANCH
BUDGET
OFFICE
AIR AND WASTE
MANAGEMENT
DIVISION
DEPUTY DIRECTOR
ENVIRONMENTAL
SERVICES
DIVISION
DEPUTY DIRECTOR
DEPUTY DIRECTOR
EMERGENCY AND
REMEDIAL RESPONSE
BRANCH
ANALYTICAL
SUPPORT
BRANCH
RESIDUALS
MANAGEMENT
BRANCH
WATER
SUPPLY
BRANCH
ECOLOGICAL.
SUPPORT
BRANCH
PESTICIDES AND
TONICS
BRANCH
ENGINEERING
SUPPORT
BRANCH
AIR MANAGEMENT
BRANCH
TSC& ccupliance/Kntorcement
2—12
Guidance I nua1 1984
-------
ChaDter Two
Or aiaatio a1 aiaxta
TSCA CopliancefEáforce ent
2—13
Guidance Manual 1984
MESI V
REPORTS TO
HO OFFICE OF LEGAL AND
ENFORC(NENT 4 COUNSEL
REGIONAL1
REGIONAL ADMINISTRATOR 1 COUNSEL I
_______________________I” (adv1sory to)
o puiv
REGIONAL ADMINISTRATOR
OFFICE OF
CONGRESSIONAL AND
OFFICE OF
PUBLIC AFFAIRS
GREAT L*ES
NATIONAL PROGRAM
PLANNING AND
MANAGEMENT
DIV IS ION
AIR MANAGEMENT
DIVISION
I I I I I I
WASTE
MANAGEMENT
DIVISION
DEPUTY DIRECTOR
I
WATER
MANAGEMENT
DIVISION
I
ENVIRONMENTAL
SERVICES
DIVISION
OFFICE OF
INSPECTOR GENERAL
NORTHERN DIVISION
DEPUTY DIRECTOR
DEPUTY DIRECTOR
DEPUTY DIRECTOR
ENVIRONMENTAL
REVIEW
BRANCH
OFFICE OF
RADIATION
PROGRAMS
WASTE
MANAGEMENT
BRANCH
EQUAL
AIR
REMEDIAL
EI LOVMENT
COI L lANCE
RESPONSE
OFFICER
BRANCH
BRANCH
WATER
QUALITY
BRANCH
MUNICIPAL
FACILITIES
BRANCH
FINANCIAL AIR
TOXIC
MANAGEMENT PROGRAMS
SUBSTANCES
BRANCH BRANCH
BRANCH
QUALITY
ASSURANCE
OFFICE
ENY IRONMENTAI.
MONITORING
BRANCH
CENTRAL
REGIONAL
LABORATORY
PERSONNEL
BRANCH
DRINKING WATER
/GROUND WATER
PROTECTION
BRANCH
MANAGEMENT
SERVICES
BRANCH
CENTRAL
DISTRICT
OFFICE
PLANNING AND
ANALYSIS
BRANCH
EASTERN
DISTRICT
OFFICE, OHIO
MICHIGAN FIELD
INVESTIGATIONS
SECTION
-------
Chapter Two i tio 1 aiarts
REGIOII VI
REPORTS TO
HQ OFFICE OF LEGAL AND
ENFORCEMENT COUNSEL
A
I REGIONAL
REGIONAL ADMINISTRATOR I COUNSEL
(advisory to) I—
DEPUTY
REGIONAL ADMIN ISTRATOR
ASSISTANT REGIONAL
ADMINISTRATOR — — _____________________
FOR MANAGEMENT I OFFICE OF
I CONGRESSIONAL AND
DEPUTY DIRECTOR —. --—-- -—I INTERGOVERNMENTAL
—— LIAISON
EEO OFFICER I REGIONAL
___________________ L
PERSONNEL GRANTS ADMINISTRATION
RVICES_BRANCH BRANCH
OFFICE OF
HEALTH & SAFETY MANAGEMENT SERVICES PUBLIC AFFAIRS
OFFICER BRANCH
RESOURCES MANAGEMENT
BRANCH
AIR AND WASTE WATER ENVIRONMENTAL
MANAGEMENT MANAGEMENT SERVICES
DIVISION DIVISION DIVISION
DEPUTY DIRECTOR DEPUTY DIRECTOR DEPUTY DIRECTOR
CONSTRUCTION EMERGENCY
AIR BRANCH GRANTS RESPONSE
BRANCH BRANCH
HAZARDOUS ENFORCEMENT FEDERAL
MATER4ALS BRANCH ACTIVITIES
BRANCH BRANCH
PESTICIDES & PERMITS SURVEILLANCE
TOXICS BRANCH BRANCH
BRANCH
WATER QUALITY HOUSTON
MANAGEMENT BRANCH
BRANCH
WATER ADA
SUPPLY BRANCH
BRANCH
OFFICE OF
QUALITY
ASSURANCE
TSCA Coapliance/Enforcement 2—14 Cui I*n e Manual 1984
-------
Chapter Two Organizational Qiarta
REGI I VII
REPORTS TO
HQ OFFICE OF LEGAL AND
ENFORCENEI 1 COUNSEL
REGIONAL
REGIONAL ADMINISTRATOR COUNSEL
____________— (adv1sory to)
DEPUTY
REGIONAL ADMINISTRATOR
ASSISTANT REGIONAL
ADMINISTRATOR -• — _____________
FOR POLICY AND CUN RESSLONAL AND
MANAGEMENT I NTERGOvERNMENrAL
REGIONAL COMPTROLLER PERSONNEL AND 1 OFF ICE OF
BRANCH ORGANIZATION BRANCH ] AFFAIRS
ADMINISTRATIVE ENVIRONMENTAL REVIEW
SERVICES BRANCH BRANCH
OFFICE OF
PUBLIC AFFAIRS
AIR AND WASTE WATER ENVIRONMENTAL
MANAGEMENT MANAGEMENT SERVICES
DIVISION DIVISION DIVISION
DEPUTY DIRECTOR DEPUTY DIRECTOR
AIR AND WASTE CONSTRUCTION R BD
COMPLIANCE GRANTS COORDINATION
BRANCH BRANCH j
WASTE DRINKING WATER QA
MANAGEMENT BRANCH OFFICER
BRANCH
AIR WATER LABORATORY
BRANCH COMPLIANCE BRANCH
BRANCH
F I ELD
INVESTIGATION
BRANCH
EMERGENCY
PLANNING 8
RESPONSE BRANCH
TSC& Co plianca/Enforceannt 2-15 Guidance Nanual 1984
-------
Chapter Two O g*n(vatio a1 U arte
REGION VIII
REPORTS TO
HQ OFFICE OF LEGAL AND
EMFORCENEN1ACOUNSEL
[ ijIONAL
REGIONAL ADMINISTRATOR1 COUNSEL
_I (edv1sory to)
DEPUTY I
REGIONAL_ADMINISTRAT J
ASSISTANT REGIONAL
ADMINISTRATOR __________________
FOR POLICY AND I CONGRESSIONAL AND
MANAGEMENT LINTERGOVERNMENTAL
EEO OFFICER I PERSONNEL AND
I ORGANIZATION BRANCH MONTANA
—.1 OPERATIONS
OFFICE
ADMINISTRATIVE I COMPUTER SYSTEMS
SERVICES BRANCH BRANCH
____________________ ____________________ OFFICE OF
GRANTS & FINANCIAL ENVIRONMENTAL PUBLIC AFFAIRS
MANAGEMENT BRANCH ASSESSMENT BRANCH
MANAGEMENT SYSTEMS F RESOURCE PLANNING
AND ANALYSIS AND MANAGEMENT
AIR AND WASTE WATER ENVIRONMENTAL
MANAGEMENT MANAGEMENT SERVICES
DIVISION • DIVISION DIVISION
AIR PROGRAMS COMPLIANCE FIELD
BRANCH BRANCH OPERATIONS
BRANCH
TOXIC MUNICIPAL ANALYTICAL
SUBSTANCES FACILITIES SUPPORT BRANCH
BRANCH BRANCH (LABORATORY)
WASTE WATER EMERGENCY
MANAGEMENT PROGRAMS RESPONSE
BRANCH BRANCH BRANCH
OFFICE OF DRINKING WATER DATA
RADIATION BRANCH ANALYSIS
PROGRAMS BRANCH
TSC& Coiapliance [ Enforcement 2—16 Guidance Manual 1984
-------
Chapter Two
Orgae1s to a1 ch rte
TSC& Càãp11àIce/Enforce ,ent
REPORTS TO
HQ OFFICE OF LEGAL AND
ENFORCEMEN 1 COUNSEL
REGIONAL
COUNSEL
4(advlsory to)
OFFICE OF
CONGRESSIONAL AND
INTERGOVERNMENTAL
LIAISON
ARIZONA, NEVADA
AND HAWAII
BRANCH
TECHNICAL
SUPPORT
BRANCH
REGION I X
REGIONAL ADMINISTRATOR
DEPUTY
REGIONAL ADMINI STRATOR
OFFICE OF POLICY
AND RESOURCES
MANAGEMENT
CO$ TROLL ER
MANAGEMENT SYSTEMS
EVALUATION BRANCH
r OFFICE OF
PUBLIC AFFAIKS
ADMINISTRATIVE AIR
SERVICES DIVISION MANAGEMENT
DIVISION
DEPUTY DIRECTOR
I I
TOXICS AND WASTE
WATER MANAGEMENT
MANAGEMENT
DIVISION
DIVISION
•
LEO OFFICER
AIR OPERATIONS
BRANCH
DEPUTY DIRECTOR DEPUTY DIRECTOR
HEALTh AND SAFETY
OFFICER
PROGRAMS
BRANCH
AIR PROGRAMS
BRANCH
OFFICE OF
TERRITORIAL
PROGRAMS
FOl COORDINATOR
COMPLIANCE AND
RESPONSE BRANCH
PROGRAM SUPPORT
BRANCH
CAl. IFORNIA
BRANCH
PERSONNEL AND
ORGANIZATION
BRANCH
GRANTS AND PERMITS
ADMINISTRATION
BRANCH
SUPPORT SERVICES
BRANCH
1 .7
Ga1d ce nuaL 1984
-------
Chapter Two
Organisatiosal charts
EGION N
REPORTS TO
HQ OFFICE OF LEGAL AND
EMFORCENEPjT COUNSEL
REGIONAL
REGIONAL ADMINISTRATOR COUNSEL
.4(adv1 ory to)
I DEPUTY
LREGIONAL ADMINISTRATOR
r OFFICE LW
usiic AFFAIRS
WATER ENVIRONMENTAL
DIVISION SERVICES DIVISION
CO) L lANCE
BRANCH
FIELD OPERATIONS
BRANCH
(LABORATORY)
CONGRESSIONAL AND
INTERGOVERNMENTAL
RELATIONS
ALASKA OFFICE
1
OREGON OFFICE
IDAHO OFFICE
I I
WASHINGTON OFFICE J__________.._....
I I I I
MANAGEMENT AIR AND WASTE
DIVISION MANAGEMENT
DIVISION
( (0 OFFICER
AIR BRANCH
FINANCE
OFFICER
SUPERFUND
BRANCH
TECHNICAL
SUPPORT
BRANCH
PERSONNEL
CONSTRUCTION
GRANTS BRANCH
RCRA BRANCH
WATER QUALITY
BRANCH
ADMINISTRATIVE
SERVICES
BRANCH
RADIATION BRANCH
EMERGENCY
RESPONSE
COORDINATOR
GRANTS AND
ADMINISTRATION
BRANCH
DRINKING
WATER
BRANCH
TSC& Co p1iance/ nforee ent
2-18
Guidance llmnual 1984
-------
m
1
-3
a.
I . ’
I ,
AU
cD silo L. zSy cc.s
P - ’*.adtvILI d — dIl l
I- I Co I -
-_
- , . .. .di , iii. . — - tIV - —
- n.ds. l .Ipu1flc sS s
-------
Chapter Two Gsneral Operating Procedures
TSCA Compliance/Enforcement 2—20 Guidance Manual 1984
-------
Chapter Three
Compliance Monitoring Procedures
Chapter Contents — Page
1 Introduction 3—1
2 inspections 3—3
Confidentiality 3—4
2a k(ecords and Establishment Inspections 3—7
Authority 3—7
Scope 3—8
Purpose 3—8
Elements of an Inspection 3—8
2b TSCA Notification Letters 3—11
Purpose 3—11
Exhibit 3—i: Model TSCA Notification Letter 3—12
2c Warrants 3—13
Policy 3—13
Securing and Serving an Administrative Warrant 3—14
Exhibit 3—2: Model Application for an Administrative
Warrant 3—17
Exhibit 3—3: Model Affidavit En Support of
Application for an Administrative Warrant 3—18
Exhibit 3—4: Model Administrative Warrant 3—20
TSCA Coipliance/Eaforceisent - 3-i Q.aidance Manual 1984
-------
Chapter Three Contents
3 Subpoenae 3—23
1 iutIior1Iy
‘olicy 3—23
Service of SubpoenaB 3—24
Exhibit 3—5: Sample Subpoena Duce8 Tecum 3—25
Exhibit 3—6: Sample Cover Letter 3—28
Exhibit 3—7: Model Affidavit of Service 3—29
TSCA Compliance/Enforcement 3-it Guidance Manual 1984
-------
3 Compliance Mon i-
toring Procedures
-------
3 Compliance Moni-
toring Procedures
( )
-------
Chapter Three
1 Introduction
Compliance monitoring is a term used to describe the means by which EPA
verifies conformance with 8tatutory and regulatory requirements. In the
context of TSCA, this includes inspections and subpoenas.
In the event that an owner or operator of a regulated facility denies an
inspector entry to perform an inspection, an administrative warrant can be
used to gain entry into the facility. Furthermore, Section 11(c) of TSCA
authorizes the Administrator to Issue subpoenas requiring the attendance
and testimony of witnesses and the production of reports, papers, docu-
ments, answers to questions, and other information that the Administrator
deems necessary in carrying out the Act.
This chapter briefly outlines the procedures associated with TSCA com-
pliance monitoring activities. For detailed procedures concerning TSCA
Inspections, refer to the TSCA Inspection Manual .
‘ISCA Compliance/Enforcement 3-1 ( iidance Manual 1984
-------
Chapter Three Introduction
TSCA Compliance/Enforcement 3—2 Guidance Manual 1984
-------
Chapter Three
2 Inspections
A compliance inspection is the primary enforcement mechanism used to detect
and verify violations of TSCA. Facilities are selected for an inspection
under a neutral administrative inspection scheme or “for cause.” (See
definition of an unprogrammed inspection in the Glossary.), Selection may
be made, depending on the circumstances, by Headquarters or the Regional
Offices.
Evidence obtained during an inspection may result in the Agency taking any
of the following actions:
• issuance of a proposed order to limit or prohibit the manufacture,
processing, distribution in commerce, use, or disposal of chemical
substances or mixtures found to pose an imminent danger;
• Assessment of an administrative civil penalty;
• Institution of a civil court (injunctive or seizure) action; or
• Institution of a criminal court investigation*.
Compliance inspections conducted by EPA personnel under the authority of
TSCA generally will not involve the need to warn individuals of their
rights under the fifth amendment of the United States Constitution. The
fifth amendment provides that “No person * * * shall be compelled in any
criminal case to be a witness against himself.” Issues concerning this
right arise whenever a person is taken into custody or otherwise has his or
her freedom restricted by law enforcement officers. Because inspections
under TSCA are generally not conducted by law enforcement officers and do
not involve custodial situations, fifth amendment rights are not
implicated.
All individuals who conduct inspections should be aware of what constitutes
a custodial situation. When an individual is under arrest, he or she is
* See Agency guidelines, entitled “The Use of Administrative Discovery
Devices in the Development of Potential Criminal Cases,” which may be
obtained from the Criminal Enforcement Division.
fiii /iiforceme t - 3-3 Qaidance Manual 1984
-------
Chapter Three In spections
clearly in custody. However, a custodial situation may also be’ created
when, as a result of the demeanor and authority of the questioner and the
physical situatton, a reasonable person would not feel free to leave.
These types of situations should be avoided during an administrative
inspection.
Statements made to an inspector during a noncustodial administrative
inspection should be given voluntarily. The term voluntary, as used in the
judicial sense, relates to the circumstances surrounding the investigation
and the taking of statements. Such diverse factors as the following are
considered:
• Coercion or threats by the interviewer;
• Overhearing will of the interviewer;
• Promises of beneftt by persons in authority;
• Deceit by the interviewer during the interrogation;
• The accused’s age, experience, and level of education; and
• The accused’s knowledge of his or her constitutional rights.
Confidentiality ——______________________________________________
During the course of TSCA inspections, inspectors may encounter information
that is entitled to confidential treatment under Section 14 of TSCA and the
EPA regulations at 40 C.F.R. Part 2. This section of the statute and the
regulations are designed to protect confidential business information
(CBI)* from unauthorized disclosure. Material that is CR1 includes infor-
mation considered to be trade secrets that could damage a company’s com-
petitive position if it became publicly known.
Because of the sensitivity of CR1 material, very stringent procedures for
handling this information have been established. These procedures are con-
tained in the TSCA Confidential Business Information Security Manual , which
governs access to and control of CBI documents by EPA personnel. (See
Chapter Eleven for a further discussion on confidentiality.)
Because TSCA inspections may involve CR1, special inspection procedures
have been developed that are designed to provide adequate notification to
companies of their right to declare inspection data confidential and to
ensure secure handling of this information at each stage of the
* TSCA CR1 material does not in any manner refer to classified National
Security Information as defined in Executive Order 12065.
TSCA Co pflhnce/Rnforceaent 3-4 Ouidaii NIrniaI [ 984
-------
Chapter Three
inspection. These procedures & re briefly outlined In the approprtate suc—
tions of this chapter. For detailed information, consult the TSCA Inspec-
tion Manual .
TSCA CompliancelEnforcemènt 3-5 Guidance Manual 1984
-------
Chapter Three Inspections
TSCA Compliance/Enforcement 3—6 Guidance Planuel 1984
-------
Chapter Three
2a Records and Establishment
Inspections
Authority —_____________ -____ -
Section 11(a) authorizes any duly designated representative of the Adininis—
trator to “inspect any establishment, facility, or other premises in which
chemical substances or mixtures are manufactured, processed, stored, or
held before or after their distribution in commerce and any conveyance
being used to transport chemical substances, mixtures, or such articles in
connection with distribution in commerce.”
Inspections must be conducted in a prescribed manner including:
• Presentation of appropriate credentials to the owner, operator, or
agent in charge of the premises or conveyance to be inspected;
• Presentation of a written Notice of tnapection* detailing the sus-
pected violation or purpose of the inspection;
o Entry of the facility at a reasonable time and prompt completion of
the inspection;
• Presentation of a TSCA Inspection Confidentiality Notice*;
• Completion of a Declaration of Confidential Business Inforination*;
and
• Issuance of a Receipt for Samples and Documents*.
The TSCA Inspection Confidentiality Notice is used to inform facility
officials of their right to claim inspection data as CBI. All documents,
samples, and related data taken during an inspection that have been claimed
as CBI must be listed on the Declaration of Confidential 8usiness Informa-
tion. For detailed guidance on the use of these CEL forms, refer to the
TSCA Inspection Manual .
* Examples of these forms may be found In Chapter Four.
TSCA Coiupltance/&forceaeut 3-7 Guidance Manual 1984
-------
Chapter Three Records and Eatablis nt Inapeeti
S cope
The scope of a TSCA inspection, according to TSCA Section ll(b)(l), extends
to all things within the premises or conveyance inspected (including
records, files, papers, processes, controls, and facilities) that have a
bearing on whether the requirements of the Act applicable to the chemical
substances or mixtures located within such premises or conveyance have been
complied with. However, pursuant to Section ll(b)(2) of TSCA, certain
type8 of data can only be inspected if the nature and extent of such data
are described with reasonable specificity in the written Notice of Inspec-
tion. These types of data include:
• Financial data;
• Sales data (other than shipment data);
• Pricing data;
• Personnel data; and
• Research data (other than research data required by the provisions
of TSCA).
Purpose
The purpose of an inspection is to ensure compliance with TSCA and with the
rules promulgated under the Act. In summary, the inspector’s role is:
• To inform the regulated industry of the requirements of the law;
and
o To document suspected violations.
Elements of an Inspection
The elements of a TSCA inspection can be grouped into the following cate-
gories: (1) pre—inspection preparation; (2) entry; (3) opening conference;
(4) sampling and documentation; (5) closing conference; and (6) report
preparation. These elements are common to all inspections, but the empha-
sis given to the separate elements will vary with the needs of the indivi-
dual inspection.
TSCA Compliance/Enforcement 3—8 Cuidence Manual 1984
-------
Chapter Three Records and Estab1ieh nt Inspections
Pre—Inspection Preparation
To ensure effective use of the inspector’s time, the following procedures
are undertaken before beginning an inspection:
• Establishing inspection objectives and preparing an inspection
plan;
• Establishing the scope of the inspection;
• ConductIng a review of Agency records;
• Preparing necessary documents; and
• Preparing sampling equipment and safety equipment.
Entry
Entry procedures are followed to obtain actual physical entry into the
premises. Entry involves the following steps:
• Introduction;
• Presentation of official credentials;
• Presentation of the Notice of Inspection; and
• Management of denial of entry when necessary (see Chapter Three of
the TSCA Inspection Manual for entry/denial procedures and Section
2c of this chapter).
Opening Conference
After entry, the inspector conducts an opening conference with the
facility’s management. During the opening conference, the inspector is
responsible for the following activities:
o Discussing the objectives and scope of the inspection;
• PresentIng the TSCA Inspection Confidentiality Notice;
• Advising of the availability of duplicate samples;
• Providing information on TSCA and its rules; and
• Planning meetings with personnel.
Sampling and Documentation
Reviewing facility recurds, taking samples, and preparing documentation are
the basic inspection activities. It is these activities that provide the
pliace [ Enforceaent 3-9 Theida Manual 1984
-------
Chapter Three Record. and E.tab1L .1 nt Inspections
evidentiary support that the Agency uses in enforcement actions. The
inspector’s responsibilities include:
• Targeting and locating facility records;
• Inspecting facility records;
• Preparing documentation of all inspection activities;
• Inspecting conditions and taking photographs, if necessary;
o Taking necessary samples, sealing samples, and establishing
“chain of custody”; and
o Operating in a safe and efficient manner.
Closing Conference
The closing conference with facility officials enables the inspector to
prepare receipts, answer questions, and provide information about TSCA. At
the closing conference, the inspector “wraps up” the inspection by:
• Writing necessary receipts;
• Preparing the Declaration of Confidential Business Information;
• Advising that results of analysis of samples will be furnished if
and when analysis is made; and
• Discussing inspection findings.
Report Preparation
All evidence must be organized and coordinated in a comprehensive,
relevant, and accurate report including:
• Inspection report forms;
• Narrative report; and
• Other documentary support.
Suspected violations are to be documented ILl the above reports. Compliance
enforcement personnel will review the report file to determine the adequacy
of the evidence. Any information needing clarification should be reviewed
with the inspector.
In preparing the inspection report, CBI material preferably should be
referenced in a nonconfidential manner. (As an alternative, the report
could include the confidential information; however, the entire inspection
report must then be treated as a confidential document.)
TSCA Coispliancef&iforcement 3—10 Guidance ) nua1 1984
-------
Chapter Three
2b TSCA Notification Letters
Purpose
TSCA notification letters may be used for the following purposes:
• To obtain information when a full—scale, on—site inspection Is not
coat effective;
• To facilitate the effectiveness of an inspection; or
• To eliminate the need for an inspection.
Notification letters are generally used when deliberate noncompliance is
not suspected and the likelihood of a response is good. Typical
information requested by a notification letter may include the following:
• Raw materials, products, byproducts, and production levels;
• Facility layout maps identifying process areas, discharge and
emission points, and waste disposal sites;
• Flow diagrams for processes and waste control, treatment and dis-
posal systems showing where wastewater, air emissions, and solid
waste sources originate;
• Description and design of pollution control and treatment systems
and normal operating parameters;
• Recent self—monitoring reports and inventories for discharges and
emissions;
• Self—monitoring equipment in use, normal operating levels, and
available data; and
• Files of required records.
Exhibit 3—1 is a model TSCA notification letter that is intended to facili-
tate the effectiveness of an upcoming scheduled Inspection.
TSCA Compliance/Enforcement 3-11 Guidance Manual 1984
-------
Chapter Three ____ ____— Exhibit 3—1
Model TSCA Notification Letter
UNITED STATES
ENVIRONMENTAL PROTECTION AGENCY
Region I
John F. Kennedy Federal Building
Boston, MA 02203
Dear Mr./Ms._____________________
The Environmental Protection Agency (EPA) will conduct an inspec-
tion of your facility’s premises/conveyance under the authority of Sec—
tion 11 of the Toxic Substances Control Act (15 U.S.C. §2610) on _______
The purpose of the inspection is to determine compliance with the
requirements of this Act applicable to the chemical substances or
mixtures within your facility’s premises/conveyance. The inspectors
will review records, files, and papers that are either required to be
maintained by this Act or are applicable to the chemical substances or
mixtures within your facility’s premises/conveyance; observe process
operations; evaluate monitoring practices, equipment, and sites; and col-
lect samples that may include regulated chemical substances, air, water,
waste, or soil samples, or any combination thereof. In addition, the
inspectors may wish to take photographs of selected subjects.
Prior to arrival, the inspectors will require certain information;
we recognize that some of this material may have been submitted to EPA
in the past. If such is the case and that material is the most current
information, please simply refer to the title, date, and specific
recipient of such documents in your response to this request.
Please provide copies of the following Information to EPA within
twenty (20) days of receipt of this letter:
(List information requested.)
Pursuant to regulations appearing at 40 C.F.R. Part 2, Subpart B
and specifically Section 2.306, you are entitled to claim any or all the
information provided to EPA or collected by EPA during the inspection as
confidential business information. Such information can be disclosed by
EPA only in accordance with the procedures set forth in the regulations
(cited above). Any such claim for confidentiality must conform to the
requirements set forth in 40 C.F.R. Section 2.203(b).
If you have any questions, please contact — _____
Thank you for your assistance in this matter. —______
Sincerely,
TSC& Coapliance/ forcement 3-12 Guidance Manual 1984
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Chapter Three
2c Warrants
An administrative warrant can be used to gain entry into an establishment
when facility officials have denied entry to an inspector or have withdrawn
their consent to inspect during an inspection. In certain circumstances,
it may be necessary to obtain a warrant prior to an inspection. A warrant
is a judicial authorization for an appropriate official (EPA inspector,
U.S. Marshal, or other authorized officer) to enter a specifically
described location and perform clearly defined inspection functions.
Policy
It is the policy of EP to obtain a warrant when all other efforts to gain
lawful entry have been exhausted and the inspector has carefully followed
established entry/denial of entry procedures. This policy, of course, does
not apply to pre—inspection warrants, which may be obtained under circum-
stances described later in this subchapter.
Marshall v. Barlow’s, Inc .
In Marshall v. Barlow’s, Inc. , 436 U.S. 307 (1978), the Supreme Court
addressed the need for an administrative warrant when an Occupational
Health and Safety Administration inspector sought entry into a workplace
where consent for the Inspection was not voluntarily given by the owner.
The Court concluded that an administrative warrant was required to conduct
such regulatory inspections unless the industry is one with a history of
extensive regulation, such as liquor or firearms.
As a matter of policy, the Agency will apply the requirements of the
Barlow’s decision to all TSCA inspections.
According to Barlow’s , a warrant may be obtained where there is a specific
reason to think that a violation has been committed ( i.e. , where there is
probable cause, such as an employee’s complaint or a competitor’s tip). A
warrant may also be issued if the Agency can show that the establishment to
be inspected has been selected pursuant to a neutral inspection scheme.
TSC& Compliance/Enforcemsnt 3—13 E iidance ) 4 niisi1 1984
-------
Chapter Three Warrants
Seeking a Warrant Before Inspection
In certain circumstances, a warrant may be obtained before an inspector
begins an inspection. Such a pre—inspection warrant may be sought at the
discretion of the Regional Office if:
• A violation is suspected and could be covered up within the time
needed to secure a warrant;
• Prior correspondence or other contact with the facility to be
inspected provides reason to believe that entry will be denied when
the inspector arrives; or
• The facility is unusually remote from a magistrate or a district
court, and thus obtaining a warrant would require excessive travel
time.
Civil Versus Criminal Warrants
If the purpose of the inspection is to discover and correct, through civil
procedures, noncompliance with regulatory requirements, a civil warrant
should be secured if entry is refused.
If the primary purpose of the inspection is to gather evidence for a
criminal prosecution and there is sufficient evidence available to estab—
lLsh probable cause for a criminal warrant, then a civil warrant should not
he used to gain entry. Rather, a criminal search warrant must be obtained
pursuant to Rule 41 of the Federal Rules of Criminal Procedure (Fed. R.
Crim. P.). (See Agency guidelines, entitled “The Use of Administrative
Discovery Devices in the Development of Potential Criminal Cases.”)
£vidence obtained during a valid civil inspection is generally admissible
in criminal proceedings.
curlng and Serving an Administrative Warrant — -—___________
The following procedures for obtaining and serving an administrative war-
rant have been developed in accordance with the Barlow’s decision.
Important Procedural Considerations
• The application for a warrant should be made as soon as possible
after the denial of entry or withdrawal of consent.
• In order to satisfy the requirements of the Barlow’s decision, the
affidavit in support of the warrant must include a description of
the reasons why the establishment has been chosen for inspection.
The only acceptable reasons are specific probable cause or
TSC& Comp1Lance/Bnforce E 3-14 - Guidance Manual 1981 .
-------
Chapter Three Warrant.
selection of the establishment for inspection pursuant to a neutral
administrative inspection scheme.
• A warrant must be served without undue delay and within the number
of days stated on the document (usually 10 days). The warrant will
usually direct that it be served during daylight hours.
• Because the inspection is limited by the terms of the warrant, it
is very important to specify to the greatest extent possible the
areas intended for inspection, records to be inspected, samples to
be taken, etc. A vague, overly broad warrant, probably will not be
signed by the magistrate.
• If the owner refuses entry to an inspector holding a warrant but
not accompanied by a U.S. Marshal, the inspector should leave the
establishment and inform the U.S. Attorney.
Procedures for Obtaining a Warrant
1. Contact the Regional Counsel’s Office . The inspector should dis-
cuss with the Regional Counsel’s Office the facts regarding the
denial or withdrawal of consent or the circumstances that give
rise to the need for a pre—inspection warrant. A joint determina-
tion will then be made as to whether or not to seek a warrant.
2. Contact Headquarters Pesticides and Toxic Substances Program
Office . The Regional Office should notify Headquarters PTSCMS
prior to obtaining a warrant.
3. Contact the United States Attorneys Office . After a decision has
been made to obtain a warrant, the designated regional official
should contact the U.S. Attorney for the district In which the
property is located. The Agency should assist the United States
Attorneys Office in the preparation of the warrant and affidavit.
4. Apply for the Warrant . The application for a warrant should
identify the $tatutes and regulations under which the Agency is
seeking the warrant. The name and location of the site or
establishment to he inspected should be clearly identified, and,
if possible, the owner and/or operator should be named. The
application can be a one— or two—page document if all factual
requirements for seeking the warrant are stated In the affidavit,
and the application so states. The application is to be signed by
the U.S. Attorney. (See Exhibit 3—2.)
5. Prepare the Affidavit . The affidavit in support of the warrant
application is a crucial document. It is a statement reduced to
writing, and sworn to or affirmed before a notary public, that
describes in consecutively numbered paragraphs all of the facts in
support of warrant issuance; and it should be prepared by a person
with firsthand knowledge of those facts, most likely the
inspector. (See Exhibit 3—3.)
TSC& Coi p1iancé/Enforce.aent 3-15 Guidance Manual 1984
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Chapter Three — warrants
6. Prepare the Warrant for Signature . A proposed warrant should be
prepared for the magistrate’s signature. Once signed, the warrant
is an enforceable document. The warrant should contain a ‘return
of service” or “certificate of service” that will indicate upon
whom the warrant was served. This part of the warrant is to he
dated and signed by the inspector after the warrant is served.
(See Exhibit 3—4.)
7. Serve the Warrant . The warrant is served on the facility owner or
the agent in charge and the inspection will normally commence or
continue. Where there is probability that entry will still be
refused, or where there are threats of violence, the inspector
should be accompanied by a U.S. Marshal. In this case, the U.S.
MarshaL is principaLly charged with executing the warrant, and the
inspector should abide by the U.S. Marshal’s decisions.
8. Perform the Inspection . The inspection should be conducted
strictly in accordance with the warrant. If sampling is autho-
rized, all, procedures must be followed carefully, including
presentation o receipts for all samples taken. If records or
other property Is authorized to be taken, the inspector must issue
a receipt for the property and maintain an inventory of anything
removed from the premises. This inventory will be examined by the
magistrate to ensure that the warrant’s authority has not been
exceeded.
9. Return the Warrant . After the inspection has been completed, the
warrant must be returned to the magistrate. Whoever executes the
warrant ( i.e. , the U.S. Marshal or whoever performs the inspec-
tion) must sign the return of service form indicating to whom the
warrant was served and the date of service. The executed warrant
is then returned to the U.S. Attorney who will formally return it
to the issuing magistrate or judge. If anything has been physi-
cally taken from the premises, such as records or samples, an
inventory of such items must be submitted to the court, and the
inspector must be present to certify that the inventory is accu-
rate and complete.
TSCA Co ffauce/Eaforceiaent ‘ 3-lb Guidance Haui 1 1984
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Chapter Three Rvli4 bit 3—2
Model Application for Administrative Warrant
UNITED STATES DISTRICT COURT
__________DISTRICT OF________
IN THE MATTER OF: ) Docket No. ____________________
)
) Case No. _____________________
)
)
)
) Application for an
) Administrative Warrant
)
)
)
)
)
NOW COMES a duly designated representative of the Administrator of
the United States Environmental Protection Agency, by and through
( name) , United States Attorney for the _______ District of
_______ and applies for an administrative warrant of entry, inspection,
reproduction of records, photography, and sampling to determine
compliance with the Toxic Substances Control Act, 15 U.S.C. §2601 et
seq. , and as authorized by Section 11 of the Act, 15 U.S.C. §2610, of
the premises at ( description of the premises ) in the possession,
custody, or control of the ( name of company or owner) . In support of
this application, the duly designated representative of the
Administrator respectfully submits an affidavit and a proposed warrant.
Respectfully submitted,
(Si nature of U.S. Attorney)
United States Attorney for the
District of
(Date)
TSCA Compliance/Enforcement 3-17 Guidance Manual 1984
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Chapter Three R h4 bit 3—3
tiodel Affidavit in Support of
Application for an Administrative Warrant
UNITED STATES DISTRICT COURT
_________DISTRICT OF
IN THE MATTER OF: ) Docket No. ____________________
)
) Case No. _____________________
)
)
)
) Affidavit in Support of
) Application for an
) Administrative Warrant
)
)
)
)
State of _____________________
County of____________________
( Name of Affiant) , being duly sworn upon
his(her) oath, according to law, deposes and says:
1. 1 am compliance/enforcement officer with the ( division )
United States Environmental Protection Agency, Region __________, and a
duly designated representative of the Administrator of the United States
Environmental Protection Agency for the purpose of conducting inspections
pursuant to Section 11 of the toxic Substances Control Act, 15 U.S.C.
26O1 et I hereby apply for an administrative warrant of entry,
inspection, reproduction of records, photography, and sampling of the
premises in the possession, custody, or control of the ( name of company
or owner) .
2. ( Name of establishment, premises, or conveyance ) is a
( describe business ) that the undersigned compliance officer of the United
States Environmental Protection Agency has reason to believe is in
violation of the Toxic Substances Control Act. This belief is based upon
the following facts and information: ( Describe with particularity the
reasons_why_a_violation_is suspected and the specific facts that give
rise to probable cause or summarize the neutral administrative inspec-
tion scheme used to select the premises for inspection. )
TSCA Compliance/Enforcement 3—18 Guidance Manual 1984
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Chapter Three ___________________ Erhibit 3—3
3. The entry, inspection, reproduction of records, photography, and
sampling will be carried out with reasonable promptness, and a copy of
the results of analyses performed on any samples or material collected
will be furnished to the owner or operator of the subject premises.
4. The compliance/enforcement officer may be accompanied by one or
more compliance officers of the United States Environmental
Protection Agency.
5. A return wiLl be made to the court at the completion of the
inspection, reproduction of records, photography, and sampling.
( Signature of Affiant ) __________
( Title ______
( Division )
Region ( )
United States Environmental
Protection Agency
Before me, a notary public of the State of ___________________
County of ___________________, on this ________ day of ____________
19 , personally appeared ___________________, and upon oath stated
that the facts set forth in this application are true to his(her)
knowledge and belief.
( Signature of Notary ) ____ _____-
A Notary Public of _________— -
My Commission Expires _____________—
TSCA Cosipliance/Enforcement 3-19 Guidance Manual L984
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Chapter Three RyM bit 3—4
Model Mainistrative Warrant
UNITED STATES DISTRICT COURT
_________DISTRICT OF________
IN THE MATTER OF: ) Docket No. ___________________
)
Case No. _____________________
)
)
)
) Warrant of Entry, Inspection,
) Reproduction of Records,
) Photography, and Sampling
)
)
)
)
To ( name) , ( title) , United States
Environmental Protection Agency, Region _____ , and any other duly desig-
nated representatives of the Administrator of the United States
Environmental Protection Agency:
Application having been made by the United States Attorney on behalf
of the United States Environmental Protection Agency (EPA) for a warrant
of entry, inspection, reproduction of records, photography, and sampling
to determine compliance with regulations under the Toxic Substances
Control Act, 15 U.S.C. §2601 et!. .; and, the court being satisfied
that there has been a sufficient showing that reasonable legislative or
administrative standards for conducting an inspection and investigation
have been satisfied;
IT IS HEREBY ORDERED that EPA through its duly designated represen-
tatives ( names of representatives ) is hereby entitled
and authorized to have entry upon the following described premises:
(Describe premises.)
IT IS FURTHER ORDERED that entry, inspection, reproduction of
records, photography, and sampling shall be conducted during regular
working hours or at other reasonable times, within reasonable limits, and
in a rea8onable manner.
TSCA Compliance/Enforcement 3—20 Guidance Manual 1984
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Chapter Three K Mbit 3—4
IT IS FURTHER ORDERED that the warrant shall be for the purpose of
conducting an entry, inspection, reproduction of records, photography,
and sampling pursuant to 15 U.S.C. 26lO consisting of the following
activities:
(Describe specific activities. For example:
(c Entry to, upon, or through the above—described
premises including all buildings, structures,
equipment, machines, devices, materials, and sites to
inspect, sample, monitor, and investigate the said
premises.
(. Access to and reproduction of all records
pertaining to or relating to the use, storage,
handling, and disposal of polychiorinated
biphenyls (PCBs).
(. Inspection, including photographing, of any
equipment, methods, or sites used to store,
or dispose of PCBs at the facility.)
IT IS FURTHER ORDERED that, if any property is seized, the duly
designated representattve or representatives shall leave a receipt for
the property taken and prepare a written inventory of the property
seized and return this warrant with the written inventory before me
within 10 days from the date of the inspection.
IT IS FURTHER ORDERED that this warrant shall be valid for a period
of 10 days from the date of this warrant.
IT IS FURTHER ORDERED that the United States Marshal is hereby
authorized and directed to assist the representatives of the United
States Environmental Protection Agency in such manner as may be reason-
able, necessary, and required.
( Signature of Magistrate )
(Date)
TSCA mpliance/Enforcement 3-21 Guidance Manual 1984
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Chapter Three hibjt 3—4
RETURN OF SERVICE
L hereby certify that a copy of the within warrant was served by presen-
ting a copy of same to ( facility owner or agent ) on ( date ) at
(location of establishment or place)
( Signature of person making service)
( Official title)
RETURN
Inspection of the establishment described in this warrant was completed
on ( date)
( Signature of person conducting the inspection )
TSCA Compliance/Enforcement 3-22 Guidance Manual 1984
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Chapter Three
3 Subpoenas
Authority
Section 11(c) of TSCA authorizes the Administrator, in carrying out the
Act, to issue subpoena8 requiring the attendance and testimony of witnesses
and the production of reports, papers, documents, answers to questions, and
other information that the Administrator deems necessary.*
Policy ___—— ___________-__________
As a general rule, subpoenas can be used whenever the information sought
will assist the Administrator in implementing TSCA. Subpoenas are particu—
ar1y useful in two situations. First, data may often be sought from per-
Sons who are not directly subject to the provisions of the Act. Although
such persons cannot compelled to keep records or to submit information
under Section 4, 5, 6, l, 12, or 13 of the Act, data can nonetheless be
obtained through the issuance of a Section 11 subpoena if such data is
relevant to any lawlul purpose of TSCA.
The second situation In which subpoenas may be useful is to facilitate the
effectiveness of an inspection or to eliminate the need for an inspection.
For example, where the EPA is interested in reviewing a large volume of
material at the Agency rather than onsite, a subpoena may be utilized as a
means of collecting and organizing relevant material so that an inspector
is not faced with this task at the facility itself.
* Generally two types ut subpoenas are used. A subpoena that requests the
appearance of a witness to testify Es referred to as a “Subpoena Ad
Testificandum. ” A subpoena that requests a witness to produce docum nts
or papers under h1 or her control Is reterred to as a “Subpoena Duces
Tecum. ” Exhibit. 3—5 is a sample of the latter subpoena. Exhibit 3—6 is
a sample cover Let t r that usually iccompanies such a subpoena.
TSCA CouipliancefEnforce.ent 3—23 Qildance 1 anual 1
-------
Chapter Three Subpoenae
The primary differei ce between subpoenas and TSCA notification letters is
that compliance with a notification letter is voluntary, whereas compliance
with a subpoena is mandatory ( i.e. , judicially enforceable).
Service of Subpoenas
Service of subpoenas should be made, where possible, by registered mail,
return receipt requested, or by hand delivery to the person named therein
(see Exhibit 3—7 for a model affidavit of service). The person making ser-
vice should attempt to serve an appropriate corporate officer. (Note: The
corporate general counsel is usually not an officer, unless this title
reflects a dual role) such as “Vice President and General Counsel.”) In
addition, a Return of Service form should be attached to the subpoena.
TSCA Qispliance/Enforce.ant iidance I nua1 1984
-------
Chapter Three Exhibit 3—5
Sample Subpoena Ducea Tecum .
SUBPOENA DUCES TECUM
UNITED STATES OF AMERICA
U.S. ENVIRONMENTAL PROTECTION AGENCY
Mr. T. K. H. Firetog, Jr.
President
Firetog Industries, Inc.
36 Sunshine Drive
Clark, MA 02856
To further the Environmental Protection Agency’s investigation of your
company’s compliance with Section 8(e) of the Toxic Substances Control
Act (TSCA), 7 U.S.C. §2607(e), you are hereby required to appear before
the Assistant Administrator for Pesticides and Toxic Substances in room
___ 401 M St., S.W., Washington, D.C., on __________, at ____, and
to bring with you the reports, papers, documents, answers to questions,
and other information requested In the attached Specifications.
If you so desire, you may have your representaUve produce, at the
time and place aforesaid, the items or information requested in the
Specifications.
If you consider any of the documents or other information that you
submit in response to this subpoena to be confidential business
information, please mark each page containing such confidential business
information. The mark may be the word “confidential,” or the phrase
•proprtetary information,” or other similar marking. If you wish to make
a claim of confidentiality for this information, you must do so at this
time. Any documents or other information not marked confidential will be
available to the public. That portion of your response to the subpoena
marked as confidential will be handled in accordance with EPA’s public
information regulations (40 C.F.R. Part 2).
Issued under the authority of 15 U.S.C. §2610(c), this _____ day of
_____ 19
United States Environmental
Protection Agency, by
John A. Doe
Assistant Administrator for
Pesticides and Toxic Substances’
Enc Lcsure
TSCA Co.pliance/&iforceiient 3-25 Guidance Manual 1984
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Chapter Three Rrhf bit 3—5
SPECIFiCATIONS
I. Instructions
I. This subpoena covers all documents described below in the posses-
sion of Firetog Industries, Inc., and subject to its control or custody.
2. For tile purpose of complying with this subpoena, the word “docu—
inent” means the original or a true, correct and complete copy and all.
nonidentical copies of any report, paper, note, letter, correspondence,
memorandum, study, data compilation, circular, rk sheet, minutes, test
result, laboratory note or memorandum, analysis or other transcription
of information, whether written, typed, printed, recorded on tape, micro-
film, or other device, regardless of whether circulated within the com-
pany or to outsiders, regardless of whether generated within or without
the company, and regardless of whether in the possession of your company
or any agent acting in its behalf.
3. Each document submitted shall be clearly and precisely identified
as to its title, author, date of preparation, and subject matter.
4. If neither the original nor a copy of any requested document is
currently in the possession or control of your company for any reason,
identify the document by date, title, subject matter, the name of indivi-
duals who prepared and received it and the name and address of the person
who currently has possession or control of that document. If the docu-
ment no longer exists, explain why. If the document has been destroyed,
identify the name of the individual who ordered it destroyed, when the
order was issued, and why.
5. The authority under which this subpoena is issued, 15 U.S.C.
§2610(c), authorizes the Administrator to require answers to questions
as well as the submittal of documents. Answer all questions completely.
Where necessary, documents may be submitted to answer all or part of any
questions asked in these Specifications.
II. Information and Documents Requested
1. With respect to Exhibits A, B, C, D, and E, state:
a) When each of the reports was received by Firetog
Industries, Inc.;
b) The individual (or individuals) within Firetog
Industries, Inc., who reviewed each of the reports;
c) The title and primary responsibilities of the
individuals listed in 1(b) as of the date when
they reviewed the reports;
TSCA Complianca/Esforcement 326 Cuidaace Manual 1984
-------
Chapter Three KThlbit 3—5
d) The current title and primary responsibilities of the
indlvidui’ala listed in 1(b); and
e) The dates when those individuals listed in 1(b) reviewed
each of the exhibits.
2. Submit any documents prepared or received by Firetog Industries,
Inc., concerning Exhibits A, B, C, D, and E, or the subject
matter of those reports.
‘TSCA Coapllanèe/Enforceaent 3-27 Guidance Manual 1984
-------
Chapter Three RrhIbit 3—6
Sample Cover Letter
UNITED STATES
ENVIRONMENTAL PROTECTION AGENCY
Office of Pesticides and Toxic Substances
Washington, D.C. 20460
Mr. T. K. H. Firetog, Jr.
President
Firetog Industries, Inc.
36 Sunshine Drive
Clark, MA 02856
Dear Mr. Firetog:
An FYI submission filed by Firetog Industries, Inc. (dated October 31,
1982) to EPA concerning toxicity data on your product, Heathergard LF—1,
raises a number of questions regarding Firetog Industries’ compliance
with Section 8(e) of the Toxic Substances Control Act (TSCA). To aid in
our investigation, we have enclosed a subpoena ducea tecum with this
letter. This subpoena requires submitting certain documents and
answering a number of questions concerning whether Firetog Industries,
Inc., has complied with Section 8(e) of TSCA.
The enclosed subpoena does not require your attendance at this time,
provided that the documents, and other information requested, are pro-
duced at or before the date required by the subpoena.
Sincerely,
Joe A. Doe
Assistant Administrator for
Pesticides and Toxic Substances
Enclosure
TSCA Compliance/Enforcement 3-28 Cialdance Manual 1984
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Chapter Three RwhIbjt 3—7
Nodel Affidavit of Service
AFFIDAVIT OF SERVICE
UNITED STATES OF AMERICA
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
I hereby certtfy that being a person over 18 years of age, I served a
copy of the within subpoena:
(check one) ( ) in person
( ) by registered mail, return receipt requested
( ) by leaving the copy at principal place of business,
which La
( ) ( write in other method such as leaving it at dwelling,
serving registered agent of corporation, etc. )
on the person named in the subpoena on ( month, day, and year) .
(Signature of person making service)
(Name of
person
making
service)
(Title,
if any)
TSCA Qimpliance/Euforcement 3-29 Qitdance anua1 1984
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Chapter Three Subpoent
TSC& Coiapliance/Enforce.ent 3-30 iidaice Manual 1984
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4 Documentation
of Evidence
)
-------
4 Documentation
of Evidence
J
-------
Chapter Four
Documentation of Evidence
Chapter Contents Page
1 Introduction 4—1
2 inspection File Review 4—3
Substantiation of Each Violation 4—3
Controlled Identification of Samples and Documents 4—3
3 Review of Adequacy of Evidence 4—7
initial Review of Inspection File 4—7
Further Processing of the Inspection File——
Enforcement Case Review 4—10
Additional Sources of Documentation 4—11
Exhibit 4—I: Receipt for Samples and Documents 4—12
Exhibit 4—2: Declaration of Confidential Business
Information 4—13
Exhibit 4—3: Custody Seal 4—14
Exhibit 4—4: Chain of Custody Record 4—15
Exhibit 4—5: Investigation Summary 4—16
Exhibit 4—6: Investigation Request 4—17
ExhIbit 4—7: Notice of Inspection 4—18
Exhibit 4—8: TSCA Inspection Confidentiality Notice 4—19
TSCA Compliance/En forceiment 4-i Qiidance Manual 1984
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Chapter Four Contents
TSCA Co.pllance/Knforceaent 4—il Guidance Manual 1984
-------
Chapter Four
1 Introduction
Upon completion of a TSCA inspection, enforcement inspectors are required
to organize the documentary evidence that they have collected into an
inspection file. An inspection file may actually consist of two separate
files——a nonconftdential file and a confidential business information (CBI)
file.
Information gathered during a TSCA inspection that has not been declared
TSCA CBI is organized by the inspector into a package referred to as the
nonconfidenttal inspection file. This file contains the inspector’s report
and all forms and nonconfidential evidence secured by the inspector that
relates to the TSCA inspection. Once compiled, the file is sent to the
Regional Case Development Officer (RCDO), who is responsible for reviewing
the inspection results for possible enforcement action.
Information gathered during a TSCA inspection that has been declared TSCA
CBI is organized by the inspector into a package referred to as the CBI
inspection file. When an inspector returns from an inspection with infor—
ination that has been declared confidential, the information is immediately
given to the Document Control Officer (DCO), who then assigns a document
control number to the confidential material. In addition, the inspector
also informs the DCO of any physical samples that were declared confiden-
tial. Physical samples are also assigned ‘a document control number by the
DCO who, in turn, notifies the laboratory of this number. (The document
control number is used by laboratory personnel in completing the sample
chain of custody and laboratory analysis forms.) Once CBI material has
been logged in by the DCO, review of the information by the RCDO must be in
accordance with the procedures detailed in the TSCA Confidential Business
Information_Security Manual.
TSCA Compliance/Enforcement 4-1 Cuidance Manual 1984
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Chapter Four Introduction
TSCA Coupliance/Enforceiient 4-2 Guidance Manual 1984
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Chapter Four
2 Inspection File Review
To ensure the validity and quality of documentary evidence for an adminis-
trative or judicial enforcement proceeding, the RCDO must review the
inspection file (nonconfidential and CBI*) for objectivity, adequacy, and
proper identification. In some instances, the RCDO will need to forward
the files to Headquarters for an enforcement case review. En all cases,
the RCDO must verify that all procedural safeguards were implemented so as
not to prejudice a posstble enforcement action.
Substantiation of Each Violation
In most cases, a violation will be substantiated through a combination of
evidential sources. The RCDO’s review must seek to substantiate each pos-
sible violation from the evidence supplied by the inspector. Whenever
necessary, the RCDO should obtain from the inspector additional evidence or
clarification of existing evidence.
Controlled Identification of Samples and Documents
An important aspect of any review by the RCDO is the determination that the
samples and documents were properly collected and accurately and completely
identified.
Whenever samples of chemical substances or mixtures or documents are
collected,, the inspector prepares a Receipt for Samples and Documents (see
EKhibit 4—1). Information required on the receipt Includes:
• Inspector’s name and EPA office address;
• Firm’s name and address;
* To review the CBI Inspection file, the RCDO must have the appropriate
clearance.
TSCA Coapltance/Eiiforcement 4-3 Cmi ance Manual 1984
-------
Chapter Pour Inspection File Review
• Name and title of individual who is given the receipt;
• Date of collection;
• Duplicate samples (if provided);
• Description of samples with sample numbers; and
• Description of documents by title.
If the samples or documents are claimed to be confidential, a Declaration
of Confidential Business Information (see Exhibit 4—2) must be completed
and the materials must be handled inaccordance with the TSCA Confidential
Business Information Security Manual procedures. Information contained on
the declaration includes:
• EPA Regional Office address;
• Date of declaration;
• Name, title, and address of firm and individual making the
declaration;
• List, by title or description, of all information claimed as CEl;
and
• Name and title of inspector.
Samples that are to be used as evidence must be sealed with EPA seals,
which are placed on sample containers by the inspector (see Exhibit 4—3).
In addition, an accurate written record must be maintained to trace the
possession of each sample from the moment of collection through its intro-
duction as evidence. Therefore, transfer of all samples from the inspector
to other authorized persons must be recorded on an EPA Chain of Custody
Record, which contains the following information (see Exhibit 4—4):
• Site location;
o Station location;
• Date and time of collection;
o Sample analysis required;
• Samplers’ names;
• Remarks; and
• Accepting/relinquishing samples.
TSCA CompllancefEnforcement 4-4 Guidance Manual 1984
-------
Chapter Four Inapection File Review
Once the inspection is completed, the inspector fills out the Investigation
Summary (see Exhtbit 4—5), which provides sample information for the FIFRA
and TSCA Enforcement System (FATES) computer system and serves as a brief
summary of the sample collection process.
TSCA Compliance/Enforcement 4-5 — Guidance Manual 1984
-------
Chapter Four Inspection File Review
TSCL Coiipliance/Enforcesent 4—6 Guidance Manual 1984
-------
Chapter Four
3 Review of Adequacy of Evidence
Initial Review of the Inspection File
Once the RCDO has received the inspection file, its contents must be
reviewed in the context of the following considerations:
• Adequacy of the documentation (see below);
• Significance of the violation (see Chapter Five for level of action
policy); and
o Violative history of the firm (see Chapter Five for level of action
policy). Violative history may be obtained from FATES.
Adeq c _ o f the Documenta t ion
The initial phase of the review should focus on two aspects of the
documentation:
• That all necessary documents and samples have been provided; and
• That the documentation is adequate to provide the substance of the
violation as indicated by the results of the inspection.
The purpose of the review is to develop a recommendation for action on the
violation; either to proceed with an enforcement action or to dismiss the
violation as not worthy of prosecution.
In some instances, review will indicate possible violations not documented
by the inspection. In these cases, the RCDO should seek to secure the
additional documentation for the new violation. This may require further
consuLtation with the inspector or forwarding the file to Headquarters for
an enforcement case review. When a violation is discovered that is unre-
lated to the initial suspected violation, the new violation should be pur-
sued as a new action.
TSCA Coiiipliance!Enforcement 4-7 Guidance Manual 1984
-------
Chapter Four Revi of £d uacy of E dence
Contents of an Inspection File
An inspection file should normally contain the following items.
Investigation Request (if issued) . If Headquarters had requested the
inspection, it may have done so by the issuance of an Investigation Request
to the Regional Office. If issued, a copy of the document should be
included in the inspection file. (See Exhibit 4—6.)
Notice of Inspection . Pursuant to the requirements of Section 11(a) of
TSCA, the inspection file must contain evidence that a written notice of
inspection was presented. The RCDO should ensure that the inspection
adherred to the terms specified in the notice. (See Exhibit 4—7.)
Verification of Credentials . Section 11(a) of TSCA also requires that an
inspector present appropriate credentials to the owner, operator, or agent
in charge of the inspected premises. Therefore, the inspection file should
contain evidence that proper credentials were presented.
Project Plan . The plan should be reviewed to determine that it accurately
reflected objectives, scope, logistics, and schedules. Inspectors should
be prepared to explain inspection rationale and any deviations from the
proposed plan.
Inspection Report . The report should be reviewed for factual information,
professional judgments, objectivity, and comprehensiveness.
TSCA Inspection Confidentiality Notice . The RCDO should verify that facil-
ity officials were informed of their right to claim inspection data as
CBI. The notice should be reviewed for proper signatures and dates, as
well as completeness. (See Exhibit 4—8.)
Receipt for Samples and Documents . A receipt must be issued for all sam—
pies and documents collected during a TSCA inspection. (See Exhibit 4—1.)
Investigation Summary . The purpose of the Investigation Summary is to pro-
vide sample information for the FATES computer system and to serve as a
brief summary of the sample collection process. (See Exhibit 4—5.)
Custody Records . There should exist a complete inventory of sample tags!
seals (see Exhibit 4—3), chain of custody records (see Exhibit 4—4), and
related material that demonstrates the traceability and proper identifica-
tion of all samples taken during an inspection.
Laboratory Analyses . Test results from any laboratory analyses made in
connection with the inspection should be included in the inspection file.
Review for custody, methods, quality control, and proper identification.
Subpoena (if issued) . The RCDO should review the subpoena to ensure that
It was issued properly and that there was compliance with the requirements
of the document.
TSCA Compliance/Enforcement 4-8 Guidance Manual 1984
-------
Chapter Four Review of Adequacy of Evidence
Declaration of Confidential_Business_Information.* The declaration should
be reviewed for signatures, dates, and a compLete listing of all documents
and samples for which CR1 was claimed. (See Exhibit 4—2.)
TSCAConfidentfa1j Clearance References.* The RCDO should ensure that
all individuals who handled or will handle TSCA CR1 have had the appro-
priate clearance.
Other_Evidential Documentation . The following items may also be included
In the inspection file:
• Affidavits. Affidavits are sworn statements taken by the inspector
that relate to personal first hand knowledge of a potential viola-
tion. Affidavits may be used to substantiate a violation or to set
the circumstances surrounding a violation. Careful review of an
affidavit should be made for evidence in support of an enforcement
action. The person making the affidavit must sign it and be able
to personally verify the facts contained in the statement.
The objective of an affidavit is to obtain a clear and concise
written record of factual information relating to a suspected vio-
lation. The oath taken by the person making the affidavit serves
to substantiate the truth of the statement. Affidavits may be used
to verify the dates obtained from a facility’s records the
date of shipment). Review should emphasize the admissibility of
the affidavit In court. This includes determining whether the
affidavit was properly executed and whether it contributes valid
evidence to any contemplated proceeding. The affidavit itself
should contain the following:
—— Identity of the afftant ( i.e. , the person providing the sworn
statement);
—— The reason why the affidavit was taken;
—— The pertinent facts in a simple narrative style, arranged in
chronological order; and
—— A concluding paragraph indicating that the affiant read and
understood the statement.
In addition, any corrections made to the final copy must be mi—
tialed by the affiant.
• Statements. Statements are similar in most respects to affidavits
except that statements are not taken under oath and, therefore, do
iiot have as much evidentiary weight as do affIdavits. Statements
* The Declaration of Confidential Business Information and the TSCA Confi-
dentiality Clearance References are contained tn the inspection file
when materials have been claimed as confidential.
- T:. -- - -- ---___
-------
Chapter Four _______— ____ -- Review of Adequacy of Evidence
can be used to verify data collected during an inspection. For
example, a statement may be obtained from a facility representative
that indicates a date of shipment. Review should verify the per—
son’s identity and the truth of the statement through a signature
or some other written or verbal acknowledgment.
• Printed Matter. Brochures, literature, labels, and other printed
matter may provide important information regarding a firm’s condi-
tions and operations. These materials may be collected as documen-
tation, if in the Inspector’s judgment they are relevant. All
printed matter should be identified with the date, the inspector’s
initials, and related sample numbers.
• Phot &ra hs. The documentary value of photographs ranks high as
admissible evidence. Clear photographs of a relevant subject,
taken in proper light and at proper lens setting, provides an
objective record of conditions at the time of inspection. Review
must ensure that the photographs are clear, objective, and properly
identified. The photographs should be identified by location, pur-
pose, date, time, inspector’s initials, and related sample number.
This information should be recorded on the photographs, or in the
inspector’s field notebook, or both.
• Schematic drawings, maps, charts, and other
graphic records can be useful in supporting violation documenta-
tion. They can provide graphic clarification of site location
relative to height and size of objects, and other information that,
in combination with samples, photographs, and other documentation,
can produce an accurate, complete evidence package. Review should
ensure that drawings and maps are simple and free of extraneous
details. Basic measurements and compass points should be included
to provide a scale for interpretation.
• MechanicalRecordings. Records produced by an electronic or
mechanical apparatus can be entered as evidence. Review of charts,
graphs, and other “hard copy” should ensure relevance and iden-
tity. The data collected should be identified by date of colLec-
tion, inspector’s initials, and related sample number.
Further Processing of the Inspection File——Enforcement Case Review ——
Once the investigative file has been initially reviewed, further case
development may be necessary at Headquarters. If so, the file should be
sent to the appropriate Headquarters Case Development Officer (HQCDO).*
Aspects of the further case review may include:
* The TSCA Conf idential Business Information Security Manual should be
consulted for the proper procedures on transmitting CBI materials.
c i it 1984
-------
Chapter Four Review of Adequacy of Evidence
• Compliance with TSCA Section 4 testing rules and submission of test
data;
• Premanufacturing notice requirements for all new chemical sub-
stances or mixtures or significant new uses;
• Manufacturing or distributing chemicals or mixtures in violation of
TSCA Section 6 or 7 regulations;
• Failure to comply with TSCA recordkeeping and reporting require—
men t a;
• Compliance with import and export rules;
• Scientific review to determine the significance of any discrepancy
in chemical composition, toxicity, or risk assessment;
• Relationship of suspected TSCA violation to other federal laws;
• New program elements for which policy interpretations must be
established; and
• New or existing programs in which information is normally kept on
f lie at Headquarters.
Additional Sources of Documentation
Frequently, addtttonal information will be needed in order to complete the
review of the inspection file. in some cases, this information will be
provided by subsequent reports. If not, the RCDO should seek to obtain the
additional information or elaboration from the most knowledgeable source.
Additional sources of documentatton include:
• Inspector’s Narrative Report; and
• inspector’s Field Notebook.
TSCA Compliance/Enforceiaent 4-11 Guidance Manual 1984
-------
Chapter Four RwhIbit 4 —1
Recaipt for Sanpias and 1 cu nte
IS INVIRONNINTAI. P 0TIC?l0N AQSNCV I
iiI D C tONi I1OMN App?up.l
loll No 3070.000?
Toxic icTANDCS UWL ACT i ou . 34114
RECEIPT FOR $AMPL g Aj4C )OCUMENTS
I INVESTIGATION IOINTIPICATIOtl 2. PIRM MANS
NO. IS O. NO.
ADON
.
PI * S
documents end w,i ss of diemiNi M.ii. end/or mIxtures destslbed below emus ocliected In wi.cDwi with the
edmininisuon end enf...ctm..i of the Toxic Ss.UM&.... Convol Act.
ulemipy OP TIN 0OCINIIIT NW N I UDC OIDCRID icNINIOY ANtNDCILiDMIDi
NO DUCRIPTION
-
ON SPLIT SAMPLU. NUUUUTID AND PNOVI DID NOT NUOUIST$D 0
SIONATUNI
.IICPIINTS ISNATUNI
NANi
gnro .iuNou
g*i. p.u o
EPA PU, 7710.1 11110)
isCA Coicpliance/&&torceDCent - 4-12 - - Guidance Manual 1984
-------
Chapter Four
Declaration of nfidential Businese lnforiiation
oISCrn PTiOm
BY CLAIMANT
rh1bit 4—2
Thu undminsd xk : toot d i i mfu....sUou d lbad dsoss duogllaad u Caufidentha 4udsug Infomustiun undstSstdor t4(o of if.
Toxin Sub Coneol Ast. Thu Iwinur enkacude b inendimfend to mobs enif I lt b jhSr fi nn.
Thu undmuisd i .aJ. ......M if g to JIi. .iUlty d ma mw ha made, mid inst ma mu not lihaly to b upb d unMm the mfar-
mglon mum tile IDIIoadIIq ildlbt (I) Thu comsuny Ito token utumumi to ptumt tim . .JU..J.IIIy of too infuinumn end t untonds to
contmu. to diba obi mum,ua: (2) The . Jww .*Iis h not, mid I. not been umseebly madnailh. .htiuout in. cumnanys conmiit by oil ,.,
pe,wg (oslist than vosmuenha bedim) by ‘mu of l linWa mum (odw then & ... .... , bumd en u d of sonf med Iii a jadimel or
quwp&d iaI proceedIng); (3) Thu mfw,nutlan Is not pumlldy iI .I . .. ; end (4) Dilclesim of tile unfsnnsdun mould tanu ainsoumi
N.m to tile csmueny’s CailIputlinde 500tloll
#dSPUCtOP SIUNATUn S
CI.AIMANT SiON*TUnU
JAME
nAME
.rT 1 u n.ITIE IgNUO
fIT i.5 • DAT EIIQP4E
EPA Fm, ,, 7740.2 (12421
NO
INPOMMAYION OtoIONATID A$cONPIOINYIAL SUIINUO INPONMAnON
TSCA Coenpi lancel ntorcenient
“—Ii
( iidance Manual 1984
-------
CUSTODY SEAL
1V3S AOOLSfl3
CUSTODY SEAL
Date
0
q
r4 Signature
“1
p .
,t””, Sr 4 ,
tI t)
Date
1,, Signature
% O Sr ,
-------
Chapter Four R hfbit 4—4
Qiidn of O.ietody Racord
Unttmd Stats.
EPA EAVWOflMIfltaI Ppoticbofl
Chain of Custody Record
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iw.a i piiancei nrorce ent 4—1 ) GuIdance Kaflual 1984
-------
Chapter Four
Iwbibit 4—5
Investigation S” ry
SPA P 77404 f3. I
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I INVIROSIMSNTAL PqOlECT,ON AGUNCY
WASHINGTON. DC IO
TOXIC SUBSTANCU CU.NOL ACT
INVESTIGATION SUMMARY
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4—lb
Guidance Manual 1984
-------
Chapter Four _____________________ hibLt 4—6
Inveetigation 2eqneat
UU UNVlMUN NY$ PugyscyluN AW Y
W*INSIOTQN , CC 304 10
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PIDIRA . IM flCICC. FUNfIICIOS. AND
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INVESTiGATION REQUEST
3
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Director, Comptkncs Moeito,*a Staff
Office of P030 101441 and Toxic $ ab nn
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Wss tagtoa. DC 20460
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-------
Chapter Four R rh1bjt 4—7
Notice of Inepection
U I ENViNONMUNTAI.’PROTICTION AGENCY
PA WMI4 INOTON. DC 30110 Po, ., p .’owd
OiIf I No. 3OiO’4 1007
xic JIITAM 5 CONTROL ACT p •
NOTICE OF INSPECTION
I INVEITIGATIO rd IOINTIPIGAT1ON 3. TIM!
DATE INSPECTOR NO. DAILY lEG. NO.
3. FIRM NAME
4 iNSPECTOR ADDRESS
I. FIRM ADORE!!
REASON FOR INSPECTION
Under the suthority of Section 11 of the Toxic Subitancea Control Act.
0 For the puroose of inspecting (including tailing samples. p lo oçapha. statements, and other inspection activities) en establish.
mint, facility, or other prentisal in whIch di.m.cal subatantal or mixtures or articles containIng same are manufactured. proc•
essed or stored, or held before or after their distribution in commerce (including records, filog. papers, processes, controls, and
facilities) and any conveyance being used to transport thssnlcal, ,ubitances. mixtures, or,wtialei containing same in connection
with the,, distribution in commerci (including read.. files, papers, processes, canvol ., and famlitiell bearing on whether the
recuirements of the Act applicable to the chemical substances, mixtureS, or articlas within or asaodsted with juch premises or
conveyanCe have been Complied with
o In addition, thus inspection extends to (Chec* appmpriare block, :
O A. Finencial data Do. Personnel data
o B. Sales data 0 E. Research data
Dc. Pricing data
The nature and extant of inspection of such data specified in A through E above gas folIowa
INSPECTOE SIGNATURe
NECIPi!NT 5i GMATUR 5
NAME
MANE
riri. , s GRTh SiGNED
rITLE DATE SIGNED
EPA Porn fl40.3 lI2 a2) iNWICTIOP iI PILE
is A Compliance/&lforce ! !ent 4-18 iidance Nonual 1984
-------
Chapter Eour
atIdbit 4—8
TSCA Inspection Confidentiality bbtice
!.TITLE
To A5T A CONP15IP41IAL INPOIMATTON CLA
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TO SE COMPLETED DY PACIUTY OPPICIAb. RECEIVING ThIS NOTICI
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4—19
b1dance t iiuai 1984
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Chapter Four Exhibits
TSCA Co p1tance1Enforcei ent 4—20 Guidance Ilanual 1984
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5 nTorcement
Response Guidance
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5 Enforcement
Response Guidance
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Chapter Five
Determination of Appropriate
Enforcement Response
Chapter Contents — Page
1 Introduction 5—1
2 Level of Action Policy 5—3
Notices of Noncompliance 5—3
Settlements With Conditions 5—4
Notices of Detention 5—4
Civil Administrative Penalties 5—5
injunctions 55
Seizures 5—11
Criminal ProceedIngs 5—12
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Chapter FIve Contents
TSCA Co5p l lance/Enforcellent 5—Il Guidance Manual 1984
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Chapter Five
1 Introduction
Once the documentation of a violation is complete and EPA personnel have
determined that au enforcement action is warranted, EPA must decide upon
the appropriate Level of action that is justified by the severity of the
violation. EPA authorizes two categories of action——administrative and
judicial. Generally, the Agency uses administrative actions for violations
of a lesser nature or for first—time violators. The Agency reserves judi-
cial actions for use in violations of an especially egregious nature, which
result in serious harm to human health or the environment, and for willful
or repeated violations.
Administrative levels of action Include the following:
• Notices of noncompliance;
• Settlements with conditions;
• Notices of detention under Section 13;* and
• Civil administrative penalties.
The criteria for using each of the above actions are discussed later in
this chapter. SpecifIc procedures for preparing and issuing these actions
are found in Chapter Six, “Administrative Enforcement Actions: Notices of
Violation and Administrative Orders,” and Chapter Seven, “Administrative
Enforcement Actions: Civil Penalty Proceedings.”
Judicial actions may involve either civil or criminal proceedings. The
criteria for the use of judicial actions are also discussed later in this
chapter. Civil proceedings include:
• Injunctions under Sections 5(e), 5(f), 7, and 17(a); and
• Seizures under Sections 7 and 17(h).
* Notices of detention are issued by the United States Customs Service
under the authority of Section 13 of TSCA.
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Chapter Five Introduction
Criminal proceedings are authorized under Section 16(b). Chapter Eight,
“Judicial Enforcement: Civil Actions,” and Chapter Nine, “Judicial Enforce-
ment: Criminal Actions,” discuss procedures for civil and criminal judicial
proceedings.
In addition, specific level of action guidances, which relate to
regulation—specific requirements, are contained in Appendix 3.
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Chapter Five
2 Level of Action Policy
Notices of Noncompliance
A notice of noncompliance (NON) Is a letter issued by EPA to advise a com-
pany that a violation of TSCA has been detected. An NON can be used, for
example, to notify a violator that the Agency is keeping track of the com-
pany’s actions with respect to correcting the violation or as an initial
step in making Agency contact with a violator if negotiations will be
necessary for achieving compliance.
Although issuance of an NON is not specifically authorized by TSCA, the
notice is an important enforcement too] and should be considered in the
following circumstances:
• The violation involves only a minor technical deviation from the
statutory or regulatory requirement;
• The violation does not pose a significant threat t. human health or
the environment;
o The respondent has not previously violated TSCA;
• The violation is not the result of willful conduct;
o The violation is not one that would hamper EPA’s ability to detect
other violations at the facility;
• An NON would be sufficient to bring about compliance; or
• Other regulation—specific policy considerations would apply (see
Appendix 3).
Generally, an NON should not be issued when other enforcement responses are
warranted. For example, If a situation merits both issuance of an NON and
an administrative civil penalty action, only the civil penalty action
should be pursued. Furthermore, if an NON is issued, but the violation
continues unabated, then the Agency should consider either an administra-
tive civil penalty action or an appropriate judicial proceeding.
TSCL Compliance/Enforceiient —— 5—3 Qnidance Kanual 1984
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Chapter Five _______ ______— Level of Action Policy
Settlements With Conditions _____________ ______ _____
The term •settlement with conditions” (SWC) refers to the settlement of an
adminLatrative civil penalty action under conditions that commit the res-
pondent to perform specified acts in exchange for the remittance of all or
a portion of an administratively assessed penalty. Remittance, with or
without conditions, of an assessed civil penalty is permitted by Section
16(a)(2)(C) of TSCA.
An SWC should be considered if the following crtteria are met:
• The violation warrants the assessment of a civil penalty;
o The violation is not the result of wanton, knowing, or willful
conduct;
o The violation is of a continuing (for more than 30 days) or recur-
ring nature;
• To come into compliance, the respondent needs to undertake a
detailed design, engineering, or monitoring program that would
require numerous, complex steps over time;
• Tht respondent has exhibited a good—faith attitude toward abating
the violation and has no history of noncompliance;
• The use of an SWC would provide clear public benefits; and
• An SWC that would he acceptable to EPA can be negotiated.
An SWC, however, shouLd he employed with somerestraint. It should not be
used in a manner that will encourage an industry to violate TSCA in the
hope that, when the violation is discovered, the company may offer to cor-
rect its action and thereby receive a remitted penalty.
Notices of iYetention ________ ______
Pursuant to Section 13 of TSCA and 48 Fed. Reg. 34,734 (1983), the United
States Cu toms Service may detain, by Lssuing a notice of detention, any
shipment oi chemical substances or mixtures that is imported into the
United States and that is not in compliance with TSCA. A notice of deten-
tion may be issued at the port of arrival by a district director of the
Customs Service when:
• A shipment contains any chemical substance or mixture that has been
banned from the customs territory of the United States by a rule or
order issued under Section 5 or 6 of TSCA;
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Chapter Five ____ ____— 1 vel of tioo Policy
• A shipment contains a chemical substance or mixture or article that
has been ordered seized under Section 7 (imminent hazard) of TSCA;
• Whenever the Administrator of EPA has reasonable grounds to believe
that the shipment is not in compliance with TSCA, and the Adminis-
trator notifies the district director to detain such shipment;
• Whenever the district director of the Customs Service has reason-
able grounds to believe that the shipment is not in compliance with
TSCA; or
• Whenever the Importer fails to certify compliance with TSCA.
Civil Administrative Penalties _____ ________
A civil penalty, as authorized by Section 16(a) of TSCA, is the remedy of
choice for most violations. A civil penalty should be proposed where a
vtolatton
• Presents a real (but not an extreme or Imminent) risk to human
health or the environment;
• ts likely to be an Isolated occurrence; and
• Is apparently the result of ordinary negligence, inadvertence, or
mistake.
Additionally, a civil penalty action should be considered whet e a notice of
noncompliance had been issued, but the person to whom it was issued dis-
regards the notice or fails to abate the violation.
Injunctions —
Injunctive actions may be initiated under the authority of Section 5(e),
5(f), 7, or 17(a) of TSCA.
Section 5(e) Injunctions
Criteria for Use . Injunctive relief authorized by Section 5(e) of TSCA
should be considered when:
• The information available to the Administrator under Section 5 of
the Act is insufficient to permit a reasoned evaluation of the
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Chapter Five Level of Mtion Policy
human health and environmental effects of a chemical substance that
18 subject to the notice requirement of Section 5(a) and either:
—— In the absence of such information, the manufacture, proces-
sing, distribution in commerce, use, or disposal of such sub-
stance may present an unreasonable risk of injury to human
health or the environment, or
—— The chemical substance is or will be produced in substantial
quantities, and such substance either enters or may reasonably
be anticipated to enter the environment in substantial quanti-
ties or there is or may be significant or substantial human
exposure to the substance; end
• The Administrator has not issued a proposed order under Section
5(e) with respect to the chemical substance, or the Administrator
has issued such an order, however, the order does not take effect
because objections were filed pursuant to Section 5(e)(1)(C).
Use of Section 5(e) Injunctive Actions . Pursuant to Section 5(a) of TSCA,
any person who manufactures a new chemical substance or who manufactures or
processes a chemical 8ubstance for a significant new use must submit a pre—
manufacture notice (PMN) to EPA. The PMN is to contain specific informa-
tion regarding the effects of the new chemical or the effects concerning
the significant new use for an existing chemical.
The Agency will review the submitted information to determine whether a
reasoned evaluation may be made of the effects of the chemical or the
significant new use. The Act provides a 90—day review period following
submission of the PMN, although the period may be extended for a maximum of
90 additional days if good cause is shown.
Upon reviewing the information, the Administrator may issue a proposed
order prohibiting or limiting the manufacture, processing, distribution in
commerce, use, or disposaL of the chemical substance if there is insuff j—
dent information to permit a reasoned evaluation of the human health and
environmental effects of the substance and either:
• in the absence of sufficient information, the manufacture, proces-
sing, distribution In commerce, use, or disposal of such substance
may present an unreasonable risk of injury to human health or the
environment; or
• The suh. tance is or will be produced in substantial quantities and
may:
—— Enter, or reasonably be anticipated to enter, the environment
in substantial quantities, or
—— Result in significant or substantial human exposure to the
substance.
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Chapter Five Level of action Policy
The proposed order must be issued no Iater than 45 days before the expira-
tion of the review period, and the order will, become effective upon the
expiration of that period.
However, an affected firm may challenge the proposed order, thus delaying
the effective date of the order. Therefore, unless the Administrator
immediately sustains the objectton (i.e., finds that there is sufficient
information to permit a reasoned evaluation of the human health and envi-
ronmental effects of the substance), the Agency must seek an injunction to
prohibit or limit the manufacture, processing, distribution in commerce,
use, or disposal of the PMN chemical substance. Additionally, the Admints—
trator is required to seek an injunction if it is found that there is
insufficient information concerning the new chemical substance or signifi-
cant new use but a proposed order has not yet been issued in that particu-
lar matter. This latter circumstance might occur if the review period
expires before the Administrator can issue the proposed order.
Section 5(1) Injunctions
Criteria for Use . Injunctive relief authorized by Section 5(f) of TSCA
should be considered when there is a reasonable basis to conclude that the
manufacture, processing, distribution in commerce, use, or disposal of a
chemical substance subject to premanufacture review presents or will
present an unreasonable risk of injury to human health or the environment
before a rule promulgated under Section 6 can protect against such risk.
Use of Section 5(f) Injunctive Actions . Pursuant to Section 5(1) of TSCA,
if the Administrator determines that there is a reasonable basis to con-
clude that the manufacture, processing, distribution in commerce, use, or
disposal of a chemical substance subject to preinanufacture review presents
or will present an unreasonable risk of injury to human health or the
environment before a Section 6 rule can be promulgated, the Administrator
may (before the expiration of the PMN review period):
• Prohibit the manufacture, processing, or distribution ira commerce
of the chemical substance by:
—— Proposing a rule under Section 6(a),
—— Issuing a proposed order under Section 5(f)(3)(A)(i) that, if
challenged, must be followed by the initiation of a Section
5(f)(3)(A)(ii) injunction, or
—— Seeking a Section 5(f)(3)(A)(ii) injunction; or
• Limit the amount of the chemical substance that may be manufac-
tured, processed, or distributed in commerce by proposing a Section
6(a) rule. Section 5(f)(2) states that such a proposed rule would
become effective upon publication.
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Chapter Five Level of Action Policy
It is important to note that Sections 5(f)(3)(A)(i) and 5(f)(3)(A)(ii)
allow the Administrator to immediately implement a prohibition on the manu-
facture, processing, or distribution in commerce of a chemical substance
that is subject to premanufacture review and that has been specified in a
proposed Section 6(a) rule. These sections of the Act are necessary
because proposed Section 6(a) rule8 are generally not immediately effec-
tive. Section 6(d) does permit a Section 6(a) rule to become immediately
effective if there is a showing of an “imminent unreasonable risk of
serious or widespread injury.” However, Sections 5(f)(3)(A)(i) and
5(f)(3)(A)(ii) permit the Administrator to implement immediately a prohibi-
tion on the manufacture, processing, or distribution in commerce of a PMN
chemical substance by showing an “unreasonable risk, of injury,” not the
more stringent “serious or widespread injury” requirement of Section
6 d).* If, on the other hand, the Administrator wishes only to limit the
amount of a chemical substance that is subject to premanufacture review,
the Administrator may do so under Section 5(f)(2). Under Section 5(f)(2),
a proposed Section 6(a) rule (limiting the amount of the chemical substance
that may be manufactured, processed, or distributed in commerce) becomes
effective upon publication.
Section 7 Injunctions
Criteria for Use . liijunctive relief authorized by Section 7 of TSCA should
be considered when a chemical substance or mixture, or article containing
such a substance or mixture, poses an imminent hazard to human health or
the environment.
Use of Section 7 Injunctive Actions . Section 7(a)(1)(B) of TSCA authorizes
the Administrator to seek injunctive relief, through EPA or Department of
Justice attorneys, against any person who manufactures, processes, distri-
butes in commerce, uses, or disposes of an imminently hazardous chemical
substance or mixture or any article containing such a substance or mixture.
Section 7(f) defines an imminently hazardous chemical substance or mixture
as one that presents an imminent and unreasonable risk of serious or wide-
spread injury to human health or the environment. An unreasonable risk is
considered imminent if It can be shown that the manufacture, processing,
distribution in commerce, use, or disposal of the chemical substance or
mixture is likely to result in such injury before a final rule under Sec-
tion 6 of the Act can protect against such risk.
* In addition, Section 6(d) requires that in order for a Section 6 rule
(which prohibits the manufacture, processing, or distribution in com-
merce of a chemical substance or mixture that is likely to result in an
unreasonable risk of serious or widespread injury) to become immediately
effective, a court must first have granted relief under Section 7 of the
Act.
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Chapter Five Level of Action Policy
If an Imminent hazard exists and the Administrator has not issued an
immediately effective rule under Section 6(d)(2)(A)(i) against the immi—
nentl.y hazardous chemical substance or mixture, then according to Section
7(a)(2), the Administrator must commence an appropriate Section 7 action
( I.e. , a seizure or injunctive action). Agency policy, however, permits
the Administrator to initiate an immediately effective rule under Section 6
in lieu of seeking a Section 7 clvii actton.*
A Section 7 injunctive action may seek such temporary or permanent relief
as may be necessary to protect human health or the environment from the
unreasonable risk associated with the chemical substance, mixture, or
article involved in the action. If the Injunctive action is brought
against a person who manufactures, processes, or distributes in commerce an
imminently hazardous chemical substance or mixture or an article containing
such a substance or mixture, the action may include the issuance of a man-
datory order requiring:
• In the case of purchasers of such a substance, mixture, or article
known to the defendant, notification to such purchasers of the risk
associated with it;
• Public notice of such risk;
• Recall;
• Replacement or repurchase of such a substance, mixture, or article;
or
• Any combination of the above actions.
Concurrent with the filing of a Section 7 civil action or soon thereafter
as may be appropriate and where practicable, the Administrator must ini-
tiate a Section 6(a) rulemaking proceeding.
Section 7 civil actions may be commenced notwithstanding the existence of a
rule under Section 4, 5, or 6 or an order under Section 5, and notwithstan-
ding the pendency of any TSCA administrative or judicial proceeding.
* ThIs policy, however, would not apply to a Section 6 rule that seeks to
prohibit the manufacture, processing, or distribution in commerce of an
imminentLy hazardous substance, since Section 6(d)(2)(A)(ii) requires
that, in order for such a rule to become immediately effective, a court
must first have granted relief under Section 7 of the Act. The policy
does apply to the other forms of reLief (i.e., other than a complete
prohibition) available under Section 7.
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Chapter Five Imvel of Mtion Policy
Section 17(a) Injunctions
Criteria for Use . Injunctive relief authorized by Section 17(a) of TSCA,
which is the most common form of judicial relief sought, should be con-
sidered when there is a need to:
• Restrain any violation of Section 15 of the Act. The violations
specified by Section 15 include:
— — Failure or refusal to comply with any rule promulgated or order
issued under Section 4, any requirement prescribed by Section 5
or 6 of TSCA, or any rule promulgated or order issued under
Section 5 or 6,
Use, for commercial purposes, of a chemical substance or mix-
ture that such person knew or had reason to know was manufac-
tured, processed, or distributed in commerce in violation of
Section 5 or 6 or TSCA, a rule or order under Section 5 or 6,
or an order Issued In an action brought under Section 5 or 7,
—— Failure or refusal to establish or maintain records; to submit
reports, notices, or other information; or to permit access to
or copying of records, as required by TSCA or its rules, and
—— Failure or refusal to permit entry or inspection as required by
Section 11 of TSCA;
• Restrain any person from taking any action that is prohibited by
Section 5 or 6 of TSCA or by a rule or order issued under those
sections;
• Compel the taking of any action required by or under the Act; or
• Direct any manufacturer or processor of a chemical substance or
mixture manufactured or processed in violation of Section 5 or 6 or
a rule or order under Section 5 or 6 and distributed in commerce
to:
—— Give notice of such fact to distributors In commerce and (to
the extent that they can be reasonably ascertained) other per—
aoris who possess or may be exposed to the chemical substance or
mixture,
—— Give public notice of such risk of injury, and
—— Either replace a repurchase the chemical substance or mixture.
Use of Section 17(a) injunctive Actions . Injunctive relief authorized by
SectIon 17(a) wilt generally be sought in those instances where civil
penalty proceedings are (or will be) ineffective because of the nature of
the violation or the nature of the violator. Specifically, a permanent
injunction should be considered when:
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Chapter Five Level of Action Policy
o The Agency’s administrative or other judicial enforcement remedies
would be inadequate either at restraining the violation or at pre-
venting unreasonable risk to humans or the environment;
• The Agency has, in fact, aLready diligently exercised all, appro-
priate administrative remedies, yet the violation continues
unabated; and
o Irreparable injury, loss, or damage will result if relief is not
granted. Irreparable” means that the damage cannot be undone once
it takes place.
A preLiminary injunction or temporary restraining order should be consider-
ed when the following additional elements are present:
• Immediate and irreparable injury, lose, or damage will result if
relief is not granted. “Immediate” is self—explanatory and is in-
terpreted strictly; and
• There is likelihood of success at trial based on facts before the
court ( i.e. , more than a 50—percent chance of winning at a trial
based on facts before the court at the time of application).
The above considerations relating to permanent injunctions, preliminary
injunctions, or temporary restraining orders may occur when:
• The violator is recalcitrant and has demonstrated a history of non-
compliance with administrative orders and, therefore, should he
made subject to the contempt powers of a district court;
• The nature of the violation is such that It cannot be remedied
effectively by Agency proceedings. (Because injunctive proceedings
are equitable in nature, they permit the court to fashion the
necessary relief); or
o The violation is very serious and meets the technical criteria for
a finding of ‘imminent hazard” under Section 7 of TSCA but the
Agency does not wish to initiate a Section 6(a) rulemaking pro-
ceeding.
Seizures _________
Seizure actions may he initiated under the authority of Section 7 or 17(b)
of TSCA.
Section 7 Seizures
Criteria for Use . Section 7(a)(L)(A) of TSCA permits the Mministrator to
commence a civil action in an appropriate district court for the seizure of
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Chapter Five Level of Action Policy
an imminently hazardous chemical substance or mixture or any article con-
taining such a substance or mixture.
Use of Section 7 Seizure Actions . A Section 7 seizure action should be
used in a situation in which a chemical substance or mixture presents an
imminent and unreasonable risk of serious or widespread injury to human
health or the environment. Such risk is considered imminent if it is shown
that th manufacture, processing, distribution in commerce, use, or
disposal of the substance or mixture is likely to result in such injury
before a final rule under Section 6 can protect against such risk. Whether
or not a chemical substance or mixture presents an imminent hazard will
have to be determined on a case—by—case basis. However, it is expected
that the standard would apply to those cases where a chemical substance or
mixture poses an acute risk of harm to human health or the environment or
is being used by large numbers of people in many areas of the country and
the substance, mixture, or article must be seized to prevent that risk. A
seizure action under Section 7(a) may be used in conjunction with any other
relief authorized by that section (including injunctive actions). It may
also be used notwithstanding the existence of a rule under Section 4, 5, or
6 or an order under Section 5 of the Act, and notwithstanding the pendency
of any administrative or judicial proceeding under any provision of TSCA.
Section 17(b) Seizures
Criteria for Use . Section 17(b) of TSCA authorizes the seizure of any
chemical substance or mixture that was manufactured, processed, or distri-
buted in commerce in violation of the Act or any rule promulgated or order
issued under TSCA or any article containing such substance or mixture.
Use of Section 17(b) Seizure Actions . An in rem action authorized by Sec-
tion 17(b) should be considered when a chemical substance or mixture
presents an unreasonable risk of injury to human health or the environment
but does not constitute an imminent hazard under Section 7. Note that a
Section 7 seizure action may be used in instances where there is no viola-
tion of TSCA, whereas a Section 17(b) in rem action requires that the chem-
ical substance or mixture has been manufactured, processed, or distributed
in commerce in violation of the Act.
Criminal Proceedings — —
Criminal proceedings are authorized by Section 16(b) of TSCA, which states
that:
***p y person who knowingly or willfully violates any
provision of section 15 shall, in addition to or in
lieu of any civil penalty which may be imposed under
subsection (a) of this section for such violation, be
subject, upon conviction, to a fine of not more than
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Cha_pter Five I ve1 of tiou Policy
$25,000 for each day of violation, or to imprisonment
for not more than one year, or both.
Section 15 of TSCA enumerates those acts considered unlawful under TSCA
(see Chapter Seven for a complete listing).
The Agency may initiate criminal proceedings in every case in which EPA can
meet the stringent requirements of evidence and proof leading to a convic-
tion. However, Agency policy, as well as pragmatic resource considera-
tions, argues against the use of criminal sanctions in any but the most
serious instances of environmental misconduct, as determined by the nature
of the violation, the history of compliance on the part of the responsible
person, or the seriousness of the environmental consequences.
Considerations
The Agency must carefully consider several specific factors before proceed-
ing with a criminal prosecution. (Chapter Nine, “Judicial Enforcement:
Criminal Actions,” addresses these considerations in much greater detail.)
Knowledge . The Agency must determine that the violator in question know-
ingly or willfully violated the statute. That is, there must be evidence
of intent in the commission of the violative act, rather than it merely
being the result of accident or mistake.
Seriousness . Criminal actions should be considered for the most serious
types of environmental, misconduct. This consideration will be judged by
reviewing the extent of environmental harm or human health hazard that
resulted from or was threatened by the prohibited conduct. Factors such as
the duration of the conduct and the toxicity of the pollutants are con-
sidered. Also of significance in assessing the seriousness of the conduct
is the impact——real or potential——upon EPA’S regulatory function.
Deterrence . The Agency must consider the importance of and need for deter-
rence of criminal conduct, either on the part of a specific person, or on
the part of the larger community. In the case of a serious and willful
violation, the interests of deterrence may well best be served by the
imposition of criminal sanctions.
Compliance History . The compliance history of the person who is the sub-
ject of possible criminal. proceedings will enter into the Agency’s deliber-
ations. While a history of noncompliance is not requisite for pursuing
criminal sanctions, certainly criminal prosecution becomes more appropriate
when a history of noncompliance exists.
Simultaneous Actions . The Agency may consider whether there is a need for
criminal enforcement proceedings contemporaneous with a civil or adminis—
tr tive enforcement action, or whether one type of action alone will serve
the situation in question. While simultaneous proceedings are permissible,
and there may be very compelling reasons for pursuing both, the legal and
practical difficulties inherent in so doing argue against such an approach
except in the most extraordinary circumstances.
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Chapter Five Level of Action Policy
Use of Criminal Proceedings
The Agency has identified a number of specific situations that may be
considered of such a serious nature that criminal prosecution is
particularly appropriate where the violation was the result of knowing or
willful coi duct. To list these situations, however, should not be viewed
as precluding criminal prosecution in circumstances not included below:
• Violations of Section 4 testing rules or the Section 5(b)
Premanufacture Notification Program;
• Failure to report substantial risk information; and
• Violation of PCB or dioxin regulations.
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Chapter Six
Administrative Enforcement Actions:
Notices of Violation and Administrative
Orders
Chapter Contents Page
I introduction 6-1
2 Administrative Enforcement Procedures 6—3
Notices of Noncompliance 6—3
Settlements With Conditions 6—4
Notices of Detention 6—4
Exhibit 6—I: Sample Notice of Noncompliance 6—5
6-i Guidance Manual 1984
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Chapter Six Contents
TSCA Compliance/Enforcement 6— u Guidance Manual 1984
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Chapter Six
1 Introduction
This chapter outlines the specific procedures that EPA should follow in
initiating and processing administrative enforcement actions, once the
Agency has determined that an administrative enforcement response is appro-
priate for a detected violation. These actions include the following:
• Notices of noncompliance;
• Settlements with conditions, and
• Notices of detention under Section 13*.
CiviL administrative penalties are not covered in this chapter; however,
civil administrative penalty procedures are outlined in detail in Chapter
Seven, “Administrative Enforcement Actions: Civil Penalty Proceedings.”
Appendix 3, “Enforcement Response Policies and Penalty Policies,” also con-
tains useful procedural information relating to administrative enforcement
actions. In addition, Chapter Five, “Determination of Appropriate Enforce-
ment Response,” discusses the criteria the Agency uses in deciding when and
what type of enforcement action to issue.
* Notices of detenL ton are issued by the United States Customs Service
under the authority of Section 13 of TSCA.
TSCACoapliance/Enforde ái 6-1Gi e flanual 1
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Chapter Six Introduction
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6 Administrative
Dctions: NOV & AOs’.
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6 Administrative
Actions: NOV & AOs
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Chapter Six
2 Administrative Enforcement
Procedures
Notices of Noncompliance — —
A notice of noncompliance (NON) is a letter Issued by EPA that advises a
company that a violation of TSCA has been detected. Although issuance of
an NON is not specifically authorized by TSCA, the notice is an Important
enforcement tool. ft can be used, for example, to notify a violator that
the Agency is keeping track of the company’s actions with respect to
correcting the violation, or as an Initial step In making Agency contact
with a violator if negotiations will be necessary for achieving compli-
ance. As was previously discussed in Chapter Five, an NON should be
considered in the following circumstances:
• The violation involves only a minor technical deviation from the
statutory or regulatory requirement;
s The violation does not pose a significant threat to human health or
the environment;
a The respondent has not previously violated TSCA;
• The violation is not the result of willful conduct;
• The violation is not one that. would hamper EPA’s ability to detect
other violattonB at the facility;
• An NON would be sufficient to bring about compliance; or
• Other regulation—specific policy considerations would apply (see
Appendix 3).
Procedure for Issuing an NON
A n NON should contain the following Information (see Exhibit 6—1):
• Identification, citation, and explanation of the violation;
• A paragraph indicating the expected response from the recipient
(including a specific time frame for compliance), if any;
CA Cosipliance/Enforce nt 6-3 Qiidance Manual 1984
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Chapter Six Mitilnistrative iforceaent Procedures
• If necessary, a statement indicating that continued noncompliance
could result in further enforcement action by the Agency; and
• The name and telephone number of an EPA contact person.
The Agency should issue an NON by certified mail, return receipt reques-
ted. A copy of the NON should be placed in a case file, and the issuance
of the NON should be put on the computer docket, if applicable.
Settlements With Conditions
The term “settlement with conditions” (SWC) refers to the settlement of an
administrative civil penalty action under conditions that commit the res-
pondent to perform specified acts in exchange for the remittance of all or
a portion of an administratively assessed penalty. Remittance, with or
without conditions, of an assessed civil penalty is permitted by Section
16(a)(2)(C) of TSCA. The procedures for entering into a SWC are set forth
in Appendix 4, “Settlement With Conditions.”
Notices of Detention
Pursuant to Section 13 of TSCA and 48 Fed. Reg. 34,734 (1983), the United
States Customs Service may detain any shipment of chemical substances or
mixtures that is imported into the United States and that is not in compli-
ance with TSCA. Such action is accomplished through the issuance of a
notice of detention at the port of arrival by a district director of the
Customs Service. A notice of detention may be issued when:
• A shipment contains any chemical substance or mixture that has been
banned from the customs territory of the United States by a rule or
order issued under Section 5 or 6 of TSCA;
• A shipment contains a chemical substance or mixture or article that
has been ordered seized under Section 7 (imminent hazard) of TSCA;
o The Administrator of EPA has reasonable grounds to believe that the
shipment is not in compliance with TSCA, and the Administrator
notifies the district director to detain such shipment;
• The district director of the Customs Service has reasonable grounds
to believe that the shipment is not in compliance with TSCA; or
• The importer fails to certify compliance with TSCA.
For details concerning the handling and release of a detained shipment,
refer to the TSCA Section 13 rule promulgated by the United States Depart-
ment of the Treasury at 48 Fed. Rag. 34,734 (1983).
TSCA CompltancefEnforcemeut 6—4 Guidance Manual 1984
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Chapter Six K h1bjt 61
Sample Notice of Noncompliance*
UNITED STATES
ENVIRONMENTAL PROTECTION AGENCY
Region I
John F. Kennedy Federal Building
Boston, MA 02203
CERTIFIED MAIL
RETURN RECEIPT REQUESTED
Mr. T. K. H. Firetog, Jr.
President
Firetog Industries, Inc.
36 Sunshine Drive
Clark, MA 02856
RE: Notice of Noncompliance
Firetog Industries, Inc.
Dear Mr. Firetog:
You are hereby given notice that Firetog Industries, Inc., is in viola-
tion of the regulations governing polychiorinated biphenyls (PCBs), 40
C.F.R. Part 761, promulgated pursuant to the Toxic Substances Control
Act (TSCA), 15 U.S.C. §2601
On October 31, 1983, a duly designated representative of the United
States Environmental Protection Agency (EPA) conducted an inspection of
the Firetog Industries’ facility located at 36 Sunshine Drive, Clark,
Massachusetts. The inspection revealed the following violation of the
requirements governing polychlorinated biphenyls (PCBs);
Failure to mark properly PCB large high—voltage capacitors as
required by 40 C.F.R. §761.40(c)(2), which was promulgated pursuant
to Section 6 of TSCA, 15 U.S.C. §2614.
The above—noted violation must be corrected. Failure to do so within
30 days may result in further EPA action, including the possible impo-
sition of civil penalties. Please keep us informed of your progress in
correcting the violation.
* Note: This is a general
example of a
notice of
noncompliance. It
does not represent the only appropriate format.
Additional or dif-
ferent paragraphs may be
included as
necessary
to explain or describe
fully the violations and
the response
that the
Agency expects from
the recipient.
0
TSCA Coi.pliaüce/Knforceisent 6—5 Guidance Manual 1984
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Chapter Six x hIbjt 6—i
We have enclosed a copy of the current regulations governing PCBs for
your information. If you have any question8, please do not hesitate to
contact Mr. Don Duff at (312)989—9876.
Sincerely,
John Doe
Director, gnforcèment Division
Enclosure
0
TSCA Qmpliance/Enforcei.ent 6-6 Guidance Manual 1984
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Chapter Seven
Administrative Enforcement Actions:
Civil Penalty Proceedings
Chapter Contents Page
I Introduction 7—1
Consolidated Rules of Practice (CROP) 71
2 Elements of a Violation: Administrative 7—3
3 Complaint Preparation and Filing 7—13
Civil Penalty Complaint Criteria 7—13
Delegated Authority 7—13
TSCA Penalty Assessment Considerations 7—15
Complaint Preparation 7—16
Elements of the Complatnt 7—17
Service of the Complaint 7—19
Filing the ComplaInt 7—21
Exhibit 7—1: Sample Complaint 7—22
ExhIbit 7—2: Sample Cover Letter 7—26
Exhibit 7—3: Model Affidavit of Service 7—27
4 Prehearing Stage 7—29
Entervenors and Amicus Curiae 7—29
Agency Files 7—30
Prohibition of Ex Parte Discussion 7—32
Answer to the Complaint 7—33
Prehearing Motions 7—35
Default Orders 7—37
Settlement 7—39
Prehearing Conference 7—41
Motion for Accelerated Decision and DismIssal 7—43
iT cefEn i nt 7-i Guidance Manual 1984
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Chapter Seven Contents
5 Hearing Stage 7—47
Notice of Hearing and Venue 7—47
Presentation of Evidence 7—48
Preponderance of Evidence 7—48
Default Orders and Accelerated Decisions 7—49
Hearing Rules of Evidence 7—49
Subpoenas and Summoning Witnesses 7—52
Objections and Rulings 7—53
Offers of Proof 7—54
Transcript of Hearing 7—54
Proposed Findings, Conclusions, and Orders 7—55
Motion To Reopen Hearing 7—56
Appeals of Interlocutory Orders or Rulings 7—57
Exhibit 7—4: Sample Default Order 7—59
Exhibit 7—5: Model Consent Agreement and Final Order 7—62
6 Post—Hearing Stage 7—65
Appeal of initial Decision 7—65
Final Order 7—67
Payment of Penalty 7—68
TSCA Compliance/Enforcement 7-li Guidance Manual 1984
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7 Administrative
Actions: Civil
/
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7 Administrative
Actions: Civil
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Chapter Seven
1 Introduction
In most instances, the Regional Office determines which violations warrant
the imposition of an administrative civil penalty. Many violations fall
into this category. However, if the violation is sufficiently minor, a
notice of noncompliance may be appropriate (see Chapter Six,
“Administrative Enforcement Actions: Notices of Violation and
Administrative Orders). Conversely, If the violation is committed
knowingly or willfully, criminal prosecution may be more appropriate (see
Chapter Ntn , “Judicial Enforcement: Criminal Actions”). In addition,
Chapter Five contains a general discussion of appropriate enforcement
responses.
This chapter focuses on TSCA civil penalty actions and the procedures for
litigating administratively assessed penalties.
Consolidated Rules of Practice
All adjudicatory proceedings for the assessment of administrative civil
penalties under TSCA are governed by the Consolidated Rules of Practice
(CROP, promulgated on April 9, 1980, 45 Fed. keg. 24,360, codified at 40
C.F.R. 22.O1 et g.).
Regional Versus National Actions
The preappellate stage of most administrative proceedings generally occurs
at the regional level. Therefore, the CROP discuss these stages only in
the context of regional actions. However, if the violation is not Region—
specific, the entire administrative proceeding may take place at the
national level.
In order to apply to national actions, the CROP require the following
substitutions of Agency officials:
TSCA Co.pliance/Enforcement — 7 -1 Qiidance Manual 1984
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Chapter Seven Introduction
Regional National
Regional hearing Clerk Hearing Clerk
Regional Administrator Administrator
Regional Judicial Judicial Officer
Officer
Substitutions between regional and national officials may also occur if an
official is disqualified pursuant to the CROP. 22.04(d)* Certain filing
and service requirements specified by the CROP are also altered if the
actions are conducted at the national level. For example, the Regional
Hearing Clerk must forward a record of the proceeding to the Hearing Clerk
when an initial decision is issued in a regional proceeding. Such a
transfer is unnecessary if the proceeding was conducted at the national
level. 22.27(a)
* Note: Bold type citations in the text correspond to the sections of the
CROP found at Part 22 Title 40 of the Code of Federal Regulations.
TSCL CompliancefEnforcement 7—2 Guidance Manual 1984
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Chapter Seven
2 Elements of a Violation:
Administrative
Under Section 16(a) of TSCA, the Agency may issue administrative civil
complaints to persons who violate the provisions of Section 15 of the Act.
In order to establish a prima fade administrative case against a
respondent, the Agency must establish, by proper evidence, each element of
the violation charged. The following charts list each violation that may
occur under TSCA, the related elements of proof that are necessary to bring
the violation to court, and the means by which the element of proof is
established.
TSCA Co.pliance/Enforcessent 7-3 Qiidance Manual 1984
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cha p r Seven
Elements of a Violation: A hdniatrative
Section 15(l)(A)
It shall be unlawful for any person to fall or refuse to comply with any
rule promulgated or order issued under Section 4 of the Act.
ELEMENTS OF THE VIOLATION
ESTABLISHING THE VIOLATION
1. Respondent is a person who is
subject to a SectIon 4 rule or
order ( e.g. , respondent is a
manufacturer or processor of a
chemical sub8tance or mixture
that falls within the purview
of a Section 4 rule or order).
2. Respondent failed or refused
to comply with that rule or
order ( e.g. , respondent failed
to submit the chemical
substance or mixture for
required testing or failed to
submit the results of such
testing).
1. RevIew by appropriate regional
or program personnel of the
applicable Section 4 rule or
order and the inspection file
to determine whether respon-
dent is subject to such a rule
or order.
2. Appropriate regional or pro-
gram personnel review inspec-
tion documentation or respon—
dent’s submissions to
determine whether respondent
failed or refused to comply
with the Section 4 rule or
order that respondent is sub-
ject to. For the significance
of the violation, see Level
of Action Policy” (Chapter
Five) and for the penalty
amount, see Appendix 3.
TSCA Compliance/Enforcement
7—4
Guidance Manual 1984
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Chapter !ev
Ele enta of a Violation: M lnjatrati,e
Section lS(1)(B)
It shall be unlawful for any person to fail or refuse to comply with any
requirement prescribed by Section 5 or 6 of the Act.
ELEMENTS OF THE VIOLATION
1. Respondent is a person who is
subject to a requirement
prescribed by Section 5 or 6
of the Act (e.j., respondent
is a manufacturer of a new
chemical substance as defined
by TSCA).
2. Respondent f. iiled or refused
to comply with that require-
ment respondent failed
to submit a Preiflanufacture
Notice for a new chemical
substance prior to commencing
its manufacture).
ESTABLISHING THE VIOLATION
1. Review by appropriate regional
or program personnel of
Sections 5 and 6 and the
inspection file to determine
whether respondent is
responsible for compliance
with any of the requirements
of those sections.
2. Appropriate regional or pro-
gram personnel review inspec-
tion documentation or respon-
dent’s submissions to
determine whether respondent
failed or refused to comply
with the Section 5 or 6
requirement that respondent is
subject to. For the signifi-
cance of the violation, see
“Level of Action Policy”
(Chapter Five) and for the
penalty amount, see Appendix
3.
TSC& Cospliance/Enforce.ent 7-5
Guidance Manual 1984
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Chapter Seven
Elements of a Violation: M Iniatrative
Section 15(1)(C)
It shall be unlawful for any person to fail or refuse to comply with any
rule promulgated or order issued under Section 5 or 6 of the Act.
ELEMENTS OF THE VIOLATION
ESTABLISHING THE VIOLATION
1. Respondent is a person who is
subject to a rule promulgated
or order issued under Section
5 or 6 of the Act ( e.g. ,
respondent’s facility stores
PCB containers for disposal).
2. Respondent failed or refused
to comply with that rule or
ord’ r ( e.g. , respondent failed
to nark properly a PCB
coitainer that is stored for
disposal).
1. Review by appropriate regional
or program personnel of
Sections 5 and 6 rules and
orders and the inspection file
to determine whether
respondent is subject to such
rules or orders. This may
Involve the need for a
laboratory analysis of the
chemical substance or mixture
to determine whether such
substance or mixture is
requested under those sections
of the Act.
2. Appropriate regional or
program personnel review
Inspection documentation to
determine whether respondent
failed or refused to comply
with the rule or order that
respondent is subject to. For
the significance of the
violation, see “Level of
Action Policy” (Chapter Five)
and for the penalty amount see
Appendix 3.
TSCA Compi lance/Enforcement
7—6
Cuidance Manual 1981.
-------
Chanter Seven
Elenente of a Violation: Adainistrative
ELEMENTS OF THE VIOLATION
The chemical substance or
mixture was manufactured,
processed, or distributed in
commerce in violation of
Section 5 or 6, a rule or
order under Section 5 or 6,
or an order issued in an
action brought under Section
5 or 7 of the Act.
2. Respondent knew or had reason
to know that such substance
or mixture was manufactured,
processed, or distributed in
commerce in violation of
those sections, rules, or
orders.
3. Respondent used for commercial
purposes such a substance or
mixture.
ESTABLISHING THE VIOLATION
1. Review by appropriate regional
or program personnel of
applicable sections, rules,
orders, and inspection file to
determine whether the chemical
substance or mixture was
manufactured, processed, or
distributed in commerce in
violation of those sections,
rules, or orders.
2. Appropriate regional or
program personnel determine
from inspection documentation
whether the respondent had
knowledge of or had reason to
know of the prohibition (e.g.,
knowlege from chemical
manufacturer’s not if icatton
letter).
3. Appropriate regional or
program personnel determine
from inspection documentation
whether respondent used for
commercial purposes such a
substance or mixture ( e.g. ,
sales receipts or shipping
records). For the signifi-
cance of the violation, see
“Level of Action Policy”
(Chapter Five) and for the
penalty amount, see Appendix
3.
Section 15(2)
It shall be unlawful for any person to use for commercial purposes a
chemical substance or mixture that such person knew or had reason to know
was manufactured, processed, or distributed in commerce in violation of
Section 5 or 6, a rule or order under Section 5 or 6, or an order issued
in an action brought under Section 5 or 7 of the Act.
1.
TSCA Coaplian efEnforceiiiemt 7-7
Guidance Manual 1984
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Chapter Seven
Elements of a Violation: M 4nistrative
1. Respondent failed or refused
to establish or maintain
records required by the Act
or rules thereunder
respondent failed to maintain
records tracking the disposal
of PCBs found on respondent’s
property) .**
1. Review by appropriate regional
or program personnel of
applicable regulations and
inspection documentation to
determine whether records were
required to be maintained by
the respondent and whether
such records were in fact
maintained. For the signif i—
cance of the violation, see
“Level of Action Policy”
(Chapter Five) and for the
penalty amount, see Appendix
3.
Section 15(3)(A)
It shall be
unlawful
for any
person to fail or
refuse to establish
or
maintain
records as
required
by this Act or a
rule thereunder.*
ELEMENTS OF ThE
VIOLATION
ESTABLISHING THE VIOLATION
* TSCA provides for an exemption fr m Section 8(a) recordkeeping
requirements if the respondent meets the criteria of a small
manufacturer or processor. I
** Note an action alleging failure to establish or maintain records under
TSCA or its rules may also be initiated under Section 15(1)(A).
TSCA Compliance/Enforcemant
7—8
Guidance Manual 1984
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Chanter Seven
Ele nts of a Violation: M Inistrative
I. Respondent failed or refused
to submit reports, notices,
or other information as
required by the Act or a rule
thereunder ( e.g. , respondent
failed to submit a PCB annual
report).
1. Review by appropriate regional
or program personnel of
applicable sections and
regulations and inspection
documentation to determine
whether reports, notices, or
other information was required
to be submitted by the respon-
dent and whether 8uch reports,
notices, or other information
was in fact submitted. For
the significance of the viola-
tion, see “Level of Action
Policy” (Chapter Five) and for
the penalty amount, see
Appendix 3.
Section 15(3)(B)
It shall be
unlawful for any
person to fail or refuse
to
submit
reports,
notices, or
other information
as required by this Act
or
a rule
thereunder.
ELEMENTS OF THE VIOLATION
ESTABLISHING
THE
VIOLATION
TSCA Compliance/Enforcement
7—9
Guidance ? anual 1984
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Chapter Seven
Elements of a Violation: A I nistrative
Section 15(3)(C)
It shall be unlawful for any person to fall or refuse to permit access to
or copying of records, as required by the Act or a rule thereunder.
ELEMENTS OF THE VIOLATION
1. Respindent failed or refused
to pt•rmit access to or
copying of records ( e.g. ,
respo ident, an agent in
charge of a TSCA—regulated
establishment, did not permit
the EPA inspector to copy or
examine PCB records).
2. Acce8s to or copying of such
records Is required by the
Act or a rule thereunder.
ESTABLISHING THE VIOLATION
1. Review by appropriate regional
or program personnel of
inspection documentation to
determine whether respondent
denied access to or copying
of records. Documentation
should include the name and
position of the person who
refused to allow access to or
copying of records, a summary
of the conversation or events,
and the date and time of the
denial.
2. Appropriate regional or pro-
gram personnel review
applicable sections of the
statute and regulations to
determine whether access to or
copying of such records is
required by the Act or a rule
thereunder. For the signif I—
cance of the ,iolation, see
“Level of Aettort Policy”
(Chapter Five) and for the
penalty amount, see Appendix
3.
TSCA Compliance/Enforcement
7—1 C)
Guidance Nanual 1984
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ChaDter Seven
_Eleaents of a Violation: Administrative
Section 15(4)
It shall be unlawful for any person to fail, or refuse to permit entry or
inspection of any establishment, facility, or other such premises in which
chemical substances or mixtures are manufactured, processed, stored, or
held before or after their distribution in commerce and any conveyance
being used to transport chemical substances, mixtures, or such articles
in connection with distribution in commerce.
ELEMENTS OF THE VIOLATION
1. Respondent failed or refused
to permit entry to or
inspection of an establish-
ment, facility, or other such
premises or conveyance ( e.g. ,
respondent, an agent in
charge of a TSCA—regulated
establishment, did not allow
the EPA inspector entry for
the purposes of conducting a
PCB inspection, although the
inspector followed proper
entry procedures).
2. Such establishment, facility,
or other premises is one in
which chemical substances or
mixtures are manufactured,
processed, stored, or held
before or after their
distribution in commerce; or
such conveyance is one that
is being used to transport
chemical substances,
mixtures, or such articles in
connection with distribution
in commerce.
TSCA Compliance/Enforcement
ESTABLISHING THE VIOLATION
1. Review by appropriate regional
or program personnel of
inspection documentation to
determine whether respondent
failed or refused to permit
entry or inspection of an
establishment, facility, or
other such premises or
conveyance. Documentation
should include the name and
position of the person who
refused entry, a summary of
the conversation or events,
the date and time of denial,
and a description of the entry
procedures used by the
inspector (see Chapter Three).
2. Appropriate regional or
program personnel review
inspection documentation to
determine:
a Whether such establishment,
facility, or other premises
is one in which chemical
substances or mixtures are
manufactured, processed,
stored, or held before or
after their distribution in
commerce; or
7—li.
Guidance Manual 1984
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Chapter Seven Blei enta of a Violation: M.lnietrative
ELEMENTS OF THE VIOLATION
ESTABLISHING THE VIOLATION
• Whether such conveyance is
one that is being used to
transport chemical
substances, mixtures, or
such articles in connection
with distribution in
commerce. For the
significance of the
violation, see “Level of
Action Policy” (Chapter
Five) and for the penalty
amount, see Appendix 3.
TSCA pliance/Enforcetnent 7—12 Guidance Manual 1984
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Chapter Seven
3 Complaint Preparation and Filing
Civil Penalty Complaint Criteria
As was previously discussed in Chapter Five, a civil penalty action is
warranted when a violation:
• Presents a real (but not an extreme or imminent) risk to
human health or the environment;
• Is likely to be an isolated occurrence; and
• Is apparently the result of ordinary negligence, inadvertence, or
mistake.
Issuance of a complaint initiates a TSCA Section 16(a) administrative
penalty action.
Delegated Authority
Regional Administrator
The Regional Administrator is to exercise all powers and duties as
prescribed or delegated under the Act and the CROP. In addition the
Regional Administrator* has been delegated the authority to:
* The Assistant Administrator for Pesticides and Toxic Substances may also
exercise these authorities in multi—regional cases or cases of national
significance. However, he or she must consult in advance with the
Assistant Administrator for OECM or his or her designee and must notify
any affected Regional Administrators or their designees when exercising
any of the above authorities. These authorizations are redelegable to
the Division Director level.
TSCA Coapliance/Enforcei ent 7-13 Qiidance Manual 1984
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Chapter Seven -_______ Complaint Preparation and Filing
• Issue administrative complaints;
o Evaluate the appropriateness of civil penalties; and
• Negotiate and sign consent agreements memorializing settlements
between the Agency and respondent prior to the alleged violator’s
filing of an answer or failure to file an answer to a complaint.
The Regional Administrator, however, must consult with the Regional
Counsel’s office before exercising any of the above authorities. In
addition, the Regional Administrator must consult with Headquarters PTSCMS
In the following instances:
• Premanufacture Notification cases (which are to be handled by
Headquarters);
• Exceptional cases of first impression or of unusual national
importance; and
o Settlement reductions of more than 40 percent of the penalty
amounts originally proposed.
In every proceeding, the Regional Administrator will rule on all motions
f Lied or made before an answer to the complaint is filed. 2 2.l6(c)
Regional Judicial Officer
A Regional Administrator may delegate all or part of his or her authority
to act in a given proceeding to a Regional Judicial Officer. Any such
delegation is to be performed in accordance with the CROP.
A Regional. Judicial Officer may exercise any authority delegated to him or
her by the Regional Administrator, or the Regional Judicial Officer may
refer any case or motion to the Regional Administrator when such referral
is appropriate. 22.04(b)(3)
Presiding Officer
The Presiding Officer is to conduct a fair and impartial proceeding, ensure
that the facts are fully elicited, adjudicate all issues, and avoid delay.
The Presiding Officer has the authority, under 22 .O 4 (c), to:
• Conduct administrative hearings under these rules of practice;
• Rule upon motions, requests, and offers of proof; dispose of
procedural requests; and issue all necessary orders;
o Administer oaths and affirmations and take affidavits;
• Examine witnesses and receive documentary or other evidence;
_____— - 7-14 Cu idance inua1 f
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Chapter Sev ____ Complaint Preparation and Filing
a For good cause, upon motion by a party or sua !.aonte (I.e., upon
his own motion), order a party or an officer or agent thereof to
produce testimony, documents, or other nonprivileged evidence and,
failing the production thereof without good cause being shown, draw
adverse inferences against that party;
• Admit or exclude evidence;
• Hear and decide questions of facts, law, or discretion;
• Require parties to attend conferences for the settlement or
simplification of the issues, or the expedition of the proceedings;
• Issue subpoenas authorized by the Act, and
• Do all other acts and take all measures necessary for the
maintenance of order and for the efficient, fair, and impartial
adjudication of issues arising in proceedings governed by the CROP.
TSCA Penalty Assessment Considerations ____________
Guidelines for Determining Penalty Amount
Section 16(a)(2)(B) of TSCA requires that the Agency consider the following
factors in determining the size of the penalty amount:
• The nature, circumstances, extent, and gravity of the violation(s);
and
• The violator’s ability to pay, ability to continue to do business,
history of prior such violations, degree of culpability, and other
matters as justice may require.
Pursuant to the statutory requirements, EPA has established a general
penalty assessment system, “Guidelines for the Assessment of Civil
Penalties Under Section 16 of TSCA [ 45 Fed. Reg. 59,770 (1980)]. In some
instances, section—specific penalty policy guidances have been developed..
(See Appendix 3 for the general penalty policy and those specific guidances
that have been developed.)
Independently_Assessib1eC
A separate civil penalty should be assessed for each violation of the Act
that results from an independent act (or failure to act) by the respondent
and that is substantially distinguishable from any other charge in the
complaint for which a civil penalty is to be assessed. A given charge is
independent of, and substantially distinguishable from, any other charge
when it requires an element of proof not needed by the others. (See
Section 2, ‘Elementg of a Violation: Administrative,” of this chapter.)
TSCA Compliance/Enforcement — 7-15 -— Guidance Manual 1984
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Chapter Seven Cosplaint Preparation and Filing
Not every charge that appears in a complaint can be separately assessed.
Where a charge derives primarily from or merely restates another charge, a
separate assessment is not warranted. Charges that do not support a
separate assessment are to be indicated in the complaint as “lesser
included charges.”
Complaint Preparation
Since the complaint initiates an administrative civil penalty action and is
the focal point for all subsequent proceedings, it must be as complete as
possible. Failure to file a complaint that meets the standards and
procedures outlined in this chapter may:
• Cause a delay in the proceedings;
• Prevent the complainant from being granted a motion for default
under Section 22.17 of the CROP; and
• Make the complainant subject to adverse motions by other parties to
the proceedings.
Checklist of Complaint Requirements 22.14(a)*
The following elements are considered necessary to establish the legal
sufficiency of a civil penalty complaint:
1. Statement reciting the section(s) of the Act authorizing the
issuance of the complaint;
2. Concise statement of the factual basis for alleging the violation;
3. Specific reference to each provision of the Act and to the
regulations that the respondent is alleged to have violated;
4. Statement explaining the proposed penalty;
5. Copy of the Agency’s ‘Guidelines for the Assessment of Civil
Penalties Under Section 16 of TSCA, 45 Fed. Reg. 59,770 (1980),
and a copy of the appropriate section—specific penalty policy
guidance;
6. Proposed amount of civil penalty to be assessed;
* The numbers to the left of each of the following items correspond to
numbers in Exhibit 7—1, which shows a sample complaint. The numbers in
the exhibit Identify examples of each kind of information.
TSCA Qapliance/Enforceiaent 7—16 Guidance Manual 1984
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Chapter Seven ______—- Coiaplalnt Preparation and Filing
7. Notice of respondent’s right to request a hearing on any material
fact contained in the complaint or on the appropriateness of the
amount of the proposed penalty;
S. Copy of the Consolidated Rules of Practice (CROP);
9. Notice of opportunity for an informal settlement conference; and
10. Date and signature with notation of title of a duly authorized
official of the Agency.
Elements of the Complaint --____________________ -—
The discussion under each element of the complaint gives the purpose of the
element and in some cases the reason for its particular place in the
complaint.
Capt ion
• Identification of Respondents (A).* Respondents ( i.e. , those
against whom the complaint is filed) are to be accurately and
individually Identified on the left side of the caption.
• Docket Number and Subjects of the Complaint (B) . The docket number
and matters addressed in the complaint are to be properly
identified on the right side of the caption. Docket numbers are
assigned by the Regional Hearing Clerk. The docket number
designates the statute, the Region involved (in Roman numerals),
the year, and the case number ( e.g. , Docket Number: TSCA—VI—
83—9). The docket number must be accurately reflected in the
caption, because it is the identifying number for all subsequent
documents filed in the proceedings.
Jurisdictional Authority (C )
The complaint must contain a statement of jurisdictional authority that
informs the Presiding Officer and the respondent of the statutory authority
under which the complaint is Issued. This statement should be in the
beginning of the complaint and should be as specific and precise as
possi ble.
22. 14(a)(1)
* The letters in parentheses to the right of each element correspond to
the letters in Exhibit 7—1.
TSCA Compliance/Enforcement 7-17 Guidance Manual 1984
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Cha pter SeV Coi p1aint Preparation and Film 1
Factual Allegations (D )
In this section of the complaint, the specific facts of a particular
violation are tied to the statute, rule, regulation, and/or order that
allegedly has been violated.
The goal of this section is to adequately inform the Presiding Officer of
the alleged violations and to inform the respondent of the charges so that
an adequate response can be prepared.
In the event that a complaint contains multiple violations, the discussion
of each separate count should contain an enumeration of the facts and
circumstances related to that violation. The proposed penalty assessment
should include an enumeration of the dollar amount proposed for each count
charged or an indication that a particular charge is “lesser included” and
bears no penalty assessment. The factual allegations of the complaint,
including multiple counts, should be separated into paragraphs.
In making factual allegations, the key word is “concise.” “Conciseness”
means that all material facts necessary to establish the factual basis for
each violation are specified, while extraneous or irrelevant information is
omitted. Although the purpose of this section is only to inform the
respondent and Presiding Officer of the facts that the alleged violation is
based on, all relevant facts should be included rather than risk failure to
meet the requirements set forth in the CROP. For instance, even though the
respondent may have been present when certain facts were ascertained, those
facts must still be included to inform the respondent and the Presiding
Officer of their legal significance.
22.14(a) (3)
Citation of Legal Requirements Violated (E )
The citation of the particular provision of the statute, regulation, rule,
or order that allegedly has been violated must be as specific as possible.
For example, if the complaint alleges that a violation of Section 15 of
TSCA has occurred, the specific subsection under Section 15 that is the
basis of the violation and the requirement of the statute, regulation, or
order that. was violated must be cited Ie.g. , PI 1N violation of Sections
15(1)(B), 15(3)(3), and 5(2)(1)].
Amount of Civil Penalty and Rationale (F, C )
This section of the complaint is intended to:
• Explain the reason for the proposed penalty (F) in a manner that
reflects the fact that the Agency has considered the penalty
assessment factors specified by Section 16(a)(2)(B) of TSCA. Every
detail of the Agency’s reasoning process need not be reflected;
however, the section should state that the TSCA criteria were
considered In assessing the penalty. In order to help meet the
TSC& Conpliance/Enforceiiieut 7—18 Qaidance Manual 1984
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Chapter Seven Couplaint Preparation and Filing
statutory requirement without unnecessary elaboration, a copy of
the Agency’s policy in assessing TSCA civil penalties should be
attached to the complaint; and
22. 14(a)( 5)
• Specifically identify the proposed penalty amount (G).
22. 14(a)(4)
Right To Request a Rearing (H )
The respondent must be informed of the right to request a hearing
concerning any material fact contained in the complaint or concerning the
appropriateness of the amount of the proposed penalty. The respondent
should be referred to a copy of the CROP, which [ s attached to the
complaint, for information concerning the request for a hearing and the
consequences of fatling to request a hearing.
22. 14(a)(6)
Notice of Opportunity for an Informal Settlement Conference (I )
The Agency encourages all parties against i’thom a civil penalty proceeding
has been initiated to pursue the possibility of settlement through informal
conferences with the Agency. Therefore, the respondent should be informed
that, regardless of whether a hearing is requested, a request for informal
settlement conference may be made. The respondent should be cautioned,
however, that a request for an informal conference does not stay the
running of the 20—day time period for requesting a hearing and filing an
answer.
Signature Block (J )
The complaint must be dated and signed (with notation of title) by a duly
authorized official of the Agency.
Service of the Complaint
The respondent is served with a copy of the complaint in either of the
following manners:
22.05(b)
• Personal Service . The complaint and accompanying documents are
left with the respondent or an authorized representative; or
• Service by Certified Nail, Return Receipt Requested . The complaint
and accompanying documents are mailed to the respondent or an
authorized representative.
TSC& Comp1iancefRnforcei ent 7-19 Guidance Manual 1984
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Chapter Seven Complaint Preparation and Filing
Personal Service
For personal service on an individual at a business address, the complaint
should he left with the respondent or a person who is in charge of the
of f ice, such as an office manager, or a person who is, responsible for the
respondent’s administrative affairs, such as a personal secretary.
For personal service on a corporation, company, or association, the
complaint should be left with an officer, partner, managing or general
agent, or any other person authorized by appointment or by Federal or State
law to receive service of process.
For personal service on a named individual at a residential address, the
complaint should be left with any person of suitable age and discretion who
resides there.
Service by Mail
if the complaint is addressed to an individual person, it should be mailed
to the last known business address by certified mail, return receipt
requested.
If the complaint is addressed to a corporation, company, or a8sociation, it
should be mailed, return receipt requested, to the last known address of an
officer, partner, managing or general agent, or any other person authorized
by appointment or by federal or state law to receive service of process.
The return receipt establishes that the complaint was received on a
particular date.
The receipt should be attached to the original complaint, which is retained
by the Agency. if no return receipt is obtained, another letter should be
sent. if no receipt is again obtained, personal service may be necessary.
Service Upon U.S. Government Officials or Agencies
Service upon an officer or agency of the United States must be made by
delivering a copy of the complaint to the officer or agency, or in the
manner prescribed by applicable regulations. If the agency is a
corporation, service may be either personal or by certified mail directed
to an officer, partner, managing or general agent, or any other person
authorized by appointment or law to receive service of process.
22.05(b)( 1)(iii)
Service on State or Local Government Entities or Officials
Service upon a state or local unit of government, or a state or local
officer, agency, department, corporation, or other instrumentality must
TSCA OcnspliancefEnforcement 7—20 Guidance Manual 1984
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Chapter Seven Complaint Preparation and Filing
either be made in the manner prescribed by state law or upon the chief
executive officer of the governmental unit or the state or local officer.
22.05(b)( I)(iv)
Certificates of Service
Proof of service must he made either by a properly executed affidavit of
service (Exhibit 7—3) for personal service, or by a properly executed
return receipt, for service by mail. A certificate of service must be
filed with the original complaint.
22.05(b)(1)(v)
Filing the Complaint
The original and one copy of the complaint (with proof of service) must be
filed with the Regional Hearing Clerk.
22.05(a)(1)
TSCA Compliance/Enforcement 7—21 Guidance Manual 1984
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Chapter Seven Exhibit 7—1
Sample Complaint
UNITED STATES
ENVIRONMENTAL PROTECTION AGENCY
BEFORE THE ADMINISTRATOR
In re: (A) ) Docket No. TSCA—t—83—18 (B)
)
)
Firetog Industries, inc. ) COMPLAINT
36 Sunshine Drive ) AND
Clark, MA 02856 ) NOTICE OF OPPORTUNITY
) FOR HEARING
Respondent )
)
)
COMPLAINT
1. (C)
This civil penalty action is instituted pursuant to the authority
vested in the Administrator of the United States Environmental
Protection Agency by Section 16(a) of the Toxic Substances Control Act,
15 U.S.C. §2601 et j. (hereinafter referred to as “the Act” or
“TSCA). The complainant in this action is John Doe, Division
Director, Enforcement Division, Region 1, United States Environmental
Protection Agency, who has been duly authorized to institute this
action. The respondent in this action is Firetog Industries, Inc.
Allegations or Counts CD)
This is to notify you that there is reason to believe respondent has
violated Section 15 of TSCA by respondent’s failure to comply with the
regulations promulgated under Section 6(e) of the Act. The complainant
alleges that the violations occurred in the following manner:
Count I
1. On May 4, 1981, respondent’s facility, located at 36 Sunshine Drive,
Clark, Massachusetts, was inspected by duly designated representatives
of the U.S. Environmental Protection Agency.
2. Four hundred and six (406) high—voltage DC capacitors containing
PCBs, which were stored for disposal, were found at respondent’s
facil. ity.
TSCA Compliance/Enforcement 7-22 Guidance Manual 1984
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Chapter Seven ______ _______________ Exhibit 7—1
3. Neither the individual capacitors nor the storage room was properly
marked with PCB ML labels as required by 40 C.F.R. §S761.40(a)(1)
and 7 61. 4 O(a)(l0), which were issued pursuant to Section 6(e) of TSCA.
4. Failure or refusal to comply with any rule promulgated, or order
issued, under Section 6 of the Act constitutes an unlawful act under
Section 15(l)(C) of TSCA.
3. (E)
5. The conduct described in Paragraphs 2 and 3 above constitutes a
violation of Section 15(l)(C) of TSCA in that respondent failed to
mark PCB containers and PCB storage areas as required by a rule [ 40
C.F.R. § l61. 4 0(a)(l) and 7 61. 4 0(a)(l0)] promulgated pursuant to
Section 6 (e) of the Act.
Count 2
1. On May 4, 1981, respondent’s facility, located at 36 Sunshine Drive,
Clark, Massachusetts, was inspected by duly designated representatives
of the U.S. Environmental Protection Agency.
2. Four hundred and six (406) high—voltage DC capacitors containing
PCBs, which were stored for disposal, were found at respondent’s
facility.
3. The inspectors requested from respondent the records relating to
the storage of PCBs. Such records are required by 40 C.F.R.
§761.80(b), which was issued pursuant to Section 6(e) of ISCA.
4. Respondent admitted to the inspectors that the required records
had not been maintained.
5. Failure or refusal to comply with any rule promulgated or order
issued under Section 6 of the Act constitutes an unlawful act under
Section 15(l)(C) of TSCA. Failure or refusal to establish or
maintain records required by the Act or a rule thereunder constitutes
an unlawful act under Section 15(3)(A).
3. (K)
6. The conduct described in Paragraphs 2 and 4 above constitutes a
violation of Sections 15(1)(C) and 15(3)(A) of TSCA, in that
respondent failed to maintain PCB storage records as required by a
rule [ 40 C.F.R. §761.80(b)] promulgated pursuant to Section 6(e) of
the Act.
4. Pr posed Civil Penalty (F)
In arriving at the assessment of the penalty specified below, the U.S.
Environmental Protection Agency, as required by Section 16(a)(2)(B) of
TSCA Compliance/Enforcement 7-23 Guidance Manual 1984
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Ch pter Seven ____— —- Eihibit 7 - i
TSCA [ 15 U.S.C. §2615(a)(2)(b)J, has taken into consideration the
following factors:
o The nature, circumstances, extent, and gravity of the
violattons; and
• The respondent’s ability to pay, ability to continue to do
business, history of prior such violations, degree of
culpability, and other matters as justice may require.
5.
Agency policy with respect to assessment is governed by the U.S.
Environmental Protection Agency’s “Guidelines for the Assessment of
Civil Penalties Under Section 16 of TSCA; PCB Penalty Policy” [ 45 Fed.
Reg. 59,770 (1980)], a copy of which is attached to this complaint.
6. (C)
Based on the above considerations, the U.S. Environmental Protection
Agency proposes to assess against Firetog Industries, Inc., the
following amount:
Count 1
Failure To Mark PCB
Containers and Storage Areas $1,500
Count 2
Failure To Maintain PCB
Storage Records
Total Penalty Assessment $2,500
7. t0PP0RTUNITY1 HEA1UNG (0)
This .idmtntstratlve civil penalty proceeding will be conducted pursuant
B. to the Consolidated Rules of Practice (CROP) [ 40 C.F.R. §22.01 et
a copy of which accompanies this complaint. Pursuant to the
CROP, you have the right to request a hearing to contest any factual
allegation set forth in the complaint or the appropriateness of the
proposed penalty. In the event that you wish to request a hearing and
to avoid having the above penalty assessed without further proceedings,
you must file a written answer to this complaint with the Regional
Hearing Clerk, United States Environmental Protection Agency, Region 1,
John F. Kennedy Federal Building, Boston, Massachusetts 02203.
TSCA Coinpltauce/Enforce ent 7-24 Guidance Manual 1984
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Chapter Seven ____ Exhibit 7-4
If you do not request a hearing or file a written answer within twenty
(20) days of receipt of this complaint, the above penalty will be
assessed without further proceedings, and you will he so notified.
9. Settlement Conference (I)
The Environmental Protection Agency encourages all parties against whom
a ctvil penalty is proposed to pursue the possibility of settlement as
a result of informal conferences. Therefore, whether or not you
request a hearing, you may confer informally with the Agency concerning
(1) whether the alleged violation In fact occurred as set forth above,
or (2) the appropriateness of the proposed penalty In relation to the
size of your business, the gravity of the violation, and the effect of
the proposed penalty on your ability to continue in business. The
rvquest for an Informal conference does not stay the running of the
twenty (20) day time period for requesting a hearing and filing an
answer. To explore the possibility of settlement in this matter,
contact Ms. Kate Smith, Enforcement Division, United States
Environmental Protection Agency, Region 1, John F. Kennedy Federal
Building, Boston Massachusetts 02203, telephone (312) 989—9876.
10. (J)
John Doe
Director, Enforcement Division
Date: _____ ____At:
Enclosures: TSCA
Guidelines for the Assessment of Civil Penalties
Under Section 16 of TSCA; PCB Penalty Policy
Consolidated Rules of Practice (CROP)
TSCA Compliance/En foiceiaent 7-25 Guidance Manual 1984
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Chapter Seven -__________________ Exhibit 7—2
Saaple Cover Letter
UNITED STATES -
ENVIRONMENTAL PROTECTION AGENCY
Region I
John F. Kennedy Federal Building
Boston, MA 02203
CERTIFIED MAIL
RETURN RECEIPT REQUESTED
G.E. Stubbs, Registered Agent
Firetog Industries, Inc.
36 Sunshine Drive
Clark, MA 02856
Dear Mr. Stubba:
As the enclosed complaint and notice of opportunity for hearing
indicates, the United States EnvironmentaiProtection Agency has
initiated an administrative civil penalty proceeding against Firetog
Industries, Inc., for violations of the Toxic Substances Control Act
(TSCA), 15 U.S.C. §2601 et j.
It is suggested that you carefully read and analyze the complaint and
the enclosed Consolidated Rules of Practice (40 C.P. a. §22.01 at seq. )
so that you are fully apprised of the alternatives offered to you in
considering the alleged violation, proposed penalty, and opportunity
for a hearing. You will note that you have only twenty (20) days from
your receipt of this notice within which to file an answer to the
enclosed complaint with the Regional Rearing Clerk, United States
Environmental Protection Agency, Region 1, John F. Kennedy Federal
Building, Boston, Massachusetts 02203. Failure to file a timely
answer, in writing , will result inadefault order being entered
g inst lou for the full amount of the assessed penal .
The Agency encourages all parties against whom a civil penalty
proceeding has been initiated to pursue the possibility of settlement
through informal conferences with the Agency. Therefore, regardless of
whether you reque’-t hearing, you are extended the opportunity to
request an informal settlement conference. To request a conference,
please write to Ms. Kate Smith, United States Environmental Protection
Agency, Region 1, John F. Kennedy Federal Building, Boston,
Massachusetts 02203, or telephone Ms. Smith at (312) 989—9876. Any
discussion you may have with Ms. Smith will not affect the time period
in which you are permitted to request a hearing or Cue an answer to
the complaint.
Sincerely,
John Doe
Enclosure Director, Enforcement Division
TSCA Compliance/Enforcement 7-26 Guidance Manual 1984
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Chapter Seven Rvhlbjt 7—3
flodel Affidavit of Service
AFFIDAVIT OF SERVICE
UNITED STATES OF AMERICA
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
I hereby certify that being a person over 18 years of age, I served a
copy of the within complaint
(check one) C ) in person
( ) by registered mall, return receipt requested
( ) by leaving the copy at principal place of business,
which is
( ) ( write in other method, such as leaving it at dwelling,
serving registered agent of corporation, etc. )
on the person named in the complaint on ( month, day, and year).
( Signature of person making service)
( Name of person making service)
( Title, if any )
TSCA Compliance/Enforcement 7-27 Guidance Manual 1984
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Chapter Seven Rrhtbits
TSCA Conp liance/Euforcewnt 7—28 Guidance Manual 1984
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Chapter Seven
4 Prehearing Stage
intervenors and Amicus Curiae
Ai Individual may make a motion to become an iritervenor in any proceeding
conducted under the CROP. To intervene, the individual’s motion must
reflect that:
• The individual has a certain interest in the proceeding that is not
adequately represented by the original parties;
• The individual’s presence will not unduly prolong or otherwise
prejudice the adjudication of original parties’ rights; and
o The individual will be affected adversely by a final order.
A motion to become an intervenor is ordinarily made before the first
prehearing conference. However, the motion may be made after that time if
good cause is shown for the failure to file in a timely manner. A party
objecting to the intervention may make an answer to the motion to intervene
within 10 days following service of the motion. Once an individual is
permitted to intervene, that individual becomes a full party to the
proceeding.
22.11(a), 22.11(b), 22.11(c), 22.03(a)
An Individual may make a motion to file an amicus curiae brief. The motion
must Identify the interest of the applicant and the desirability of the
proposed amnicus brief. If the motion is granted, the Agency official
granting the motion specifies the time for filing the brief. Once the
motion is granted, the individual, while not considered a full party, is
permitted to file atntcus briefs in all, subsequent briefings during the
proceeding and Is served with copies of all documents relating to such
briefings.
22. 11(d)
TSCA Compliance/Enforcement 7—29 ( iidance Manual 1984
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Chapter Seven ___________—____ Prehearing Stage
Agency Files* ______ _______ _____ _____________
The Agency must maintain at least two files——one that is initiated by the
Regional Hearing Clerk and one that is initiated by the Presiding Officer
upon assignment to a case. In addition, the enforcement official bringing
the action ahould maintain a separate file, which contains duplicates of
all documents relating to the enforcement proceeding.
22.05(a)(I), 22.05(a)(2)
Any file that contains TSCA confidential business information must be
maintained in accordance with the procedures set forth in the TSCA
Confidential business Information Security Manual . (See discussion in
Chapter 11.)
Files of Regional Hearing Clerk and Presiding Officer
All documents served in the proceeding must be filed with the Regional
Hearing Clerk. The Regional Hearing Clerk initiates this file after
receiving the original and one copy of the complaint and the accompanying
certificate of service. All original copies of filings and communications
from Agency officials, including those from the Presiding Officer, are to
be maintained in the Regional Hearing Clerk’s file.
The documents that are filed with the Regional Hearing Clerk include:
22.05(a)
o Original and one copy of the complaint;
a Originals and copies of certificates of service;
• Original filings of any intervenors;
o Original answer received from the respondent;
o Original and one copy of rulings, orders, decisions, and other
documents that are issued by the Regional Administrator, Regional
Judicial Officer, or Presiding Officer;
22 • 06
o Originals of direct correspondence from the Presiding Officer to
the parties; aud
o Copies of ditect correspondence from the parties to the Presiding
Officer.
* Note: if the action is initiated at the national instead of the
regional level, certain terms should be substituted for the terms set
forth below. (See “Regional Versus National Actions” in Section 1 of
this chapter.)
TSCL Compliance/Enforcement -— 7—30 ( &idane iianual 1984
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Chapter Seven Prehearing Stage
Copies of the above documents must be maintained in the Presiding Officer’s
file, except correspondence from the parties to the Presiding Officer. The
originals of such correspondence are kept by the Presiding Officer.
Regional Enforcement Case File
The Agency enforcement official initiating a complaint should maintain a
separate file containing duplicates of all documents filed in the
proceeding, as well as other enforcement documents relating to the case.
Documents in this file include:
• Copies of all documents filed with the Regional Hearing Clerk or
Presiding Officer;
• Any internal EPA documents used in generating the enforcement
action ( e.g. , concurrence documents, checklists, etc.);
• EPA investigative records such as laboratory reports and copies of
business records;
• Original Penalty Assessment Worksheet(s);
• All correspondenee between the respondent and other EPA parties;
and
• All correspondence between EPA and other federal or state agencies
the Department of Justice).
This file should be retained for a minimum of five years in the Region
after termination of the case, after which time it should he transferred to
Records Control Center.
Filing Requirements
A document is considered sufficient for filing if:
• it contains, on the first page of the document, a caption that
identifies the respondent and the docket number assigned for the
proceeding:
22.05(c)(2)
• It beans the signature of the filing party, counsel, or other
representative (except for exhibits); and
22.05(c)( 3)
• It bears the name, address, and telephone number of the person
filing the document if it is the initial document filed by that
person . Any changes in this information must be sent to the
Hearing Clerk, Presiding Officer, and all other parties to the
TSCA Compliance/Enforcement 7—31 Guidance Manual 1984
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Chapter Seven Preheariug Stage
proceeding. If a party fails to provide or, when appropriate,
amend this information, the right to notice and service is waived.
22. 05Cc ) ( 4)
The Agency official with jurisdiction over the proceeding may prescribe
additional requirements for the form of documents.
22.05(c)(1)
If the applicable requirements are not met, the Agency official receiving
the filing may refuse to accept it until it is properly amended. Permis-
sion to amend iq granted only upon motion to the Administrator, Regional
Administrator, or Presiding Officer who refused to file the defective
document.
22.05(c)(5)
Also, any party filing a document after the complaint has been issued must
certify that copies of the document have been sent to other parties,
appropriate Agency officials, and any amicus curiae . While the CROP do not
give explicit sanctions for failure to provide an appropriate certificate
of service, failure to serve copies of documents on individuals who have a
right to notice may delay the proceeding and, in some cases, may even
result in an otherwise entirely correct proceeding being dismissed by the
Presiding Officer or being overturned on appeal.
22.05(a) ( 2)
Public Access to Documents Filed
Subject to any confidentiality requirements specified by law, the documents
filed in the proceeding must be made available by the Regional Hearing
Clerk for public inspection during business hours.
22.09(a)
Prohibition of Ex Parte Discussion
After a complaint has been issued, certain Agency officials are prohibited
from discussing ex parte ( i.e. , without notice to all parties) the merits
of the proceeding with individuals or their representatives who have an
interest in the proceeding.
22.08
Although ex parte discussion about the merits of a proceeding is
prohibited, if such communication occurs, it is regarded as argument, and a
copy of the ex parte communication is served on all other parties in the
proceeding. Those other parties are then afforded an opportunity to reply.
Failure to comply with these provisions of the CROP can taint an otherwise
entirely correct proceeding and may result in its dismissal by the
Presiding Officer or in the action being overturned on appeal.
TSCA CompliancefEnforcement 7—32 Guidance Manual 1984
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Chapter Seven Prehearing Stage
The Agency officials subject to ex parts prohibitions are:
• Administrator;
• Regional Administrator;
• Judicial Officer;
• Regional Judicial Officer;
• Presiding Officer; and
o Any other person who is likely to advise these officials (e.g., the
Assistant Administrator for OECM and the Assistant Administrator
for Pesticides and Toxic Substances),
The Agency officials listed above are prohibited from participating in ex
parte discussions with the following individuals:
• An Agency official who performs a prosecutorial or investigative
function In the proceeding or a factually related proceeding;
• Any person outside the Agency who has an interest in the
proceeding; and
• Any representative of the persons identified above.
Answer to the Complaint
The respondent must respond to the allegations in the complaint within 20
days after service of the complalnt.* The response is in the form of an
answer. In the answer, the respondent must admit, deny, or explain each of
the factual allegations contained in the complaint. Where the respondent
has no knowledge of the allegations and makes a statement to that effect,
the allegations are considered denied. 22.15(b) Failure to admit, deny,
or explain any material factual allegation contained In the complaint
constitutes an admission of that allegation .
22. 15(d)
* Service of the complaint is complete when the return receipt is signed
(if the complaint was mailed) or when personal service is effectuated.
TSCA CompliancefEnforceioent 7-33 iidauce Manual 1984
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Chapter Seven Prehearing Stage
Procedural Considerations
Before the answer is filed, all motions are made to the Administrator or
Regional Administrator, or the Judicial Officer or Regional Judicial
Officer, as appropriate. After the answer is filed, a Presiding Officer is
designated, and all motions are made to that official.
22. 16(c)
Filing a timely answer precludes the complainant from seeking a motion for
default based on the failure to file a timely answer.
22.17(a)( 1)
Filing a timely answer lessens complainant’s opportunity to amend because,
as a matter of right, the complainant may amend the complaint once before
the answer is f lied. Otherwise, a motion must be made to and approved by
the Presiding Officer.
22.14(d)
The complainant may withdraw the complaint, all or in part, without
prejudice one time before the answer has been filed. After one withdrawal
before the filing of an answer or after the filing of an answer, the
complaint may be withdrawn only upon motion granted by the Presiding
Officer or Regional Administrator.
22.14(e)
Sufficiency of Answer
The answer must meet the following requirements:
• Filing the original of the answer with the Regional Hearing Clerk;
and
• Complying with the general filing, service, and content
requirements specified by the CROP.
22.05
The contents of the answer must include:
a Clear and direct admissions, denials, or explanations of each
factual allegation contained in the complaint of which the
respondent has any knowledge. If the respondent has no knowledge
of a particular factual allegation and makes a statement to that
effect, the allegations are considered denied. All allegations
should be addressed in some manner ;
• Grounds for defense;
a Facts that the respondent will put in issue; and
• Any request for a hearing.
22. 15(b)
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Chapter Seven Prehearing Stage
Evaluation of Answer
Upon receiving a copy of the answer, the complainant should immediately
review it for any deficiencies and also check with the Regional Hearing
Clerk to ensure that the requirements concerning timely filing and the
general filing requtrelnentB have been met. Review of the answer might also
indicate that a motion to amend the complaint is warranted ( i.e. , if
proposed penalties should be reduced or increased).
Consequences of an Unsufficient Answer
If the form requirements specified by Section 22.05(c) of the CROP are not
complied with, the Regional Hearing Clerk can refuse to file the answer.
22.05(c)(5)
If the requirements specified by Section 22.15(b) of the CROP are not
complied with, the insufficient answer may be regarded as an admission of
the matter(s) not sufficiently discussed.
22. 15(d)
If the answer is not filed within the time requirement (20 days), the
complainant can seek a default order.
22. 17(a)(1)
Assignment of a Presiding Officer
When an answer is filed, the Regional Hearing Clerk forwards the complaint,
the answer, and any other documents filed thus far in the proceeding to the
Chief Administrative Law Judge who assigns either himself (or herself) or
another Administrative Law Judge as Presiding Officer. The Presiding
Officer then obtains the case file from the Chief Administrative Law Judge
and notifies the parties of the assignment.
22.21(a)
Prehearing Motions
Motions may be made by the parties before a hearing is convened. Some
motions must be made during the prehearing stage, but most may be made at
other stages of the proceeding as well. Before the filing of an answer,
motions are filed with the Regional Administrator. After the filing of an
answer, motions are filed with the Presiding Officer.
22. 16(c)
TSCA Compliance/Enforcement 7—35 Guidance Manual 1984
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Chapter Seven ____________- — Prehearing Stage
Written Motions
All motions made during the proceeding, except those made orally on the
record during a t earing, must:.
22.05(a)(2), 22.05(b)(2), 22.16(a)
• Be in writing;
• Specifically state the grounds or basis for the motion;
• Specifically identify the action(s) that the motion seeks;
• Be accompanied by any evidence that is being relied upon by the
movent ( e.g. , affidavits and legal memoranda); and
o Be served upon the parties.
A written motion must also comply with the general filing and service
provisions of Section 22.05 of the CROP (i.e., it must be properly signed,
accompanied by appropriate certificates of service, and bear an appropriate
docket number).
Because a transcript is required only in a hearing (although a transcript
i y be usud in prehearing conferences at the discretion of the Presiding
fTicer), most motions made before the hearing will probably have to be in
writing and conform with the requirements specified by Section 22.16(a) of
the CROP.
22. 19(c)
Reply to Motion
A party’s response to any written motion must be filed with the Regional
Hearing Clerk within 10 days after service of such motion, except in the
case of a motion for a default order, which specifies a 20—day period for
replies. Like all documents filed in the proceeding, replies to motions
must bear the docket number and comply with the filing and service
requirement8 specified by Section 22.05 of the CROP.
22.16(b), 22.17(a)
If a response is not filed within the time specified by Section 22.07 of
the CROP, any objection to the motion is considered waived, and the motion
may be granted without further argument.
22.16(b)
The Administrator, Regional Administrator, and Presiding Officer, as
appropriate, may set a shorter time than 10 days for the response, and may
also permit oral argument concerning motions.
22. 16(b)
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Chapter Seven Preh.aring Stage
Examples of Prehearing Motions
The following types of motions may be made during the prehearing stage of
the proceeding:
• Motion for default for failure to file a timely answer;
22. 17(a)( 1)
• Motion to intervene;
22.11(a)
• Motion to file amicus curiae brief;
22. 11(d)
• Motion for default for failure to comply with a prehearing order of
the Presiding Officer;
22. 17(a)(2)
• Motion for default for failure to appear at a conference or hearing
convened by the Presiding Officer pursuant to Section 22.19 of the
CROP;
22. 17(a)(3)
• Motion for consolidation or severance; ‘and
22.12(a), 22.12(b)
• Motion for postponement of hearing.
22.21(c)
Default Orders
Default orders may be issued under three circumstances:
• Against the respondent for failure to file a timely answer to the
complaint;
22. 17(a)( 1)
• Against a complainant or respondent for failure to obey a
prehearing or hearing order that has been issued by the Presiding
Officer; and
22.17(a)(2)
• Against a complainant or respondent for failure to attend a
conference or hearing without good cause being shown.
22.1 7(a)(3)
Motions for default are made either to the Regional Administrator or
Regional Judicial Officer in the first circumstance, or to the Presiding
Officer in the second and third circumstances.
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Chapter Seven Prehearing Stage
A motion for default may be made by any person who is a party to the
proceeding [ as defined by Section 22.03(a) of the CROP] at the time the
motion is made. (“Any person” apparently includes intervenors.) In
addition, the Presiding Officer is permitted to i8sue a default order eua
sponte in the latter two default circumstances.
2 .1 7 (a)
Procedures
The party making a motion for default must include with the motion a
proposed default order (see Exhibit 7—4). The motion for default must be
served on all parties and otherwise conform with the filing and service
requirements specified by Section 22.05 of the CROP.
The alleged defaulting party has 20 days from service of the motion for
default to reply to the motion.
This time period is 10 days longer than that generally specified for
replies to motions (Section 22.16(b) of the CROP).
Default Order as Initial Decision
A default order constitutes an initial decision of the proceeding at the
time that the order is issued by the Presiding Officer (Regional
Administrator or the Regional Judicial Officer, if a timely answer is not
filed). As such, it must:
22.17(b)
• Contain findings of fact, conclusions regarding material issues of
law or discretion, and the recommended penalty; and
22.17(c)
• Be filed with the Regional Hearing Clerk.
22.1 7(b)
The Regional Hearing Clerk must serve copies of the initial decision on all
parties to the proceeding and otherwise comply with Section 22.27 of the
CROP, which addresses transfer of the proceeding’s record to the Hearing
Clerk. The default order becomes the final order of the Administrator
within 45 days after its service upon the parties unless (1) the default
order is appealed or (2) the Administrator elects, sua sponte , to review
the default order.
Appeal
A default order may first be appealed by a motion to set aside the default
order. Such a motion is made to the Agency official who issued the order.
Any further appeal of the default order must be made directly to the
Administrator pursuant to Section 22.30 of the CROP.
22.17(d), 22.29(a)
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Chapter Seven Preheariiig Stage
Consequences of Final Default Order
When the Administrator issues a final order upon default against the
respondent , respondent is subject to the following consequences:
• The respondent has essentially “admitted” to all facts alleged In
the complaint and the right to a hearing is waived; and
• The penalty proposed in the complaint will become due and payable
within 60 days after the final order is issued.
22.17(a)
The admission of factual allegations and waiver of hearing applies only to
the immediate civil penalty proceeding and does not affect any other
proceedings. In addition, the 60—day period for payment of the penalty
begins only after the Administrator has issued a final order upon default,
not after the Presiding Officer issues the initial default order.
When the Administrator issues a final order upon default against the
complainant , the complaint Is dismissed with prejudice. This means that
the complainant cannot reinstitute a civil penalty proceeding that is based
on the allegations contained in the dismissed complaint.
Settlement
EPA encourages settlement of a civil penalty proceeding, if the settlement
is consistent with the provisions and objectives of TSCA and its applicable
regulatIons.
22.18(a)
Procedures
A settlement conference can be requested at any time. The parties may
confer on settlement whether or not the respondent has requested a
heartng. Before an answer is filed and a Presiding Officer is appointed,
settlement conferences can be convened by consent of the parties. After a
Presiding Officer has been appointed, settlement conferences are subject to
the jurisdiction of the Presiding Officer who may order a prehearing
conference settlement. As an alternattve, the parties may be directed to
correspond with the Presiding Officer concerning settlement.
22.18, 22.19
Consent Agreement and Proposed Consent Order
If a settlement is reached by the parties, they must forward a written
consent agreement (see Exhibit 7—5) and a proposed consent order to the
Regional Administrator. In addition, they must serve copies of these
documents on the Presiding Officer if one has been appointed. The consent
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Chapter Seven Prehearing Stage
agreement must contain the following information before the Regional
Administrator can approve it:
22.18(b)
• The signature of all parties or their representatives in the
proceeding ( e.g. , complainant, respondent, and any int rvenora);
• A statement in which the respondent admits that the Agency has
jurisdictional authority to bring the complaint;
o A statement in which the respondent admits facts stipulated in the
consent agreement or neither admits nor denies facts alleged in the
complaint; and
a A statement in which the respondent consents to the assessment of
the stated civil penalty that is reflected in the consent agreement
and proposed consent order.
Also, the consent agreement must include any and all terms of the agreement
among the parties. Consequently, any terms to which the parties have
agreed in reaching a settlement must be reflected in the consent agreement
( e.g. , agreement not to pursue criminal penalties, agreement by intervenor
not to pursue private damage remedies, agreement by the respondent to take
actions that minimize the effect of the violation, etc.).
Partial settlement of the proceedings is permitted and, in many cases, is
likely. Settlement agreements and proposed consent orders must be very
carefully drawn and completely understood before signatures are obtained so
that the parties understand precisely what elements of the matter are not
disposed of by the consent agreement and consent order.
The consent agreement becomes final and binding on the parties only after
the Regional Administrator has signed the consent order. The consent order
disposes of only those elements of the proceeding that are specifically
addressed by that order and the consent agreement.
The proposed consent order must be prepared for the Regional Administra-
tor’s signature. It need not restate all the terms of the consent agree-
ment, hut it must at least explicitly incorporate (by reference) the
consent agreement as being the basis for the consent order.
22.18 (c)
The Regional Administrator, in deciding whether to issue a final consent
order, may require parties to the settlement to appear in person to answer
questions relating to the proposed consent agreement or order.
Filing of Consent Agreement and Order
The consent agreemeent and the final consent order constitute important
documents that affect the substantive and procedural rights of the
parties. Consequently, the originals of these documents must be placed in
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Chapter Seven Prebearing Stage
the Regional Hearing Clerk’s file, and copies must he served as required by
Section 22.06 of the CROP.
Settlement With Conditions
In c.a.rtatn circumstances, a settlement in an administrative civil penalty
action may he reached that assesses a civil penalty but provides for the
respondent to undertake remedial performance as a means of remitting all or
part of the assessed penalty. Such a settlement i8 referred to as a
“settlement with conditions.” The criteria and procedures for using a
settlement with conditions are set forth in Appendix 4.
Prehearing Conference
When a hearing is ordered, the Presiding Officer also convenes a prehearing
conference, unless it appears unnecessary. Prehearing conferences are
intended to facilitate and expedite a hearing proceeding. These
conferences encourage informal, frank discussions among the parties on any
matter that could expedite the hearing. Any anticipated problems should be
discussed at this time. The prehearing conference may involve:
22.19(a)
• Settling the case;
• Attempting to simplify the proceeding through consolidation of
issues and stipulation by the parties;
• Amending the pleadings;
• Exchanging information concerning evidence to be presented ( e.g. ,
identities of expert witnesses and summaries of their testimony and
exchange of exhibits, documents, and prepared testimony);
• Limiting the number of witnesses;
• Setting a time and place for the hearing; and
• Attending to any matter that may expedite the disposition of the
proceeding.
Exchange of Information
The CROP generally require that the parties exchange witness lists, brief
descriptions of witness testimony, and copies of all documents and physical
materials that will be introduced into evidence. This requirement supports
the accepted manner of hearings——one that is forthright and avoids
surprise.
22.19(b)
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Chapter Seven Prehearing Stage
Failure To Exchange Information
A party must request the permission of the Presiding Officer to introduce a
witness or a document during a hearing if that party did not exchange,
prior to the hearing, the witness lists and documents referred to in
Section 22.19(b) of the CROP. Additionally, if such permission is granted,
the Presiding Officer must first allow other parties a reasonable time to
review the newly introduced evidence.
Protection of Evidence Sources
Certain unusual circumstances may justify not following the policy of early
information exchange. One such example is a reasonable belief that
witnesses might be subject to physical or economic intimidation. Another
circumstance is a reasonable belief that the nature of the documentary or
physical evidence would permit the respondent to intimidate witnesses,
destroy evidence, or otherwise improperly interfere with the enforcement
efforts of the Agency. In such situations, the Presiding Officer should be
fully informed of the reasons for withholding evidence or the identity of a
particular witness.
Role of Discovery
The CROP state that evidence that is not subject to the mandatory exchange
of witness lists and documents in the prehearing conference, shall be
8ubject to discovery only upon determination by the Presiding Officer.
This provision is primarily intended to address discovery by deposition.
To obtain such discovery, a party must make a motion for discovery to the
Presiding Officer, which demonstrates that the:
22.19(f)
o Proceeding will not be unreasonably delayed by discovery;
• Information sought cannot be obtained through alternative means;
and
• Information sought is of significant probative value.
22.19(f)(1)
If the discovery involves oral depositions, then a party must also show
that the evidence will not be preserved for presentation by a witness.
22.19(f)(2)
The difference between evidence that is subject to mandatory exchange
requirements and evidence that may be discovered must be carefully
understood. If the evidence being sought should normally be exchanged
under Section 22.19(b) and for some reason is being withheld, then a motion
to the Presiding Officer to enforce the requirements of the CROP must be
made, not a motion for discovery.
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Chapter Seven Prehearing Stage
If an order for discovery issued by the Presiding Officer is not obeyed,
the inference may he drawn that revealing the withheld information would
adversely affect the party withholding it. Also, an order for default may
be issued based on a failure to comply with a prehearing or hearing order.
22.19(f)(4), 22.17(a)
An order for discovery is an important document that affects the procedural
rights of the parties. It must, therefore, be included in the Regional
Hearing Clerk’s file, and copies must be served in accordance with
requirements of Section 22.06 of the CROP.
Record of Prehearing Conference
The record of a prehearing conference generally consists of a summary
prepared by the Presiding Officer that incorporates all rulings or orders
containing directions to parties and any written stipulations or agreements
of the parties. Except for those portions of a prehearing conference that
relate to settlements, a transcript of the prehearing conference may be
made. The transcript is ordered by the Presiding Officer upon motion of a
party or eua sponte .
22, 19(c)
Settlement conferences, however, are not recorded in order to ensure that
the parties are able to negotiate freely and compromise without fear that
such agreements will be subsequently revealed.
The transcript or written summary of the prehearing conference must be
f tied with the Regional Rearing Clerk for inclusion in the Regional Hearing
Clerk’s file.
22.06
If a transcript is taken, motions made during the hearing may be oral.
However, if no transcript is taken, any motions made must be in writing and
must otherwise conform with the requirements of Section 22.16 of the CROP
and the filing, service, and content requirements specified by Section
22.05.
Motion for Accelerated Decision and Dismissal
Motion for Accelerated Decision
The Pre8iding Officer may issue an accelerated decision either sua sponte
or upon motion by the respondent or complainant. The accelerated decision
may involve a particular issue or the entire case and may be issued at any
time during the proceeding if the Presiding Officer finds that:
22,20
• No genuine issue of material fact exists between respondent and
complainant; and
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Chapter Seven Prebearii g Stage
• The complainant or respondent is entitled to a judgment as a matter
of law.
“Entitled to a judgment as a matter of law” means that the movant has
established by undisputed or undisputable (not reasonably challenged)
evidence that all technical and legal elements in a violation did occur and
that, consequently, the Presiding Officer must decide a particular issue or
the entire case in the movant’s favor at that time. Because there is
nothing to adjudicate, there is no need for a hearing.
A discussion of all of the relevant precedents and considerations that
apply to a motion for an accelerated decision is not feasible in the space
allowed. However, some general principles can be discussed.
Nature of Motion . A motion for an accelerated decision challenges the
essential position of the other party’s case. The motion asserts that,
under the facts and law of the case, the adverse party’s position is
entirely without merit. En this sense, it is not merely a technical
motion——that is, one which seeks to establish that the manner or form of
the other party’s pleadings is technically insufficient to establish a
defense or a claim, It would not, for example, seek to establish that the
respondent’s defense pleadings lack discussion of an essential element of
the defense. Instead, the motion seeks to undermine the adverse party’s
pleadings by demonstrating that, irrespective of those pleadings, the facts
and law of the ca8e require a judgment in favor of the moving party.
Facts . By requiring that no genuine material issue of fact exists between
the parties, the standard for an accelerated decision does not mean that
the parties must agree on all material facts. Instead, the material facts
may be either undisputed, or undisputable, that is, not reasonably
challenged.
Affirmative Defenses . The complainant must demonstrate entitlement to a
judgment as a matter of law. The complainant is required not only to prove
the elements of the violation by undisputed or undisputable evidence, but
also to address any affirmative defenses raised by the respondent with
undisputed or undisputable evidence ( e.g. , an argument that the respondent
relied on Agency advice in violating applicable regulations).
Evidence and Burden . The Presiding Officer will probably rely on
affidavits and counterafuidavits in reaching a decision on the motion for
an accelerated decision. However, the Presiding Officer may consider any
admissible evidence, including stipulations, admissions, expert witness
testimony, deposition testimony, and officially noticed evidence.
22.20(a)
In deciding whether to grant the motion for an accelerated decision, the
Presiding Officer generally gives the party against whom the motion is made
every benefit of the doubt.
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Chapter Seven ____ ____ Prehearing Stage
Motion To Dismiss
In addition to a motion for an accelerated decision, the respondent can
make a motion to dismiss for:
• Failure of the complainant to establish a prima fade case; and
• Other grounds that show that the complainant has no right to
relief. 22.20(a)
To [ md useful precedent and argument for these standards, the following
sources may be helpful:
• For the first standard, Rule 41(b) of the Federal Rules of Civil
Procedure (Fed. R. Civ. P.), Involuntary Dismissals , and any
Federal decisions on this rule; and
• For the second standard:
—— Agency decisions——in which TSCA standards for an accelerated
decision were applied——that relate to failure to state adequate
claim or in which the result was required by justice, and
—— Federal decisions [ involving Fed. R. Civ. P. 12(b), which
relates to motions to dismissj that were based on lack of
jurisdiction, insufficient process, or failure to state a claim
upon which relief can be granted.
Partial Decision
A decision that grants a motion for an accelerated decision or a motion to
dismiss need not dispose of all issues in the proceeding. If such a
partial order is issued, the Presiding Officer must also determine which
issues remain in controversy between the parties. To do so, the Presiding
Officer must issue an interlocutory order that specifies the issues
disposed of by the accelerated decision or dismissal order and those issues
that remain in controversy.
22.20(b) (2)
Initial Decision
If an accelerated decision or dismissal order is issued that disposes of
al] issues in the proceeding, such a decision or order is treated as an
initial decision and, therefore, may be appealed to the Administrator under
Section 22.30 of the CROP.
22.20(b) (1)
If a partial decision is rendered, the objecting party, before appealing,
must await the issuance of a final initial decision or obtain certification
to appeal an interlocutory decision.
22.20(b)(2), 22.29
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Chapter Seven Prehearing Stage
An initial decision must comply 4th the requirements of Section 22.27(a)
on content, ftling, service, and transfer r. quirements.
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Chapter Seven
5 Hearing Stage
The Presiding Officer convenes a hearing on request by the respondent or,
if appropriate, sua sponte——if the matter has not yet been disposed of by a
default order, accelerated decision, dismissal order, or consent order.
The Chief Administrative Law Judge appoints a Presiding Officer as 800fl as
the respondent files an answer.
22.21
Notice of Hearing and Venue
If the respondent requests a hearing or if a hearing is ordered by the
Presiding Officer, the Presiding Officer must issue to all parties a notice
of hearing, which identifies the time, date, and place for the hearing.
Such notice must be issued at least 20 days before the date set for the
hearing. 22.21(b) The hearing may be held:
o In the county where the respondent resides or conducts the business
for which the hearing concerns;
• in the city in which the relevant EPA Regional Office is located;
or
• In Washington, D.C.
However, the Presiding Officer may determine that there is good cause to
hold the hearing either at another location in a Region or by telephone.
22.21(d), 22.19(d)
Any party may make a motion for postponement of the hearing but the movent
must demonstrate good cause for the request.
22.21(c)
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Chapter Seven Hearing Stage
Presentation of Evidence
As is true for all Agency administrative proceedings, the complainant is
the first to present evidence. The complainant mu8t establish a prima
facie case; that is, the complainant must submit evidence that the events
alleged in the complaint did occur, that the events constitute a violation
of the Act, and that the proposed civil penalty is appropriate. After the
complainant has established a prima facie case, the respondent must then
present any defense to the allegations that are contained in the complaint
and any affirmative defenses that are raised by the answer.
22.24
“Burden of Presentation” and “Burden of Persuasion” are used in the CROP to
describe the burden of proof that is placed on the parties in the hearing.
22.24 The definitions are as follows:
• Burden of Presentation (Burden of Going Forward With the
Evidence)——A party must introduce evidence on the claims or
defenses raised in the complaint or answer.
• Burden of Persuasion——Each party must convince the Presiding
Officer of the affirmative allegations in his or her pleading.
The complainant is alleging that a violation has in fact occurred and,
therefore, has the burden of presentation. The complainant also has the
burden of persuasion. Once the complainant has established a prima fade
case, the burden of presentation shifts to the respondent, who must then
introduce sufficient evidence to rebut or outweigh the evidence presented
by the complainant. The burden of persuasion never shifts, but remains
with the complainant throughout the proceeding; that is, the complainant
always has the obligation of convincing the Presiding Officer, by a
preponderance of the evidence, of the allegations contained in the
complaint.
The respondent has the burden of persuasion with respect to any affirmative
defenses raised in the answer——for example, a reliance argument based
on Agency advice. The Burden of Presentation initially rests with the
respondent but shifts, once the respondent has introduced sufficient
evidence to supp&rt a favorable finding.
Preponderance of Evidence
Each matter that is contested in the hearing and which must be adjudicated
to decide the case is determined by the Presiding Officer on the basis of a
preponderance of the evidence. To prevail, a party must convince the
Presiding Officer that, on balance, his or her allegations appear more
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Chapter Seven Hearing Stage
likely or probable than the other party’s allegations. This standard, is
different from a criminal standard, which requires a decision based on
“evidence beyond a reasonable doubt” or “evidence excluding a reasonable
doubt.”
22.24
Default Orders and Accelerated Decisions
During the hearing, the complainant should keep in mind that a motion for
default order (except one based on failure to file a timely answer) or a
motion for an accelerated decision may be appropriate despite the advanced
stage of the proceeding.
Hearin& Rules of Evidence
Under the CROP, the Presiding Officer must admit evidence unless it falls
in one of the following categories
• Irrelevant;
• Immaterial;
• Unduly repetitious;
• Unreliable; and
o Of little probative value.
22.2(a)
When in doubt, the Presiding Officer will most likely admit, not exclude,
evidence.
Confidential Information
The CROP state that, from the outeet, confidential information can be
introduced as evidence. The Presiding Officer may make such orders as may
be necessary to consider such evidence in camera , including the preparation
of a supplemental initial decision to address questions of law, fact, or
discretion arising out of that portion of the evidence that is confidential
or includes trade secrets.
22.22(a)
Unless otherwise permitted by the Presiding Officer, such a supplemental
decision, if issued before the final initial decision, is to be treated
[ ike a partial decision and is not appealable until the final initial
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Chapter Seven Bearing Stage
decision is issued or certification to appeal an interlocutory decision is
obtained.
22.29(a)
For confidential commercial information, the complainant should be aware
that 5 U.S.C. §1901 prohibits the disclosure of such information by a
government official. ( See also , Chapter Eleven.)
Materiality and Relevancy
Two standards described in the CROP concern materiality and relevancy.
Materiality and relevancy are legal terms of art, and previous cases should
be consulted to determine how these tense have been treated by the Agency.
Federal case law should also be consulted.
22.22(a)
a Materiality . Material evidence is evidence that is pertinent to or
has a legitimate and effective bearing on the case. For example,
the evidence relating to the status of an officer within a
corporation may be material to proving that he or she knowingly
violated TSCA by manufacturing a certain chemical substance. The
officer’s status within the local church, however, is not likely to
be material.
• Relevancy . Evidence that 18 material may or may not be relevant.
Relevant evidence is evidence that ha8 a tendency to make a fact in
issue more probable or less probable. The emphasia here is on the
probative value of the evidence. The probative value of offered
evidence must be assessed in light of the facts in issue. For
example, to prove that a reporting violation has occurred, evidence
demonstrating that a particular EPA report was prepared but not
sent would surely be relevant. In contrast, evidence that the firm
generally failed to maintain good business records might still be
considered material but is less likely to be considered relevant or
probative.
Although materlal.ity and relevancy have technical distinctions, in general,
both standards can he viewed in terms of probative value of evidence. If
an item of evidence has probative value to the issue for which it is
introduced ( i.e. , Lends to prove or disprove a particular proposition),
then both criteria are satisfied.
Evidence Relating to Settlement
Any evidence relating to settlement that would be excluded under Rule 408
of the Federal Rules of Evidence (Fed. R. Evid.) is also excluded under
the CROP. Rule 408 of the Fed. R. Evid. generally excludes evidence of
settlement or attempted settlement when it is offered as proof of an
admission of liability. This evidence, however, may be admitted for
another purpose, such as proving bias of a witness or disproving a
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Chapter Seven Bearing Stage
contention of undue delay. When such evidence is offered f or these
purposes, it may still be excluded if the Presiding Officer determines that
its probative value is outweighed by confusion of issues, undue delay, etc.
Testimony of Witnesses
Witnesses are generally examined orally upon oath or affirmation. The
Presiding Officer, however, may allow certain exceptions to this rule
( e.g. , an affidavit from a dying witness). Any witness appearing at the
hearing may be cross—examined if the cross—examination is not unduly
repetitious.
22.22(b), 22.22(d)
Verified Statements in Lieu of Direct Testimony
In lieu of direct testimony, a party may desire that a witness admit into
the record previously prepared statements of fact or opinion. Such a
request may be appropriate when the testimony is technical or academic and
does not lend itself to a clear, cohesive presentation through direct
questions. This type of evidence can be admitted only upon the approval of
the Presiding Officer.
A copy of the written statement must he submitted to the Presiding Officer,
reporter, and opposing counsel before it is delivered. The evidence
contained in the statement is subject to the rules of testimonial
evidence that apply to oral testimony ( e.g. , the witness must swear to or
affirm the statement and is subject to oral cross—examination concerning
the statement).
22.22(c)
Affidavits in Lieu of Direct Testimony
When a witness is “unavailable,” as defined by Rule 804(a) of the Fed. R.
Evid., an affidavit may be admitted into evidence in lieu of oral
testimony. Under Rule 804(a), witnesses are deemed unavailable if they are
exempt by a court order, refuse to testify in spite of a court order, claim
lack of memory, are dying or physically impaired, or are absent despite
efforts to secure their attendance.
22.22(d)
Exhibits and Physical Evidence
If exhibits are introduced, the original and one copy must be filed with
the Presiding Officer where practicable. A true copy of any exhibit may be
substituted for the original if submitting the original is not possible.
Copies must also be furnished to each party.
22.22(e)
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Chapter Seven ear1ng Stage
Official Notice
The Presiding Officer may take official notice of any matter judicially
noticed in the federal courts, of matters permitted under Rule 201 of the
Fed. R. Fvid., and of other facts that are within the specialized knowledge
and experience of the Agency. Official notice may be sua aponte or upon
motion by one of the parties.
22.22(f)
Official notice under Rule 201 of the Fed. R. Evid. is limited to adjudica-
tive facts that are not subject to reasonable dispute and that are:
• Generally known within the territorial jurisdiction of the
proceeding; or
• Capable of accurate and ready determination.
Adjudicative facts” directly concern the immediate parties in the
proceeding——who did what, when, where, how, and with what motive or
intent. These facts relate to the occurrence(s) alleged by the pleadings,
which must he adjudicated to decide the case.
The official notice that the Presiding Officer may employ as a result of
the special expertise of the Agency is broader than that permitted by Rule
201 of the Fed. R. Evid. Consequently, official notice extends to all
matters about which the Agency is presumed expert. For example, the
experience and knowledge of the Agency in an environmental area might
justify official notice that, statistically, a physical event alwaya occurs
under a certain set of environmental circumstances.
Subpoenas and Summoning Witnesses
Issuance of Subpoenas
The Presiding Officer may issue a subpoena to require the attendance of
witnesses or the production of documentary evidence. The Presiding Officer
may also grant a request for a subpoena upon a showing by the movent of:
a The grounds and necessity of the evidence or witness; and
• The materiality and relevancy of the evidence or witness sought.
22.33(b)(l)
In addition, a request for the production of documents must describe the
evidence sought as specifically as practicable.
22.33(b)( 1)
Subpoenas are served in accordance with Section 22.05(b)(L) of the CROP.
22.33(b)(2)
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Chapter Seven Hearing Stage
Witness Fees
Witnesses summoned by subpoena before the Presiding Officer are to be paid
the same fees and mileage that are paid witnesses in the courts of the
United States. The fees are to paid by the party who requested the
witness’s appearance. If, however, the witness appears pursuant to a
request initiated by the Presiding Officer, then the fees are to be paid by
the Agency.
22.33(b) (3)
Object ions_and RulIn 1 g _____
Objections about the conduct of the hearing, such as evidenttary and
procedural objections, may be stated orally or in writing. The form of the
objection depends on the circumstances. In general, however, if the
objection involves a relatively complicated argument and if time permits,
it should be written. If it is written, it must comply with the service,
filing, and content requirements specified by Section 22.05 of the CROP.
22.23(a)
Rulings_and Exce !ons to Rulings
The Presiding Officer must rule on all objections and provide reasons for
the rulings, which will become part of the record. Copies of the ruling
must be served on the parties by the Presiding Officer and the original
entered into the Regional Hearing Clerk’s file in accordance with Section
22.06 of the CROP. The CROP also state that to take specific exception to
each overruled objection is not necessary. The exception to an overruLed
objection is automatic and Is not waived by further participation in the
hearing.
22.23(a)
Appeal of Rul
A ruling on an objection 1.s not subject to an automatic Interlocutory
appeal to the Administrator. A party wishing to appeal the ruling
immediately, must make a motion in writing within six days of notice of the
ruling to the Presiding Officer to certify such a ruling to the
Administrator. (See also, “Appeals of Interlocutory Orders or Rulings” in
this section.)
Unlike other motions made during a hearing, a request for certification may
not be made orally, but must be En writing.
22.29(a)
TSCA Compliance/Enforcement 7-.53
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Chapter Seven Hearing Stage
Offers of Proof
If evidence is found to be immaterial, irrelevant, etc • and cannot be
introduced, the party seeking to introduce it may not only object to its
exclusion, but may also make an offer of proof. An offer of proof places
the evidence into the official record, and the Administrator on appeal can
use such evidence to reopen the hearing. This offer consiets of:
• One copy of the documentary or physical evidence; or
• A brief written summary, if the evidence is testamentary.
Such offers of proof are not mandatory, and the right to appeal the
exclusion of evidence is preserved under Section 22.23(a). Nonetheless,
offers of proof should generally be made whenever evidence is excluded.
22.23(b)
Transcript of Hearing
A hearing must be transcribed verbatim, and the reporter must send the
original and copies of the transcript to the Regional Hearing Clerk for
filing. A copy must also be sent to the Presiding Officer. The Regional
Hearing Clerk must notify all parties of the availability of the transcript
and permit them to obtain a copy upon payment of a reproduction fee.
Payment may be waived if a party can show that the cost is unduly
burdensome. A certificate of service should accompany each copy of the
transcript. Persons not a party to the proceeding may receive a copy of
the transcript (except for confidential portions of the transcript) upon
payment of a reproduction fee.
22.25
The transcript of the hearing is an important document because:
o Many objections and motions made during the hearing are oral and
are thus reflected only in the transcript; and
a The transcript is used by the parties to draft the proposed
fthdings of fact, conclusions of law, and orders, which are then
submitted to the Presiding Officer for consideration in issuing the
initial decision.
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Chapter Seven Hearing Stage
Proposed Findings, Conclusions, and Orders
At the conclusion of the hearing, parties may submit proposed findings of
fact, conclusions of law, and orders to the Presiding Officer for
consideration in issuing the initial decision.
The purpose of the proposals and supporting briefs is to advocate positions
of the submitting party and to persuade the Presiding Officer to adopt that
party’s proposals.
Procedures
The proposed findings of fact, conclusions of law, and orders, together
with supporting briefs may be submitted to the Presiding Officer for
consideration within 20 days of notice of the transcript’s availability.
The proposals and briefs must be served on the other parties. Although the
Presiding Officer must permit reply briefs, the timing of such briefs can
be specified. The proposals and all briefs must be in writing and must
contain adequate references to the record and authorities relied on.
22.26
Preparation
In preparing the proposals, the focus should be on issues that the
Presiding Officer must address in the initial decision.
The importance of the proposals and briefs cannot he overemphasized.
Through these materials, the position of the submitting party can be
detailed, and the Presiding Officer can view in depth the merits of the
party’s position.
Initial Decision
The Presiding Officer must issue an initial decision as soon as is
“practtcahle” after the period specified for filing reply briefs to the
proposed findings, conclusions of law, and orders.
The initial decision should contain the Presiding Officer’s:
• Findings of fact and conclusions for all material issues of law or
discretion;
• Reasons for those findings and conclusions;
• Recommended civil penalty; and
• Proposed final order.
TSCA Compliance/Enforcement 7—55 Guidance Manual 19M
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Chapter Seven Hesriiig Stage
In determining the dolLar amount of the recommended civil penalty assessed
I n I tin I nt t I a I il i I ta I u’) • I Ii I’rø I I I n OF I I •nr muSt osnu idar In addtt I tutu
In tti criteria It Ltd In Seciton 16(a)(2)ifl) at TSCA, any evidence of good
fatth or lack thereof.
The Presiding Officer must also consider the guidelines for the assessment
of civil penaitLes under TSCA [ 45 Fed. Reg. 59,770 (1980)1.
22.35(c)
Specific reasons must be set forth in the initial decision if the Presiding
Officer increases or decreases the amount of penalty from that originally
assessed in the complaint. The Presiding Officer, however, cannot increase
the amount of penalty from that which was recommended in the complaint if
the respondent has defaulted.
Challenge to Initial Decision
The initial decision becomes a final order within 45 days after it is
served unless:
• A party files a motion to reopen the hearing, which stops the
45—day period until the motion is denied or the reopened hearing is
concluded; or
22.28
o A party makes an appeal to the Administrator, or the Administrator
determines sua sponte that a review of the initial decision is
appropriate.
22e27
Motion To Reopen a Hearing
If a party believes that additional evidence should be introduced Into the
record, that party may make a motion to reopen the hearing. Such a motion
must be made no later than 20 days after service of the initial decision on
the parties. The motion to reopen the hearing must state the specific
grounds upon which relief is sought, state the nature and purpose of the
evidence to be adduced, and show that the evidence Is not merely
cumulative. The party must also demonstrate why the evidence was not
introduced at the hearing. The motion must be written and must comply with
the requirements specified for such motions and the filing, service, and
content requirements for submitting documents.
22.28(a)
TSCA Coi p1ianceI&uforcement 7—56 Guidance Manual 1984
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Chapter Seven ta
Replies from other parties must he made within 10 days after the motion is
served. The Presiding Officer muat render a decision on the motion as soon
as is practicable after the filing of replies.
22.28(b)
Filing a motion to reopen a hearing shall automatically 8tay the running of
all time periods ( e.g. , appeals) until 8UCh time as the motion is denied or
the reopened hearing is concluded.
22.28(b)
Appeals of Interlocutory Orders or Rulings
Immediately Appealable Orders
The only orders or rulings that may be appealed to the Administrator as a
matter of right are:
• Accelerated decisions that decide the entire case;
22.20, 22.29
• Dismissal orders;
22.20, 22.29
• Default orders; and
22.17, 22.29
• Initial decisions rendered after an evidentiary hearing.
22.27, 22.29
All other orders or rulings issued by an Agency official during the
prehearing and hearing proceedings are considered interlocutory. As such,
they must await the issuance of an initial decision before they can be
appealed, unless the Agency official Issuing such orders or rulings
certifies them to the Administrator on appeal.
22 • 29
Procedures and Standards for Interlocutory Orders
A motion for interlocutory appeal of an order or ruling must be filed in
writing within six days of notice of such ruling or order.
22.29
Besides stating the grounds for appeal, the moving party must demonstrate,
to the appropriate Agency official, that:
• The order or ruling involves important legal or policy issues
concerning which there is substantial grounds for difference of
opinion; and
TSC& QapliancefEnforceiment 7—57 GuIdance Manual 1984
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Chapter Seven -— --
a Immediate appeal will materially advance the proceeding or that
waiting for normal review will be ineffective or inadequate.
22.29(b)
The motion must also comply with requirements for filing, service 1 and
content requirements specified in the CROP.
If the Presiding Officer does not certify the interlocutory appeal, a party
may make a motion to the Administrator within six days of service to
reverse that decision on the grounds that it is contrary to the public
interest. This motion must also comply with the requirements of Section
22.16 and 22.05 of the CROP, except that the appropriate Agency officials
receiving the motion are the Regional Hearing Clerk and the Administrator.
22.29(c)
Actions by the Administrator
If the Presiding Officer certifies the interlocutory appeal, the
Administrator may:
22. 29(c)
* Deny the certification as improvidently granted;
• Take no action within 30 days and thereby dismiss the
certification; or
• Grant the certification, review the interlocutory appeal, and grant
or deny the appeal on its merits.
Ordinarily, the interlocutory appeal will be decided on the basis of the
submissions made by the Presiding Officer. The Administrator may, however,
allow further briefs and oral argument.
22.29(c)
Request for Stay
The motion for toterlocutory appeal may include a request for stay of the
proceeding pending the Administrator’s decision on the certification and
interlocutory appeal. The request must demonstrate that extraordinary
circumstances exist to justify granting the stay. If the Presiding Officer
grants a request for stay of over 30 days, it must be separately approved
by the Administrator.
22.29(d)
TSCA Qmpliance/Enforceent - - - GuidAnce Manual 1984
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Chapter Seven ______ ______ Exhibit 7—4
Sample Default Order
UNITED STATES
ENVIRONMENTAL PROTECTION AGENCY
REGION III
6TH AND WALNUT STREETS
PHILADELPHIA, PENNSYLVANIA 19106
In re: ) Docket No. TSCA—III—83—4
)
W. G. Neudecker and Sons )
1215 Madison Avenue, N.E. )
Washington, D.C. 20019 ) DEFAULT ORDER
)
Respondent
Preliminary Statement
This civil proceeding F or the assessment of a penalty was initiated
pursuant to Section 1 6(a) of the Toxic Substances Control Act, 15 U.S.C.
§2601 et sea_. (hereinafter referred to as TSCA). Respondent is charged
with violating Sections 15(1)(C) and 15(3)(A) of TSCA by respondent’s
failure to maintain PCB storage records as required by a rule [ 40 C.F.R.
§761.80(b)] promulgated pursuant to Section 6(e) of TSCA. It is hereby
determined that an appropriate default order shall be issued based on
the findings of fact and conclusions of law that are set forth below.
Findings of Fact
1. Respondent’s facility, located at 1215 Madison Avenue, N.E.,
Washington, D.C., contained 22 barrels of waste oil that were marked
with PCE ML labels and which were stored for disposal.
2. Respondent failed to maintain records relating to the storage of
those PCBs.
3. On July 16, 1983, the Enforcement Division, United States Environ-
mental Protection Agency, Region II I (the complainant), issued a
complaint and notice of opportunity for hearing to respondent,
pursuant to Sect Lon 1 6 (a) of TSCA. The complaint alleged that
respondent had violated Sections 15(1)(C) and 15(3)(A) of TSCA
by respondent’s failure to maintain PCB storage records as required
by 40 C.F.R. §761.80(b). (A copy of the complaint is enclosed as
Attachment A.)
4. In the complaint, a civil penalty of $1,000 was proposed against
respondent. The penalty was assessed based upon the factors
contained in Section 16(a)(2)(8) of TSCA and the “Guidelines for the
TSCA Compliance/Enforcement 7—59 Guidance Manual 1984
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Chapter Seven Exhibit 7-4
Assessment of Civil Penalties Under Section 16 of TSCA; PCI Penalty
Policy” (45 Fed. Reg. 59,770 (1980)], a copy of which was attached
to the complaint.
5. The complaint in the instant case set forth respondent’s right to
request a hearing within twenty (20) days of receipt of the
complaint, the requirement of,,a written answer to the complaint,
and the consequences of failure to answer the complaint.
Furthermore, a copy of the Consolidated Rules of Practice (CROP),
40 C.F.R. §22.01 et was enclosed with the complaint.
6. Said complaint was mailed to respondent on July 16, 1983, via
certified mail. Receipt No. 202684 was returned to complainant,
stamped July 17, 1983, and bearing the signature “Betty Wilson” as
signer for the addressee. (Copy enclosed as Attachment B.)
7. As of this date, respondent has failed either to respond to the
complaint, request a formal hearing, or file an answer to the
complaint pursuant to the CROP.
Conclusions of Law
1. By reason of the facts as set out in the findings of fact,
respondent violated Sections 15(1)(C) and 15(3)(A) of TSCA by
respondent’s failure to maintain PCB storage records as required by
40 C.F.R. §761.80(b), which was promulgated pursuant to Section 6(e)
of TSCA.
2. By fatling to file a timely answer to the complaint and to request a
formal hearing, respondent has admitted the facts alleged in the
complaint and has waived 1t right to a hearing. Accordingly,
respondent is in default and the proposed civil penalty is therefore
due and payable. (CROP, 40 C.F.R. §22.17]
3. It is further concluded that the amount of the proposed penalty is
appropriate pursuant to Section 16(a)(2)(8) of TSCA.
Order
Respondent shall within sixty (60) days of receipt of this default order
pay by cashier’s or certified check a civil penalty in the amount of one
thousand dollars ($1,000) to the Treasurer, United States of America.
Such remittance may be sent by messenger or certified mail to the
Hearing Clerk, U.S. Environmental Protection Agency, Region III, Curtis
Building, 6th & Walnut Streets, Philadelphia, Pa. 19106. In the event of
failure of respondent to make said payment within sixty (60) days of
receipt nf this default order, the matter shall be referred to the United
States Attorney for the District of Columbia pursuant to Section l6(a)( 4 )
of TSCA [ 15 U.S.C. §26 15(a)(4)] for recovery by appropriate action in
United States District Court.
TSCA Coispliance/Enforceisent 7-60 Guidance llanual 1984
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chapter Seven _______ ____ ___ -- •K ! 1X 7—i
AND NOW, THIS DAY OF October 4, 1983 the foregoing order is hereby
Issued under the authority of the Toxic Substances Control Act and the
Consolidated Rules of Practice adopted pursuant thereto.
Regional Administrator
TSC& Coapliance/Soforcemeot 7-61 Guidance Manual 1984
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Chapter Seven RyhIbjt 7—5
Model Consent Agree nt and Final Order
UNITED STATES
ENVIRONMENTAL PROTECTION AGENCY
REGION I
JOHN F. KENNEDY FEDERAL BUILDING
BOSTON, MASSACHUSETTS 02203
In re: )
) Docket No. TSCA—I—83—5
Firetog Industries, Inc. )
36 Sunshine Drive ) CONSENT AGREEMENT
Clark, MA 02856 ) AND
) FINAL ORDER
Respondent )
Preliminary Statement
1. This civil proceeding for the assessment of a penalty was initiated
pursuant to Section 16(a) of the Toxic Substances Control Act, 15 U.S.C.
§2615 et seq . (hereinafter TSCA). The action was instituted by a
complaint and notice of opportunity for hearing, filed upon
respondent pursuant to TSCA, charging violations of ( cite 8pecific
sections of the Act)
2. Respondent tiled an answer admitting the jurisdictional allegations
of the complaint, admits ( facts admitted )
and explains (neither admits nor denies) ( facts explained )
3. Respondent hereby explicitly waives the right to request a hearing on
any issue consented to herein.
4. Respondent consents to the issuance of the order hereinafter recited,
with the stipulations and admission of facts and conclusions of law for
the purposes of this proceeding only. Respondent consents to the payment
of a civil penalty of the amount set out in the order.
Findings of Fact
[ The “Findings of Fact” section shall state with particularity all
findings of fact with respect to each material allegation noted in the
complaint.]
Conclusions of Law
By reason of the (acts set forth in the “Findings of Fact,” it is
concluded that respondent has violated Section(s) of TSCA.
TSC& Compliance/Enforcement 7—62 Coidauce Manual 1984
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Chapter Seven R h1bjt 7—5
Respondent hereby consents to the issuance of the following order. The
(title of the Regional Office) EPA Region ______ hereby recommends that
the Regional AdmInistrator issue the following order:
Order
Respondent shall, within sixty (60) days of receipt of this consent
agreement and final order, pay by cashier’s or certified check a civil
penalty in the amount of ( $ ) dollars, payable to the
Treasurer, United States of America. Such payment shall be remitted
to the Hearing Clerk, EPA Region ______, ( address) . Failure to
remit such payment will result in the referral of this matter to the
United States Attorneys Office for collection pursuant to Section
16(a)(4) of TSCA.
(Alternative Orderj
Based on a finding that the payment of any or all of the penalty herein—
before addressed would materially affect respondent’s ability to continue
in business, respondent, having duly stipulated to the violations as
charged, is excused from payment in accordance with the terms of Section
16(a)(2)(B) of TSCA.
( Signature of respondent)
( Signature of complainant )
Date: ______________At:_______________
It is so ordered. This order shall become effective immediately.
( Signature of Regional Administrator )
Regional Administrator, EPA Region —
( Title )
EPA Region
Date: ______________At:_______________
TSCA Compliance/Enforcement 7—63 Guidance Manual 1984
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Chapter Seven RwMbite
TSCA comp liance/tforcement 7—64 Guidance Manual 1984
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Chapter Seven
6 Post-Hearing Stage
Appeal of Initial Decision
Jurisdiction of Administrator
The Administrator assumes full jurisdiction of the case immediately after
the Presiding Officer issues an initial decision. The Administrator
assumes jurisdiction regardless of whether or not a party appeals the
initial decision. If, however, a party files a motion to reopen a hearing,
the Presiding Officer may rule on that motion.
22.21(c)
Once the initial decision is issued, the Regional Hearing Clerk’s file,
which now includes the original initial decision, is forwarded to the
Hearing Clerk. Consequently, the appellant must send any notice of appeal
and iccompanying appellate brief to the Hearing Clerk. A motion to reopen
a heiring, however, is to be filed with the Regional Rearing Clerk.
22.27(a), 22.30(a)
Notice of Appeal and Appellate Brief
The notice of appeal and appellate brief must comply with the general
filing, service, and form requirements of the CROP where appropriate. The
notice of appeal and the appellate brief must be filed with the Hearing
Clerk within 20 days after the initial d cision is served on the parties.
22. 30(a)( 1)
The notice of appeal must address the disputed findings of fact and
conclusions of law contained in the initial decision. Specifically, it
must contain:
• Alternative findings of fact;
• Alternative conclusions regarding issues of law or discretion;
• A proposed order that reflects the conclusions and findings desired
by the appellant; and
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Chapter Seven Post—Rearing Stage
• Relevant references to the record and the initial decision.
22.30(a)(1)
The appellate brief is intended to present the appellant’s arguments as td
why the appeal should be granted. As such, it must include:
• A statement of issues presented for review;
• A statement of the nature of the case;
• Identification of the facts that are relevant to the issues
presented for review;
• Specific arguments on the issues presented;
• A short conclusion that includes the precise relief being sought;
and
• Appropriate references to the record and the initial decision.
Party’s Reply
Any other party or amicus curiae may file a reply brief with the Hearing
Clerk within 15 days of service of a notice of appeal and appellate brief.
The reply brief is specifically intended to address only the appellate
brief and should be so limited. Therefore, it should re8pond to the
argument raised by the appellant, together with references to the relevant
portions of the record, initial decision, or appellate brief. The reply
brief must also comply with service, filing, and content requirements
specified by the CROP.
22.30(a)(2)
Administrator’s Actions
Even if the initial decision is not formally appealed, the Administrator
may determine sun sponte that a review of the initial decision is
necessary. The Admirtistrator, however, has only 45 days after service of
the initial decialon to review the initial decision sua sponte . Otherwise,
the initial decision of the Presiding Officer becomes the final order of
the Administrator. 22.27(c), 22.30(b) If the Administrator determines to
review the initial decision sua!ponte, the Hearing Clerk shall serve
notice of such intention upon the parties. The notice will include a
statement of issues to be briefed by the parties and a time schedule for
the service and filing of briefs.
22.30(b)
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Chapter Seven Poet—Rearing Stage
Scope of Review
The appeal of the initial decision must concern only those issues raised by
the parties in the previous proceeding.
22.30(c)
Oral Argument on Appeal
Oral argument on appeal is not automatic and may be granted only if a party
makes a request to the Administrator or the Administrator orders it sua
sponte . In aesigning a time and place for oral argument, the Administrator
must consider the convenience of the parties. There are no standards
specified in the CROP for deciding whether oral argument should be heard.
22.30(d)
Final Order
Timing and Content
The Administrator is required to issue a final order as soon as is
practicable after the final action of the appeal process——either after
filing of appellate briefs, filing of subsequent briefs if ordered by the
Administrator, or oral argument, whichever occurs last.
22.31
The Administrator may, in the final order:
• Adopt, modify, or set aside all or some of the Eirmding8 and
conclusions contained in the initial decision or order; and
o Increase or decrease the recommended penalty unless the initial
decision is a default order (in which case the Administrator may
not increase the recommended penalty).
The CROP requires the final order to contain the reasons for any decision
that the Administrator makes.
Motion To Reconsider and Stay Request
A party may file a motion to reconsider a final order within 10 days after
service of the final order. A motion to reconsider must set forth the
matters claimed to have been erroneously decided and the nature of the
alleged errors. The motion may also tnclude a request that the final order
be stayed pending a resolution of the motion to reconsider. Unless such a
request for stay is granted, however, the effective date of the final order
ts the date on which it was issued, unless otherwise ordered by the
Administrator.
22.32
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Chapter Seven Poat—RPkring Stage
Appeal From Final Order
A party may appeal the findings of the final order to a United States court
of appeals pursuant to the provisions of Section 16(a)(3) of TSCA. The
obligation to pay the civil penalty does not become due until the party has
exhausted all appeals.
Payment of Penalty
The payment of the civil penalty specified in a final order of the
Administrator is due and payable in full within 60 days after the respon-
dent receives the final order, unless otherwise agreed by the parties.
22. 31(b)
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8 Judicial
Civil Actions
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8 Judicial
Civil Actions
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Chapter Eight
Judicial Enforcement: Civil Actions
Chapter Contents Page —
1 Introduction 8—1
Statutory Authority 8—1
2 Elements of a Violation: Civil 8—5
Evidence in Support of Civil Actions 8—5
Use of Expert Witnesses 8—7
3 Procedures for Filing Actions 8—9
Exhibit 8—1: Model Civil Litigation Report
Outline and Guide 8—12
4 Injunctive Actions 8—21.
Section 5(e) Injunctions 8—21
Section 5(f) Injunctions 8—23
Section 7 Injunctions 8—24
Section 17(a) Injunctions 8—25
Procedures for Seeking Injunctive Relief 8—27
Court Actior s on Motions for Injunctive Relief 8—31
Exhibit 8—2: Model Motion for Temporary
Restraining Order 8—33
Exhibit 8—3: Model Motion for Preliminary Injunction 8—34
Exhibit 8—4: Model Affidavit in Support of Motion
for Preliminary Injunction 8—35
Exhibit 8—5: Model Motion for Permanent Injunction 8—36
TSCA Compliance/Enforcement 8—i Guidance Manual 1984
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Chapter Eight Contents
5 In Rem (Seizure) Actions 8—37
Section 7 In Rem Actions 8—37
Section l7(b)i Rem Actions 8—38
Procedures for Initiating an In Rem Action 8—39
Compliance With a Seizure Order 8—39
Exhibit 8—6: Model Complaint In Rem 8—40
6 Settlement Agreements 8—43
TSCA Compliance/Enforcement 8—il Guidance Manual 1984
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Chapter Eight
1 Introduction
Under TSCA, regulatory remedies are initially and primarily handled through
the use of administrative actions. However, in those instances where EPA
is unable to obtain compliance through the use of administrative actions or
in those cases involving imminently hazardous chemical substances or
mixtures, the Act authorizes EPA to seek relief through civil court
injunctive and in rem (seizure) proceedings.
An injunction is a writ issued by a court forbidding or commanding a person
to perform a particular act. Injunctions involve the equity power of the
federal courts and are generally viewed as an extraordinary form of
relief. Consequently, they are not readily granted and a party seeking
injunctive relief has a heavy burden in demonstrating the need for such
action.
In rem (seizure) proceedings signify acts against things rather than
individuals. Therefore, a prpceeding “in rem is one taken against
property and has for its object the disposition of the property.
Statutory Authority _________________ __________
The use of TSCA judicial civil actions is authorized by the following
sections of the Act.
Section 5(e ) authorizes the use of injunctive actions to prohibit or limit
the manufacture, processing, distribution in commerce, use, or disposal of
a chemical substance that is subject to the notification requirement of
Section 5 and for which there is insufficient information to permit a
reasoned evaluation of the human health and environmental effects of the
substance, if the Mministrator determines that:
• In the absence of such information, the manufacture, processing,
distribution in commerce, use, or disposal of the chemical
substance may present an unreasonable çisk of injury to human
health or the environment; or
TSCL Compliance/Enforcement 8 -1 - Qiidance Manual 1984
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Chapter Eight Introduction
a The chemical substance is or will be produced in substantial
quantities, and such substance either enters or may reasonably be
anticipated to enter the environment in substantial quantities or
there is or may be significant or substantial human exposure to the
substance.
Section 5(f ) provides for injunctive relief to prohibit the manufacture,
processing, or distribution in cpinmerce of a chemical substance that is
subject to premanufacture notification if the Administrator finds that the
substance presents or will present an unreasonable risk of injury to human
health or the environment before a rule promulgated under Section 6 can
protect against such risk.
Section 7 gives the Agency authority to commence civil actions in district
courts for the following purposes:
• Seizure of an imminently hazardous chemical substance or mixture or
any article containing such a substance or mixture; and
• Relief ( e.g. , injunctions or other judicial orders) against a
person who manufactures, processes, distributes in commerce, uses,
or disposes of an imminently hazardous chemical substance or
mixture or any article containing such a substance or mixture.
Such relief may be temporary or permanent as may be necessary to
protect human health or the environment from the unreasonable risk
associated with the chemical substance, mixture, or article
involved in the action. In the case of an action brought against a
person who manufactures, processes, or distributes in commerce an
imminently hazardous chemical substance or mixture or an article
containing such a substance or mixture, such relief may include the
issuance of a mandatory order requiring:
—— In the case of purchasers of such a substance, mixture, or
article known to the defendant, notification to such purchasers
of the risk associated with the substance, mixture, or article,
—— Public notice of such risk,
—— Recall,
—— Replacement or repurchase of the substance, mixture, or article,
or
—— Any combination of the above actions.
Section 17(a ) accords district courts jurisdiction over civil actions to:
• Restrain any violation of Section 15 of the Act;
• Restrain any person from taking any action prohibited by Section 5
or 6 of TSCA or by a rule or order issued under those sections;
• Compel the taking of any action required by or under the Act; and
TSCA ( mpliance(Enforcement 8-2 Guidance Manual 1986
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Chapter Eight Introduction
• Direct any manufacturer or processor of a chemical substance or
mixture manufactured or processed in violation of Section 5 or 6 or
a rule or order under Section 5 or 6 and distributed in commerce
to:
— Give notice of such fact to distributors in commerce and (to the
extent that they can be reasonably ascertained) other persons
who possess or may be exposed to the chemical substance or
mixture,
—— Give public notice of such risk of injury, and
—— Either replace or repurchase the chemical substance or mixture.
Section 17(b ) authorizes the seizure, through an threm condemnation
proceeding in district court, of:
• Any chemical substance or mixture that was manufactured, processed,
or distributed in commerce in violation of TSCA or any rule
promulgated or order issued under the Act; or
• Any article containing such a substance or mixture.
TSCA CompliancelEnforceiient Guidance Manual 1984
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Chapter Eight Introduction
TSCA Coi p1iance/EuCorcei.ent 8 —4 Guidauce Manual 1984
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Chapter Eight
2 Elements of a Violation: Civil
Evidence in Support of Civil Actions —____________________
Civil actions require supportive evidence that goes beyond the prima facie
evidence necessary to establish administrative violations of TSCA. In some
instances, this nay require the use of expert witnesses to establish
certain elements of proof ( e.g. , immediate and irreparable injury or
unreasonable risk of injury). Below follows a list of additional eviden—
tiary showings that should be met before undertaking an injunctive or in
rem action.
Injunctive Actions*
Traditionally, courts have required the petitioner or plaintiff to make the
following showings before a permanent injunction would be issued:
• There is an inadequate remedy at law;
o The applicable administrative remedies have been exhausted; and
• Irreparable injury, loss, or damage will result if the relief is not
granted.
Issuance of a preliminary injunction or temporary restraining order would
require the following additional showings:
• Imim diate and irreparable injury, loss, or damage will result if the
relief is not granted; and
o There is a likelihood of success at trial, based on facts before the
court.
* These actions may consist of permanent injunctions, preliminary injunc-
tions, or temporary restraining orders. These types of injunctions are
discussed in more detail in Section 4 of this chapter.
TSCA CoapliancefEnforceinent 8-5 Qildance Manual 1984
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Chapter Eight Elements of a Violation: Civil
The above criteria have not, however, been uniformly applied by the various
judicial districts. While some jurisdiction8 have emphasized different
aspects of the criteria, other courts have developed alternative tests that
use some, but not all, of the elements listed above. For example, recent
court decisions have indicated a relaxation in the requirement of
irreparable injury. In particular, where a statute prohibits certain
conduct, many courts will presume the conduct to be injurious, thus
warranting an injunction without the need to show irreparable injury [ see
Bradford v. SEC, 278 F.2d (9th Cir. 1960)]. For this reason, an attorney
should research recent trends in the jurisdiction in which the injunctive
action is being sought to determine the appropriate criteria.
The general requirements mentioned above for obtaining injunctive relief
apply primarily to injunctions sought under the authority of Section 17(a)
of TSCA. Notwithstanding the above criteria, injunctions based on Sections
5(e), 5(f), and 7 of TSCA require the following evidentiary showings:
Section 5(e) :
• The information available to the Administrator, submitted in
accordance with Section 5, is insufficient to permit a reasoned
evaluation of the human health and environmental effects of a
chemical substance subject to premanufacture notification and
either:
—— The manufacture, processing, distribution in commerce, use, or
disposal of such substance present an unreasonable risk of
injury to human health or the environment, or
—— The chemical substance is or will be produced in substantial
quantities, and such substance either enters or may reasonably
he anticipated to enter the environment in substantial
quantities or there is or may be significant or substantial
human exposure to the substance; and
• The Administrator has not issued a proposed order under Section
5(e) with respect to the chemical substance, or the Administrator
issued such an order, however, the order does not take effect
because objections were filed pursuant to Section 5(e)(1)(C).
Section 5(f) :
• There is a rea8onable basis to conclude that the manufacture,
processing, distribution in commerce, use, or disposal of the
chemical substance subject to the notice requirement of Section
5(a) presents or will present an unreasonable risk of injury to
human health or the environment before a rule promulgated under
Section 6 of the Act can protect against such risk.
TSCA Coap1iance/& forcement 8—6 Cuidniw.e Manual 1984
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Chapter Eight E1ei nts_of a Violation: civil
Section 7 :
• The manufacture, processing, distribution In commerce, use, or
disposal of a chemical substance or mixture is likely to result in
imminent and unreasonable risk of serious or widespread injury to
human health or the environment; and
• Such injury is likely to occur before a final rule under Section 6
of TSCA can protect against such risk.
[ n Rem (Seizure Actions )
The following evidentiary showings should be met before undertaking an in
rem (seizure) action under Section 7(a) or 17(b) of TSCA:
Section 7(a) :
• The chemical substance or mixture is Imminently hazardous; and
• The imminently hazardous chemical substance or mixture, or article
containing such substance or mixture, is found within the
jurisdiction of the district court that will hear the action.
Section 17(b) :
• The chemical substance or mixture was manufactured, processed, or
distributed in commerce in violation of TSCA or any rule
promulgated or order issued under the Act; and
• The chemical substance or mixture, or article containing such
substance or mixture, is found within the jurisdiction of the
district court that will hear the action.
Use of Expert Witnesses
As in the case of administrative actions, civil judicial enforcement
proceedings generally require the presentation of expert testimony by EPA
personnel appearing as witnesses. Such testimony is used to establish
certain elements of proof that justify the relief sought ( e.g. , the showing
of immediate and irreparable injury for obtaining an injunction).
Witnesses should he selected for their direct knowledge of the
circumstances surrounding the suspected violation, because the witnesses
will be required to relate any such knowledge to the court. (See Appendix
2, “Expert Witnesses.”)
TSCA CompliancefEnfàrcement 8-7 Guidance Manual 1984
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Chapter Eight E1e uta of a Violation: Civil
TSCL CoapliancefEnforcement 8 -8 Guidance Manual 1984
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Chapter Eight
3 Procedures for Filing Actions
Except where otherwise authorized by Law, the Department of Justice repre-
sents EPA in judicial court actions.*
Requests for TSCA civil court actions are referred to the Department of
Justice or the appropriate United States Attorneys Office by the Assistant
Administrator for OECM (or the Assistant Administrator’s delegatee).** In
most instances, the Regional Office will initiate the request for an in-
junction or an in rem action and will designate the lead Agency attor—
ney.*** The lead attorney is responsible for preparing the “referral pack-
age,” which, upon completion, is sent from the Regional Office to OECM. A
copy of the package should also be forwarded to Headquarters PTSCMS.
A referral package contains:
• Referral Memorandum . A referral memorandum identifies the primary
elements of the proposed litigation. Specifically, the memorandum,
at a minimum, should include:
—— Identification of the potential defendants;
* Sections 5(e)(2)(A)(i), 5(f)(3)(A)(li), and 7(e) of TSCA permit EPA at-
torneys to appear and represent the Administrator in such actions au-
thorized by these sections. However, under the current EPA delegations
of authority, only Section 7 actions may be initiated without first
referring the case to the Department of Justice.
** The Regional Office has independent authority to refer requests for
emergency temporary restraining orders under TSCA to the Department of
Justice and the appropriate United States Attorneys Office. When exer-
cising this authority, however, the Regional Administrator must notify
the Assistant Administrator for OECM and the Assistant Administrator
for Pesticides and Toxic Substances (or their designees).
Headquarters program and Enforcement Counsel staff may participate more
actively In the case development process if precedential or nationally
significant issues are involved.
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Chapter Eight — Procedures for Filing Actions
—— Brief factual summary of the case;
— — Identification of the major issues (including potential problems
that may exist with the case);
—— Status of past Agency enforcement efforts; and
—— Names of Agency and Department of Justice attorneys who are
involved in the case, including the lead attorney.
• Civil Litigation Report . In addition to the referral memorandum,
the referral package must contain a litigation report, prepared by
the designated lead EPA attorney. (See Exhibit 8—1 for a complete
outline and guide to preparing the report.) The report must
include a synopsis of the facts and history of the violation,
including past violations by the potential defendant. The report
must cite the specific sections of TSCA and its regulations that
have been violated.
The report must show that all elements of the violation have been
satisfied. For each element, the report should indicate the
available supporting evidence. A copy of the necessary documentary
evidence and a summary of the expected expert testimony should be
attached to the litigation report.
The lead attorney should Include a statement regarding the specific
relief to be sought ( e.g. , injunctive or in rem action). The
report should also include a list of any equities that may weigh
against granting the relief sought by EPA; any expected defenses by
the violator (and how they will be countered); and any past,
anticipated, or pending state or federal actions (administrative or
judicial) against the violator. Where an injunction is requested,
the report should discuss the likelihood that the violator would
comply without the imposition of an Injunction.
Once the referral package is received by Headquarters, Enforcement Counsel
attorneys will conduct a limited final legal review to ensure completeness
and consistency in application of enforcement policy. The case will then
be transmitted to the Department of Justice or the appropriate United
States Attorneys Office. OECM will notify the Regional Administrator and
the Assistant Administrator for Pesticides and Toxic Substances (or their
designees) upon the transmittal of the civil referral.
Following the referral of a case, the lead EPA attorney will be responsible
for coordinating responses to all requests for supplemental information by
the Department of Justice or the United States Attorneys Office. The lead
Agency attorney also will be responsible for keeping program officials and
other previously Involved Agency attorneys apprised of case developments
after referral.
TSCA Compliance/Enforcei ent 8-10 iidance 119
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Chapter Eigh __________ Procedures for Piling Actions
Agency employees who are involved in the investigation and referral to the
Department of Justice of civil TSCA actions should familiarize themselves
with the Agency documents listed below. These documents are contained In
EPA’s General Enforcement Pol y Compendium .
• Memorandum of Understanding Between the Department of Justice and
the Environmental Protection Agency (6/15177);
• Quanttco Guidelines for Enforcement Litigatton (4/8/82);
• General Operating Procedures for EPA’s Civil Enforcement Program
(7/6/82); and
• Case Referrals for Civil Litigation (9/7/82).
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Chapter Eight Exhibit 8-1
Nodel Civil Litigation Report Outline and Guide*
Title Page
A. Identify the facility by name and location and indicate the parent
company if different from the facility name.
B. Identify who prepared the report (both legal and technical
personnel) indicating addresses and telephone numbers.
C. Show the date of completion/submission of the report.
Table of Contents (Standardized Example )
I. Information Identifying the Defendant(s) Page —
II. Synopsis of the Case Page —
III. Statutory Authority Page
IV. Description of Defendant’s Business and
Technical Description of the Pollution Source Page —
A. Facility Description Page
B. Source of Pollution Page
C. Pollutants Involved; Environmental Harm
(Where Appropriate) Page —
D. Available Control Technology and/or
Remedial Action Page
* The Model Civil Litigation Report Outline and Guide is to be used
for all Agency civil referrals to the Department of Justice. Civil
litigation reports, however, are most frequently used in referring
civil court actions under statutes other than TSCA. Therefore,
certain sections of the report would not need to be as detailed as
those prepared for referrals involving non—TSCA violations. For
example, since TSCA referrals involve only requests for injunctive
or in rem relief, civil penalties would not need to be discussed in
Section VII of the report (Relief Requested).
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Chapter Eight Rvhl bit 8—1
V. Administrative and Enforcement History Page —
VI. Required Elements of Proof and Evidence Page —
A. Elements of Proof Page —
B. Evidence of Violation Page
C. Evidence of Environmental Harm
(Where Appropriate) Page
D. Discovery Page —
E. Evidence Favorable to Violator Page —
F. Government Witnesses Page —
C. Defense Witnesses Page
H. Resource Needs Page
VII. Relief Requested Page
A. Preliminary Injunction Page —
B. Standards To Be Met Page —
C. Compliance Schedule Page —
D. Stipulated Contempt Fines Page —
E. Civil Penalties Page —
F. Necessary Bonds Page —
VIII. Anticipated Issues Page —
A. Possible Defenses Page —
B. Equitable Arguments Page —
C. Pending Related Administrative or Court Action Page —
D. Other Issues Page
E. Discussion of Any Potential Practical
Problem With the Case Page —
IX. Lttigation Strategy Page
A. Need for Preliminary Injunction Page —
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Chapter Eight Rvhlbit 8—1
B. Potential for Summary Judgment Page —
C. Settlement Potential Page —
D. Other Potential Defendants Page —
X. Index of Attachments Page —
XI. Attachments Page —
• Copies of correspondence
• Copies of relevant regulated submissions
• Copies of relevant policy memos, regulations, interpretations
Body of the Report
I. Information Identifying the Defendant(s)
A. Legal name of company
B. Address: Corporate headquarters
C. Name of facility (if different from “A”)
D. Address of facility (if different from “B”)
E. SIC code
F. State of incorporation
C. Registered agent for service
H. Legal counsel (name, address, telephone number)
I. Judicial district in which violator is located
II. Synopsis of the Case
This section should be a one— or two—page articulation of the
heart of the case. It should describe both the violation and the
proposed relief. It should not describe statutory authority or
intricate legal issues in detail.
This succinct statement of the case will provide the reader a
framework in which to fit the details developed and presented in
the body of the litigation report.
TSCA Co p1iance/Enforce.ent 8—14 Qiidance )Iinual 1984
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Chapter Eight Exhibit 8-1
The factual basis of the case should be touched upon. Purely
conclusory characterization of the case is not as useful as
showing the facts of a violation and requested relief. For
example, it is better to say a violator discharged or emitted X
quantity of Y pollutant for Z days, than to simply say that the
violator did not comply with the terms of a permit, State Imple-
mentation Plan (SIP), or statute.
The environmental seriousness of the violation, its ongoing
nature, and a violator’s recalcitrance may be touched upon in
this section (hut will also be developed later in paragraph
IV(C)).
III. Statutory Authority
A. Present the substantive requirements of the law and
applicable regulations. Reference all federal statutes by
U.S.C. citation as well as by the section of the pertinent
Act. Summarize the enforcement authority, jurisdiction, and
venue. Specific elements of proof are to be addressed in
paragraph V I.
B. Lengthy dissertation on the law is unnecessary. However, in
the instance of State Implementation Plans under the Clean
Air Act, or Water Quality Standards under the Clean Water Act,
or involvement of any other state law or regulation, a more
extensive explanation of the law or regulation may be
necessary. Pertinent excerpts from any applicable state
laws or regulations should be identified and attached to the
litigation report.
C. Any prior interpretation of pertinent state laws or
regulations that are germane to the case should b e
referenced when identifying the law violated. If a state’s
interpretation of the law has been different from ours, the
issue should be discussed with the state and fully explained
in this section of the litigation report. (This section may
then he referenced when discussing potential defenses, etc.,
in paragraph VIII.)
D. List any other possible theories of violation under federal,
State, or common law.
IV. Description of the Defendant’s Business and Technical Description
of the Pollution Source
A. Describe the violating corporation and the particular
division or facility in question. Any interesting corporate
interrelationships or subsidiaries should be noted.
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Chapter Eight R bibit 8-1
B. Discuss the business of the corporation and/or division,
providing details about the facility in question, what is
produced, and what causes the pollution. Emphasis should be
on the particular process that is causing the problem. Plant
and process should be thoroughly explained, including those
outfalls or emission points not subject to this enforcement
action. Diagrams should be referenced and attached to, or
included in, the litigation report. Photographs of the
source may be helpful.
C. Discuss the types of pollutants being discharged, and
potential health and environmental effects. Although the
seriousness of the violation is not technically a requirement
of proof in enforcement of certain statutes, it is sometimes
relevant to the assessment of penalties and equitable
relief. For this reason, it should be discussed in the report
although it will not be the sole determinant of whether a
case has prosecutorial merit. The Department of Justice has
suggested the following considerations in assessing the
seriousness of the violation:
• The discharge of toxics or mutagens or carcinogens is more
serious than the discharge of conventional pollutants;
• The discharge of large quantities of pollutants
is more important than the discharge of small quantities;
• Bloaccumulative wastes posing long—term threats are more
serious than biodegradable wastes;
o The discharge of pollutants in an area not attaining
primary ambient air quality standards is more important
than discharges in an area not meeting secondary
standards;
• The discharge of pollutants that directly and demonstrably
affect health or the environment is more than those that
have no direct or obvious effect;
• Ongoing present violations that the government seeks to
stop are more important than episodic violations which
have ceased; and
• A defendant with a history of violations is more worthy
of attention than a first offender.
If a case does not present obvious “serious” health effects
or environmental harm, hut is compelling for some other
reason ( e.g. , deterrence of continued, blatant violations of
the law), this should be indicated.
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Chapter Eight kbibit 8 -1
D. Discuss available methods of controlling the problem.
Specify technology(ies) that will achieve the imposed limits,
and indicate the time requirements for a schedule of
compliance that considers time necessary for design,
contracting, construction, and startup. (Thi8 is not
inconsistent with EPA policy of not prescribing specific
compliance technologies. This information may be necessary
in court to illustrate technical feasibility if requested by
the judge.)
Cost estimates should be included, to the extent known.
Indicate the reliability of the estimates. (Reference
paragraph VII(E) as appropriate.)
V. Chronological Administrative History and/or Earlier Enforcement
Actions (State and Federal)
A. Show all attempts to exact compliance or impose sanctions
administratively or judicially that have been considered or
taken. A full historical chronology should be presented.
B. Indicate whether necessary notice pursuant to the statutory
requirements has been given to the violator prior to
initiation of court action.
VI. Required Elements of Proof and Evidence
A. List the necessary elements of proof to establish the
violation under each statute involved.
B. Present a detailed, objective, factual analysis of all real,
documentary, and testimonial evidence corresponding to each
necessary element of proof in paragraph VI(A) above.
Indicate the location of all real evidence.
Reference each item of documentary evidence as an attachment,
except where it is too voluminous (in which case indicate its
present location).
Identify all witnesses by name (indicating whether lay or
expert), when indicating the import and substance of their
testimony. Complete addresses and phone numbers of witnesses
will he listed in paragraph VII(E) below.
C. Discovery. Where evidence may be made available by
discovery, indicate:
1. The type of evidence anticipated;
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Chapter Eight R kf bit 8-1
2. The person or organization currently having the
evidence; and
3. The type of discovery to be used.
Assess the quality of the evidence. Be objective. Any facts
or circumstances that affect the strength of the Agency’s
proof should he explicitly set forth. The newness or oldness
of evidence is relevant; the dependability of testing
techniques is important. Any assumptions, and the reasons
for them, should be spelled out.
D. If establishing environmental harm is important to the case,
set forth the evidence of harm (as done in paragraph VI(B)
for elements of substantive violation).
E. List all evidence favorable to the violator, including test
results that differ from EPA’s. Any relevant fact that may
bear adversely on the government’s contentions should be
highlighted. Defense witnesses, to the extent they can be
anticipated, should be listed in paragraph VI(G).
F. List all government witnesses alphabetically with business
address, and telephone number and home telephone number. Qual
fications of experts should be given.
All witnesses listed should have been consulted and
thoroughly interviewed. Paragraph VflB) should set out in
succinct fashion the actual facts and opinions to be included
in the testimony.
G. List all defense witnesses anticipated, identifying their
employment, expertise, etc. The likely content of their
testimony should be set out in paragraph VI(E).
H. Indicate projected resource needs ( e.g. , experts, money,
etc.).
VII. Relief Requested
This paragraph should include a comprehensive “bottom—line”
settlement position on all items of relief necessary, including
those set forth below. If there are policy questions or conflicts
associated with any requested relief, discuss them. This section
should be carefully detailed. It will be relied upon in
determining the acceptability of any settlement offers/proposed
consent decrees.
A. Preliminary injunction.
B. Standards to be met (interim and final).
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Chapter Eight R hIbit 8—1
C. Compliance schedule for available technology with phasing,
duration, etc. (Reference paragraph IV(D), as appropriate.)
D. Stipulated contempt fines in conjunction with compliance
schedule.
E. Civtl Penalties.
1. Economic savings realized by the violator should be
analyzed. The EPA Civil Penalty Evaluation form should
be completed, discussed, and attached. Calculations
should be included as attachments. This section should
include discussion of all elements developed under EPA’s
civil penalty policy, including ability of the company
to pay and recalcitrance.
2. Comment on types of credits possible (or proposed by the
violator), as well as credits considered andfor allowed
for other similar violators (including municipal POTWs).
3. If economic savings is not a relevant measure of penalty
assessment, explain what basis should be used.
F. Necessary bonds.
Witnesses necessary to establish the relief requested should
be identified by name, address and telephone number, with a
brief summary of the subject of their testimony.
VIII. Anticipated Issues
A. Possible defenses.
(Analyze only defenses that are likely to be presented;
fanciful theories can be ignored.)
1. Outline legal issues. Attach legal memoranda on threshold
legal issues ( e.g. , Chapter 11 Reorganization) or col-
lateral legal action asserted as a bar to enforcement
litigation.
2. Outline factual issues.
B. Equitable arguments by the violator ( e j, , EPA delay in
promulgating guidelines; installation of equipment that did
not work; En compliance at its other facilities; emission
standard to be revised; inability to finance; economic
constraints, etc.). Any past action, or inaction, or
inaction, (not necessarily judicial or administrative) by a
state or any EPA office that the company may use as an excuse,
or cite for reliance. ( e.g. , promises of less stringent
limits; agreement not to sue, etc.).
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Chapter Eight Rvhlbjt 8—1
C. Pendency of any action involving the violator or EPA on
related issues in any court or administrative forum.
(Reference paragraph V(A), as necessary.)
D. Other possible issues that might arise at trial.
E. Discuss any potential practical problems with the case.
IX. Litigation Strategy
A. Need for preliminary injunction.
B. Potential for summary judgment.
C. Settlement potential.
1. Past contacts by EPA, the Department of Justice or the
United States Attorneys Office.
2. Present negotiating posture and assessment of potential
for settlement. Include comparison of posture with
bottom—line” settlement position from paragraph VII.
D. Other potential defendants.
E. Other pending actions against violator.
X. Index of Attachments
XI. Attachments
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Chapter Eight
4 Injunctive Actions
Injunctive actions may be initiated under the authority of Section 5(e),
5(f), 7, or 17(a) of TSCA.
Sec ion ______—
Criteria for Use
Injunctive relief authorized by Sectton 5(e) of TSCA should be considered
when:
• The informat ton available to the Administrator under Section 5 of
the Act is insufficient to permit a reasoned evaluation of the
human health and environmental effects of a chemical substance that
is subject to the notice requirement of Section 5(a) and either:
—- In the absence of such information, the manufacture,
processing, distribution in commerce, use, or disposal of such
substance may present an unreasonable risk of injury to human
health or the environment, or
—— The chemical substance is or will be produced in substantial
quantities, and such substance either enters or may reasonably
be anticipated to enter the environment in substantial
quantities or there is or may be significant or substantial
human exposure to the substance; and
• The Administrator has not issued a proposed order under Section
5(e) with respect to the chemical substance, or the Administrator
has issued such an order, however, the order does not take effect
because objections were filed pursuant to Section 5(e)(l)(C).
Use of Section 5(e) InJ inctive Actions
Pursuant to Section 5(a) of TSCA, any person who manufactures a new
chemical substance or who manufactures or processes a chemical substance
or a significant new u e must submit a premanufacture notice (PMN) to
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Chapter Eighç _ Injunctive &ctiona
EPA. The PMN is to contain specific information regarding the effects of
the new chemical or the effects concerning the significant new use for an
existing chemical.
The Agency will review the submitted information to determine whether a
reasoned evaluation may be made of the effects of the chemical or the
significant new use. The Act provides a 90—day review period following
submission of the PMN, although the period may be extended for a maximum of
90 additional days if good cause is shown.
Upon reviewing the information, the Administrator may issue a proposed
order prohibiting or limiting the manufacture, processing, distribution in
commerce, use, or disposal of the chemical substance if there is
insufficient information to permit a reasoned evaluation of the human
health and environmental effects of the substance and either:
• In the absence of sufficient information, the manufacture,
processing, distrtbution in commerce, use, or disposal of such
substance may present an unreasonable risk of injury to human
health or the environment; or
• The substance is or will be produced in substantial quantities and
—— Enter, or reasonably be anticipated to enter, the environment
in substantial quantities, or
—— Result in significant or substantial human exposure to the
substance.
The proposed order must be issued no later than 45 days before the
expiration of the review period, and the order will become effective upon
the expiration of that period.
However, an affected firm may challenge the proposed order, thus delaying
the effective date of the order. Therefore, unless the Administrator
immediately sustains the objection ( i.e. , finds that there is sufficient
information to permit a reasoned evaluation of the human health and
environmenral effects of the substance), the Agency must seek an injunction
to prohibLt or limit the manufacture, processing, distribution in commerce,
use, or disposal of the PNN chemical substance. Additionally, the
Administrator is required to seek an injunction if it is found that there
Is insufficient information concerning the new chemical substance or
significant new use but a proposed order has not yet been issued in that
particular matter. This latter circumstance might occur if the review
period expires before the Administrator can issue the proposed order.
II f ceient - jÜTI Manu T5ii
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Chapter Eight Injunctive M tione
Section 5(f) Injunctions
Criteria for Use
Injunctive relief authorized by Section 5(f) of TSCA should be considered
when there is a reasonable basis to conclude that the manufacture, proces-
sing, distribution in commerce, use, or disposal of a chemical substance
subject to premanufacture review presents or will present an unreasonable
risk of injury to human health or the environment before a rule promulgated
under Section 6 can protect against such risk.
Use of Section 5(f) Injunctive Actions
Pursuant to Section 5(1) of TSCA, if the Administrator determines that
there is a reasonable basis to conclude that the manufacture, processing,
distribution in commerce, use, or disposal of a chemical substance subject
to premanufacture review presents or will present an unreasonable risk of
injury to human health or the environment before a Section 6 rule can be
promulgated, the Administrator may (before the expiration of the PMN review
period):
• Prohibit the manufacture, processing, or distribution in commerce
of the chemical substance by:
—— Proposing a rule under Section 6(a),
—— Issuing a proposed order under Section 5(f)(3)(A)(i) that, if
challenged, must be followed by the initiation of a Section
5(f)(3)(A)(ii) injunction, or
—— Seeking a Section 5(f)(3)(A)(ii) injunction; or
• Limit the amount of the chemical substance that may be
manufactured, processed, or distributed in commerce by proposing a
Section 6(a) rule. Section 5(f)(2) states that such a proposed
rule would become effective upon publication.
It is important to note that Sections 5(f)(3)(A)(i) and 5(f)(3)(A)(ii)
allow the Administrator to immediately implement a prohibition on the
manufacture, processing, or distribution in commerce of a chemical
8ubstance that is subject to premanufacture review and that has been
specified in a proposed Section 6(a) rule. These sections of the Act are
necessary because proposed Section 6(a) rules are generally not immediately
effective. Section 6(d) does permit a Section 6(a) rule to become
immediately effective if there is a showing of an “imminent unreasonable
risk of serious or widespread injury.” However, Sections 5(f)(3)(A)(i) and
5(f)(3)(A)(ii) permit the Administrator to implement immediately a
prohibition on the manufacture, processing, or distribution in commerce of
a PNN chemical substance by showing an “unreasonable risk of injury,” not
the more stringent “serious or widespread injury” requirement of
TSCA Compliance/Enforcement 8-23 Guidance P anua1 1984
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Ch ter Eight — — Injunctive Actions
Section 6(d)*. If, on the other hand, the Administrator wishes only to
limit the amount of a chemical substance that is subject to premanufacture
review, the Administrator may do so under Section 5(f)(2). Under Section
5(f)(2), a proposed Section 6(a) rule (limiting the amount of the chemical
substance that may be manufactured, processed, or distributed in commerce)
becomes effective upon publication.
Section 7 Injunctions
Criteria for Use
Injunctive relief authorized by SectIon 7 of TSCA should be considered when
a chemical substance or mixture, or article containing such a substance or
mixture, poses an imminent hazard to human health or the environment.
Use of Section 7 J _ nlunctive Actions
Section l(a)(l)(B) of TSCA, authorizes the Administrator to seek injunctive
relief, through EPA or Department of Justice attorneys, against any person
who manufactures, processes, distributes in commerce, uses, or disposes of
an imminently hazardous chemical substance or mixture or any article con-
taining such a substance or mixture.
Section 7(f) defines an imminently hazardous chemical substance or mixture
as one that presents an imminent and unreasonable risk of serious or wide-
spread injury to human health or the environment. An unreasonable risk is
considered imminent if it can be shown that the manufacture, processing,
distribution in commerce, use, or disposal of the chemical substance or
mixture Is likely to result in such injury before a final rule under
Section 6 of the Act can protect against such risk.
If an Imminent hazard exists and the Administrator has not issued an
immedIat ely effective rule under Section 6(d)(2)(A)(i) against the
imminently hazardous chemical substance or mixture, then according to
Section l(a)( 2 ), the Administrator must commence an appropriate Section 7
action (i.e., a seizure or injunctive action). Agency policy, however,
* In addition, Section 6(d) requires that in order for a Section 6 rule
(which prohibits the manufacture, processing, or distribution in
commerce of a chemical substance or mixture that is likely to result in
an unreasonable risk of serious or widespread injury) to become
immediately effective, a court must [ irst have granted relief under
Section 7 of the Act.
TSCA Compliance/En forcement - — - ____
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Chapter Eight injunctive Mtione
permits the Administrator to initiate an immediately effective rule under
Section 6 In lieu of seeking a Section 7 civil action.*
A Section 7 injunctive action may seek such temporary or permanent relief
as may be necessary to protect human health or the environment from the
unreasonable risk associated with the chemical substance, mixture, or
article involved in the action. If the injunctive action is brought
against a person who manufactures, processes, or distributes in commerce an
imminently hazardous chemical substance or mixture or an article containing
such a substance or mixture, the action may include the tesuance of a man-
datory order requiring:
• In the case of purchasers of such a 8ubstance, mixture, or article
known to the defendant, notification to such purchasers of the risk
associated with it;
• Public notice of such risk;
• Recall;
• Replacement or repurchase of such a substance, mixture, or article;
or -
• Any combination of the above actions.
Concurrent with the filing of a Section 7 civil action or soon thereafter
as may be appropriate and where practicable, the Administrator must mi—
date a Section 6(a) rulemaking proceeding.
Section 7 civil actions may be commenced notwithstanding the existence of a
rule under Section 4, 5, or 6 or an order under Section 5, and notwith-
standing the pendency of any TSCA administrative or judicial proceeding.
Section 17(a) Injunctions
Criteria for Use
Injunctive relief authorized by Section 17(a) of TSCA, which is the most
common form of judicial relief sought, should be considered when there Is a
need to:
* This policy, however, would not apply to a Section 6 rule that seeks to
prohibit the manufacture, processing, or distribution in commerce of an
imminently haaardou8 substance, since Section 6(d)(2)(A)(ii) requires
that, in order for such a rule to become immediately effective, a court
must first have granted relief under Section 7 of the Act. The policy
does apply to the other forms of relief ( i.e. , other than a complete
prohibition) available under Section 7.
TSCA GuntpliancelEnforceiient 8-25 Guidance Manual 1984
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Cha 1 er Eight -—____ - Injunctive Actions
• Restrain any violation of Section 15 of the Act. The violations
specified by Section 15 include:
—— Failure or refusal to comply with any ru’le promulgated or order
issued under Section 4, any requirement prescribed by Section 5
or 6 of TSCA, or any rule promulgated or order issued under
Section 5 or 6,
—— Use, for commercial purposes, of a chemical substance or
mixture that such person knew or had reason to know was
manufactured, processed, or distributed in commerce in
violation of Section 5 or 6 of TSCA, a rule or order under
Section 5 or 6, or an order issued in an action brought under
Section 5 or 7,
—— Failure or refusal to establish or maintain records; to submit
reports, notices, or other information; or to permit access to
or copying of records, as required by TSCA or its rules, and
— — Failure or refusal to permit entry or inspection as required by
Section Ii of TSCA;
• Restrain any person from taking any action that is prohibited by
Section 5 or 6 of TSCA or by a rule or order issued under those
sections;
• Com pe1 the taking of any action required by or under the Act; or
• Direct any manufacturer or processor of a chemical substance or
mixture manufactured or processed in violation of Section 5 or 6 or
a rule or order under Section 5 or 6 and distributed in commerce
to:
—— Give notice of such fact to distributors in commerce and (to
the extent that they can be reasonably ascertained) other
persons who possess or may be exposed to the chemical substance
or mixture,
—— Give public nottce of such risk of injury, and
—— Either replace a repurchase the chemical substance or mixture.
Use of Section 17 (a) IqJ nctive Act ions
As discussed in Chapter Five, administrative penalty proceedings are the
preferred enforcement tools of the Agency in enforcing TSCA requirements.
Injunctive relief authorized by Section ll(a) will generally be sought in
those instances where civil penalty proceedings are (or will be)
ineffective because of the nature of the violation, or the nature of the
violator. Specifically, a permanent injunction should be considered when:
TSCA Coii pliancefEnforcesaent 8-26 iii
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Chapter Eight ________—— Injuoctive ktions
• The Agency’s administrative or other judicial enforcement remedies
would be inadequate either at restraining the violation or at
preventing unreasonable risk to humans or the environment;
• The Agency has, In fact, already diligently exercised aLL
appropriate administrative remedies, yet the violation continues
unabated; and
• Irreparable injury, 1088, or damage will result If relief is not
granted. Irreparable” means that the damage cannot be undone once
it takes place. (See the discussion on irreparable injury in
Section 2 of this chapter.)
A preliminary injunction or temporary restraining order should be con-
sidered when the following additional elements are present:
• Immediate and irreparable injury, loss, or damage will result if
relief is not granted. “Immediate” is self—explanatory and is in-
terpreted strictly; and
• There is likelihood of success at trial based on facts before the
court (i.e., more than a 50—percent chance of winning at a trial
based on facts before the court at the time of application).
The above constderattons relating to permanen Injuncttons, preliminary
injunctions, or temporary restraining orders !y occur when:
• The violator is recalcitrant and has demonstrated a history of
noncompliance with administrative orders and, therefore, should he
made subject to the contempt powers of a district court;
• The nature of the violation is such that it cannot be remedied
effectively by Agency proceedings. (Because injunctive proceedings
are equitable in nature, they permit the court to fashion the
necessary relief); or
• The violation is very serious and meets the technical criteria for
a finding of “ imminent hazard” under Section 7 of TSCA but the
Agency does not wish to initiate a Section 6(a) rulemaking pro—
c eed ing.
FFocedures for Seeking Injunctive Relief ____
1. Determine the Necessity for Injunctive Relief
• Regional Initiation . The Regions generally make the initial deter-
mination that an injunction is necessary to restrain violations of
TSCA or to prevent harm to humans or the environment. The regional
TSCA Compltauce [ Enforcement 8-27 — Guidance Manual 1984
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Chapter Eight Injunctive Actions
determination must be based on a careful weighing of the facts of
the violation, of the evidence available to document the severity
of the violation, and of the criteria discussed above.
• Headquarters initiation . In some instances, Headquarters may be
the initiating party when noncompliance with the terms of the
statute exists on a national level, or the hazard to human health
or the environment is of national significance ( e.g. , Section 7
injunctions).
2. Determine Type of Injunction To Be Sought
• Temporary Restraining Order (Exhibit 8—2) . A temporary restraining
order (TRO), sometimes known as a provisional Injunction, is used
for Immediate temporary relief prior to issuance of a preliminary
injunction, or unless otherwise permitted by statute. For example,
issuance of a TRO may be warranted when:
— — A situation exists that justifies the use of a Section 7 clvii
action to prevent the unreasonable risk of an imminent hazard
before a final Section 6 rule can protect against such risk, or
—— Under a Section 5(e) or 5(f) injunctive proceeding, where the
notification period under Section 5(a), (b), or (c) may expire
before the judicial proceeding is completed.
The purpose of the T is to preserve the status until a motion
for a preliminary injunction can be heard. Its advantage is that
it is the most expediently obtained form of injunctive relief.
However, a TRO is limited in duration to only 10 days (although it
can be extended an additional 10 days by the court).
Rule 65(b) of the Federal Rules of Civil Procedure (Fed. R. Civ.
P.) controls the procedural steps for obtaining a TRO. Generally
the attorney for the adverse party, if known (or if not known, the
adverse party itself), must be given oral or written notice of the
request for a TRO. This requirement, however, is suspended if (1)
it is shown by specific facts that immediate and irreparable harm
will occur before th adverse party can be heard and (2) if the
government attorney certifies in writing the efforts, if any, taken
to prov]de notice to the adverse party and the reasons supporting
the claim that notice should not he required. The facts demonstra-
ting lrnrnidiate and irreparable injury, loss, or damage, may appear
either in a verified complaint or in a separate affidavit signed by
an EPA employee other than the attorney for the case. Along with
the motion for a TRO, a copy of the suggested TRO should be filed.
When a Thu is granted without notice ( i.e. , ex parte) , the motion
for a preliminary injunction must be set for hearing at the
earliest possible time. The party who obtained the TRO must then
proceed with the application for a preliminary injunction and if
omplfii 7i F - - - 8- - - - —___
-------
Chapter Eight Injunctive Actions
the party does not do so, the TRO will he dissolved by the court.
If a defendant moves to modify or dissolve a TRO, there must be a
hearing and the Agency must be informed at least two days before
the hearing.
• Preliminary Injunction (Exhibit ‘8—3) . A preliminary injunction by
its very nature is interlocutory, provisional, or temporary. It is
intended to preserve the status pending final determination of
the action after a full hearing on the merits. It is different
from a TRO in that a preliminary injunction requires advance notice
to the adverse party, and it can last longer than 10 days.
Notice presumes a hearing and an opportunity to contest the motion
for an injunction. The applicant has the burden of establishing
the right to injunctive relief. To do so, it is advisable to rely
on more than affidavits (Exhibit 8—4) whenever possible. Oral
testimony should be available when and if necessary to substantiate
the Agency’s contentions.
The court may order the advancement and consolidation of the trial
on the merits with the hearing on the application for preliminary
injunction. Consequently, the government attorney should be
prepared to go forward with the prosecution of the case when
seeking a preliminary injunction.
• Permanent Injunction (Exhibit 8—5) . A permanent injunction, also
called a final or perpetual injunction, is generally unlimited in
duration. It is usually granted only after a full trial on the
merits. Consequently, the judgment granting a permanent injunction
constitutes final disposition of the suit, although the judgment
may he appealed to a circuit court.
Mere passage of time will not dissolve a permanent injunction,
unless the judgment itself so provides. However, the prospective
features of a final Injunctive decree are subject to termination or
modification by the court when warranted by changed conditions.
For example, under Section 5(e)(2)(D) of TSCA, a district court,
upon petition, will dissolve a Section 5(e) injunction if test data
is submitted that is sufficient to evaluate the human health and
environmental effects of the chemical substance subject to the
injunction unless the Administrator has initiated a proceeding for
the issuance of a rule under Section 6(a) respecting the
substance. If such a proceeding has been initiated, the court will
continue the injunction until the effective date of the rule or, if
the proceeding is terminated without the promulgation of a rule,
upon termination of the proceeding.
3. Determine the Appropriate District Court Having Jurisdiction
The Regional Office must determine which is the appropriate district
court having jurisdiction over the violator. An injunction operates
in peraonam (meaning “against the particular person”), so that the
TSCA Compliance/Enforcement 8—29 Guidance Manual 1984
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Chapter Eight I.nj mctive Actions
district court in which the motion is filed must have in personam jurisdic—
don over the party against whom the injunction is sought. Usually this
means that the person or corporation who is the defendant must live or have
a place of business within the Btate. Furthermore, service of process, or
the deLivery of written notice, is subject to the territorial limits of the
state in which the district court is located unless otherwise provided for
in a statute.
In some instances, an injunction may have an In rem (“against the world at
large”) effect on property or items that are the subject of the suit or
that are within the court’s in rem jurisdiction. In rem jurisdiction may
have a bioader reach for serving process than does in personam——it Is
easier to get “the thing” than it is “the person.” These possibilities
should be explored informally with the appropriate U.S. Attorney before
tormal referral of the case file.
The following specific jurisdictional requirements apply to injunctions
sought under Sections 5(e), 5(f), 7 and 17(a) of TSCA:
• Section 5(e)and5(f) junctions . Injunctive actions that are
based on Sections 5(e) and 5(f) of TSCA may be filed in:
—— The United States District Court for the District of Columbia,
or
—— The United States district court for the judicial district in
which the manufacturer or processor of the chemical substance
subject to the action is found, resides, or transacts business.
o Section 7 InjunctIons . Injunctive actions that are based on
Section 7 of TSCA may be filed in:
—— The United States district court for the District of Columbia.
—— The United States district court for the judicial district in
which the person who manufactures, processes, or distributes a
chemical substance or mixture that is the subject of the action
is found, resides, or transacts business.
According to Section 7(c)(1)(A), process in a Section 7 injunctive
action may be served on a defendant in any other district in which
such defendant resides or may be found. However, Section 7(c)(1)
(B) states that in instances in which the action may be brought in
more than one judicial district, the Administrator is to take into
account the convenience of the parties. Subpoenas requiring the
attendance of witnesses maybe served, pursuant to TSCA Section
7(c)(I)(C), in any judicial district.
According to Section 7(c)(2), whenever proceedings involving iden-
tical chemical substances, mixtures, or articles are pending in two
or more district courts, they are to be consolidated for trial upon
application reasonably made by any party in interest and upon
notice to all parties in interest.
TSCA Compliance/Euforcemant 8-30 Gaidance Manual 1984
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Chapter Eight Injunctive tione
• Section 17(a) Injunctions . Injunctive actions that are based on
Section 17(a) of TSCA differ on their filing location depending
upon the nature of the activity that is the subject of the action:
—— If the injunctive action involves a violation of Section 15 of
the Act, the action must be filed in the United States district
court for the judicial district in which the violation occurred
or where the defendant is found or transacts business, or
—— If the injunctive action involves any other activity specified
by Section 17(a), the action must be brought in the United
States district court for the judicial district in which the
defendant is found or transacts business.
Process may be served on a defendant in any judicial district in
which the defendant resides or may be found, and subpoenas
requiring the attendance of witnesses at trial may be served in any
judicial district.
4. Prepare the Referral Package
See discussion in “Procedures for Filing Actions” (Section 3) in this
chapter.
Court Actions on Motions for Injunctive Relief
If an injunction is granted , the following actions should ensue:
• Preparation for the Next Stage of the Proceeding . If the court
grants a motion for a preliminary injunction or TRO, the regional
attorney in conjunction with the U.S. Attorney must begin
preparation for the next stage in the proceeding, whether that be a
full trial on the merits or a more extensive and permanent type of
injunction.
• Monitoring the Injunction . Although it is the court’s
responsibility to monitor any equitable decree, including an
injunction, the courts have limited resources and often encounter
practical difficulties in monitoring compliance. If the court does
not ask the Agency to monitor the injunction, the Region should
offer to assist the court in monitoring the injunction and to
report any violations of the injunction. A violation of an
Injunction will subject the party to a charge of contempt of court.
TSCA CompliancefEnforcement 8 -31 Guidance Manual 1984
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Chapter Eight Injunctive Actions
If an injunction is denied , the Agency may either:
• Appeal the denial; or
• Accept the denial and pursue other legal remedies.
In both instances, the Headquarters Case Development Officer (HQCDO) should
be consulted by the Regional Office to determine which course of action to
cake.
TSC& Compliance/Enforceu ent 8-32 Guidance Manual 1984
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Chapter Eight ______ _______________ Rxhlbit 8-2
Model Motion for Temporary Restraining Order
United States District Court
_____________ Dietrtct of________
( Tti:le of Action ) Civil ktioa No.
Motion for Temporary Restraining
Order [ With or Without Notice]
Plaintiff, the United States of America, herewith moves this court to
grant [ *(1) forthwith and without notice to defendant or his or her
attorney) a temporary restraining order restraining defendant, his or her
agents, and employees from ( set forth acts sought to be enjoined )
pendii g a hearing and disposition of plaintiff’s motion for a
preliminary injunction on the grounds that immediate and irreparable
injury, loss, or damage will result to [ *(2) plaintiff, the public, the
environment) as set forth in the attached affidavit of ( name of
affiant ) [ *(3) before notice can he given and before defendant or his
or her attorney can be heard in opposition, as certified to by the
undersigned].
(Signature of U.S. Attorney)
United States Attorney for the
___________ District of
Date
* (1),(3) —— These statements are optional depending upon whether or
not the defendant or his or her attorney receives
advance notice of the request for a TRO.
* (2) —— The victim of the alleged injury can be best determined
from the actual facts of the caee at hand.
TSCA Coapliance/Kaforcemeut 8-33 Guidance Manual 1984
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Chapter Eight ____ ____ ______ X ibit 8—3
ode1 Motioa for Preliminary Injunction
United States District Court
District of
(Title_of Action ) Civil Action No.
Motion for Preliminary Injunction
Plaintiff, the United States of America) herewith moves this court for a
preliminary injunction enjoining the defendant ( name of defendant) , his
or her agents, servants, employees, and attorneys and all persons in
actt”e concert and participation with the defendant pending the final
hearing and determination of this action, from ( set forth act or acts
sought to be enjoined) on the grounds that:
(1) Unless restrained by this court, defendant will perform the acts
referred to;
(2) Such action by the defendant will result in immediate and
irreparable injury, loss, or damage to ( the plaintiff, the
qbli. _ in st, or the environment) , as appears in the
verified complaint and the affidavit of ( name of affiant) ,
attached hereto; and
(3) The issuance of a preliminary injunction herein will not cause
undue inconvenience or loss to defendant, but will prevent
iinntedtate and irreparable injury to the plaintiff.
( Signature of U.S. Attorney) _
United States Attorney for the
District of
Date
TSCA Compliance/Enforcei ent 8-34 Guidance Manual 1984
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Chapt er Eii ___ ____ Exhibit 8-4
Model Mfidavit in Support of Motion for Preithinary Injunction
United States District Court
District of
(Title of Action ) Civil Action No.
Affidavit in Support of Motion for
Preliminary Injunction
(Name of Affiant), being duly sworn, deposes and says:
(1) The United States of America, plaintiff in the above—entitled
action, makes this affidavit in support of plaintiff’s motion
for a preliminary injunction.
(2) This is an action [ to enjoin defendant from engaging in any
violation of the Toxic Substances Control Act, 15 U.S.C §2601
et or an action otherwise authorized by the Act].
(3) [ Statement of facts to support the motion].
(Signature of Affiant
other than EPA attorney)
Subscribed and sworn to and before me at ( City and State )
this day of _____ , l9_ .
- (Signature of Attesting Official
other than EPA attorney ) --
TSCA Comp1iance/Enforce ent 8-35 Guidance Manual 1984
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Chapter Eight — —- -- — Kxbibit 8—5
Model Motion for Permanent Injunction
United States District Court
________District of
( Title of Action ) Civil Action No.
Motion for Permanent Injunction
Plaintiff, the United States of America, herewith moves this court to
make permanent the preliminary injunction issued herein on ( date) . In
support, plaintiff submits (the opinion of the court of ____-- ),
which is conclusive to the effect that the ( behavior or activity of the
defendant) is unlawful and no additional evidence could alter that
result.
[ Optional: (1) Counsel may also want to include a paragraph moving
the court to enter the mandate of a higher court,
if the grant of injunct ton has been unsuccessfully
appealed.]
[ Optional: (2) Counsel may also find it necessary to include a
motion either for the dismissal of defendant’s
counterclaim or for the grant of summary judgment
as to the counterclaim.]
( Signature of U.S. Attorney )
United States Attorney for the
_________ District of
Date
TSCA Compliance/Enforcement 8-36 Guidance Manual 1984
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Chapter Eight
5 llj Rem (Seizure) Actions
In rem (seizure) actions may be initiated under authority of Section 7 or
17(b) of TSCA. The seizure of a chemical substance or mixture or article
containing such a substance or mixture, as authorized by those sections, is
effectuated through an in rem condemnation proceeding conducted according
to Rule 9(h) of the Federal Rules of Civil Procedure (Fed. R. Civ. P.) and
the Supplementary Rules for Certain Admiralty and Maritime Claims ITitle 28
U.S.c.J.
Section 7 In Rem Actions _______________ _____
Authority
Section 7(a)(1)(A) of TSCA permits the Administrator to commence a civil
action in an appropriate district court for the seizure of an imminently
hazardous chemical substance or mixture or any article containing such a
substance or mixture.
Criteria for Use
A Section 7 seizure action should be used in a situation in which a
chemical substance or mixture presents an imminent and unreasonable risk of
serious or widespread injury to health or the environment. Such risk is
considered imminent if it is shown that the manufacture, processing,
distribution in commerce, use, or disposal of the substance or mixture is
likely to result in such injury before a final rule under Section 6 can
protect against such risk. Whether or not a chemical substance or mixture
prcsL nts an imminent hazard will have to be determined on a case—by—case
basis. However, it is expected that the standard would apply to those
cases where a chemical substance or mixture poses an acute risk of harm to
human health or the environment or is being used by large numbers of people
in many areas of the country and the substance, mixture, or article must be
seized to prevent that risk. A seizure action under Section 7(a) may be
used in conjunction with any other relief authorized by that Section
(including injunctive actions). It may also be used notwithstanding the
TSCA Co pliance/Enforcenient - - iidnnee Manual 1984
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Chapter Eight _____ ____ In Rem (Seizure) Actione
existence of a rule under SectIon 4, 5 or 6 or an order under Section 5 of
the Act, and notwithstanding the pendency of any administrative or judicial
proceeding under any provision of TSCA. A Section 7 action (either seizure
or other relief) is mandatory if the Administrator hae not made a rule
under Section 6 (a) immediately effective with respect to the imminently
hazardous chemical substance or mixture.
Jurisdictional_Considerations
A seizure action authorized by Section 7(a)(1)(A) against a chemical
substance or mixture, or article containing such substance or mixture, may
be brought in any United States district court within the jurisdiction in
which the substance, mixture, or article is found.
Section 17(b) In Rem Actions
Authority
Section 17(b) of TSCA authorizes the seizure of any chemical substance or
mixture that was manufactured, processed, or distributed in commerce in
violation of the Act or any rule promulgated or order issued under TSCA or
any article containing such substance or mixture.
Criteria for Use
An in rem action authorized by Section 17(b) should be considered when a
chemical substance or mixture presents an unreasonable risk of injury to
human health or the environment but does not constitute an imminent hazard
under Section 7. Note that a Section 7 seizure action may be used in in-
stances where there is no violation of TSCA, whereas a Section 17(b) in rem
action requires that the chemical substance or mixture has been manufac-
tured, processed, or distributed in commerce in violation of the Act.
Jurisdictional Considerations
A seizure action authorized by Section 17(b) of TSCA against a chemical
substance or mixture, or article containing such substance or mixture, may
be brought in any United States district court within the jurisdiction in
which such substance, mtxture, or article is found.
TSCA Coiapliauce/Eaforcement 8-38 Guidance I anual 1984
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Chapter Eigh _ - - In fteii (Seizure) Actions
Procedures for tnitt tj n1 _ an.In Rem Action ___ _____
1. Pre 1 are the Referral
Upon determining that an in rem seizure action is appropriate, the Regional
Office should prepare a civil litigation referral package (see Section 3 of
this chapter). The package may include a proposed complaint in rem
(Exhibit 8—6), whIch Is prepared in accordance with Rule C of the
Supplemental Rules for Certain Admiralty and Maritime Claims that accompany
the Fed. R. Civ. P. The necessary elements of the complaint in rem are
that:
o It be veriF [ ed by oath or affirniation;
o It describe with reasonable particularity the property that is the
subject of the action;
o It state that the property to be seized is (or will be during the
pendency of the action) within the jurisdiction of the district
court that will hear the action;
o It state the place of seizure; and
o It state the allegations of the violations, as required by the
statute, with sufficient particularity that the
defendant/respondent can frame responsive pleadings and investigate
the facts without moving for a more definite statement.
2. Execute the Warrant
Once the complaint in rem is filed with the court, an “arrest° warrant
( i.e. , a warrant for the arrest of the property that is the subject of the
action) will be issued. According o Rule C(3) of the Supplemental Rules,
the warrant is delivered to a U.S. Marshal for execution.
3. cify Other Re ions
The Region should notify other Regions of its actions if there is reason to
believe that the violative product is also in those Regions.
Com 1tanceWitha Seizure_Order -.
The violation of a court—ordered seizure or decree of condemnation
constitutes contempt of court. When any such violation is found, it should
be reported promptly to the U.S. Attorney who filed the seizure action.
TSC& compliancefEnforcement 8-39 Guidance Manual 1984
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Chapter Eight l h4bjt 8—6
Model Complaint In Rem
IN THE UNITED STATES DISTRICT COURT FOR THE
_______________ DISTRICT OF _________________
United States of America
V.
- Complaint In Rem
TO THE HONORABLE JUDGE OF SAID COURT:
This is a complaint threin filed in behalf of the United States of
America by the United States Attorney for this District, who
represents as follows:
I
This is an action intern instituted pursuant to Section 17(b) [ or Sec-
tion 7(b)(3)] of the Toxic Substances Control Act (TSCA), 15 U.S.C.
§2616(b), for the seizure and condemnation of a chemical substance or
mixture that has been manufactured, processed, or distributed in com-
merce in violation of TSCA or any implementing rule or order or any
article containing such substance or mixture. Authority to bring this
action is vested in the United States Attorney by 28 U.S.C. §547(2).
II
This Court has jurisdiction of the subject matter of this action
pursuant to 15 U.S.C. §2616(b).
III
The property to be seized is located at ( exact location) , which is
within this judicial district [ or, the property will be located at
( exact location) , within this jurisdiction, during the pendency of
the action].
TSCA Compliance/Enforcemant 8-40 Cuidance Manual 1984
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Chapter Eight - ____ E ibit 8—6
Iv
( Name of chemical substance or mixture ) is a chemical substance
or mixture that has been manufactured, processed, or distributed in
commerce in violation of TSCA as follows:
(State allegation with specific reference to the
sections of the Act, regulations, or orders that
allegedly have been violated.)
WHEREFORE, the complainant, United States of America, prays:
(a) That the chemical substance or mixture ( name of chemical substance
or mixture) or article containing such substance or mixture be seized
and condemned, and that it be disposed of as the Court may direct in
conformity with the practice of this Court.
(b) That the jname of company that manufactures, processes, or
distributes in commerce ) and any or all persons having, or pretending
to have any right, title, or interest in or to the substance, mixture,
or article, be notified to appear in order that they may answer the
allegations herein set forth.
(c) That this Honorable Court may enter all such orders, decrees, and
judgments as may be necessary and grant the complainant the costs of
this proceeding.
Cd) That the complainant may have such other and further relief as the
nature of the case may require.
_ ( r! iU.S. Attorney) -
United States Attorney for the
District of
VER. [ FICAT ION
I have read the foregoing pleading and know its contents, which is true
and correct of my own knowledge, except as to matters therein stated
upon my information and belief, and as to such matters I believe
it to be true.
Executed on this —- day of (date) ____ -
(location)
United States Attorney
TSC& ComplianceiEnforcement 8-41 Guidance Manual 1984
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Chapter Eight R Mbita
TSCA Compliance/Enforcement 8-42 Guidance Manual 1984
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Chapter Eight
6 Settlement Agreements
By their very nature, TSCA judicial civil actions do not involve settlement
agreements. Nonetheless, an injunction or in rem (seizure) action that is
granted to EPA by a district court is usually monitored for compliance by
the Agency. The violation of either type of civil action will subject the
responsible party to a charge of contempt of court.
TSCA Coup1iance/,Enforce ent 8-43 Guidance $anual 1984
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Chapter E Ight Settlent Agreennts
TSCA Compliance/Enforcement 8 -44 GuLdance Manual 1984
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9 Criminal Actions
-------
9 Criminal Actions
-------
Chapter Nine
Judicial Enforcement: Criminal Actions
Chapter Contents Page
Statutory Authority 9—j
Basic Enforcement Policy 9—1
Criteria for Identification of . Potential Criminal Action 9—2
Procedures for the Investigatioii and Referral of a Criminal Case 9—6
Exhibit 9—1: Office of Criminal Investigations: Field Offices 9—10
Exhibit 9—2: Memorandum (9 May 1983): Referral Procedure
for Criminal Cases 9—11
Exhibit 9—3: Uniform Criminal Referral Package Format 9—16
TSCA Compliance/Enforcemeat -— 9-i Guidance Manual 1984
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Chapter Nine Contents
TSCA Coap liance(Enforceaent 9— u Guidance Manual 1984
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Chapter Nine
Judicial Enforcement: Criminal Actions
Statutory Authority —________________________________________ _____
The imposition of criminal penalties is authorized by Section 16(b) of
TSCA, which states that:
*** y person who knowingly or willfully violates
any provision of section 15 shall, in addition to
or in lieu of any civil penalty which may be
imposed under subsection (a) of this section for
such violation, be subject, upon conviction, to a
fine of not more than $25,000 for each day of
violation, or to imprisonment for not more than one
year, or both.
Section 15 of TSCA enumerates those acts considered unlawful under TSCA
(see Chapter Seven for a complete listing).
Basic Enforcement Policy — — —
The objective of the toxic substances enforcement program is to ensure
compliance with the terms and provisions of TSCA. The Act provides the
Agency with a variety of administrative, civil, and criminal enforcement
options to accomplish this goal. Potential overlap exists among these
various options, but the Agency is free to pursue criminal sanctions
whenever sufficient evidence is available to support the requisite elements
cif proof.
As a matter of enforcement policy and resource allocation, such an
unrestrained use of criminal sanctions Is neither warranted nor practical.
The commItmenL of investigative and technical resources necessary for the
successful prosecution of a criminal case is high. More importantly, a
criminal referral for investigation or prosecution can entail profound
TSCA Compliance Euforcement 9-1 Qiidance Manual 1984
-------
Chapter Nine —— Judicial Enforcement: Criminal Mtiona
consequences for the subject of the referral. Accordingly, criminal refer-
rals should be confined to situations that——when measured by the nature of
conduct, the compliance history of the subject(s), or the gravity of the
environmental consequences——reflect the most serious cases of environmental
misconduct.
Criteria for Identification of a Potential Criminal Action ________
This section discusses the considerations that should be examined in deter-
mining whether to proceed with a criminal via—a—via administrative/civil
action.
The Scienter Rec uirement
An individual who engages in conduct prohibited by statute or regulation
can be prosecuted civilly or administratively without regard to the mental
state that accompanied the conduct. Criminal sanctions, on the other hand,
will be limited ordinarily to cases in which the prohibited conduct is
accompanied by evidence of a “guilty knowledge” or intent on the part of
the prospective defendant. Referred to as the scienter requirement, this
element of proof exists under virtually every environmental statute
enforced by the Agency.*
TSCA imposes criminal penalties only for “knowing or willful violations” of
the, Act. Although there is, as yet, no case law on the meaning of this
phrase under TSCA, the phrase is used in a number of other criminal provi-
sions. As such, it has been interpreted to mean that the violative
* One exception to this general rule is the Refuse Act, 33 U.S.C. §407,
which has generally been Interpreted as a “strict liability” statute.
[ See, e.g., United States v. White Fuel Corporation , 498 F.2d 619 (1st
CTr. 1974).] In addition, a prosecution for illegal discharges under
the Clean Water Act can be based on negligent or willful conduct, 33
U.S.C. I3L9(c)(l). “Negligence” Is not, strictly speaking, a form of
scienter.
TSCA Compliance/Enforcement 9-2 Guidance Manual 1984
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Chapter Nine — - Judicial Enforcement: Criminal Actions
act must have been done intentionally and not as a result of accident or
mistake. *
The requirement to prove a culpable mental state, as veil as a prohibited
act, is certainly the clearest distinction between criminal and
administrative/civil, enforcement actions.
The Nature _ and Seriousness of the Offense
As a matter of enforcement policy and resource allocation, EPA will inves-
tigate and refer only the most serious forms of environmental misconduct
for criminal prosecution.
Of primary importance to this assessment is the extent of environmental
contamination or human health hazard that has resulted from, or was threat-
ened by, the prohibited conduct. In general, this determination will
depend upon considerations such as the duration of the conduct; the
toxicity of the pollutants involved; the proximity of population centers;
the quality of the receiving land, air, or water; the amount of federal,
state, or local cleanup expenditures; and the public sentiment supporting
strong enforcement action in response to a specific situation.
Also of significance in assessing the seriousness of the illegal conduct is
the impact——real or potential——on EPA’s regulatory functions. This factor
is of particular importance in cases involving the falsification or
concealment of records, reports, or other information. For example, even
if a technical falsification case can be made, criminal sanctions may not
be appropriate if the distortion of information could not reasonably have
been expected to have a significant impact on EPA’S regulatory or
decisionmaking process. Where the materiality of the falsification is
clear, however, the need for criminal sanctions should be considered.
* Courts do make a distinction between the terms “knowingly” and “will-
fulLy.” “Knowingly” is generally defined to mean an act done inten-
tionally and not as a result of accident. “Willfully ’S is often defined
as requiring proof that the person performed the violative act with
intent to violate the statute. however, courts that have interpreted
the terni “willfully” in the context of the Clean Water Act have declined
to impose this more stringent burden of proof. These courts have indi-
cated that evidence demonstrating that the act was intentionally done
was sufficient to demonstrate willfulness. [ United States v. Ramel , 551
F.2d 107 (6th Cir. 1977); United States v. Frezzo Brothers, Inc. , 461
F. Supp. 266 (E.D. Pa. 1978), aff’d , 602 F.2d 1123 (3d Cit. 1979),
cert. denied , 446 U.S. 1074 (1980); United States v. Ouelette , 11 ERC
1350 (E.D. Ark. 1977).1 Courts can reasonably be expected to attach the
same meaning to the term in TSCA cases.
TSCA Compliance/Enforcement 9-3 Guidance 1anual 1984
-------
Chapter Nine __________ Judtcial Enforcement: Criminal tions
The Need for Deterrence
Deterrence of criminal conduct by a specific individual (individual
deterrence) or by the community at large (general deterrence) has always
been one of the primary goals of the criminal law. Where the offense is
deliberate and results in serious environmental contamination or human
health hazard, the need to achieve deterrence through the application of
strong punitive sanctions will almost always exist.
The goal of deterrence may, on occasion, justify a criminal referral for an
of fense that appears relatively minor. This would be true, for example,
for offenses that——whiLe of limited importance by themselves——would have a
substantial cumulative impact if commonly committed. This might also be
true when addressing violations by an individual with an extended history
ot recalcitrance and noncompliance.
The Compliance History of the Subject(s )
The compliance history of the subject(s) of a potential criminal referral
should also be considered in determining the appropriateness of criminal
sanctions. As a general rule, criminal sanctions become more appropriate
as the incidents of noncompliance increase. The occurrence of past
enforcement actions against a company or the failure of admlnistrative/
civil enforcement, 1.s certainly not a prerequisite to a criminal referral.
However, a history of environineni T noncompliance will often indicate the
need for criminal sanctions to achieve effective individual deterrence.
The Need for Simultaneous Administrative/Civil Enforcement Action
Simultaneous administrative/civil and criminal enforcement proceedings are
legally permissible [ United States v. Kordel , 397 U.S. 1, 11 (1970)1 and on
occasion clearly warranted. However, separate litigation staffs must be
appointed on initiation of a grand jury investigation, if not before.
Furthermore, the pursuit of simultaneous proceedings would provide fertile
grounds for legal chalLenges to one or both proceedings that, even if
unsuccessful, would consume additional time and resources. Thus, parallel
proceedings should he avoided except where clearly justified.
In this regard, it should he noted that some of the goals of a criminal
prosecution, including deterrence, can be achieved through an administra-
tive or civil action that secures substantial civil penalties in addition
to injunctive relief. Moreover, recent experience indicates that while
some cases may result in periods of incarceration, criminal sentences will
often he limited to monetary finea and a probationary period. In light of
this reality, the use of the additional time and resources necessary to
pursue a criminal investigation is often not justified.
TSCA Compiian 7Enforceaent 9-4 itdance Manual 1984
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Chapter Nine Judicial Rnforceu nt: Criminal Actions
Criminal Enforcement Priorities
The Office of Criminal tnvestigations, in conjunction with the Agency
program offices, has developed investigative priorities in each of the
Agency’s program areas. The purpose of this effort is to focus the limited
inveatigative resources of the Agency on the most serious cases of
environmental misconduct. These priorities are fluid and will be modified
to reflect additional regulatory programs in the Agency as they develop.
In addition, the creation of these priorities does not preclude the
po8sibUity of criminal referral for conduct not failing within these
investigative priorities.
The order of the listing is random. It is not intended to create ranking
within the priorities for TSCA; nor is any section of the Act given higher
priority than another. The priorities for TSCA are listed below.
Violations of Section 4 Testing Rules or the Section 5(b) Premanufacture
Notification Program . Sections 15(1) and 16(b) of TSCA, 15 U.S.C.
H2614(l) and 2615(b), establish misdemeanor penalties of one year of
imprisonment and a $25,000 fine for knowing or willful violations of any
rule promulgated under Section 4 or any requirement prescribed by Section 5
of TSCA. A high investigative priority will be placed on violations that
have a significant impact on the Agency’s ability to act under Section
4(f)(1), 15 U.S.C. §2603(f)(1), and on situations of falsified test data
submitted pursuant to Section 5(b), 15 U.S.C. §2604(b), and the premanufac—
ture notification program.
Failure To Report Substantial Risk Information . Sections 8(e), 15(3)(B),
and 16(b) of TSCA, 15 U.S.C. §S2607(e), 2614(3)( ), and 2615(b), establish
misdemeanor penalties of one year of imprisonment and a $25,000 fine for
knowing or willful failure to submit to EPA information that reasonably
supports the conclusion that a chemical substance or mixture manufactured,
processed, or distributed In commerce presents a substantial risk of Injury
to health or the environment. A high investigative priority will be placed
on all violations of this reporting requirement.
Violation of PCB or Dioxin Regulations . Sections 15(1)(C) and 16(b) of
TSCA, 15 U.S.C. §S2614(1)(C) and 2615(b), establish misdemeanor penalties
of one year of imprisonment and a $25,000 fine for knowing or willful
violations of rules issued under Section 6 of TSCA. The Agency has i8sued
regulations governing polychlorlnated biphenyls (PCBs) and the disposal of
dioxin—contaminated pesticide wastes. A high investigative priority will
he placed on knowing or willful violations of these regulations that result
in, or threaten, significant environmental contamination or human health
hazard.
TSCA CompliaricelEaforceiient 9—5 Guidance Manual 1984
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Chapter Nine - Judicial Enforcement: Criminal Actions
Procedures for the Investigation and Referral of a Criminal Case
loves tigat ion
The Office of Criminal. Investigations maintains the primary role of
investigating and referring all allegations of criminal misconduct to the
Department of Justice. The office is staffed by experienced criminal
investigators located in each of five field offices and in EPA
Headquarters. (Exhibit 9—1 contains a list of the field offices and their
scope of responsibility.)
An initial “lead” or allegation of potential criminal activity may come to
the Agency from any of several sources, including state agencies, routine
compliance inspections, disgruntled plant employees, or citizen groups.
Regardless of its source, the lead should be transmitted immediately to the
Special—Agent—tn—Charge of the responsible field office, who will open a
case I ile* and assign a criminal investigator (known as a Special Agent) to
the lead for follow—up.
If the reliability of the lead is unclear, the Special Agent will conduct a
preliminary inquiry solely to determine the credibility of the allegation
and to make an initial assessment of the need for a more thorough investi-
gation. This initial inquiry will be brief and will not involve extensive
commitment of resources or time. Its sole purpose is to reach an initial
determination on the need for a complete investigation.
Once a determination has been made by the Office of Criminal Investigations
that a thorough investigation is warranted, the Special Agent will immedi-
ately contact the Regional Counsel in the Region where the investigation is
to be conducted. The Regional Counsel will ensure that no civil enforce-
ment action is pending or contemplated against the investigative target and
will assign an attorney to work with the investigator during the case
development process. The regional attorney and Special Agent will also
contact the appropriate regional program office to ensure that no adminis-
trative enforcement action is pending or contemplated. In addition, where
the need for technical support during the investigation is contemplated,
the regional program office will be asked to assess the availability of
technical resourcea and, when appropriate, to designate a specific individ-
ual to work with the Special Agent during the course of the investigation.
* The opening of a case file does not commit the Agency to proceed with
a criminal referral at the culmination of the investigation; nor does it
reflect an Agency decision that criminal conduct occurred. All
enforcement options remain open and should be considered until referral
to the Department of Justice.
TSCA Compliance/Enforcement 9-6 idance Manual 1984
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Chapter Nine Judicial Enforcement: Criminal Actions
Management of the irwesttgation will be the primary responsibility of the
Special Agent, acting under the supervision of the field office’s
Special—Agent—In—Charge. The Special Agent will be responsible for
determining the basic investigative approach and will take the lead in
conducting interviews; assembling and reviewing records; planning and
executing surveillance; coordinating with state, federal, and local law
enforcement agencies; planning and executing searches; developing
informants; and performing other investigative matters. A technical person
will work with the Special Agent during those portions of an investigation
requiring technical expertise.
Referral
A referral recommendation will, be developed when the independent field
investigation has been exhausted or when it can or should proceed no fur-
ther without the initiation of a grand jury investigation by the Department
of Justlce.* At this point, the results of the investigation will be
assembLed in a referral package. The preparation of the overall referral
package will be the responsibility of the regional attorney assigned to the
investigatLon, working in conjunction with the Special Agent.**
Once the package is prepared, it will be reviewed by the Special—Agent—In—
Charge and the Regional Counsel, who will act as joint signatories. Tech-
nical portions of the package will also be reviewed by the regional or
Headquarters program office, or NEIC——depending on the source of technical
support. During this technical review, the availability of technical
resources to support Litigation should also be reviewed and specifically
confirmed by the appropriate technical office.
Following completion of the referral package and concurrence in the
referral recommendation by the Special—Agent—tn—Charge and the Regional
Counsel, three copies of the referral package and all exhibits should be
directed to the Associate Enforcement Counsel for Criminal Enforcement,
Criminal Enforcement Division (LE—134E); U.S. Environmental Protection
Agency; 401 M Street, S.W.; Washington, D.C. 20460. No copies of the
referral package will be sent to the local United States Attorney or
the Department of Justice until Headquarters has reviewed and approved the
referr4l.
* Where a referral is made for further investigation by a grand jury, the
task of creating a complete referral package is difficult since the case
has not yet been completely developed. Therefore, a streamlined refer—
ral. process has been instituted for these cases to eliminate ineffi-
ciency and to provide for the more natural development of criminal
cases. (See Exhibit 9—2 for a copy of these procedures.)
** Where a referral is made for further investigation by a grand jury, the
package will be prepared by the Special Agent in coordination with the
regional legal and technical staffs assigned to the case.
TSCA Compliance/Enforcement 9-7 Guidance Planual 1984
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Chapter Nine Judicial Enforcement: Criminal Actions
If either the Special—Agent—In—Charge or the Regional Counsel believes the
referral should not be made, that official will include a statement of the
reasons underlying this position and make an alternative recommendation
( e.g. , close out investigation, etc.). The package nevertheless will be
directed to the Criminal Enforcement Division for review; a final referral
decision will be made by the Assistant Administrator for OECM (or the
Assistant Administrator’s delegatee).
The Headquarters review will focus on the adequacy of case development,
adherence to the criminal enforcement priorities of the Agency, legal
issues of first impreS8iOfl, consistency with related program office policy,
and general prosecutorial merit. In cases involving particularly complex
issues of law, the Criminal Enforcement Division will also consult with
General Counsel attorneys. If, following this review process, the referral
recommendation Is accepted, referral packages will be directed
simultaneously to the Department of Justice and the appropriate United
States Attorneys Office. Appropriate cover letters will be drafted by the
Criminal Enforcement Division.
Referral Package Format
Referral packages should be prepared in accordance with the Uniform Crimi-
nal Referral Package Format effective on January 1, 1982. A copy is
included in this Manual as Exhibit 9—3. However, referral packages
prepared for those cases referred for further investigation by a grand jury
should be prepared In accordance with the May 9, 1983, guidelines (see
Exhibit 9—2).
References
Agency employees who are Involved in the Investigation and referral to the
Department of Justice of allegations of criminal violations of TSCA should
familiarize themselves with the Agency documents listed below. Although a
digested form of some of this material is contained in this section, most
ot the items are not covered In detail. The documents are contained in the
General Enforcement Policy Compendium , or copies of the documents may be
obtained by contacting the Criminal Enforcement Division, EPA Headquarters.
e General operating Procedures for the Criminal Enforcement Program;
o Criminal Enforcement Priorities;
• Agency Guidelines for Participation in Grand Jury Investigations;
• Agency Guidelines for the Use of Administrative Discovery Devices
in the Development of Potential Criminal Cases;
TSCA Compliance/Enforcement 9-8 ( iidance Manual 1984
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Chapter Nine Judicial enforcement: CrL aina1 Actions
• Guidelines on Press Relations on Matters Pertaining to EPA’s
Criminal Enforcement Program;
• Policy and rrocedureti on Parallel Proceddings at the EPA; and
• Guidance Concerning Compliance with the Jencks Act.
TSCA CompliancefKnforcement 9—9 Guidance Manual 1984
-------
Chaoter Nine
R’rMbit 9—1
Office of criminal Investigations: Field Offices
Philadelphia Field Office
( Regions I, It and Itt )
Seattle Field Office
( Regions IX and X )
Special—Agent—In—Charge
Office of Criminal
Investigations
EPA — Region III
Curtis Building
6th & Walnut Streets
Philadelphia, PA 19106
FTS 597—1949
Atlanta Field Office
( Regions IV and VI )
Special—Agent—In—Charge
Office of Criminal Investigations
EPA - Region X
1200 6th Avenue
Seattle, WA 98101
FTS 399—9874
Denver Field Office
gion VItt)*
Special—Agent—In—Charge
Office of Criminal
Investigations
EPA — Region IV
345 Courtland Street, N.E.
Atlanta, GA 30365
FTS 257—4885
Chicago Field Office
gions V and VII )
Special—Agent—In—Charge
Office of Criminal
Investigations
EPA — Region V
230 South Dearborn Street
Chicago, 11, 60604
FTS 886—9814
Special—Agent—In—Charge
Office of Criminal Investigations
National Enforcement Invest igat ions
Center
Box 25227
Denver Federal Center
Denver, CO 80225
FTS 234—2158
* In addition to Region VIII cases, the Denver Field Office’s
responsibilittes include cases that overlap the jurisdiction of
of field offices.
TSCA compliance/ forcement
9—10
iidance Manual 1984
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Chapter Nine K hiIbit 9—2
Referral. Procedures for Cried.oal Cames
LAU
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
4) W*5HINGTON. OC 30 110
q
MAY 9 1983
OPPICU Or
.00*1. ANO INPONCUMIN ? COUNSEl.
MEMORANDUM
SUBJECT; Referral Procedure for Criminal Cases
PROM; Courtney M. Price
Acting AsSociate A munistrator
and General Counsel
TO; Regional Counsels, Regions I-X
All SAICs, Criminal Enforcement Division
Under the current General Operating Procedures, a
criminal referral to the Justice Department may be made for
one of two reasoni: for prosecution (where the investigative
effort is complete and we believe the crime is capable of
being proved); and for further investigation in conjunction
with the Justice Department.
In the latter situation——’referrals for further
investigation-—the scope of the ultimate prosecution, and
even the identity of defendants, may well not be known. The
purpose of the referral is to facilitate further development
of the case rather than to incorporate final Agency decisions
on the viability or advisability of a prosecution. As such,
it can and often does occur at art early stage in the case
development process.
In these situations, the task of creating a complete
referral package is difficult—— in light of the fact that the
case has not yet been completely developed. It is also tine
consuming, and thus can prejudice the investigation. The
tine spent in attempting to prepare a complete referral
package, and in processing the package through the Regional
and the Headquarters review system, can cause delays in the
development of the case while not providing the countervailing
benefits normally realized in the referral process, i.e.
close scrutiny of theevidence prior to filing or a final
assessment of the merits of criminal prosecution.
TSCA Compliance/Eatorceisent 9—Il Guidance Manual 1984
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Chapter Nine Rihibit 9—2
—2—
To eliminate this inefficiency, and provLde for the more
natural. development of criminal cases, a shortened referral
package will be used where the purpose of the referral is
for further i .nvestLgation in. con]unction with the Justice
Department, rather than to incorporate a complete investigative
package. (The format appears as Attachment A.)
This package will provide a OasLs on which to make the
best possible assessment both at the Regional. Level and at EPA
Ueadquarters on the merits of the potential case. At the
same time, it will provide a veh cle for the more rapid
transmission of our investigative work product to prosecutors
with the Justice Department, who will. then become part of the
criminal. case development team.
The modified referral package will normally be prepared
by the Special. Agent assigned to the investigation, who will
be moat familiar with investigative activity to date. The
package must be prepared in close coordination with Regional
legal. and technical personnel assigned to the investigation.
As under ezisting procedures, the referral will be approved by
both the Special—Agent—in—Charge and the Regional Couniel.
before transmission to EPA Readquarters for approval.. Cover
letters to the appropriate United States Attorney and to the
Land and Natural Resources Division will be drafted at EPA
Readquarters for the signature of the Associate Administrator.
Questions on this procedure should be directed to
Peter Beeson (382—4543). It is our hope that these modified
procedures will ensure the moat efficient possible development
of our criminal. cases.
Attachments
TSCL Coapliance/Enforcenant 9-12 Guidance Manual 1984
-------
Chapter Nine R h1bjt 9—2
M ACRMEN? A
MEMORANDUM
SUBJECT: CrLmu%al Referral
FROM: Specia l— qent—in—Charge______________________
_______________________Field Office
Criminal Enforcement Division
Regional Counsel
Region_______________
Associate Enforcement Counsel
Criminal Enforcement Division
Enforcement Counsel
Associate Administrator and General Counsel
Attached for your consideration are materials assembled
by this Agency in a criminal investigation against_____________
____________________________ It L i the opinion of our offices
that further development of this case should proceed in
close coordination with the Justice Department. An overv .ew
of the nature of this investigation is provided below for
your information. We recommend immediate referral to the
( U.S. Attorney/Federal District ) and to the E.and and Natural
Resources Division for further development.
TSCA Coapliance/ forcement 9—13 Guidance Manual 1984
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Chapter Nine hibjt 9-2
REFERRAL PACEAGE
( Name of Case)
( Name of District )
I. Identity of Subject(s) of Investigation:
Individual(s) :
1. Name
2. Title
3. Age
4. ifome/work address
5. Current employment
6. Criminal records if any
7. Prior EPA enforcement act on
8. Other pertinent information
Corporation(s) :
1. Name and nature of business
2. Parent company
3. Susidiaries
4. Address of facility(les) associated
with offenses
S. State of incorporation
6. Size of company
7. Prior EPA enforcement action
8. Other pertinent nfozmation
II. Nature of Activity under Investigation
1. E.ocation and duration
2. Venue
3. Significance of Activity (A brief statement
of reasons underlyi.ng the need to address
the Misconduct with crininal sanct .ons.)
TSCL Coiapliance/Enforcenent 9—14 Guidance Manual 1984
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Chapter Nine R h1bit 9—2
—2—
III. Statutory Offenses
1.’ pplicable Statutes : (A summary of Federal
environmental and related laws potentially
violated by the activity, accompanied by
pertinent citations to the United States
Code and the Code of Federal Regulations)
2. Evidence Gathered to Date : (A brief summary of
available evidence, accompanied by copies of
selected investigative reports prepared within the
Criminal Enforcement Division that reflect this
evidence Cfor example, surveillance reports or
interview summaries.)
iv. Personnel Assigned
3.. Special Agent
2. Regional Attorney
3. Technical Staff
TSC4 ap1iançe/ force ènt 9-15 Guidance Manual 1984
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Chapter Nine Rrhibit 9—3
Uniform Criminal Referral Package Format
Effective January 1, 1982, the following format should be used by all
EPA offices in preparing criminal cases for referral to the Department
of Justice. Obviously, organizational changes should be made where
considered necessary to achieve an effective presentation of the facts
or issues of an individual case. However, this format and the
accompanying instructions reflect the subject matter that should be
included in the package. If changes are made in the format, please
be sure that required subject matter is not omitted in the process.
INTRODUCTORY SECTIONS
Title Page
Each referral package should carry a title page or cover sheet that
includes:
• Identity of the company and/or primary individual subject(s)
of the investigation;
• Federal district of the proposed referral;
• IdentIty, occupation, and telephone number of the Agency
personnel who assisted in preparing the referral package; and
o Date of submittal of the report from the regional office.
Table of Contents
Each referral package should have a table of contents that includes
the following sections:
Page
I • Introduction
II. Statutory Authority ... • • ...•......• . •.
II I. Subject(s) of the Investigation
IV. Enforcement and Regulatory History
V. DescrtptionofrheEvidence................,.........
TSCA Compliance/Enforcement 9—16 Guidance Manual 1984
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Chapter Nine R Mbit 9—3
Page
VI. Legal Issues . . . . . . . . . . . • , , , • . • • , • , ,
VII. Environmental Impact
VIII. Recommendation . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Appendix A. List of Witnesses...................................
Appendix B. List of Exhibits
Appendix C. Exhibits
A discussion of each individual section follows.
Body of the Report
Section I——Introduction . The introduction will provide a synopsis of
the investigation to orient the reader. It should be brief. A
detailed discussion of the evidence will be provided in a subsequent
section of the report.
Within the introduction, the following areas should be addressed:
• The identity of the corporate and individual subject(s) of
the investigation;
• A brief description of the nature and duration of the
criminal activity under investigation;
• Venue ( i.e. , the federal district(s) in which the offense
occurred). If venue lies in more than one district, an
explanation should be included for the Region’s choice of
one federal district over another for referral; and
o The regional recommendation underlying the referral.
Section 11——Statutory Authority . This section should include the
statutory provisions that provide the basis for the referral.
Pertinent portions of each statute should be quoted in full, followed
by a listing of the elements of each offense that must be provided in
a subsequent prosecution.
Section Ill——Subjects of the Investigation . This section will be
used to provide pertinent background data on the subjects of the
referral. For each individual subject, the following minimum
information should be included:
• Name and title;
• Approximate age;
• Home and work addresses;
• Nature of current employment; and
• Criminal record, if known.
T CA Compliance/Enforcement 9-17 Guidance Manual 1984
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Chapter Nine Exhibit 9—3
For each corporate subject, tnclude:
o Name of company and parent corporation, If appropriate;
• Complete address of company;
• Complete address of facility associated with offenses;
a State of incorporation of corporate subjects;
• Registered agent for service; and
• A brief statement of the business, profits, and size of the
company.
Section tV——Enforcement and Regulatory History . This section should
include a description of all known enforcement activity (state and
federal) relating to environmental matters taken against the subject
in the past. In addition, any previous efforts by EPA to remedy the
present problem through Informal, administrative, or civil means
should be discussed.*
Finally, if the Region is recommending that the criminal referral be
pursued simultaneously with a parallel civil/regulatory proceeding
against the subject(s), this fact should be highlighted. The steps
taken in the Region to ensure proper coordination and separation of
the parallel proceedings should also be described.
Section V——Description of the Evidence . This section will constitute
the major portion of the report. Its function is to present the
results of the Region’s investigative activity and to demonstrate how
the criminal conduct uncovered in that investigation will he proved
at trial.
Background . There is no one proper way Co present the evidence. Any
method that is clear and organized is acceptable. A chronological
approach Is recommended, however, both because it Is simple to follow
and because prosecutors often present their evidence before the grand
jury and at trial within a chronological framework.
Regardless of the organization chosen, all substantial facts detailed
in this section should be supported by some item of evidence——a
witness Interview, a letter from EPA correspondence files, an NPDES
permit, results from a compliance inspection, technical analysis of a
* Care should be taken while writing this report to avoid duplication.
If facts relating to past regulatory or enforcement activity are
discussed in subsequent sections ( e.g. , as evidence of a “willful”
or “knowing” violation), only a brief summary ehould be included in
this section.
TSCA Compliance/Enforcement 9-18 Guidance Manual 1984
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Chapter Nine RrMbit 9—3
pollutant sample, a photograph, etc. Copies of these items of
evidence should he included, in turn, as exhibits to the litigation
report, for easy reference by the reviewing personnel at EPA
Headquarters, the Justice Department and the United States Attorneys
‘Of fice.* The existence of evidentiary support for the factual
allegations contained in the referral is crucial. The end goal of
the referral process is a successful prosecution. The question is
not, ultimately, what happened but whether it can be proved at trial.
Required Information . In completing Section V, the following items
should be included (although not necessarily in separate portions of
the section):
• Adetailed review of all facts constituting the alleged
criminal behavior. Speculation should be avoided. If the
evidence currently available does not support one or more
elements of the offense(s) under investigation, this should
be highlighted, since this will assist in focusing future
investigation by grand jury or otherwise;
• Any statements by the subject(s) of the investigation
pertaining to the subject matter of the investigation.
Written as well as oral statements should be included;
• Evidence indicating willful or knowing behavior by the
investigative targets;
* The following paragraph is an example of the chronological
presentation of evidence supported by exhibits:
On May 1, an NPUES permit was issued to Company X
that contained the following provisions...(aee
Exhibit 1, NPDES permit). On May 5, the plant’s
waste treatment system ceased operation. (See
Exhibit 2, Interview Report of Informant A.TAt that
time, Company X faced several imminent production
deadlines. (See Exhibit 3, Sales Contract Between
Company X and Company Y.) Production continued,
resulting in the discharge of raw sewage between May
5 and July 5. (See Exhibit 4, Analytical Reports
Provided by Former Chemist of Company X.) Discharge
monitoring reports submitted by Company X for this
period nevertheless falsely reported compliance.
(See Exhibit 5, Company X ONRe.) Moreover, in
response to an EPA inquiry, Company X reported the
successful operation of its waste treatment system on
July 1, almost two months after the breakdown. (See
Exhibit 6, Letter, Company X to EPA.)
TSCA C apliaoce/Enforcement 9-19 On.tdance Manual 1984
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Chapter Nine Exhibit 9—3
• Any facts that bear on the reliability of the available
evidence. This might include, for example, equipment
breakdowns during technical sampling, or prior inconsistent
statements of a government witness. Ultimate conclusions
should not be made on the reliability of a particular witness
or piece of evidence in the report; rather, simply include
all facts relevant in assessing the reliability; and
• A complete chronology of contacts between EPA and the
subject(s) concerning the environmental problem underlying
the referral.
Section Vt——Legal Issues . In preparing a case for trial, the Justice
Department’s prosecutor will want to consider both the weaknesses in
the government’s case and the affirmative defenses available to the
defendants. In completing this portion of the referral package,
consider:
• Legal Defenses . This might include, for example, arguments
that a discharge of pollution was not into a navigable water
for the United States and therefore not regulated under the
Clean Water Act; or that dumping activity did not involve a
“hazardous waste” identified or listed under the Resource
Conservation and Recovery Act.
• Evidentiary Challenges . This might include, for example,
challenges to the methods used to obtain evidence, or to the
government’s ability to authenticate evidence due to a break
in the chain of custody.
• E(uitable Defenses . This might include, for example, EPA’s
vascillation of regulatory standards, the cost of compliance,
labor difficulties at the facility, etc.
In completing this section, speculation should be avoided. Potential’
defenses should not he included unless there is some basis for their
assertion under the facts of the case.
Section Vit——Envlronmental Impact . This section should provide an
assessment of the significance of the environmental harm or human
health hazard resulting from the conduct under investigation.
Precise statements in this area are not essential elements of most
criminal offenses and will often be difficult to support scientif i—
cally. When the investigation focuses on historical rather than
ongoing conduct, or involves falsified technical documents, the
task becomes even more difficult. Normally, however, an educated
estimate——based on the type of pollutant involved, the location, and
normal operating capacity of the facility——can be made. Where this
is possible, the information will provide one significant basis for
assessing the gravity of the misconduct.
TSCA Compliance/Enforcement 9—20 Cuidance )1auual 1984
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Chapter Nine Rrhlbit 9-3
Section VIlI——Recomniendation . The report should conclude with a
specific reconimendàtio.nçor. the appropriate future course of the
case. NormalLy, one of two recommendations will be made:
o Further Investigation’ . Where the use.of an investigative
grand jury is contemplated (for example when witnesses are
not talking and compulsory process is required), the referral
will recommend further investigation. In this situation, an
additional recommendation for prosecution may or not be
appropriate. If the evidence in hand provides an adequate
basis on which to base such a judgment, a recommendation for
prosecution under specific statutory provisions should be
included. If the available evidence is not sufficient, a
prosecutortal recomnienation should be withheld pending
completion of the grand jury work and consideration of the
results.
o Prosecution . If the field investigation is complete, the
conduct has been documented, and grand jury work is
required——if at all——only to present the evidence and secure
an indictment, the referral should include a recommendation
for prosecution under specific statutory provisions.
Following the specific recommendation, the report should include the
best available projection of resources necessary to bring the case to
resolution. This projection should discuss investigative, technical,
and legal resources and should indicate the Regional Office’s
ability to provide these resources.
Appendix A——List of Witnesses . This section is particularly useful
to prosecutors supervising the case and will frequently be used in
issuing subpoenas, planning a grand jury presentation, and estimating
the scope of the prosecution. For each witness, the writer should
provide all available background data ( e.g. , name, residence, work
address, telephone numbers, etc.) and a brief summary (one paragraph)
of the matters on which testimony is anticipated. This section
should include not only the key substantive witnesses, but also those
who will establish the appropriate foundation for documentary or
physical evidence photographers, chain of custody record
custodians, etc.). Confidential informants should not be identified
in this list.
Appendices B and C——List of Exhibits and Exhibits . Copies of every
substantial piece of documentary evidence in the case should be
included as an exhibit to the report* and should be indexed to allow
* ExceptIons will be made if the exhibit is too bulky or otherwise
inappropriate for inclusion in the report. Pollution samples, for
example, will remain with the Regional Offices; however, copies of
reports reflecting their analysis should be included where possible.
TSCA CompLiance/Enforcement 9—21 Guidance ) auual 1984
-------
Chapter Nine Embibit 9—3
for easy reference in the main body of the report. Oil it al exhibits
or documents should not be included in the referral pac age if this
can be avoided. They will normally be used as evidence in trial, and
should be retained In the Regional Office until other arrangements are
made with the Justice Department prosecutor supervising the case.
TSCA Compliance/Enforcement 9-22 Guidance Manual 1984
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Chapter Ten
Post—Settlement Enforcement
Chapter Contents - -- _________________ — Page
Honitoring Settlement Agreements 10—1
Enforcement of Settlement Agreements 10—2
TSCA Comp liance/Enforceiient• 10—i Guidance Nanual 1984
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Chapter Ten contents
TSCA Qnap liancefEnforcement 10—li Guidance Manual 1984
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10 Post-Settlement
Enforcement
-------
10 Post-Settlement
Enforcement
-------
Chapter Ten
Post-Settlement Enforcement
iiTtoring settiement Agreements - — —
The Agency often settles an administrative civil penalty action with a
violator prior to the actual hearing, thus obviating the need for costly
litigation. Such settlements under TSCA take the form of either consent
agreements and consent orders or settlements with conditions (SWC).*
Consent agreement negotiations focus primarily on the appropriate size of
the penalty to be imposed on the violator. Adjustments to the penalty are
made by considering such factors as the size of the business of the person
charged, the effect on the person’s ability to continue in business, and
the gravity of the violation. Remedial performance as a means of remitting
a civil penalty assessment is generally not used in the context of a TSCA
consent agreement and consent order. ilowever, remedial performance and the
remittance of all or part of an assessed penalty is permitted under an
Swc. S
In order to ensure continued compliance with TSCA as well as with the terms
of the consent agreement and consent order or SWC, the Agency performs
post—settlement monitoring, which includes:
• Follow—up Inspections as a part of routine assignments under a
neutral inspection scheme;
• Follow—up inspections as part of an SWC agreement; and
• Ensurance that the violator has paid the stipulated civil penalty.
* An SWC Involves the
and scheduLe) and a
and consent order.
guidance on the use
use of a remittance agreement (compliance program
remittance order in addition to a consent agreement
(See Appendix 4, “Settlement With Conditions, for
of SWC.)
TSCA Coap1iance/Smfa rcement 10-1
,idaoce Manual 1984
-------
Chapter Ten Poat—Sett1 —.nt Enforc.’—.’ t
Enforcement of Settlement Agreements
Collecting fines that have been tmpuaed undur the terms of a consent
agreemenL and conseni order should be followed up on a timely basis by
government personnel. The procedures and policies for collection action
ref errals to the United States Attorneys Office are set forth in Appendix
1.
Enforcement of SWC agreements must be done in accordance with the
procedures contained in the SWC guidance (Appendix 4).
Follow—up inspections that reveal continuing violations of a settlement
agreement could subject the violator to additional civil penalty actions,
to civil court actions, or to possible criminal sanctions. (Consult
Chapter Five for the level of action guidance appropriate in these
situations.)
TSCA Coiupliance/Enforcewent —— 10-2 QaLda ee Manual 1984
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11 Special
Considerations
-------
11 Special
Considerations
-------
Chapter Eleven
Special Considerations
Chapter Contents Page
TSCA—Confidential Business Information 11—1
Disclosure of Confidential Information 11—7
Exhibit 1: Request for TSCA—CBI Access Approval 11—8
Exhibit 2: Sample CBI Complaint (With CM Deleted) 11—9
Exhibit 3: Sample CM Complaint (With Hypothetical
CBI Included) 11—13
TSCA Comp1iance!Enforceii ent 11—i Guidance Manual 1984
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Chapter Eleven Contents
TSCA Comp liancefEnforcement Il—i l Guidance Manual 1984
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Chapter Eleven
Special Considerations
TSCA Confidential Business Information
Compliance/enforcement personne] will, on occasion, need to review and use
information that is entitled to confidential treatment under Section 14 of
TSCA and the EPA regulations at 40 C.F.R. Part 2. That section of the
statute and the regulations protect confidential business information
(CBI)* from unauthorized disclosure. Material that is designated as CBI
includes information considered to be trade secrets that could damage a
company’s competitive position if such information became publicly known.
Because CBI may be used as part of an active enforcement case, the
following section on confidentiality and disclosure of information is
included in this manual. For a complete guide to TSCA CBI procedures,
consult the TSCA Confidential Business Information Security Manual.
Authority
Section 14(a ) or TSCA states that any information reported to, or otherwise
obtained by, the Administrator (or any representative of the Administrator)
under TSCA and that is exempt from disclosure under the Freedom of
Information Act [ Subsection (b)(4), 5 U.S.C. 552], shall not be disclosed
by the Administrator or by any officer or employee of the United States,
except that such information may be disclosed:
• To any officer or employee of the United States in connection with
the official duties of such officer or employee under any law for the
protection of human health or the environment or for specific law
enforcement purposes ITSCA § 14(a)(1)(A) and 14(a)(l)(B)J;
To contractors with the United States if the Administrator determines
that such disclosure is necessary for the satisfactory performance by
the contractor of a contract with the United States [ TSCA §14(a)(2)J;
* TSCA CML m3lorlal does not in any manner refer to classified National
Security Information as defined in Executive Order 12065.
TSCA Compliance/Enforcement 11-1 Cnidance PQanual 1984
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Chapter Eleven Special Considerationa
• If the Administrator determines it necessary to protect human
health or the environment against an unreasonable risk of injury
[ TSCA §14(a)(3)]; or
• When relevant in any proceeding under TSCA, except that such
disclosure is to be made in a manner that will preserve
confidentiality to the extent practicable without impairing the
proceeding [ TSCA §14(a)(4)]. [ See Section 22.22(a) of the
Consolidated Rules of Practice and Section 26(c) of the Federal
Rules of Civil Procedure.]
Section 14(b) of TSCA states that Section 14(a) does not prohibit the
(A) any health and safety study which is submitted
under this Act with respect to——
(i) any chemical substance or mixture which, on
the date on which such study is to be
disclosed has been offered for commercial
distribution, or
(ii) any chemical substance or mixture for
which testing is required under section 4 or
for which notification is required under
section 5, and
(B) any data reported to, or otherwise obtained by, the
Administrator from a health and safety study which
relates to a chemical substance or mixture
described in clause (i) or (ii) of subparagraph
(A).
However, Section 14(b) does not authorize the release of any data that
discloses processes used in the manufacturing or processing of a chemical
substance or mixture, or, in the case of a mixture, the release of data
disclosing the portion of the mixture comprised by any of the chemical
substances in the mixture.
Section 14(c ) of TSCA, in conjunction with 40 C.F.R. Part 2, specifies the
requirements and procedures for the designation of information as
confidential, as well as the notification requirements that must be met
prior to the release of any information so designated.
Penalties
Section 14(d)(1) of TSCA specifies the penalties that may be assessed
against any person who knowingly and willfully discloses confidential
information contrary to the provisions of the Act. Section 14(d)(1)
states:
TSCA CompliancefEnforceaent - - Guidance Manual 1984
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Chapter Eleven Special Considerations
Any officer or employee of the United States or former
officer or employee of the United States, who by virtue of
such employment or official position has obtained posses-
sion of, or has access to, material the disclosure of which
is prohibited by subsection (a), and who knowing that dis-
closure of such material is prohibited by such subsection,
willfully discloses the material, in any manner to any
person not entitled to receive it, shall be guilty of a
misdemeanor and fined not more than $5,000 or imprisoned
for not more than one year, or both. Section 1905 of title
18, United States Code, does not apply with respect to the
publishing, divulging, disclosure, or making known of, or
making available, information reported or otherwise
obtained under this Act.*
Section 14(d)(2) of TSCA states that for the purpose of imposing criminal
liability under Section 14(d)(L), any contractor or any employee of such
contractor, who is furnished confidential information, is considered to be
an employee of the United States.
Document Control
Procedures for gaining access to CBI documents, and procedures relating to
the use of CB1 material in case preparation, administrative hearings, and
civil and crtminal actions, are briefly outlined below. However, the TSCA
Confidential Business Information Security Manual should be referenced in
all matters pertaining to document control.
Access to Cal Documents . Only those individuals whose names appear on the
TSCA Authorized Access List may have access to TSCA CM. The following
steps must be taken to apply for inclusion on the list:
o Section 11 (Confidentiality Agreement for EPA Employees) of the
Authorization Form 7740—6 (Exhibit 1) must be signed by the
individual seeking access;**
o Section I (Request for TSCA—CBI Access Approval) of the
Authorization Form must be completed and signed by the appropriate
authorizing official. An authorizing official must be equivalent
to a supervising Division Director, or above, and the official may
* In addition to these criminal penalties, EPA employees who violate CBI
procedures may be subject to disciplinary action in accordance with the
procedures detailed in the EPA Conduct and Discipline Manual .
** A different form (see EPA form 7740—7) is used to apply for access to
computer systems that process or store TSCA CM.
YSC Compliance/Enforcement 11-3 Cuidance Manual 1984
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Chapter Eleven Special Considerations
only authorize those employees under his or her supervision. In
facilities where there is no Document Control Officer (DCO) or
Document Control Assistant (DCA), the authorizing official must
also execute Section I of the Authorization Form (cross out “DCO”
and insert proper title);
• The Authorization Form must be taken to the local DCO or DCA who
will certify (by signing and dating Section IV) that all necessary
forms have been completed and forwarded to the Security, Management
Support Division, EPA Headquarters. (For all employees with
permanent appointments or those with temporary appointments of 700
hours or more per annum, and those employees who require full field
investigation, the local DCO/DCA may assume that the proper forms
were completed at the time of employment.);
o The local DCO/DCA will keep the original of the Authorization Form
and send a copy within 10 days to the Chief, Security, Management
Support Division; and
o Upon completion of the security processing, the local DCO/DCA will
be notified that the employee’s name has been placed on the
Authorized Access List. The local DCO/DCA will then notify the
individual.
Summer EPA employees of four months or less and temporary or seasonal
employees limited to three months cannot be proce8sed for access to
TSCA CBI without written authorization of the Chief, Security, Management
Support Division. Division Directors (or equivalent) must submit a
Request for Approval of Temporary Employee for Access to TSCA/CBI” form to
the Management Support Division prior to submission of the required
investigative forms.
Obtaining CBI . To obtain a document containing TSCA CBI, the authorized
person must request the document from the appropriate DCO/DCA, who will
verify that the requester is on the TSCA CBI Authorized Access List. The
DCO/DCA will then obtain the document from either local secure storage,
another DCO, or an authorized computer facility.
If the requester has access to an acceptable and secure storage cabinet,
the individual may check the document out for a maximum of 90 days,
renewable at the discretion of the DCO/DCA; otherwise, the document must be
returned to the DCO/DCA by close of business the same day it is logged out.
The DCO/DCA will enter the appropriate Information in the User Sign Out Log
and will ensure that the document has a document control number, a cover
sheet, and, at a minimum, a CBI stamp on the first page and on the back of
the last page, before releasing the document.
Use of CBI in Case Preparation . In reviewing an Inspection file and in the
course of case preparation, compliance/enforcement personnel may require
access to CEl.
TSCA Compliance/Enforcement 11—4 Guidance Manual 1984
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Chapter Eleven Special Conaiderationa
An inspection file may contain a Cb1 inspection file, which includes
I ni orrnqt mu I hut wsin gut Iwr d dun ng u TS( A I n 1p r.l Ion and hun b t’n
ilti huts. d T:CA ItI • WIw&u dIL litspecLur leLUrus truni a lt Inspection with
iflLtJLflkIliou Lhdt has been declared confidential, the information is
immediately given to the DCO, who assigns a document control number to the
confidential material. In addition, the inspector informs the DCO of any
physical samples that have been declared confidential. Such samples are
assigned a document control number by the DCO who in.turn, notifies the
laboratory of this number. (The document control number is used by
laboratory personnel in completing the sample chain—of—custody and
laboratory analysis forms.) The CBI file may also contain the inspection
report if the inspector chose to include CBI information on the report.
Once the CEI material has been logged in by the DCO, review of the file
must be done In accordance with TSCA CBI security procedures.
Compliance/enforcement personnel, when preparing their report based on
review of the inspection file, should either:
• Reference TSCA CBI material in a nonconfidential manner or by
Document Control Numbers; or
• Include the CIU material in their report (in which case the entire
report must be treated as a confidential document).
In preparing a eomplaint or other pleading that is based in total, or in
part, on CEI material, compliance enforcement personnel should prepare the
pleading so that it consists of a confidential and a nonconfidential
document. The nonconfidential document should be drafted so as to state
the charge or substance of the pleading without disclosing the confidential
information (see Exhibit 2). The confidential document should contain the
CB I material, and the document must be treated in accordance with TSCA CBI
security procedures.
Special procedures must be used when filing a complaint or other pleading
that contains CBl. For example, when filing a CM complaint, both the CM
document and the public (non—CBI document) must be hand—delivered to the
Hearing Clerk for simultaneous filing. Copies of the complaint may be made
after the original pleading has been stamped in by the Hearing Clerk. This
ensures that the date and time of filing is reflected on each subsequent
copy. The Document Control Officer must then give each confidential copy,
excluding the respondent’s copy, a document control cover sheet and a copy
number. The original CBI complaint remains with the Hearing Clerk, who
executes a TSCA C 131 loan receipt.
EPA delivers a copy of the CM complaint to the respondent by placing the
document in an envelope bearing the respondent’s name and mailing address
and the statement “TSCA CBI: To Be Opened By Addressee Only.” This
envelope, plus a copy of the public non—CBI complaint, is then placed in
another envelope bearing the respondent’s name and mailing address, but
without the statement. The entire package is to be sent by registered
mail, return receipt requested.
TSCA Compliance/Enforcement 11-5 ( nidance Manual 1984
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Chapter Eleven Special Conaideratione
Use of CBI in Administrative Hearings . Section 14(a)(4) of TSCA states
that confidential information may be disclosed when it is relevant to any
proceeding under the Act provided that such disclosure shall be made in a
manner so as to protect, to the extent practicable, the confidentiality of
the information without impairing the proceeding. In addition, Section
22.22(a) of the Consolidated Rules of Practice (CROP), which govern TSCA
administrative hearing proceedings, provides that the confidentiality of
trade secrets and other commercial and financial information shall not
preclude such information from being introduced into evidence. Under the
CROP, the Presiding Officer may make such orders as may be necessary to
consider such evidence in camera ( i.e. , in chambers; in private), including
the preparation of a supplemental initial decision to address questions of
law, fact, or discretion arising out of that portion of the evidence that
is confidential.
Use of CBI in Civil and Criminal Proceedings . The Department of Justice
represents EPA in most civil and all criminal actions. Department of
Justice employees may be furnished TSCA CR1 when prosecuting cases under
the Act or providing legal assistance to EPA. The Department of Justice,
including the FBI, shall be presumed to meet EPA’s security requirements.
However, any transfer of TSCA CR1 documents from EPA to the Department of
Justice must be accomplished through an EPA DCO/DCA, and all requirements
for security of CR1 during transmisHion must be met. Authorized EPA
employees, when necessary and with ermission of a Division Director or
above, may discuss TSCA CR1 with appropriate Department of Justice
employees, whether in person or on the phone. Any TSCA CR1 discussed must
he clearly identified as such.
Determining Confidentiality
EPA’s Freedom of Information Act (FOIA) regulations (40 C.F.R. Part 2
Subpart B) contain a procedure for determining whether information is
confidential.
Under this procedure, if information submitted to EPA has been claimed as
TSCA CR1, the information may not be disclosed to the public until a
determination has been made that the information is not confidential, the
affected business has been given 30 days’ notice of the determination, and
the affected business has been given an opportunity to challenge the
decision. Final determinations are made by the Office of General Counsel;
however, program offices may make initial determinations (see 40 C.F.R.
§2.204). If the program office makes the determination that the
information may be entitled to confidential treatment, the office must:
o Deny any FOIA request for the information;
• Write to the affected business requesting substantiation of its
claim; and
o Refer the matter to the EPA General Counsel’s Office for a final
confidentiality determination.
TSCA Compliance/Enforcement 11-6 Coidance ?Ianual 198
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Chapter Eleven Special Considerations
If the program office determines that the information in question is
clearly not entitled to confidential treatment, the program office must
give notice of the decision to the affected business and, after the notice
period ends, disclose the information to the requestor.
Disclosure of Confidential Information
Under certain circumstances, EPA may disclose TSCA CBI to specific persons
outside the Agency. These disclosures include disclosures to Congress or
the Comptroller General ITSCA §14(e) and 40 C.F.R. §2.209(b)], disclosures
to other federal agencies [ 40 C.F.R. § 2.209(c) and 2.306(h)], disclosures
to federal courts [ 40 C.P.R. §2.209(d)), disclosures to contractors [ TSCA
§14(a)(2) and 40 C.F.R. §2.306(j)], and disclosures when necessary to
protect human health or the environment against an unreasonable risk of
injury [ TSCA §14(a)(3) and 40 C.F.R. §2.306(k)].
TSC& Compliance/Enforcement 11—7 Guidance Manual 1984
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Chapter Eleven
Request for TSCA-C3I Access Approval
Rxbibit 11—1
I. REQUEST FOR TSCA.-C8l ACCESS APPROVAL
I REQUESTING COMPONENT fOfflu/OJndonID,rrhS 2.000k PHOtdE NUMBER
• FULL NAME lL r. fun. m. W.i
SOCIAL SECURITY NUMBER
. L OCATIONICONIRACTOR
. CLIMAi sCtRI .mITIO
($50. DC&.4 . OaiiWAS
• DATE OF BIRTH l mmv, l
, PLACE OP BIRTh pn’. $ssed
POSITION
10. PHONE NUMBER
1. PREVIOUS CB S CLEARAI4CI
T I
Dv .. Diso
12 TECA CII SECURITY BRIE!ING OATE
13. FORMS ATTACHID
Dsr 86 lCai.gorv II & III ) DIPA Fone 148520 lCetageiv I ) DO... 17 Do.ta sa.*
OOt i ie r e n ,v l
IS OTHER CLEARANCES tCwysnor ced
Ciewincas
Oat,,
Sooniodnu AMass
An authorizing official (Division Dinccro, at H dquwte,i. Rq,on.l Admin,rnwcr or La oi ’acor’,’ Owvceoi in rise Fioki, or
Con rrertor Pro,erf Off sc.r must sign this sectIon.
SIGNATURE AND TITLE OF REGUEBTi 40 OFFICIAL DATE
II. CONFIDENTIALITY AGREEMENT
I understand thus I will hive access to certain Confidential Business Information submitted under the Toxic Subatancse Control
Act (TSCA 15 USC 260! it sec I This access has been antud IR accordance with my official dUtIes relating to the Environ.
mental Protection Agancy programs
I understand that ISCA CBI may not be disclosed except a. authorized by TSCA and Agency regulations. I understand that
under section l4ldI of TSCA 115 USC 2613(d)) I am liable for a possible fine of up to $5,000 inner imprisonment for up to
one year i 1 I willfully disclose TSCA CBI to any person not authorized to receive it. In additIon, I understand that I may be
subject to disciplinary action f or violation of this a eemens with peneltlee ranging up to and including dismissal.
I agree that I will treat any TSCA CSI furnished to me as confidential and that I will follow the procedures set forth in the
7 C4 Con fidtnt,aI Ø i ,rssneu (fllom,a2,on Security Manual.
I have reed and understand In. procedures
EPA Form 77404(5.85)
Rsouiiee EPA Form 7710.17, wiiI ii Ii aauoiuie
TSC& b ip1iance/kforcement
11—8
Guidance Ilanual 1984
- f.
• ‘ ° 51
SIGNATURE
DATE
III. REQUIREMENTS
FF1 ONACI ONAC Dps iseir Dopta Do aco
SUBMITTED COMPLETED APPROVED
I Dv .. ON.
APPROVED BY DATE
-------
Chapter Eleven h4bit 11—2
Sample CBI Complaint (With CBI Deleted)*
UNITED STATES
ENVIRONMENTAL PROTECTION AGENCY
BEFORE THE ADMINISTRATOR
In re: ) Docket No. TSCA—}1--83—18
)
)
Firetog Industries, Inc. ) COMPLAINT
36 Sunshine Drive ) AND
Clark, MA 02856 ) NOTICE OF OPPORTUNITY
) FOR HEARING
Respondent )
)
Notice of Treatment of Confidential Business Information
Portions ot this complaint require use of information that respondent
submitted to the United States Environmental Protection Agency as Con-
fidential Business Information (CBI). Information In the complaint
constituting or based on CBI has been deleted as indicated by the fol-
lowing: (CbI deleted). The original complaint, which is filed with
the Headquarters Hearing Clerk and contains the CBI information, will
be treated as confidential unless and until respondent waives conf 1—
dentiality thereto or the Agency releases the information in accor-
dance with 40 C.F.R. Part 2.
COMPLAINT
This civil penalty action is instituted pur8uant to the authority
vested in the Administrator of the United States Environmental Protec-
tion Agency by Section 16(a) of the Toxic Substances Control Act, 15
U.S.C. §2601 et (hereinafter referred to as “the Act” or “TSCA”).
The complainant is A. E. Conroy LI, Director of the Compliance
Monitoring Staff,- Office of Pesticides and Toxic Substances, United
States Environmental Protection Agency, who has been duly authorized
to institute this action. The respondent in this action is Firetog
Industries, Inc.
Allegations or Counta
This is to notify you that there Is reason to believe that respondent
has violated Section 15 of TSCA in that respondent manufactured and
used for commercial purposes a chemical substance in violation of
of Section 5 of the Act. The complainant alleges that the violations
occurred In the following manner:
* Note: This sample complal’nt would be part of the public record.
TSCA Compliance/Enforcement 11-9 Guidance Manual 1984
-------
Chapter Eleven h1bft 11—2
Count 1
1. On September 18, 1983, respondent submitted to the United States
Environmental Protection Agency (EPA) production records revealing
that respondent manufactured (CR1 deleted).
2. Inspection of respondent’s production records revealed that
respondent manufactured approximately (CR1 deleted).
3. Inspection of respondent’s production records revealed that
respondent manufactured a total of (CR1 deleted).
4. Respondent has stated to EPA that (CR1 deleted) was proceBsed into
a product that was distributed in commerce.
5. The (CBI deleted) does not appear on the TSCA chemical substance
inventory.
6. Respondent failed to submit a notice to the Administrator of EPA
of its intention to manufacture the (CM deleted).
7. Section 5(a)(1) of TSCA states that no person may manufacture a
chemical substance that does not appear on the TSCA chemical
substance inventory without submitting a notice to the
Administrator of EPA at least 90 days before manufacturing such’
substance.
8. Section 15(1)(B) of TSCA states that it is unlawful for any person
to fail or refuse to comply with any requirement prescribed by
Section 5 or 6 of TSCA; Section 15(3)(B) of TSCA states that it is
unlawful for any person to fail or refuse to submit reports,
notices, or other information as required by TSCA or a rule there-
under.
9. The conduct described in Paragraphs 2 through 6 above conetituted’a
violation of Sections 15(1)(B) and 15(3)(8) of TSCA in that
respondent failed to submit a notice to the Administrator of EPA,
as required by Section 5(a)(1) of the Act, before respondent
manufactured (CR1 deleted).
Count 2
1. On September 18, 1983, respondent submitted production records
to EPA revealing that respondent used (CBI deleted) in the produc-
tion of (CBI deleted).
2. Inspection of respondent’s production records revealed that
respondent used (CR1 deleted).
3. Inspection of respondent’s production records revealed that
respondent used (CR1 deleted).
4. Respondent has stated to EPA that (CBI deleted) was distributed in
commerce.
TSCA Compliance/Enforcement 11—10 Guidance Manual 1984
-------
Chapter Eleven R h1bit 11—2
5. The (CR1 deleted) used in the production of the .(CBI deleted) does
not appear on the TSCA chemical substance inventory.
6. Respondent failed to submit a notice to the Administrator of EPA
of respondent’s intention to manufacture the (CR1 deleted).
7. Section 15(2) of TSCA states that it is unlawful for any person to
use for commercial purposes a chemical substance or mixture that
such person knew or had reason to know was manufactured, pro-
cessed, or distributed in commerce in violation of Section 5 or 6.
8. The conduct described in Paragraphs 2 through 6 above constitutes
violation of Section 15(2) of TSCA in that respondent used for
commercial purposes (CBI deleted) that respondent knew or had
reason to know was manufactured in violation of Section 5 of the
Act.
Proposed Civil Penalty
In arriving at the assessment of the penalty specified below, EPA, as
required by Section 16(a)(2)(8) of TSCA (15 U.S.C. §2625(a)(2)(b)],
has taken into consideration the following factors:
• The nature, circumstances, extent, and gra iity of the
violations; and
• The respondent’s ability to pay, ability to continue to do
business, history of prior violations, degree of culpability,
and other matters as justice may require.
Based on the above considerations, EPA proposes to assess the
following penalty against Firetog Industries, Inc.:
Count 1
Failure to notify of intention to
manufacture a chemical substance
not on the TSCA inventory $275,000
Count 2
Use of an illegally manufactured
substance for commercial purposes $710,000
Total Penalty Assessment $985,000
TSCA Compliance/Enforcement 11—11 Guidance Manual 1984
-------
Chapter Eleven —___________________ Exhibit 11—2
NOTICE OF OPPORTUNITY TO REQUEST A HEARING
This administrative civil penalty proceeding will be conducted pursuant
to the Consolidated Rules of Practice (CROP) [ 40 C.F.R. 122.01 et
seg.I, a copy of which accompanies this complaint. Pursuant to the
CROP, you have the right to request a hearing to contest any factual
allegation set forth in the complaint or the appropriateness of the
proposed penalty. In the event that you wish to request a hearing and
to avoid having the above penalty assessed without further proceedings,
you must file a written answer to this complaint with the Headquarters
Hearing Clerk (A—hO), United States Environmental Protection Agency,
401 M Street, S.W., Room 3706, Washington, D.C. 20460.
If you do not request a hearing or file a written answer within 20 days
of receipt of this complaint, the above penalty will be assessed with-
out further proceedings, and you will, be notified.
Settlement Conference
The Environmental Protection Agency encourages all parties against whom
a civil penalty is proposed to pursue the possibility of settlement as
a result of infonual conferences. Therefore, whether or not you
request a hearing, you may confer informalLy with the Agency concerning
(1) whether the alleged violations in fact occurred as set forth above,
or (2) the appropriateness of the proposed penalty in relation to the
size of your business, the gravity of the violation, and the effect of
the proposed penalty on your ability to continue in business. The
request for an informal conference does not stay the running of the
20—day time period for requesting a hearing and filing an answer. To
explore the possibility of settlement in this matter, contact Mr. K.
Jackson, Office of Enforcement and Compliance Monitoring, United
States Environmental Protection Agency, 401 M Street, S.W.,
Washington, D.C. 20460, telephone (202) 690—9680.
A. E. Conroy II, Director
Compliance Monitoring Staff
Office of Pesticides and Toxic Substances
Date: ____________ At: ________
Enclosures: TSCA
Consolidated Rules of Practice (CROP)
TSCA Comp1tance/!nforce ent 11—12 Guidance Kanual 1984
-------
Chapter Eleven Rvh4 j 11—3
Sample CBI Complaint (With Hypothetical CHI Included)
UNITED STATES
ENVIRONMENTAL PROTECTION AGENCY
BEFORE THE ADMINISTRATOR
In r!: ) Docket No. TSCA—H—83—18
)
)
Firetog Industries, Inc. ) COMPLAINT
36 Sunshine Drive ) AND
Clark, MA 02856 ) NOTICE OF OPPORTUNITY
) FOR HEARING
Respondent )
)
COMPLAINT
This civil penalty action is instituted pursuant to the authority
vested in the Administrator of the United States Environmental
Protection Agency by Section 16(a) of the Toxic Substances Control
Act, 15 U.S.C. §2601 et seq . (hereinafter referred to as “the Act” or
“TSCA”). The complainant is A. E. Convoy II, Director of the
Compliance Monitoring Staff, Office of Pesticides and Toxic Substances
United States Environmental Protection Agency, who has been duly
authorized to institute this action. The respondent in this action is
Firetog Industries, Inc.
Allegat ions or Counts
This is to notify you that there is reason to believe that respondent
has violated Section 15 of TSCA in that respondent manufactured and
used for commercial purposes a chemical substance in violation of
Section 5 of the Act. The complainant alleges that the violations
occurred in the following manner:
Count 1
1. On September 18, 1983, respondent submitted to the United States
Environmental Protection Agency (EPA) production records revealing
that respondent manufactured at its Toledo Pilot Plant and its
Clark Pilot Plant, the chemical substance, Heatherstone X.
2. Inspection of respondent’s production records revealed that
respondent manufactured approximately 175 pounds of Heathers tone X
on each of the following dates at its Toledo Pilot Plant——8/9/82,
9/15/82, 10/11/82, and 11/2/82.
3. inspection of respondent’s production records revealed that
respondent manufactured a total of 35,000 pounds of Heatherstone X
on each of the following dates at its Clark Pilot Plant——1/3/83,
2/4/83, 5/6/83, and 9/1/83.
TSCL Compliance/Enforcement 11-13 Qiidance Manual 1984
-------
Chapter Eleven R h4bjt 11—3
4. Respondent has stated to EPA that Heatherstone X, manufactured at
both the Toledo Pilot Plant and the Clark Pilot Plant, was proces-
sed into a product that was distributed in commerce.
5. Heatherstone X does not appear on TSCA chemical substance inventory.
6. Respondent failed to submit a notice to the Administrator of EPA of
its intention to manufacture Heatherstone X.
7. Section 5(a)(1) of TSCA states that no person may manufacture a
chemical substance that does not appear on the TSCA chemical
substance inventory without submitting a notice to the
Administrator of EPA at least 90 days before manufacturing such
substance.
8. Section 15(1)(B) of TSCA states that it is unlawful for any person
to fail or refuse to comply with any requirement prescribed by
Section 5 or 6 of TSCA; Section 15(3)(B) of TSCA states that it is
unlawful for any person to fail or refuse to submit reports, no-
tices, or other information as required by TSCA or a rule there-
under.
9. The conduct described in Paragraphs 2 through 6 above constituted a
violation of Sections 15(1)(B) and 15(3)(B) of TSCA in that
respondent failed to submit a notice to the Administrator of EPA,
as required by Section 5(a)(1) of the Act, bef e ràpondept manu-
factured Reatherstone X.
Count 2
1. On September 18, 1983, respondent submitted production records
to EPA revealing that respondent used Heathers tone X in the
production of plastic products at its Toledo Pilot Plant and its
Clark Pilot Plant.
2. Inspection of respondent’s production records revealed that
respondent used Heatherstone X in the production of plastic on the
following dates at its Toledo Pilot Plant—lO/1/82, 11/6/82,and
12/1/82.
3. Inspection of respondent’s production records revealed that
respondent used Heatherstone X in the production of plastic on the
following dates at its Clark Pilot Plant—2/6/83 and 3/3183.
4. Respondent has stated to EPA that the pigetic product as distri-
buted in commerce.
5. Heatherstone X used in the production of the plastic product does
not appear on the TSCA chemical substance inventory.
6. Respondent failed to submit a notice to the Administrator of EPA
of respondent’s intention to manufacture Heatherstone X.
TSC& Qmpliance/Enforceiaent 11—14 Gui&aiwe ) ( mi 1 1984
-------
Chapter Eleven Rvhlbit
7. Section 15(2) of TSCA states that it is unlawful for any person to
use for commercial purposes a chemical substance or mixture that
such person knew or had reason to know was manufactured, processed,
or distributed in commerce in violation of Section 5 or 6.
8. The conduct described in’Paragraphs 2 through 6 above constitutes a
violation of Section 15(2) of TSCA in that respondent used for
commercial purposes Heatherstone X that respondent knew or had
reason to know was manufactured in violation of Section 5 of the
Act.
Proposed Civil Penalty
In arriving at the assessment of the penalty specified below, EPA, as
required by Section 16(a)(2)(B) of TSCA [ 15 U.S.C. §2625(a)(2)(b)], has
taken into consideration the following factors:
• The nature, circumstances, extent, and gravity of the
violations; and
• The respondent’s ability to pay, ability to continue to do
business, history of prior violations, degree of culpability,
and other matters as justice may require.
Based on the above considerations, EPA proposes to assess the following
penalty against Firet g Industries, Inc.:
Count 1
Failure to notify of intention to
manufacture a chemical substance
not on the TSCA inventory $275,000
Count 2
Use of an illegally manufactured
substance for commercial purposes $710,000
Total Penalty Assessment $985,000
NOTICE OF OPPORTUNITY TO REQUEST A HEARING
This administrative civil penalty proceeding will be conducted pursu-
ant to the Consolidated Rules of Practtce (CROP) [ 40 C.F.R. §22.01 et
seq.], a copy of which accompanies this complaint. Pursuant to the
CROP, you have the right to request a hearing to contest any factual
allegation set forth in the complaint or the appropriateness of the
proposed penalty. In the event that you wish to request a hearing
and to avoid having the above penalty assessed without further
proceedings, you must file a written answer to this complaint with the
Headquarters Hearing Clerk (A—hO), United States Environmental
Protection Agency, 401 M Street, S.W., Room 3706, Washington, D.C.
20460.
TSC& Compliance/Enforcement 11-15 Gnidance Nanual 1984
‘4I
-------
Chapter Eleven RrMbit 11—3
If you do not request a hearing or file a written answer within 20 days
of receipt of this complaint, the above penalty will be assessed with-
out further proceedings, and you will be notified.
Settlement Conference
The Environmental Protection Agency encourages all parties against whom
a civil penalty is proposed to pursue the possibility of settlement as
a result of informal conferences. Therefore, whether or not you re-
quest a hearing, you may confer informally with the Agency concerning
(1) whether the alleged violations in fact occurred as set forth above,
or (2) the appropriateness of the proposed penalty in relation to the
size of your business, the gravity of the violation, and the effect of
the proposed penalty on your ability to continue in business. The
request for an informal conference does not stay the running of the
20—day time period for requesting a hearing and filing an answer. To
explore the possibility of settlement in this matter, contact Mr. K.
Jackson, Office of Enforcement and Compliance Monitoring, United
States Environmental Protection Agency, 401 M Street, S.W.,
Washington, D.C. 20460, telephone (202) 690—9680.
A. E. Conroy II, Director
Compliance Monitoring Staff
Office of Pesticides and Toxic Substances
Date: ______________ At: _________________
Enclosures: TSCA
Consolidated Rules of Practice (CROP)
TSCA Compliance/Enforcement 11—16 Guidance Manual 1984
-------
Chapter Eleven hIbjt 11—3
CERTIFICATE OF SERVICE
The undersigned certifies that on ( date) , copies of
the foregoing complaint and notice of opportunity for hearing were
served on the following individual(s) by placement in the EPA mailroom
at 401 M Street, S.W., Washington, D.C. 20460 to be mailed by regis-
tered mail, return receipt requested:
Respondent Name
Company
Street Address
City, State, Zip Code
( Signature of Document Control Officer )
Name
Document Control Officer
Environmental Protection Agency
401 M Street, S.W.
Washington, D.C. 20460
TSCA Compliance/Enfqrcement. 11-17 aidaoce Manual 1986
-------
Chapter Eleven Rrh1 bits
T$C& ap1iance/Enforce nt 11—18 Guidance Manual 1984
-------
AppendIces.
Chapter Contents Page
Collection of Civil Penalty Assessments A—i
Authority A—i
Policy A—i
Collection Procedures A—i
Types and Methods of Payment A—3
Suspension or Termination of Collection Authority A—4
Referral Procedures A—5
Exhibit A—i: Federal Claims Collection Standards A—6
Exhibit A—2: Model Demand for Payment Letter A—18
Exhibit A—3: Model Final Demand for Payment Letter A—19
Exhibit A—4: Claims Collection Litigation Report A—20
2 Expert Witnesses A—57
Selection of Witnesses A—57
Procedures for Requesting Witnesses A—58
Appearing as a Witness A—58
3 Enforcement Response Policies and Penalty Policies A—63
Guidelines for the Assessment of Civil Penalties Under
Section 16 of TSCA A—64
Enforcement Response Policy: Asbestos A—75
Enforcement Response Policy: Dioxin A—91
Penalty Policy: PCBs A—i13
TSCA CoispliancefEnforcement A-i Qildance Hanual 1984
-------
Appendix — Contenta
4 Settlement With Conditions A—123
Introduction A124
When To U8e an SWC A—125
Elements of Settlement With Conditions A—128
Roles and Relationships A—l’34
Responses to Noncompliance With the SWC A—137
Appendices A138
5 Additional Sources of Compliance/Enforcement Information A—161
TSCA Compliance [ Enforcemenc A-il Qiidauce Manual 1984
-------
Appendices
-------
Appendices
-------
Appendix
1 CallecIion. oJ Civil Penalty
Assessments
Authority
Upon nonpayment of a civil penalty within the prescribed time periods,
Section 16(a)(4) of the Act specifies that the matter be referred to the
Attorney General for collection. In such an action to recover the as8essed
civil penalty, the validity, amount, and appropriatene8s of such penalty
is not subject to review.
However, before any referral to the Attorney General, the Agency must
satisfy the directives and standards for collection set forth in the
Federal Claims Collection Act (31 U.S.C. § 951—953) and the Federal Claims
Collection Standards (FCCS, 4 C.F.R. H1O1—105, Exhibit A—i).
In general, the procedures in the FCCS are mandatory, but the failure of
the Agency to comply with any provision of the standards will not be
available as a defense to any party in a subsequent action for collection.
Policy
Under the FCCS, the Agency is held to a policy standard of aggressive
collection action, on a timely basis, and with effective follow—up of all
civil penalty assessments.
Collection Procedures
Written Demands for Payment
The FCCS require that the Agency make three written demands, at 30—day
intervals, on the respondent in terms that inform the debtor of the
consequences of failing to cooperate.
TSCA Compliance/Enforcement A-i Guidance Manual 1984
-------
Appendix Collection of Civil Penalty Mweas nta
The Agency’s policy is to initiate the written demands concurrent with the
issuance of a final order so that the third and final demand will be made
on the same day the payment period elapses ( i.e. , 60 days after issuance of
a final order).
Upon the Issuance of the Final Order . At the tima that a final order is
issued and served on the respondent, he or she should receive a written
demand for any payment of such penalty and the length of tima in which he
or she has to pay it. Such notice should also inform the respondent of the
consequences of failing to cooperate.
Thirty Days After Issuance of the Final Order . After 30 days have elapsed,
even though the payment period has not expired, the Agency will again serve
on the respondent a demand for the payment and again warn the respondent of
the consequences of failing to pay (Exhibit A—2). Given the possibility
that the payment may be in the mail when this second warning is sent, the
Agency should also make a brief apologetic statement informing respondent
to disregard the warning if the payment has been sent.
Sixty Days After the Issuance of the Final Order . The respondent must pay
the civil penalty 60 days after the service of a final order unless a
motion to reconsider has been made or judicial review of the final order
has been sought. Subject to those two exceptions, if payment of the
penalty has not been tendered at the end of the 60—day period, the Agency
will send a final demand to the respondent for payment of the delinquent
civil penalty assessment. This letter should be written to inform the
respondent that unless payment is tendered within 15 days, the penalty will
be referred to the United States Department of Justice or the United States
Attorneys Office for collection in a district court. The letter should
state that such action is routinely accomplished through a motion for
summary judgment in favor of the United States and that the respondent will
be barred from raising any issues as to fact or law that should have been
raised in the administrative proceeding (Exhibit A—3).
Follow—up to Final Demand for Payment
Section J02.6 of the FCCS dictates that the Agency undertake personal
interviews with the debtors when it is feasible, having regard for the
amounts involved and the proximity of Agency representatives to such
debtors.
It is PTSCMS policy to arrange personal interviews if it is feasible and
convenient for the regional officials involved in the case. In the absence
of a personal interview, the Regional Office should at least establish
telephone contact with the respondent to urge prompt payment of the claim
and to personally warn the respondent of the consequences of failing to pay
the penalty.
Good faith inability to arrange a personal interview or to establish
telephone contact with the respondent should not deter the Regional Office
from referring claims to the United States Attorneys Office for collection.
TSCA Co pliancefEnforcement A—2 Guidance Manual 1984
-------
Appendix Collection of Civil Penalty Aeseesmenta
Documentation of Collection Efforts
The Agency should record and maintain a file of all collection efforts and
activities prior to referral.
Types and Methods of Payment
Full Payment
The most preferable method of collection is a check for the full amount
owed, payable to the Treasurer of the United States. Such payment should
be delivered to the Regional Hearing Clerk for the Region in which the
final order was issued.
Collection Installments
Section 102.10 of the FCCS provides for installment payments. This type of
payment should be used when the respondent has demonstrated and documented
an inability to pay the penalty in a lump sum.
Because Section 16(a)(2)(B) of TSCA requires a consideration of ability to
continue in business in assessing the penalty, this installment provision
should rarely be needed as the issue will have been resolved previously.
In the event that installment payments are justified and allowed, such
payments shall:
• Be on a regular basis;
o Bear a reasonable relation to the size of the debt and the debtor’s
ability to pay;
o Be sufficient in size and frequency to liquidate the claim in not
more than three years; and
• Be no less than $10 except under the most unusual circumstances.
In allowing a respondent to pay by in8tallment, the regional attorney
should attempt to obtain an executed confess—judgment note, comparable to
the Department of Justice Form USA—iDa.
The Agency may accept installment payments notwithstanding the refusal of
the respondent to execute a confess—Judgment note.
Compromise of the Penalty
The FCCS provide for compromising claims when it can be assured that the
respondent’s financial ability will not permit payment of the claim in full
TSC& CompliancefBoforcement A—3 Guidance Manual 1984
-------
Appendix Collection of Civil Penalty Maesswits
or when the litigative risks or the costs of litigation dictate such
action.
It is the express policy of PTSCMS that penalty assessments in final orders
shall not be subject to compromise except under the most unusual
circumstances. For the most part, TSCA requires that ability to pay be
considered before a civil penalty is imposed; therefore, the inability to
pay the penalty should not be an issue in the post—final order stage of the
civil penalty proceeding. However, inability to pay should be considered
where:
• The civil penalty was assessed by default, so that the respondent’s
ability to pay was never confirmed by the respondent in determining
the amount of the penalty; or
• The respondent’s financial condition has deteriorated dramatically
since the time the penalty was assessed. The Agency should be
alert to the possibility that assets have been fraudulently
concealed or improperly transferred. The burden falls upon the
respondent to affirmatively demonstrate and document any such
inability.
Section 103.5 of the FCCS provides that, where an enforcement policy is
concerned, a penalty should only be compromised if the sum to be agreed
upon will adequately serve the Agency’s enforcement policy in terms of
deterrence and securing compliance.
For this reason, and for the reason that a respondent usually has already
had an opportunity for settlement, the compromise provision should be
rarely exercised.
In the event such a compromise is effected, it must be authorized by the
Regional Administrator for it has the effect of altering the final order.
Suspension or Termination of Collection Activity
! pen8ion
The Agency may temporarily suspend collection action for payment of a
penalty when the respondent cannot be located after a diligent search
and/or when future collection prospects seem more promising than present
actions.
Section 104.2 of the FCCS provides a partial listing of sources that may be
helpful in locating missing respondents. Efforts should be made to avoid
any applicable statute of limitations.
TSCA CompliancefEnforceiaent A—4 Guidance Manual 1984
-------
Appendix Collection of Civil Penalty Aaaeaamsnts
Termination
Collection action may be terminated and the Agency’s file on the penalty
closed under the following conditions:
• Inability to collect any substantial amount;
• Inability to locate debtor;
• Cost will exceed recovery;
• Claim legally is without merit; or
• Claim cannot be substantiated by evidence.
Section 104.3 of the FCCS provides further information on termination of
claims.
Referral Procedures
General
Claims on which aggressive collection action has been taken and that cannot
be compromised will be referred to the Department of Justice or the United
States Attorneys Office. Such referrals should be made as early as
possible consistent with the aggressive Agency collection action and the
standards for collection set forth in the FCCS.
Referral Parties and Minimum Amounts
Department of Justice . All penalty assessments in the amount of $10,000 or
greater should be refejred to the Department of Justice.
United States Attorneys Office . All penalty claims in amounts less than
$10,000 should be referred to the appropriate United States Attorneys
Office.
When referring a claim of less than $600 for collection, the Regional
Office must emphasize to the United States Attorney that the referral is
important to a significant enforcement policy.
Procedures for a Proper Referral
The regional attorney should prepare the Claims Collection Litigation
Report (CCLR) for the United States Attorney consistent with the form and
instructions in Exhibit A—4.
TSCA mplianceIEnforcenent A- Guidance Manual 1984
-------
Appendix ‘W.t hi
CHAPTER fl—FEDERAL CLAIMS COLLECTION
STANDARDS (GENERAL ACCOUNTING
OFFICE—DEPARTMENT OF JUSTICE)
P ?t
101 ------ 90
102 St d r fez th d !nI a ve oo 1o. t1on of
— — ———-— 91
103 Std rda for the e zemI of ,, - - 95
104 St zzdezd for swe dI or t r”’ thii oflc-
o action- . — rr
105 RiafozraIa to GAO or for lit1 tio - - 98
S
TSCL Co p1Lance/Enforc ent A-6 Guidance ) im,1 1984
-------
Appendix
ibit fr -i
Th o-
p*aT rni— c c oi
101.1 i tlQ of ItfA1 d9 d
101.3 eat a dot .
IOU a a aa ton on.
101.4 Iver. o ’ d 1&
- .- not a
101.3 ovr on
1014 u 1c of not_____
101.1 O4O 0 0tIVQ
1011 180 OI for R* ea.
£veao Qca. 0,80 ZS 31 U &C
Ut
0oon 31 ! 1 131. oat. 1 , I ea , t b
I 101.1 Pv Ito of
The r%uK in thin
ed jototly W the Comptroller Qon.
teal of the ftc I Stoton and the Me
torn e 0 g th
mdar s.IUon 3 of the Podorel dffl42
cou,a n Aot r toot sat. 30G.
eream’tbe oto for the a Inlo .
io coile on, compromine, tormfa.
— of a lhetl , and the
rnfenal to thu Gon 1 Lonounslap
Offlce, and to the Dwpnr off Jun.
oo for litlgn un, of clvU &tt inj the
Podegal Ooveromezit for omne Cr
eapefty. £d ’ I1 Con.
teluod La Title of the Gonoral Lo.
r” Offlee D lanun1 tar Oni& o
of Poderal 4p nelen. Ro nlatlo pt’o.
esetbed by the hcod off an n g e cy pur .
cunat to sectIon 3 of the Federal
t n4n . Collection Act of 19°4 c tl1 be
reviewed by the Ocnoral Aaseuntln
Offic. sea p irt of Ito audit of the
ageney’a octMtleE .
COO P 22101. 1ev. 1?. 19191
0101.3 OeiOel ea oat
The standardo sat forth In thin chap.
t shall apply to the
h 1fng of cavil claims of the Federal
Oovarnmont for money or property
but the failuto of an agency to enmplp
with any provtatcn of thin chapter
shall not be available as a defense to
any debtor
0101.3 F nud. setitrogI. and t an ebbs
The standards set forth to this chap-
ter do not apply to the handling of
any claim an to which there Is an mdi-
Ziou of fraud, the w taolon of a
f &oI or mimupr 1tBtIoo a
the port of the debtor or may other
ort& having an Intarcet In the dm 1 ,
or a In whole or In
on oradact In violation of the
a titrott Inwa Only the por ont
of Juetla ) hen atatinoatty to
or tcv to oolleetlaei action an
such eb omtiom_
ted t tine Deuer t of J for
— withont with
the roenlationa In thin chapter
tinmo In an lndka an of fraud, the
p thtntlon of a toine oloho , or
an tine pavt c i tin.
debts, or any other penty having a;
to tine ‘ ‘ t . may be retarnnc
to tine a y foroording thom for
furtinoa Ing In aneordanea with
the tti t1ceo to thin chapter If It Is
dot iaCd thnt banod upon tine
alleged fraud, tale. I”i , Ot mierepre.
sensation I a not warrantod. Tan clam,
an to which differing motions, ad.
minlotrativo consideration, enforce.
and atatuton
apply. arc nine ozeludad from tine coy-
of thin chapter.
0101.4 Coapeambr w. weluor . or dispool.
doe andor other tictatc net
Nothing contained In thin chapter Is
intended to preclude agency dinpoel.
clan of any el ui ar statutes other
than tine Federal I a Collection
Act of 1088. 80 Stat. 308, provIding for
the oumpromla., tor t(? kt1an of collec.
tion action, or waiver In whale or In
part of such a claim. See. e.g.. ‘The
Federal Medical Care Recovery Act,’
TQ Stat 393 42 U. 2631. et seq..
and applicable regu1at1o 28 CFR
43.1. at seq. The standards set forth In
thin chapter should in. followed In the
diapseltion of civil 4” by the Fed.
oral Ooverumont by compromin, or
termination of eoUe U n action (other
than iny waIver pursuant to statutory
authority) under statutes other than
the Pedoval Clalma Collection Act of
1900. 80 Stat. 308. to the estent such
other statutes or authorized regula-
tions Issued pursuant thereto do not
establish atandarde governing such
90
TSCA Coapliance/Enforcenent
A- 7
Guidance Manual 1984
-------
Appendix
Rvhlbjt k-i
• I OU C ’..i e i;
The heSrvctIo e ’ ” od I a th
eh t arm directed primoilly to the
rscsret of y o behaif of the
O r oot Md the clrmu etaaooa Ia
wbZih Qov eat ay be
of for 1o o thea the foil o ouat
Nethloo soataIaod Ia th
eha tor Is lateadod, however, to doter
80 & aey fr ‘ dln the reitwa
of q ool c ty or
to the mltermmttve. Stthso the
of r egty or the aysoeat 01
ftav Itte.
O 1014 0t of o la -
A debtor’s I 4fl a,hln frc i a
oortieabr ereetica or
shell be ceoctd d te ato 1o dahe In
determinIng whether the dahe Is one
of Lam thea 000401. esciuStro of Inter-
o , for the urgoso of aom romice or
ter e1nntlon of collection ectlnn Such
a clcA may not he oubdividod to avoid
the onQtStT lling estabUobod by
the Padoral Clahao Collection Act of
101 St o&30 0.
O 101.? qaiiod cd lta10r dvq p,saesd.
1 G 5hIRg contained In this eha tor Li
Intended to require en ogeney so omit
or toraelcao trativo premed-
rQ Iuired by contract or by law.
9101.8 Ozfov ’ai 9 r IIII aiIoo.
At mcd La thIs chapter relermI for
litigation mame referral to the Do.
partment at Jtotice for app oor*a&e
legal promedinga, wi1 the agmey
co rnsd h o statutory authority for
bMdIIng it etra litigation.
PAll? 1 8lA A0ll0 P00 Tt40
A1QV 0LL0CT 0N OP
102.1 A re 4VQ ogcaoy collection action.
102.2 tsr omymem.
102.3 Col1qotl o by sttaet.
102.4 l%spcrtln doUoqeont dabta to coa
arllnI oredit burcous.
102.8 Conuoctlng tar collectIon cervlcw.
102.8 P rcono1 a leo oith debtor.
102.? Contact vltli debtoru onploytng
sooary.
lOts i ’ ” or at
or eligibility.
102.0 Ueu tlan at aellasaral.
102.10 CaUsation In ha ”
102.11 StolautuIso St om a’omha.
i tt: hawsaL
102.13 £onlyele of
102.14 muscuutctke of & alctwRlve
102.18 AoumeC1o .
102.10 of orsagaysasaits, della.
ee sad dobolta __
IOU? d*’ ’ o Uso i tIa
Aoamomr. Oso. 3. i 81st. $3ib 31 ti*C. .
cot
01011 tusIve
The bead 1 an aomey or his
shall toho ctlon . on a
timely beds with effective followop, to
collect all eh i ot the United States
for money or preperty eridog cut of
the actimtls, of. or referred to, bAa
In aecordenso with the e and-
aid. sot forth to this chapter. owwe.
er nothIng contalnod In this chapter
Is ‘ nt ”4od to require the Oenoral Ac-
co”! g Office or the Department of
Justice to duplicate collection
previously Mortaken by any other
cy.
(31 P 13301. Oct. 13.19021
0109.2 boomed für p yausaL
ApproprIate wrftt domando shell
be c.i apoa a debtor of the United
States In terms whIch tat atm the
debtor of ‘ h of fall.
ore to 000pers*2. Zn the Initial notifi-
cation , the debtor should be Informed
of the baste for the Indsbtedneas. the
applicable requirements or pollee for
charging Interact and reporting delin-
quent debts to cemmeruisi credit ho.
TSM3. SOd the date bi Wh iCh the P5
want Is to be wed. (date due). The
date due should be eelfIod and, nor-
°“y , should ho not more than 30
days from the date of the Initial oct12!.
cation. Three prcor vely stranger
written d” ”d . at not wore than 30.
day Intervals will normally be de
limlem a . -eapoi e to the tint or second
dtmand Indicates that further I ’ ”d
would be futile sad the debtors ro.
spouse does not require rebuttal. Pur-
thor exceptions may be made where It
91
TSC& coapliance/Enforcatent
A- 8
Guidance Nanual 1984
-------
Appendix
II 3
R,th4bjt k-i
Is ft Y tO 1 t
m ”fl intewo o (o.&, the 8 atQ of
* oe ( 3 C. 1øfl. £O cB
eboe r to or eat.
__ the p3 ce
whe the
b& to fu b a _____ to
(40 ? 2W1G& A r. W. WQO
o 1 .3 Cd c v c1 3.
to o1Ieo e i by he
Q J OW In aw 3.
a s with thc e 1
re at1o eatahitc by
b d .1 eceh c ci . ____
a U4laldeZcd or e R I r1 t I i
y In t& h3 I f
bIn. CeUo te by ef
the ?sdgr t he of.
a na % £WQ & ? t&1& n
the eor or
to he i v d . 3 3
c5c1’ .
cb) When the h iM of n ay. or
bk dei c . to @
U14. 3332. 3?03. 3?i (2). C? mhc? Ot &
etory euth tt ?, £O to ’ aellaot a
by Qf Vt C0 aO Vc GW
tlon 1 a *c hen d fvcd fro
Feder Gff t O ? %1I 3 Of tlgo.
mont orodiZ di o to ’ a prc c it or for m’
1o oo, a of
the a od toE 3, a cc o Of the
a od foree3. or a r nt or fo or
‘p1oyc3 of the U.a Pe 3tai
the C Y tO Which the debt aA1o jedlly
Is GVJOd elll a d such debtor n
aortunity for a o.offe t ae 1 hoar no
(1) The btor qucott cialvor of
the Indebtodee and the wQ VOr dcto
1nat1on t o on an ,io of crGdlhll .
ity or vore ty or (2) ihc the tadt ld-
oat rc llon of the
debt and tho hta 0.1 the aoy or hie
det toee that the tgc t1on
f the sednc e he
by Nvtucr of the doc tary ovl•
for wh the validity
of thi debt turns oio’ an IQoue of credl•
bUlly or voracl P uvfd d II C4 whore
the e ployu ent or active duty stotwa
of a debtor entitled to a be rln under
paragraph (bKI) or (bX2) of this eee
tion minates. and the creditor
agency determines that:
92
(1) A oenta aonuinw to the debtor
i tch tQrM1M ’Ofi are Ovall8bIo
for eii ot In c aisfactIon of the afle o
Itc4. a 3 , (U) ouch o eunIn weuld
oat he t eO hlu for of sot
to g in t eoa and (Ut) the thee i1o,
to to Riea deQi net ndt a
ef e t the s esay vtIb.
he z1 fg oato to the In-
tor &oatbo’o’. a n et
that of the a llccj e sl In.
sn eab e uont to t mt.
° proride an
otW for an o ioA hcarlng to rtrelve the
of or
bnt later dotne’
mIned net to the Qoument
shell he essptiy rofmtded .
(0) so Jt for (she colleotion eva .
In *. leh dolorsalnctiorg of In.
or el i reIv Inrohe
of oro 1b1llty or v cit or
wb c &top nt or miJ1t y etasue Ia
to to d to &i d!etmlbed In the
of ‘30 W’ Ph (b) of this see-
to ooUoetln any indebted-
by of jt the hoed of the aggn
to which the debt silcigedly to’ owed or
his dr tjnct shell provide the debtor a
vi toon n d aon I to the natiess
In 103.2 of this pert and
Inciude
(1) I o’t of the agoney’s Intention
to collect by affret (2) an opportun Ity
to re ta 2t oconotderut1on of the debt.
or If provided for by stetuto. waiver of
the debt, s d (3) on e pIng1at1on of the
doInoVe righto pur uant to this eec-
(4) CoilcetIon by 0 1f 55 1 against a
Jvdz t obt lnod by the debtor
against the nLtcd Stato shell be so-
(a eeoordance with the Act
of Uaseh 3, 1 78. 18 Stat. 481. as
amended, 31 U.&C. 227.
(0) raprlate un3 should be made
of the conperocive efforts of other
In .ffo’ctiiw collections by
o1fo t , Including oUlhetlon of the
Army oIdup LIa and all agencies are
enjoined to cooperate In this endeavor.
(40 P 30113, July 31. 1981]
0198.1 RopnrtIe j dellnqaoiit dubtD to corn.
rno cisl c cit b iggnuo .
Agencies shell develop and Imple-
øant proesdurec for reporting delln-
quent debts to commercial credit bu-
TSCA Contpiiance/ nforceaent
A-9
Guidance )bitua] 1984
-------
Appendix
I,thibit A —i
In the abomno , of a o ,ant
r&a y o rIbod by oto&ute. coei or
debt I a eonotde c t3 Pn.
on 12 zzt aLd by the de e deo
i Iti L **f1 fl • _
— erio
__ to d s Y J
fo r ortbo i da1to Me $ &k
to t de
to SSDPI tth the & of
1 4. a U. LC. 3I
t z3 f OfJto
(a) ‘o uI e a “ iit a o v for
tbo E te1 Cb) kae an
for dl oLo nd ____ thc n
blo to the dobtor (e) the
¶ tb cor and
tiona of d ae t by the da Of
and ( ) a k o of2 # 3 to
a’ a iV thGI th2 to
tcd Ia e o&O o Q. YI
and reiove!at. 0? tO On n I the
oetf on of ioa’t n g Utieed dz t l
to 1 g 0 i ciodft
abould d a ‘ nd 1 a tc f od *.dn
the debtor thot auth r o
tahe vtthln a oeo5tf e 1od of
onk 3 the debtor g i
(017 ey G t arIa eaaonte Of r-
stratos co o beals on hlch the debt I a
ely d to
(44 52 . Aye. ii. 1 3
o i a for cai aei e
Ae ataic nhould co ci eon aettog
for eoflectkn scf%’lc 1. Couvocta may
be ontorod Into for this per
they mcot the foUo ?Ine tI
(a) The c rvto muct auy In ent,
but not re inee, the beale collection
of the agency: (hi the anthno.
Ity to elve dt putoe . o mnS
eiai . terndn te coIkctisn eatton,
and Initiate 1o etion m t be
tamed by the agency and Cc) the can.
tractor chafl be subject to the Priv y
Act of W14. nx amended, U&C. 583n,
and. when c ppllcoh1e. to Podemi and
State laws end aenlatisne pes’tcl*nbog
to debt collection p 2 0* 1 0 25 ouch the
Pair Debt Collection Pmetl02e Let, 13
U.S.C. 1302.
(44 P 28252. Apr. 80. 1S 13
U 102.0 Pout IctoM e4tb dobtor.
Agenelca will undertako pen!onal In•
terviows with their debtore when this
Is feasible. havlui reenrd for the
emeunto — and the —
.1 a r to sueb debt.
131 ft Oct. 13. ICeS. ! 44 at
44 80 1 P15. &gc it ao’le e 45 ft
c. 25.12521
0 . Cc &t sb ’s j sØ
a is p aycd by the
nl or ’nmsnt or is a_____ of
tho military ae t or the
Coat* OtlOld, and by offset
___* be c IpH d 10
e .a.c. git, the
wsy will be ceatnoted for the pw
of a anolag with the d ! for
of the Indeb&cdora by allot-
or In acacrdenoo 1th
of &We Ceder 11280
of Ia y 0, 13 3 80 , 1800 ., p.
W0 ( FL t GOSS).
P 12552. Oct. 14. 1S$ ad skseaMd at
44 31i55. Apt. 1% l 0 and 43 ft 25253.
Aor. 80. 18013
o t .s 3’mpo au or cnd.s at II.
c 1s or
en aa the co11ectIo of
ateto*ciy p 1t1en, forfofturen, or
proelded for so an onfors ont
old or for compelling , ap ’ will
certono Idera$lon to the cue.
pension or ooatiou of lki or
ether prMI . far any Inmz abLe.
or repeated failure of a
to pay ouch a and the
debtor will be so advIact Any agency
‘- guarmntoolua. henning, ac
or participetlag In some will
carto consideration to n oud-
6r d1asueU Ing any lander, con-
*rnctor, biuhea. borrower or other
& nn frosa doing further
with It or engesinc In pre omn
cored by It If oath a debtor folio to pay
Ito to the Oevern t within a
roasanable thee end the debtor will be
so advised. The failur, of any oaro
to boner he obU t$ono In accordance
w lt h3U .&C. l l letobereportedto
the Treasury fle wimout at once. No.
tithetlon that a surety’s certificate of
authority to do bimincen with the Pod-
oral Oov,i1IInl nt - or
forfeited by the Treasury Department
will be forwarded by that Department
to c l i intoroctad agenotsa.
TSCL Compliance/Enforcanent
A- 10
Guidaflce l min1 1984
-------
—--;- —-—- -;
Appendix
K hibjt h —i
g
(31 13301. Oat. 10. 1800 Rc tc
44 P11 33102. A . I I. 1810 Qed 40
Lor. * 19013
0 ll 0 L l of cc5fn &
A hol a sawt1y or
oral which be - the
orae o pUcd on do dee It
through IhO OIOIVO Of 0 OS
wl. In the eco v11 I * n8 or a
Io e1o chouki do co
bY JOh If the dobte? folIo
to hic de within a
.tt dzme.od . imk 28 of
____OS the al3a& I will be
tior to I e value or a e t il
— fo elo.
uir - e t at .
cIu ug U aldo on of e oni4ti or cal.
lateral, Ic n t a to ro nlr.
In S pn.p zt bY a i aret3r or
e ra “ ouch action Ic
required bY statoto or cantr ot.
£31 P 11381 . Cc l. 18. 1B c i
44 0IJ. Ar 17. 1OT aod ____
A. 20.19013
9 £00.10 Col1 in
with Inter it In
1th 9100.10 should be callcotcd In
full In one lum sum whoncwer thIc Is
po ble. If the dobto? I a 11.
mabIo to pay (ho Ind btod .
acas In one h a sum. peymon8 mop
be accepted I roeular ils cnta.
The s and frequency of such Inetali-
m eat s peymente should bear a
able relation to the atn of the debt
end the debtor s ability to pay. If po .
chic (ho paymoato should
be nifflcien( In dzo and frequency to
Ilqu & te the Oovm t’s ci tat
not more than 3 yeago. Iaatalimrant
pay nlo of 1e then 810 por month
should be ptod In only the mat t
iin dronmotaata . An a cmcy
lloldlazj en utunred claim for a 1a-
I at1ve callection should a supt to
obtain an executed confu .Judc ent
note. omparahie to the D&tsano&
of Jmt’co form USA-lOa, from a
debtor when the total amount of the
deSerTed I tatim mte will excc d 0’80.
Such notes may be sought whoa an
unsecured obUgsciao of a 1ct oar
amount Is Involved. SeeurIt for do.
ferred payments, other then a cant eec.
judement note. may be accepted In ap.
propriste cee . An agency may accept
InctaI1n mt payments notwith taa
the refurx of a debtor to enaeu
fo .judipnent note or to give Oth ,
cesurity, at (ho agency’s option.
C31 l 19081. Ccl. 19. 1009. Roded tee at
44 P1133901 lor. it itWO and 40 P
30.10611
0 Im.U tso Of
Aceneim cr01400 to effect
prumic o profc ’ohly during Uio caq ,
of ci latorviewoL of “ alma of
9*0.990 or L onehative of Interest,
with the atendasde
190 Of cheptor In all
In t htch 18 coat be ascortainelt
( hail the d3htWc f nc*a1 U1tv will
not palmit payment of the 1 In
full, or in the Utipative ricica or
the c of l1ti nn dl t40 such
(31 1138*. aoL 10.1900. ato ’ T’ ’ at
44 P1133153. Apr. 11. 7.011) end 40 PR 51
Agz. 20.19013
(ho re1 ee of a different nat o
proesribed hr statuto. contract, or rec-
elation. interest should be charged on
dallnquont debto aatd dabt being paid
In I I1 to In couformily with the
Tre Fncol Requlremanta
Manual. Yhen a debt Is paid In Inotall.
menlo, the lnoteUmont payments will
fireS be applied to the payment of ac-
cried Interest and then to principal, in
aceordanc with (ho so.csllod “TJ.S.
Rule.” u 1 a different rule Is pro
£crtb3d by statute. contract, or resukI-
(Ion. Pre udfpaont Interest should not
be nndod or collected on yIJ p .
alty and forfeiture hd ,es unlou the
statute under which the I tirn 1 j 5
author the collection of such Inter-
eat.. Sac Rodgore v. United Stases. 332
U.S. 3’Tl.
(44 PR 20903. Apr. (‘7. 1919. Redeel.natsd at
40 PR 23352. apr. *10213
8100.23 Analyeicofeecta.
A8ency ocUection procedures should
provide for periodic comparison of
coats Incurred and amounts collected.
Data on coats and corresponding re-
covery razes for debts of different
types and In various dollar ranges
should be uced to compare the coat at-
94
TSCA Cotnpliance/Enforceiaeot
A-li
Guidance P nua1 1984
-------
Appendix
Iviilbjt h-i
PR 100, Apr. 17. 107P. at
43 PR 3L r. 10. 13011
8 160.14
—
£11 r lthtr e or 1 o on tis
ShOOld hR the i
for cempro lce. or for tor 1nii or
si i on of collection actlo , should
be t 311110 dc al1. auth imonte
Uon should he rotainod In the op .
prlete clalmo file.
(31 PR 11081. O . 1$. 1330. Redm *cd at
44 PR W02. Apr. 17. 10 7O and 48 PR 10103,
Apr. 20. 19*11
S 101.15 Ai oua$ion.
Agenoles should automate their debt
collection operoticco to the eutcat ft Is
coct effoettwc and feasible.
(44 PR 10703. Apr. 1?. 1970. P ’ 4 at
46 PR ! !! ! . Apr. 10. 13011
8 101.16 P € iik n of 2e.
Ikqcee . cod
A@enol should t bHn1 prco3dm
to IdenWy the a usco of rpay .
meats, doliu uenc1ea. and defaulte end
the correcsiv actions i ceded. One
action that should ho considered Is the
repertlog of debts or loa a. whon first
cot hHBhod. to eo iol cledit be.
PR 10701. Apr. 1’?. 1979. Re Imo&o at
46 PR 83, Apr. 20, 13313
6 100.17 AddItional admininmil,. calls..
lisa action.
Nothing contained In this chapter I .
intended to preclude the u ” Icn of
any other adminIstratIve remedy
which may be available.
Qed
110J 1r 5 ° y to pay.
l L3 Ut he —
110.4 Cml of osuestliw ‘ -
f j i pelicy.
130.3 Joint ond
1103 j i of
__I
ioe.a wur* rester of mIse offirs.
1 A Rmlstctt
a 3,00 Slat. 109 31 .&C.
aon 31 PR 13510. Oct. IL 1893, ‘ ‘
8 I .l Seep. ead
The staoder& oct forth to this port
soob to the c epromlas f M M
pumumat to ceollog 3(b) of the daral
Ime Collection Act of 1300 *0 8ta
3*8. which do not uoeed $20000 ex-
cursive of internal. The head of an
- U. or his designee may exercise
moh oumji i lee Ruthority with re .
opoot to for money or property
arIsing out of the activities of hi.
ogoncy prior to the rsfenml of such
M to the General Accounting
Of floe or to the Dspsr ent of Juatlce
for Utlga&ion._The Comptroller Oener-
al or his dsal iee may exorcise such
compromise authority with respect to
g!1O1 a referred to p
counting Office prior to their further
referral for lltiseH Only the Comp
trailer General or big dcol e may
effect the compromise of a f bu that
stuns out of an e30eptlon de by the
General AcoQunting Office in the ac-
count of an cocmmtahle officer. In,
chidIng a 1a agninet the payee.
prior to Its referral by that Office for
• 153.5 InabilIty 4
A $ 1m may be cnm.,. i.ed pursu.
ant to this part If the Ooverlm. it
mIOt collect the full amount because
of (a) the dobtor a inability to pay the
full amount within a reasonable time,
or (b the refusal of the debtor to pay
the IA1 I In full and the Govern-
mont’s I PI hIUty to enforce collection
in full within a reasonable time by en-
forced collection proceedlnSl. In deter.
feet1van of alterna*Iie collection PAST 1*0-4TAI MD0 rCI Till
r t gu j lI. with . øp AIM1
respect to the points at which costs of
further collection efforts ar Iy to
___ in
offers In coi it’ — end ___
minimum dots amounts talo which ____
collection efforts need not bi taItan ___
Cost sad ro ry dots should also be ___
usoful In j 1fythg adeeua!e sees ___
for an effuu coilcotlea paeprmn.
(31 FR 13301. Oct. 1 5. 1303. Rodca piated at
44 PR 22702. Apr. 17. 1179 and 46 PR 22332 .
Apr. 20. 19*11
TSCA Compliance/Enforcement
A- 12
Guidance l1anual 1984
-------
Appendix
Rrh4bit A—i
, ulh%Ing the debeorc tenbflfty be
the foI1s ng fr tot , Mcni
y be coor1de vd
ond hoeLth of the de tce p
ant and potGut & beoov behG 1tnnbe3
pio be the kII1 &V that
have bean co aLcd or
a f ved by the the av lI.
lUt , of or I c W LOb may
be mot by C tc ead eo& tlen
The
to the Q J (
aw 1r t r to d tor en r
and o id 1&z7
the Oo a! n a UI I7 be IOH’03
anllc lo U o alnt v i to the
vh*eh 1I Pa1 or
beuii at fomod CalO ma be
In dc o lntoi3 t o Oecer ’
mans’s abeilty be cuforea
.omoress e ctfcatcd tandor thla cs
tion ihould be for an ht
bearo a ree onthb rr*’*t % to the
am t ttloh be rcnovc?zd b co •
fu ad aaflc lon p adur . hav1a
ra ud fog the m 3toe ao llabio to
the debse!? a the deie vhi t ceilca .
den tfl tome. C w payable be
aro to to
Qwii ,v , It pays i% of a
by t ’ w In Qfl
t for the i’cinnmt nt of the
— to& h paid
thereon £md ceebradon of the bat.
once due upon dofault In tho pay ent
of any i at1moot she Md be obtaIned.
to ethar utth security to the manner
rot fcrth In 1O2. of th& cha ta . In
cv 47 CSC3 tO Vhldt th15 IQ p IZ]lblQa U
the ac cy’a filca do not contaIn ren
hIy ap.co.do&a_credit Information
sea beds for a iIna a coromico
propcoal SliOb In(O! 3tIQO may be oh .
tuned Item the Individual debtor by
a atcment ecuted under
p uio1ty of perjury zhoe1n the debt.
or’s smote and liabilities. Ineemo and
Worma such Department of
Justice foam DJ—38 may to w3od for
thin purpose. “‘ 41 r data may be oh-
t i from corporate debtoro by
rosen to balance eheote and such addi.
tional dato so co s requited..
• *53.3 Utlgedvo htII*lc .
A may to compromleod pursu-
ant to thin part If there Is a real doubt
concerning the Oov nmoots ability
to prove Its se in court for the full
96
amount claimed ekiter beeausc of
leigal muse Involved or a boon lid. dl i .
pate se to the facto. The amount .
coi$od In compromino In such ca .
should fairly reflect the abilIty of
out the Is I question
the probabIlItIes with respe
to full or partial recovery of a
m t bavliucj duo rurjord to the av .
abIlIty of a’ftuorsos and other e,t
tiary g poet for the Oovenutme*
___ related pra etfc lsr.
nki tienate weight shauld be
to the probable amount of court
costa may be ammeod agal g
the Oo amoa& 11 It Is uneucco ful be
UtI tl . bavt re M for the litI .
tire rta Involved. CL 2P .&C. 2412.
t e onvsedo by Pub. L. 53401.53 Stat.
30
0 *53.4 Cros at c ostlag 4 ’ ’ -
4 oInl may to compromised pursu.
eat to this part If the o e m of collecting
tho I does not juetuy the enforced
collection of the lull amo mt. The
amount emopted In compromise In
ouch cases may reflect an appropriate
dlemun& for the admInIstratIve and II.
tI atlve coma of collection having
ragerd for the lime which It will take
to effect collectIon. Cost of collecting
may to a subitcotlal factor In the set.
tiomont of amall ck’hn . The coat of
collectinig ckumo normally will not
rry groat we1 ht In the settlement of
0 l3&L ofoe es cet policy.
Statutory penaltIes. forfeitures, or
debts establiohod as an aid to enforce-
moot and .to compel compliance may
be compromIsed pursuant to this part
If the agency’s enforcement policy In
terma of deterrence and securing com-
pliance . beth prseent and future, will
be adoquntely served by acceptance of
the sum to be agreed upon. Mere acm.
dental or technical vtoln&loaa may be
dealt with loss severely than willful
and substantial violotloce-
O 103.0 Jdst sad a vacel liability.
When two or more debtors are joInt.
ly and severally liable collection action
will not be withheld against one such
debtor until the other or others pay
their proportIonate share. The agency
TSC& Goupliance/ Enforcenent
A- 13
Guidance l4anual 1984
-------
Appendix
h4 j A-1
shsuld not S1t pI to afloceto the
burden of ouch eI I es be-
tween the debtors but should raseed
to U uldzi&o the Iod to dncea en
17 € t 1o.-cai should be ____
thol co we he I *th ouch
does not lolcells the a en s
s ns& the g
%ououas of s ec ce 3 with ens
such debtor shell not be oen du od a
ter lnlng the eo wh h rfl1 be
r utr d 1r oth ebtora Jo Intly
and severally 1 hle an the .
§ 1 .7 S lo it r a of
r=o
h clclm ey be ce ro fsad fur one
or for m than one of the reensen
2UthO icGd to thIO
o 1O&t For r rovf o v of ee c o
U an a c i holds a debtWs fh’n
rftten offor of cainprooeiou which Is
aubtu1atU in e ount and the seeney
Is uocswttiIn en to vhathce’ the offer
should be accq ted, ft may rafer the
offer, the en rtJa data, and
Uculara consooutn i the
General Aa !!! Office or to
Departosent of J tico. The O ml
Aceountthe Office or the Department
of Justice n ay act upon such en offer
or return it to the s eocy with tuetrue-
lions or Qdvlee.
o s
Neither a percencego of a debtoVs
profits nor iitock in a debtor corpora.
lion wiU be accepted In compromise of
a claftu. In no tIst1 g a
cilth a comern consIderat Ion
ebould be given to requit1o a waiver
of the ta -lc n-oeriy4orward end tan-
1ou-car 7-b(1ck riehIs of the debtor.
PMT 1 —TAN á
P N IDI© O T MI W4 COl
L T1Ot1 ACT1OP I
104.1 Smpo sad pp11 II
104.2 S ap nsLon of oeflculon actt,fty.
104.3 Ta loatlon of coiLeotioa actlv$ty.
104.4 Tromf or of cleims.
AersJonrrv Sco. 3. UO mat. lOt 31 U.S.C.
952.
I 2
Oussor 31 P 12305 . t. is. ices. “ —
I 104.1 Sc pe nod
The stondert sat forth In thIs part
sp l to the e1ns omlon or ____
of pee to suc-
lien 3 ( b) oR the deral elme ColInc .
ct of 1050, 05 Stat. tOt on
ohe which do not d 32t000 .
almive of Interest. The head of an
or his doolenes may encased or
oction und ’ this
part with scl to sIaI s far mo y
or caor4y er itug out of activities of
his e ey pe2or to the referral of ouch
___ to the Oseeral Accoonting
Off ic or to the Departm it of Justice
for Iltigotica . The Comp nflcr Goner .
a his dsa1i ee may orzesske such
euthority with recacet to Im
fewcd to the Gonerol Accounting
Office prior to tb* further retcirrel
for Ut ii*ten.
9 1043 of eeboad a sJl.l&i.
may be swpenicd
ton smelly en a Im when the
ds tor t ho l! d a lter diligent
effort end thsm is . - . to believe
that future eallostios aa n may he
aifficiontly psudusthvo to jmtlfy pert-
review end octien en the a’. ”
having eunoldss’allee for Its she end
the amoent Ublab may be realised
thereon. The following sourom may be
of a * e In 1c %tlng ml hig debt.
or Telephone dlreetortes city diree.
torio pe asteri dflvorV U
ords automobile thin and Uconee ree-
ord Mate ned incal rnmsnts1
agonthrn district directors of Internal
evenne ether Pederal agencies; -
reistives. Men edft
skip Icente repnrta and credit
burenur, Sucaemdon as to a particular
debtor should eat defer the early lie-
of security for the debt.
vory reasonable effort should be
made t locale i k d btora auth.
elently In advoice of the bar of the ep-
pilcubla statute of limitations, such as
Pub. L 00405, 80 Stat. 304, to permit
tho timely filkig of suit If such action
Is wannnted. If the m 1 ing debtor has
a oonieca-judgment note and Is
In default, referral of the note for the
entry 01 Judgment should not be de.
layed because of his missing status.
07
TSCA Coiapliance/Enforcesent
A- 14
Guidance Wanual 1984
-------
Ae endix
K hibjt h -i
‘a
Th 4A :
collection action may be suspended
temporarily on a ‘ ‘ when the
dsbtor owne no ential equity In
realty and Is uec le to maho
en the Oovcemt’a de* og effect a
ismpremlce thereof at She tima but
his Justify resentlous
of tisi for periodic review sad
(a) The applicable statute of Umlta’
has been to id or started ri
anew Cr (hi future eflectP ’ can
he effected by offset notwithetandlug
tile atutuls 01 UwItaI&o
131 PR imal. Oct. 1 5. tSi5. so . J N
44 PR 327w. A51. 1?. irlOl
I 1063 Tm tice of i. aL vlty.
The bend of an e y or his d sdg .
may terminate collection activity
and the amp s tile an the
claim do’id “ the following
(a) Zusbtiif p to collect cop iuNtc*.
ties snsoan& Collection action may be
terminated on a when It ho.
clear that the Government
— collect or enforce collection of
ay gaiflon t nun from tile debtor
having duo roenrd for the ludiclal rem-
.dI. y I Ia to the Government, the
dobtoVs future f1n i 4 1
and the ‘polem a Il to the
debtor under State and Federal law. In
determining the debtor’s Ina”Illty to
pay the 1OUOwIn facto among
others, may be consldered Age sod
health of the d.btor pracani and p0.
tentlal I como Inheritance prnapccts
the p b111ty that amass have boon
conemled or Improperly tmnefirred
by the debtor: the availability of assets
y ( n’Ma which may be rvellesd upon
by enforced collection lWOoWI( lovL
(b) txabllllp to locate debtor. Collie.
lion action may be terminated an a
when the debtor umct ho 10.
cased, there Ii no security r I Ing
to be Uq” ’ ’qd . the applienbin statute
Qf Um1 t1” has run. and the pros.
pacts of collecting by offset notwith-
I IIiig the her of the statute of UrnS-
leSions Is too remote to justify reten-
tion of th, claim.
(C) bst will cint iv atisrp . Collie.
lion action may be terminated on a
MO1i when It Is likely that tile east of
further collection action will exceed
the amount recoverable thereby.
Cd) sM legally without meri&
leetlon action should be terminated
aaIc 1R whenever It Is determined th
the 4 Is I g ’ 1 y without merit.
Ce) cledsu esenot N as0c4cntgsg
dwidiu Collection action “n1ld
terminezed when It I determined tlt&
the e,1d c iy to j
claim ‘ t be produced or the ne .
can wt are ueaY°” , d if.
forte to nd’ o voluqtsry payment
5106.4 Imuelmrol.
When an agoncy has doubt as t
whether collection action should be
or terminated on a claim it
may refer the Im to the General Ac.
counting Otllce for advice When a s
iii ii5 enforcement policy Is Involved
In red’ ng a statutory penalty or for.
1.ltwe to jud ent, or recovery of a
Judewrutt Is a prerequisite to tile he.
position of q 1ut $ 5y sunctioni.
such as the uumu” ’n or revocatIon
of a 1lc . or the privilege of partial-
In a Government sponsored
pro ’em. an agency may refer such a
for litigation even though termi-
nation of collection activity might oth-
erwise be vun consIderation under
I 100.3 (a) or (c ). ( !I on which an
agency holds a Jud ent by g’ .
ment or otherwise will be referred to
the Department of Justice for further
action If renewal of tile judgment lien
or enforced collection proceedinga are
justified under the erttenia discussed
In this pert, union the agency con-
corned has statutory authority for
handling Ito own litigation.
PART l RAL8 TO GAO OR
POR UTIGAUON
ems.
105.1 Prvm$ referraL
105.2 CUrrent 44dr of doctor.
1013 ectt da
105.4 Report of prior collectIon actions.
105.1 Pruserratlma of ecidutee.
105.6 P”flmum secowit of refeñaia to INS
Ospunemat of Jwtlce.
105.1 Mfmnal. to 0*0.
£u xonivr See. 3.80 Stat. 309 31 U.S.C.
952.
Sousor 31 PR 13384. Oct. 15. 1966. unlow
otherwise asSet
98
TSCA Conpliance/ Enforcement
A- 15
Guidance Pionual 1984
‘L i.
-------
Appendix
h1bit k-i
; 1011 Pi’ pt
ciai o h1ch celleetton aetlon
hae boost toban In aceordenme with
Port 103 of thic cheeter and which
cannot bo e bood. or an which
collection aetlon t be
or tce mmon&cd , In sr nae olib
Porte 103 and 104 af this che$ar. will
be relorred to the O era1 Man
ogiic. In’aecaadenne with I1 . 2, on
am#’ ”d . 31 .C 71. or to the
01 Jw I& , If the e eon.
corned b ce baao c ontad
fs ref errela to the an
I Offica Snab be
mc do G3 5i 7 O poo2lbb nt
with a vo no achc an
action and the cic once of the sc u .
latlora ccnta& d to t Wa olse tc
In any ev t vJoll Ithin the thee
its for bet1t t7 a thenly oait
the debtor.
01e3.2 C ofd tee.
F 01errOic to the enerel £coaanttoO
Office, and to the Deport ont .f Jua.
tics fnr UtQ tIon. will be
by the current a of the debtor
or the and address of tile asont
lOT
may be mr . 1%e1e end
plate ote n will be taken to loonte
In all cacao. e1errele
to the Oonornl £ceauntlne Off to!?. and
ref csTnis to the eeartmant of Juctico
for the inatitutlost of foreclacuse or
other proce dl , to which the .
rent a4drw 01 any patty Is unknown
will be caca paWad by a Ibting of the
prior beo st a 01 ucb a
and a ctetement of the steen
01c3.a Cr llt a.
(n,) ( !‘1rth’N referred to the General
A ountIn(I Office, and to the Cepert-
mont of J tIce for litigation, will be
uccompanled by reoaonably current
credit data Indicating that there Is a
roneonable pi i i of effecting en.
forced coIl ctlon from the debtor,
having due regard for the ezemptlosm
available to the debtor under State
end Federal law end the judicial rome-
dice available to the Government.
(b) Such credit data may take the,
form of: U) A comnserelal credit
report. (2) on agency Invoatigauve
report showing the debtor’s aerate and
99
t 4 se and hIs and an-
, (3) the todM l dsb%oVs own
statement meoted
alty of perjury r eet Wa emote
and Itobilitlea end Wa end an-
or (4) an e” ’ d cheat
c i a .ss’pmemz da .
to) ch omdit drIn may be omitted
t (1) A an, bond Is avo ble In on
ame to ss$Wy the “
___C3)thetINSd e r lOva I nsof Lbs
s3a j available Ice appliertlon to
the_©Sommeeut’a $ uiiMLi1i
In ‘ l.fp Ito In ftill. (3) the ru-
wiobec to liquidate loon
_ - _ 1 furucissore
bet deco not dndru a deficiency Jude.
n ont. (4) the debtor Is In bankruptcy
or reealomahip, or (0) the dtbtor’a ha.
Witty to tile Coumenment Is fully nov.
coed W mmavonce , In which mee the
will fennich mach Informallon
on 1$ east devuiep concernIng the Idim-
thy and addiom of tile louver and the
type and ames of Inclwaou cover’
• 100.4 3e1 if pier velaitlan idlo . .a .
A checklist or brief eummary of the
actiace_proulmely token to ofloot or
________ a etaiss wW be foreas ad
with the upan Ito raterrel to tile
Ooneval Acosonting_Office or to the
Doparlosut of Jootict If any of tile
a *nistratlvo collection aettono ems-
merated in Past 102 of tWa chapter
have been omitted, the for
theb c.tta n will be gven with the
ref erroL The General Accounting
Office and the Dspar ent of Justice
may return or retain l R1
option when there Is Insufficient jsnti-
flentlon for the omloost of one or
mere of tile 1nIs atIve collection
aetlone enumerated In Port 102 of this
I 100.8 .1 e Idunsi .
will be t’ to preaerve all
lUe . 1 eeiJs and enhibita on “.i” re-
fer or to be refi a to the General
Accounting 0111cc, or to the Depart-
ment of Jwstlce for UtIgat1o
• lO IS MInimum umouut of ref.nula to
the Dep,tumui of JustIes
Agencies win not ref 1.Jm* less
than $800. ezcluatve of Interest for Ifti.
TSCA Compliance/Enforcement
A- 16
Guidance $anua 1984
-------
Appendix
I hjbit h-i
• 1W
— u11 — (a) Refatral Ii toipiu-
toot to a at Iflcan& eetorsmei &
pollsy at (b) the dsh$cI hev aot
the dear ab ty to ss the dahe het
the 0.v ean afIeaUv
fai’, y t havtol dito ia ad to
the a — 1 . toiu sv’ ? to the deto ’ .
u Slat. at ?sdrsl I ad the
JulW ’ xii 11 anU.bIe to th 0ev.
41flE
(42 PR 1. AIlS. 1. wrn
b 4-As,
I 1.7 1.i1 i.h to GAO. -
Rs(ein St “ to t Otmi j
Msa1M Iu11 O ee will be La - _ •
with
stety 3heItod , 4* ”ed to
Oeaeral MasimUi 0111ev ?oU
uu1 Manual I O U the 0iald.
of Yedual Measles
100
TSC& o ap1iance/Enforcenent
A-li
Guidance ) iiii 1 1984
-------
Appendix R hIbjt L—2
Node 1 mand for Payment Letter
Name: - Date:
Add ress:
Docket No.:
Demand for Payment of Civil Penalty — Warning for Failure To Pay
Dear Sir/Madam:
In connection with the enforcement of the Toxic Substances
Control Act (15 U.S.C. §2601 et seq.), you are hereby given notice
that your penalty payment of $ ______________ is due within
thirty (30) days and that we expect payment in full, before the
the expiration of the sixty (60) day payment period that started
on ______________— and ends on ________________
If payment La not received by the expiration of the payment
period 1 this matter shall be referred to the (United States
Attorneys Office/Department of Justice) which shall recover such
amount by civil action in the nature of a debt owed to the United
States government.
In the event that you have already submitted your payment
or that it is currently in transit, please disregard this
nottce and accept our apologies for any inconvenience it may
cause you.
Title
EPA Region _________________
Date At
TSCA Compliance/Enforcement A- 18 Guidance Manual 1984
-------
Appendix Rvhibit A—3
Model Final Demai d for Payment Letter
Name: Date:
Address:
Docket No.:
Final Demand for Payment of Civil Penalty — Notice of Referral
to the United States Attorney
Dear Sir/Madam:
This letter is to inform you that your penalty payment of
$ ____________ is past due and to demand immediate payment of the
above—mentioned sum. The penalty was imposed by a (Final Order,
Consent Decree, or Default Order) signed by the Regional
Administrator of Region ___________ on ( date) . You were
notified of your obligation to pay upon receipt of the Regional
Administrator’s order on _____________ and you ware again informed
of your obligation to pay on ( date second demand was sent )
You are hereby notified that unlesa the payment of the penalty
is received in the Regional Office within fifteen (15) days of the
date of this notice, this matter will be referred to a United States
Attorney who shall recover such amount in a civil action in the
appropriate United States district court. Such action is routinely
accomplished through a motion for summary judgment in favor of
the United States. In this proceeding, you will be barred from
raising any- issues of fact or of law that should have been raised
in the administrative proceeding.
Title
EPA Region ____________________
Date At
TSC& Compliance/Enforcament A-19 Guidance nual 1984
,. • :
-------
Appendix bit -4
C1a4 Co1Iectio Utigation mpo t
The Federal Claims Collection 3tandar (4 CJ.R. ff101—lOS)
prescribe regulations for the administretive collection. coopro—
mice end termination of agency claims, and for the referral of
administratively uncollectible claims to the General Accounting
Office or to the Deportment of Juetice The
Standardo require that certain informatt W i II to
the Department of Justice whoa an agency refers a claim for
Litigation and enforced collection (4 C.P.1. $105.1
in cooperation with the General Meeimtirsg Office, thi tthched
Claims Collection Litigation Deport (CCIfl) baa been developed by
the Debt Collection Section of the tsecutivo Office for United
States Actormeyn, Depertooat of Justice, en the standard report
to provide this information when claims are referred to Justice
for litigation end enforced collection. All claims referred to
Justice should he araconpanied by a completed report.
The CCLI is pruvidod in three different formsts* letter
(txhibit 1), m ccndem (Dehibit 2), and standard form (Inhibit
3). tech agency mey choose the format it prefers to use. Dupli—
eate copies of each format which inelud acketed esplenatory
test are also provided (Inhibits 4, S and 6). ’ In addition, an
Item taplanation (Inhibit 7) is provided to assist and direct
agencies on the specific information required in mash item en
th. report.
Uniform use of the CCLR by all agencies will serve a
number of pongesea. First, it will provide Juatice with all
the information it cent herae to effectively litigate tos claim
end enforce collection. The Zl will provide this essential
informotics ‘on top end up front’ so that en time will be lost
aeerehaeq the client agency’s file for the necessary informa-
tion. Thin will increase the speed at which claims received
fren agoncies no taken to judgment, or otherwise converted to
paying statue, and, as a result, should increase the onount of
money collected by Justice and returned to the agencies.
Second, the CCLS should improve the quality of claim
reforra.te to Justice by peneptiag agencies to take move eqgreo-
iv administrative action to collect claims. Such aggressive
coUection action is required by the Federal Standards (4 C.P.R.
5102. 1 et but has often 1 boon overlooked or ignored. In
this raspe 7tho CCLI will also serve as a checklist and as
a renindor to all porcoms who deal wLth those matter, of the
importance of the Federal requirements. Furthermore, both
aggressive action by the agency to collect end prompt referral
to Justice of claims which are accompanied by current, accurate
and complete information, directly affect Juetice’s success ta
the enforced collection of claims. Therefore, us hope that
aech agency will establish the goal that aLl of its ref.r’rabi.
claims be referred to Justice not Later than six months after
• The Pooticidma and ?owic Substance. Offices have adopted the
memorandum formn. Therefore, E3thibit S (the memorandum format
that ae1udoe bracketed explanatory text) is included u this
appendix. ! thibitc 1, 2, and 3 (ble mk forms) and !abibits 4
and iix. which pertnin to other Lormats, ax. net included.
TSCA Compliance/&tforcemant A—20 Guidance ? nu*1 1986
-------
Appendix R h1bit A4
the aq.ncy’s final determination of the oent of the clath.
If, U stated La the Iton taplanation, preparation of the La
made an integral and eantanporaneous function of aggressive
Collection efforts by all agencies, the &a will be completed as
and when the agenCy ?‘Cte 5 ad S.aLotrstivQ collection tion,
thus • allowing agencies to promptly ref or cla1 to Justice.
?iseily, the CCIIh will. provide the aformatlea needed by
Justice from all agencies La the sen. order and sequence. This
will ssebiø Justice personnel to design p uduros anoad the
report which will permit better utilieatiom of the sodern sord
ad data processing equipocet which eany law offices now have.
mice the information La received La the sane sequence, thee
orerecorded progras will enable such oçaipaenh to ‘rend each
4ebfter file’ to ‘asteectioahly produce the dosusents essential
to litigation, for esaplo • the donand Letter, ca pLaiet • seances
and judposnt. which relate to a claim. Such automated collie.
turns eyot. will the efficiency ad speed with which
claian ave handled and, a a reatgt, Jvsti e should be able to
betts* serve its clio t agencies.
mecause of the uniform order ad sequence of this standard
report, it will be pooe il l e, if a agency so obsosem. to provide
merely the ansrmrs to Itses I through Si of the report seriatia.
This means thu instead of inserting ansrmrs to Items I through
St on the actual CC&a fore, a agency say follow the standard
format of the report, a illustrated in the attached hibLta I
through 6, dorm to Iton I of the report, and then at that point
merely provide a running list of only the Item mahere and
correspond Lag aarmrs for Items 1 through SI. The actual CCLR
form and the accompanying Item pLsnation imuld then be used
y the agency a its pattern, quid., or boy for providing the
aasrmrs La the running list. mien a running list is provided
in lieu of inserting the answers onto th. actual report fern,
er • great care should be taken by the agency to assure
that the Item makers ad answers provided La the running List
correspond to the Item nusbcrs on the report. This method of
providing information should both simplify and enpedit. the
agency’s preparation of the Zn addition, it should allow
for better utilization of available werd and data processing
,quiprst to prepare th port.
As both the CCLS and the Iton tzplaaetion state, all docu-
mentat ion which aupporta the cl aim or, where appropriate, the
agency’s debtor file should be attached to the report. In addi-
tion, the following materials should be prepared and included in
the CCLS packages
1) A Certificate of Indebtedness which will provide
the anited States Attorney with a complete
statement of how the claim erase (including the
statutory, regulatory, or other authority from
which. the claim arose, a suemery statement or
resia. of the factual buis for the claim, an
S
—2—
TSCL Compliance/Enforcement A-21 Guidance m ,q1 1984
-------
Appendix Ibjt A—4
itotdnation of the dateS end eno mts of any pe. enta
made by the debtor to the agency or any erediti mad.
b the agency to the debtor, and an itemization of
the wit du. and Owing) and which may be offered by
the Dnitod Staten Attorney into esidene. to prey, the
2) A Deportment •Z Jueti e Demand Ltter (Szhibit 0)
which will be need by the Dnitod States Attorney to
notify the debtor that the Department of Justice has
received the claim for litigation and suit will be
brought nal full, payment is end. within 10 days
Cpleaas note that thin letter need only be prepared
end included in the C L& package for those United
States Attorneys’ off ices listed on the Attacheent
to Sahibit 0);
3) A Sepertaont of Justice Acknowledgment (Coa.beck
Letter ) ( ahibit D) which will be used by the
United Statoc Attorney to officially notify the
agency that the claim which mao referred han been
received and will give the referring agency the
United &)tatse ttorney’n claim nuobes; and
4) A Department of Justice Deficiency or Declination
E.otter (9.ndbeck Letter 0 ) (Dehibit 10) which will
be used by the United States Attorney to send
deficient elaine , or elaine which the United Staten
Attorney declinno to litigate, beck to the agency.
The Let tern chould be prepared in the lens foment reflected in
the eshLhite.
The Deportment of Justice solicited esemsats on the use. son—
tent and format of the report f rem divers Federal agencies. Thee.
co mats enpaeoaod olsect iaai vernal support for the concept of the
report. ?o the extent poeciblo, all agency suggestions for changes
to the report, or that additional items be included in the report,
re incorporated. Several agencies were concerned that some of
the iterac of information requested en the report nay be superfluous
to their particular elaine ox inpomaible to obtain. nebility to
obtain all information required by the report should not be viewed
an a bar to referral of elaine to Justice. nowever, information
requet3tod in the litigation report shOuld be provided to tho extent
feasible. Questions of feasthility should he answered on the basis
of and with a lsor io erstaading of the fact that claims referred
to Justice axe for liel at em following aggressive a inistrativ.
collection acei F”by e re erring agency, end that em basis
of the information contatgsd in the CCL I I. including ! e agency’s
1 t iiiIion of o debtor T’ pay, and the accompanying
nupporting docisuentation or agency debtor file. Justice should
be abjo to cueceoofully prosecute the claims referred to it
to judgment and enforce collection of a i al . My
oea.esiens should he ozplained in the a propr a e en so the
face of the report.
a3
TSCA Compliance/Enforcement A-22 Guidance ) nua1 1984
-------
Appendix h4 bit A—4
realiae that an agencies gain ezpsrian.s miag the CC&l.
problsiu eny erie. ich could one be fotsases while the report
ws being de.sLopsd. Al though cospl.tioe of the report La
required. It. aoat.nt end foruat any be sodified La the future
bared i Ofl any aoa ta or evqqoaeios. frau aqesct. . iaing
the report. Ceanenta should be brought to the aCCent iau of
e. Oduard a. ?%laaton, Aeniceant Direoher, Osbe Collection
Section. freciatire Off ice for a. S. AttotneyO, Suite 003,
5200 Lasebueg Pike. PoLle lureh. Virginia 22041. X i the ioar
future, the Conoral Accounting Of f ice will i u.p6 $te the CCLi
m .d ui o”V.aytaq nateriale in ?telo 4 of the Coneral Accounting
Office Fel icy and Procedursa imnual for the Ouidanes of Federal
Agencies.
—4—
TSCA Caupllance/Enforcament A-23 Guidance ) nii*1 1984
-------
Appendix
ci*s uxrus uYIwI
c . . aø , ‘pi ,J
*1
RYMbit A-4
,. ccl w s
‘l lsisl SluWiiPI (I9 I
i’ (CS • s%, Zip sI
a(i lils If s
1
slp?s sus l
I )(l R 5øO f lI ( T, PI?et. NSd lc)i
II ’O Od I k
I
Oil. . I
Is , . ..
is _ - _ , .. ;
I, ._ - lMsclv Ivs
_f ,
14I t is . - - IW 1 —
is l — l .
Is I.M.-. 1 viVs.
Is d .
Th(o alsIs Is f ssiP pS , Is!.
GI iG P . 1!. pIo ?Im ills
p1 k Pi lIy dcl - i 1sd l I Pt If -du (4 ._ .I Ill —lIP). -
4 ll ._ iP) —l Ip I.01Iss s ill 1.
I. c Oic .
3.
AIt
• .I _fI * It m .i
5. _____
II 1 w 4 —.
I I
l9I I
j ?t
fll_ n.’ctm_ . tL t 41
is
3. lOI l lcy $
4, • I ri i
4. i sia
Is.
la 0 OlQl c
1,
0 PI $
i s 0 uI?.
I&IulI iIs i5i I. .a..
o..i
A-2 4
imisusi, SI
0.
p. - — 1 lqi I.J... .jPi..s
j IsL... ul I* .111 ll
-,‘—‘ —w -..— —
J-
_I_ ._ I, _ p _
TSC& Coiap1iance/Enforc ent
GuFIan e X ri.. 1 1984
-------
Appendix
—
S
12. 5a4s ?c ds us
1 n. IitIUI? VS I f
VIrh4bit A—4
2 . Iem s ta•
( . 1a itse, Igitui
23. L __ ; _ .
Ill - — .____ . ___ II
27.
a.
30.
32.
a. 0,I I I rnI. ,
It.a .___ — .I
I__________________ $__________________
34.
Is aa aa
a , 31. i•Ia
11,1 lssVI .e ,tIu
si,ia
I
IafurW
__________________________________
II.I
a. 1 sUTI ..s.(va r ‘Ii.
3 1. oa” .i
ia
. a . aau.i.i
30. s i ‘at , .,,...aft
H ii. d$tit
37. i av c ai atis
( Thu a Ia , (itra, ii as. :
• 1—
A—2 5
Guidance nua1 I984
II. I 1O it IImI u Ia3 (IOU .i as
,I._ •• .i
3.
I I ,
17.
I,.
21.
$r as
, ti
4,
12.
,t ,it a m a i
. . it. aftiglul. atflaeH
it tI,gp ‘
I t — as
(La .. I . alI l
IS.
I t iH
I Sit it at
I... aat. it$IuI - df lafl
a.
IKI P. . ..Ji__al .. .fl1
am elasslu ulalus
•.
a. (a as .a7l
J tuI ‘ P$a itis
i m arn ie. it .1
It sl,, f d ’O dIamUa.
23.
0.as.aIia it eslalatet lie iama
l slSsls”I Il .1
II I maipiatitlss samamla
atima it a.’a asia
ta. t’4.i uuslialo a amstuu. a. austr
. Th i i a. It a, .1
a. c.,....&us .ii.l
A——— —.
( . I •3 a as as i 114P 1 as a asia r
. .1a uffa alas, it va. - as sia a sIafl -
it Iis Ill9y s i s a . attlas tI il iiit Jeirnt w
si? Autla.
lt_aa ._ .. 4a? as te1 10 aas —_ s ? If as. ise, asia
ma
— ei. .. dmaila.l I
iusus
it a. riusiai
$t vTl a it ( a it aa.uIue,lam .L $ ( mt?t
W
slSIiV;
1 iil I t
it
ts
31.
? pi lit a luuIpsIs
.wl1s s
23.
I___________________________________________________________
as’ iam
a .a ... .
ea lam a
IaIusl
am f I a as
I us?t
TSC Goapliance/Enforcanent
#•; •.
-------
Appendix
KthLbit fr-4
‘I .
lL _
1 L a
CD ’. IP — L C 1t —
I I •. —
41. SwP, IN s
a. Is N ffl I
— —- —
c ’s wy.
51 ,
- TI
,
II I Is H
4c1 IfI
I N4t 4 1 atI
ZIP fl
— ,I
a
ti — I• $II 5
•
— ai 4tliI g q
___ N ____ N ’ Is I
— •, — , -_ I
-
1
4,. I l I Ia4 I. .411 sIut I. lpI p 4 I. 4SI
ISI1 LIs _ N I . Ifv
.I IP ? 19S4 I
4 4I . __ • .g. , .. 4.. n 4I -.
4 5.
lIs 4 eS sI Io9 I .4 11 è R Ii IVIq .9 d
. LIs LIID 0 N Ni r
. t lS SI
jW_. i ” I I l 7I.I
47. 4 14 4 N N Is 41545 4
II J I SI S. l v. i
4 N•5 III W I
4, , •
N II
Ij _fl_ m I4 I s P i ? Pi. Iala 4 r54e I 4Ip d I s.v.
I ,. Ir..flI I •
N. AI Iq N IaN,
4 1V 1o.
a. _.____;u SI uIq 454
S 4/ I
.3—
( I
!1. 1P y I s!s ij II’ISa
TSCA GompUance/Enforc ent
4-2 6
Guidance Nanual 1984
‘. ‘d • I
-------
Appendix Exhibit A—4
,ts
I I W LFL IOIS I UIS . pie. . 1 IN I
C, V
. . ____lbIs Clal..
‘4,’,,. ’
.( , I I I•
C
=- __ IIS i
_____ S. ri. f , . ,.., .1 i.I• •I 54 IST lI liii
• , ft 1.5 1 5 r ?, 155 IISIv S 51 5IC
s,I Is The gI. ,i. 55 1as vs ISSlISSIS 115 lIPS?
Ill.. ce , I , 15 51 4S5Q Ii. 15?I?s _.. ThIS r
II ip is 15 —. a ‘l51 fC?U v _ c 5IuI
iii. q_-.is ue .‘ gw?..?lyIa5 5 5 1w 1 5, .... __ sl I. ?
,,i. (15C,) ? — v i . ?.
115 . tIPSY p 5 - 1U5 I4 5 155 .._ i ‘
,4i I I .e 51 15 5 IS?S. liCe (.51 1 1? I I I SS? II5S I.SI15S
ssIs. j.i 115 j . 5IeIi5 dISIPICI • 15 d 1551 . uv 0 1 1w 1a5 54
cr I.1PIc? 54 a • s Iiis. 515 15.55 15 1SS I. I.I Sj
I WCeil5ICS.
TSCA Coinp1iance/Enforci iaent A-2 7 Guidance I nua1 1984
I. -’
-------
Appendix bLt à-4
I i 1v
i. — Is esII - . SI PIP, I sI a Ills —_ *W Ill
iaai lse 1.
TSCA pliance/Enforc u A-2 8 idence )bnual 1984
-------
Appendix
• h4bit 1-4
( ) v n ___
d vt 2 4 iq
a gf _____
a I WCJ.fl g $sn ______
___ - - ____
___ • d ____ __
— & i ____ - - ___
____ M t ____ ‘ ____ _____
dJ
b — i Lt ___
____ — — a ___
L 3
r - -
t I t &4
‘ ‘ b C
k41(Øy O
4 I - a t
C ”
- — - - - I -3
I
a a
‘ —- .CU y
- --r
Le ____ L a
“ r i — ai ___
cL - -‘n Ja D ___
____ - — . i j ___
Ly R t ‘w 51
m t I t _ !! t SI t L
1i - - d e ___
1i. a. — t
L iM 1y _a_ g iy ____
t I 51. __ ___
i - p n.
g g LL a _____
TSCL Coz pIiance/Enforc nt
A-29
Guidance Wann*1 1984
-------
Appendix Exhibit h-4
liia at i itin I I 0*0 *0 attu l W b L e
t by *0 iiq that *0 ftat : o
vi d in the z atW Urn r em at the at t.
01 th e Jify ii the a .wys
s atian of em & Zn ed iU , it emuld aLlat t tter iti ( 4 i
f _ j * a o iii ii it at em
both the *0 11 .n _atWalntiOlB e. all m i*stimt
idtith i --- L *0 c3a er. _ iate . the L y’n dth file ekm d
at em Xe mitlat. *0 fr Unvta m i s emvl4
1) A titl0*e Of Tedtht at iith will at1de •the ited Staten
with a Loat statat 01 *0 clan m eo (iL it
em at at x mcity frat dtidi the 4
, a ataa at 01 *0 fatteni basin fat *0
olain. at i . ina of *0 d n a of aty tn
by *0 _____ at *0 at ‘ atedtt y em at em
_____ at *0 aten t due o nq)
aty P ri by United L ate ou eat at
2) A 01 Latter ( *.tbLt 8) d id will bo
, z by *0 Uni d trnas Atter Y at atify em dth that *0
01 J ratiat ban eativad the c1a a r Utlqntiat e
enit will ba wU.cn bill ps a La within 10 dayn
imat that thin latter r c01 oUy ba patp ed o
in timas United Sta toeem • offices
em atta t at IbLt 8);
3) A U rte t Of JIJ8tice ( ‘ Lsttat ) ( d ib t
9) id will ba ioed by *0 Wutad Statat ttc 1. at officially
entity em y that *0 clM id ith wat hen bcsn
em e asria the United Staten Attte, y’ a
4) A Un m t Of Justice Unficie y at 0ocLincit ce ttter ( thibit
10) ‘dtttii will b, by the United Statan AtWLImy at ti d01 i—
ci M er al *0 United States at rmj d ccl 1zma
at litiqnte. b at t im a9eImy.
— io e in em 8esiaat ce ce in em enhibits.
*0 date that *0 Ta is eiqi .
tnnidz eca Sin ly thaw Utsd States Ati the
CT 8lcckI Pedeul ji acial district, the city,
itate m d zip e. 1 m j dIeiaL district
ba ‘u itt.n, SOUtJISrn JtrLct Of IO S.
at lctga.ct of Rateas , at
The itata at em .pted t cepital
—2-
LSCA Coapliauce/Eaforcesaent A-30 Guidance P(Rn i.1 1984
-------
Appendix h4 bit A—4
1mt t ia. A c Iate t.tü
__ the a Ii d S c ee
p’gc td a the aL11i we1c .
( ib.tt 11
Lt St a J A t 5.)
•p
w. tit’e. pLc iLUn
r c ZicLeL i U aiqa t.
PuU i r Lc , f z Le t 1 i
s MtiaL e th d .
t 4 t2Z 2 I a
a ‘ .° n.
__ pL the
a__ by
r _ ic __ ‘1 liii
C.istgs — — .
seaL the o t? 3L a the
e
the b Li
thm n
ttti ild i 1 a
ce c ic ia a
eL Ia a aiL& i . aaL
. Lb ( . -
Le 6
di f e dc
iL Z&atea Dies
__ et & cZ
9 iftc ia of
___ __
j wrJ a £
ih f Lo . th
tat !Q t d u cae L ieth
a th a p Iaz y nate
a of _____ fl
i d apIainQd.
the oL t. th oi* the d of
of of
by — of
i
tho t Di Ueotia of 19 2, P. r. 91—3d!,
$1I(s) 2 . The Cmrtific aIan of T aUtadau
att i * u14 Lr Li m
e upI.ais a of ez i
—3— S
TSC& Coapliancei forceieent A-3 1 Guidance Manual 1984
-------
Appendix R” bit h-4
ea1 s ty thi t 1 ia%t , of
t tLficatiai of b tofanan, of any
pene ty th e anut
by f . ‘— - — 1 e fai1 i
any r ian of a i than ntanty (90)
pane di pi z an th CoUcett t
of 1902, P.&. 97—3 5 511(.)(3). The
tificatian of
d tML e an g
1 UP 4 I P LtY an.
Das a the meaL ( and Theal) ant
an tb 8a dam of the
tUi i of LJ’- N .
cam of waL Lntsceat thaL of
by an d d t.
of t)m of L2 t 4 data
UMtania ) t La an at : ii
X I 1, of bLa!th. In the
of a zui-ban 4 ’4 ’ a
—taIt o a) and the e b rth
of the ITfl in w In an. w
that J tI La a
or Dl t 11a1 I,
f p.-i I, 1. i..atLpJ JLW .’
— annial es xLey .
In the of a r —UansfLcl&y a the
wr’e meiaL atm ’tty in m im,
In t that in a a—
or a —— tha t ldant.i—
fi Lan m of If the
tan ‘ádantificnt.lan rn of t )
p!z cth1p . ,. . La UIIQ I, thOU
I1 3, _ — any other f ($) CaLJae(ce))
byt d.bt . !2tI Ja iaaan1a
1eeor, thOU the ano er rMct the
Ia I.atcr an ucan bunianu
d/b/a (da1 antanaa an) Lth ‘a Fiani.
If an sliaaan, pertanreflip, or
tot. o LaeorthLp ane d by the
or acwt, th t applicthl.
or
-4-
TSCA Coap1iance/Enforc ent A-32 Guidance im*1 1984
-------
Appendix Rwhf bit fr4
4i th (j) the dab r i
initi th ut ( . Licnt i t
i n
ri Ln tht .
& ga_ 1 ________
2 1Ui
__
______ ______ a
____ r
a a t 4 ns
___ ‘nitb n - -... I Zt is
___ kr t Ii ___
i in
n i n ____
g g • ra a as a ,
U i’o ri i I ae o the
n e atina’e q
e vt e
Is r
theS th s ’5 st
-
d tilthia the L Mn.
0 _______________
1 I 7s ‘O m 3Le
i a n
th 2 vc t i d% e t
( . th Iith v t1icn
the
deep w&thin the L oin
ethn th the ps t
__ -
1’ I 9i sy t it 11 . ie
iii r Lce ii the
i the
rt 9. s
r e . t n. .
SLW 1 fl’ -’ 01At±
the &b ’e iI e e m a,
aor is a with
iv e ii o ._ _ .
the a -‘ ci L sdit
TSCL Cotep1iance/Enforc ent A-33 Guidance in l 1984
-------
Appendix rM bit A—4’
iss u s -
— d as d
____ tha __ g SdLt bi ia
iith
( _ —
bloth as a we pms
_____ i41 1 sLc t tha U.S.
fost tm
o thw as is the àth s
as with £ jg ii
s asas i is alas as
be ‘ --E In
a itias. q.s. Pastal $ vic. retains
of . -- is __
oft they nn EU by a
of a thclt.ds
the ____ of
re is a la al is Int e iL be
l p
r .se is Z 3, . this i ,
be reio f th
I l t i the eLais
of istlas ‘ 5 a1 3e ity
4 - etias beref
U.S.C. S 9. Des ibe is p ’ticu—
fty a type of f it —
def 4t. ot1 astini by
- the * thidi the dais. As
— is tbe p nsthstical th , be
idastify stae& rey, reqaL cy,
c or asebecity fare dais
In the reret has filad
a be be1 tcy petition. thcLi basl uptcy
related edre icn is the 4d ipticn of
of action. tt a w
of the Initial tice of the
bensfit c pe reat. lore def aLt, etc.
I: the last S#e (ireth, day. sat ) re
thist suit cre be be 9ht su .,,g the
eLaii t. i.e., r i of Uai—
tatires (i d
I S IZi is $ .(statute of Uaita
ticla) 41te, tbe default date, late
of last pe u E As a asaral rulo, a lsns
TSCA Coinp1iance/EQtorc ent A-34 Guidaoce nue1 1984
-------
Appendix ITh4 bit fr-4
/
the s $ jg
bt. tl et u of LL tati deth i q1d
aed the
of dee. th
by
of 11M i 4e 4d
_____ of 1
(Q , 2 a.&C. 24I3_
V a t h . . y t ca
d by the ILt
• • • b 5
ft1 w ji n — eL
— of n •
- of 1a 9 tig
of
gtØZ of eei i dioU a t
th
• • • • I
I 13s tho a ( th. 4 y. y )
fixes 4 ep
th s .
14$ — of of91aLnI
the fixes
the
r i 15* fl x
— _____________
( . by 1e , Uqxa).
th d ( , d , • ) l
‘ ,
. :_ - - _ .
im t7 , the of the of2ic . c cit
of fi * 2 $ o t Lees 4 d f
t h b
leg t{t2 I U p iment
t &iti c th th & C , by
Lc e z._tALC D. a eL wj
the d ) .
I,. ie .y . Lo n th d e if
the y’s x
the deso(cI day, ) a
Td the La ‘ i ed t
( . by 1gtt . eee1
t). E t* dth d d t
the my’s pe ett. thaw
1b te naw.
—7—
TSC& Co p1iance/Euforc ent A-3 5 Geidance ) mi 1 1984
-------
Appendix lwh1bjt A!&.
20. U th dm o or
,t t , qt d i i , ( i . diy, ysor )
of ath daMi apLaLs . Pv 1$
got
. ,.j 1i ti . th1O I L1, .mr
a thtai ). k fly — plain tr
siti dth ct d olaim, I L .
det thit raiaod
or the thceLawLthcap.et
the uth of mith defmwa.
Att I — of ay uwy tsoorda dx’.-
t Uit n’e du ioL. U the debt
ew C a at li ft by . ... ‘
na 21. , ?I 1fl y y the
. ‘e ia1 of e1 Mm. ta pia
of IY th thy
or th t, of
C 4t . this’ - ,--- .- . IS
__ at d by t &bt j ,
e
di ‘iy sdanLe iiiw 1ae
i s m
f ii aat
ad mi. u.). p1 n
_____ of wa .imgity of
g 4 a/or r 4 4its, set
— by the LUU1 vtth
s’ tha dits ( h. day, ysor ) of sy ath
I for s Lvor, re
___ or U. of y
3 i 1 k ’1 iyp1l t1cn
&r Lvor, t t or
qp m1._ $aia thor . , ay at ia taha
in a the 1 bI . ’o a eia of or
aa eti3 rlqiia th inis etiv
— the de ( aissth , day, ysor) of
yisith way astioe ii attath pia of
dsisa orts is dasln the . plaus c y
todm I defut a’ C sedati defic cmcisae)
the J c ai sd or he
rMa t4th — c he the omAn d the
of aith defenan. ( ba e a
of the cLaim. ai digthigujithef f a
m hedeg 1 defs.as, • as be diac asd
a or It 20 m 21.)
Di.oribe ad dLa e the iu of
aworoLaim by aqw t.’a
t3iitad Stata, a sI1 a ay clam
of fat thi the U t s may aa t .
-a-
TSCA Comp1iance/ forcatent A-36 Guidance 1984
-------
Appendix RvMbjt &-4
_sQ__ad ( & , day.
by ___
or sQ
24. i’ta .y LOth *3 T sQ wcg4a otft
Licit & sQ or
sQ by sQ . io a 59 b ta
jg
• 59
fy ‘ chI a 59 o i a ad 59
__ 59 Q C % OI1 O
53 offci in o n Q59
i d i 5 idiich a
59 by 59
. ° Q ? °
59
10 59
w z of 59
1 I 2g.
of j o iVfl 1o
of 59 t i
, _
— i oI • a t —
- — 59 d or an
in Moa *3 Uva a Sit
? 53 _____ Vith
1oc L • Xf
16 th1a for
Sm
11’I 27. m y_ ain 53 of
of ø 5or —. I $ in
Ll 1.Ut? tO john
of by Sn
53 tiai L in,
for pLo. 53 of y va y
o
59 o p t16n lnq6Lly
0• 3in t .
1 23. — 59 rW of 59 dtbt ( 2 oL.
or&2a ad a of ad
Motrat1vn nn, pnn Lty 59i on)
a of S. dit. CanS, dcy, y ) of tor-
ohastia (atthame) c fleitof ai Sn
cat.tzicit,s of D Seof , a. The C tifiea.
of D 5tofaa Sma d pi tdi S . C itoh
Stata 4th • 1.te atatantt of
TSC& Compliance/Enforc ae ,it A-3 7 Guidance ) ‘iua1 1984
c,.
-------
Appendix
____ _______ d iti ry.
o ity
sue, a j x rumi
factuel h .1, x L L—
___ s y y-
e by
wt d i d inq)
— d far n
p w t.
øf
_ th tt1 a
b y if ‘a o of
e ity i g ad ___
a gity 1 ue ia
th —
o & ad
1
__ & by
r a
tAll ue Uy ad 2
of ____ va1 of
1- - ada
__ tha seaL t a ad t of ay
by
igy”1
by t _____ i ir•
aa 1a. If S pa ’.—’. ’ of 325.aO . w
3 if 2 of $30.G
___ 2 ttuI IO. ) t
___ ___ ip..
i&8 y i. fa by t.
1L i taI.1 . lID
D adD. —
1’ I 31, D ado, c tha
t Liod the Iad 1 of
t âtht. Ob iA ,
r i 32z tuL t 1ied
iaia ati a ____by thi
. v p Lty ai yt
ad tIm dim i thri IzioipoL
of m d , LI If imt,
I 33, the r Uiis ImLai dim the Ie-
of dat. tIm
tIm Jtht i hae filed a b II l*ey patition,
baLm the i thripe1 of
dots tIm patitJ. i filed.
—10—
TSCL Comp1iance/Enforci ent A-38 Guidance )Isnual 1984
-------
Appendix R h4 bit A—4
Ms ?
i4 y
jg o.
- —
e % U h W
, ft1
d iy g € ?
33$ t g j t
Ue& Lty , d t
— a
____
€U dir
ti c
___ ff• 3 Cf
1$ Q Jl . I1( )(Z)p .
_______ * ‘•
th 1 sii iy (SO)
___ 3
Sf 1 ._?.I 97’4f ,_ I1(o)(2)
—S
r u 36. ___ •. ( , day , )
Sf & —
€7 e S
1 S 37. i
w L d (1 .
j ’j Jisàk1 ,
-_
i Ic c
Sf ______
j
ka ) at,
Cf
t pk o. ‘ ka k’ ”’ ’s
O L r2r ka
__ Cf
La
tS Of 0 I
— d& .
tI i d ( w S dcy, r) t & 1
wiUiCf by w y
e a — “ , of th
ifka ga. si. g J M S
—I
•-11
TSCA Conp1iance/Eaforc ent A-39 Guidance Ibiiual 1984
-------
Appendix h1bjt &4
40 * t ’s &r1y ithLy 1 y
ia
13 0I mbtyflv .°
1 41* - e ( I, day , ) —
& *d by
O CII_( pf • JJM $
- -
42$ — .• . !l ,
i r I - a o
SB
tr ’ t 0t1 L.
e.
1 * 43, 4 4e ’,
th *i ’s s
by i y thüi
ifi ( .
_____
* tn a
U 41 1* U
w• ‘W Z
1’ 44*
d u .ni ti ,
i UJmlv
Mt c3I **14
r th i
1L Lt1 W tS P 1 1 i,
- ‘e i t 4 JVZ’
t
o £5 d , i tta - ta ,
e 1ity th
___ 3y tz-.- 4 . Mw,
— iw __ wy leqal
ilT . th
______
e i1ity t d t. *t * to
th*i aLl it a r 4 —
thc.li th, f w Io. a e s audit
rs rt f1 a.l m , . In
of a
st of d ts i
Att .
—1 —
TSC& Ccap1iance/Enforc nt A40 tiidaUC 11ii81 1984
-------
Appendix ‘ bit A—4
e A wnaiJ e d eleetJai s a
‘s 1ni a 1 aI gity La euee-
tLaL a ac L1ee L m. t1ci L ly
th 1. ai
g g i e La i,sL4
3 t y
thb _____
reel t i X
the _________
La L 1el £ ______
_____ ‘e
cV ( thU .
liv a . c e3etht , 1re1
a $ee a2 t .
ela
ail c iee. A cod r aLe W
_________ La a
? oi. L1 t
a
1 are —
__ th 4the bee ,
l $1UOO _ a
the %jO .IW LIU J
ti L t1O
ei w La od thee
U eeiee.
1 I 4 s ________
the - - La ‘ v’(’ real
La
I ‘ a i y “ tee .
ee4 — this ee i ___
e2 reth ey.
ee ity c 1 ee ee.
t jg tee itd
a rorerity 1c u* t n
th p’a Wo ‘4iL th re d .
4 pki od). b v the t
iaLa i y
ty ( d La tLan).
1af ti w isq eey Lie ,
ate.. ee the pl reel
p I. _ . TL L’ r Ety hated. t
dm JthI.w La a ovt4e e y
id1 wtU eealat the
treiii y La eeaeta
ed tLa re pL-aticn.
—13—
TSCA Coap1iance/Enforc aent A-41 Guidance Nanual 1984
-------
Appendix ibit a4
iy Lift ion ‘ tidt .11 i.st
the Li locutLig
oth $th the J 1 (i.e., Uith
pI tj in Itoc
43). tiocL& uM be qivs% th
ti yliq z -& ce the 4 b
(i&L. iitiL La i t the h
ij - I — :ut
r ioi 1 i’ !, , .) • In the
8 — ——
lr l d
SL n gi y In 1se #II a.t .
of the ioc. If thin
Li
r i 47t ‘ ‘i the *r e t
of the $g . of
Lth ‘ be
of Utv of o1 4 1aln the
belie the e1i iwei.
of of the claIm
— of claIm d be i
of the J.L ’i U
be
i ci r lue
(oft ioc b buoc setiefi A )
of —y W 7 Of lit
the it nammed Lt. .
t th dd
tbe oWn , thim ,
$ Mti iIuf
ocmmocoly deel el the
Li 1.LbeLy th . ....a by ei
oclioctioc. it. tbe rule of tht In the
? el I a 44. th s.
tht.u Li a rt.len 1e 91u ..L for
oc ocL1octi t n tmttial .
1th dam rega n ‘ ‘m thLlity
defined by Itam 44. tht.e. thee the
ic amoy’s iu—-----Jr 4 ’ at
ida.t t va claIm re ly be eettlsd
oc u aOf. laln bt.te for
iit amm. in mt thail4 beer
a direst relatla.hgp es the 3ah ws
ta . jamate tiel oct be
by gamti wnt. le,y , oc est mmit.
. y ’i r - ____ .isti ’ id l1 ld.
aii Stilt. toeimy with
—14—
TSC& Compliance/Enforcement A—42 Guidance ? nui1 1984
I-
-------
Appendix Rvhlbjt A—4
_______ IJIkL. _ ...l
of ew 1 i of f& or
I. - y . thu-
t orii a thf bsf
11 U ü o deIq e ich
u1d o v*es
At 1flrj th thS
of 4tht ior offor
s oftor n
50 A .
- tttLo, I1 J
— of
c afficiel
____ In t. SO beicw,
Ic go oimtbL ) for t emL,t
It I a ori
1of1 id1ci OI L
I 50
Sla 0tce *n U b
m or
5 fl of t Im ?rme.wy r i m
nq dmoto.
iikm vUl _____ e . of
. n e na a uaim aae
eiuI a , fw vtU be mimta
e v no iLtof
offL ,.vi1 1 p . u uL
of of
I LvI4uaLa
q 4 omtbL. hsiiith
d eLalma.
tIa Ineor- y
a rs (In wtth the TN xy
Ft 1 R a tn L) the InftrmetInn
In Xt 50 e 51 Ia Me! .
at Zt SO cImsa tIm
o mtit 1ccatL a i a stn efficor
c W 1i tI
d mt a r fz tIm or
re d bd ø ufl4 be InitiaLly —
of. ( . tIm j bra-
tIn I dmce i ija iata.
If ei y do imi ea
Ic e, w tIm dbrirelnq office
At It 51 the
e y sV — - atrimt/ a
inmimt rn or ( Ic or is Late) to
uay m y fr Jd muLd be
-15-
TSC& Coinpliance/Enforceaent A-43 Guidance ! nue.1 1984
-------
Appendix h4 bit A—4
( ax.
—y .tLz.) r’ Pi
wait of b.W 7 EI llSItL1
e o uh uId a1is a L1iutIJOL
j s xy MacsUm oa e.ip rat
v . oO $, rn tituW1 ‘ .. v
0O La Li
uat U ‘taitW f J
___ n e, tW., r 1iSi 1La ad
P t a of t . , y officiaL
— t.
— . tit1 , ailing
___ ad P te1 - i.1c of
La aim
aLc° adu of ad tM1i of t
l ivl*mI c1i ad La ai aisib a
— aiy aie1vthg ay
— thi aiy ta with
* ivLAal data .
.1 s ting aai ’ id
Is Lailidof is the R ‘---- . . AU
óai lqlbis.
—I I—
TSCA Coisp1iance/8nforc ent A-44 Guidance flanual. 1984
-------
Appendix h4 bit &-4
Department qi Juatice Demand Letter
U.s. § P J OP JU ?TC
a i e A?t’oa s8y
(Dsbtor’ full iianel
)(DebtOr’U sailiap nddronal
)
)
) Z (Nan. t &qoacyl btcdnonc
at e1aio
of a erpayocotI
Dear,( ./ a./t .J)(DehtOr’s suraameJ
The (Nan. of AqencyI cA&en that you are tedthted to the United
3tatso for the iu t hoen above. The beats for the claim La
, forth on the enclosed Certificate of labtadnene. It La the
responsibility of thie offic. to tile suit to celleot debta ovud
. the United tatos edtor all of forta by the (Nans of Apency) to
collect have failed.
aal.o payment La full to recoivod within the eart ten (10) days,
vo will be coapolled to file suit qainot you La United States
District Court to rcovow the full anoent of th. claim. In the
Latter event, court coats, United States rshol ‘s f see and
interest will be added to the amewit you now owe. forced
collection owi then be sad. by the United States Narahol who
say be ordered to attach and ..ll iy non-eeenpe proporty you
have iov or soy esquire La th. future.
Your ctoch or annoy ardor for the ount hava ve should be
node payabl, to ‘Tveonurer of the United Statoa and nailed to
us in the eaclonod self eddreaeed envelopo within ton (10) days.
Only your full cooperrition and proopt payment of the amount of
th. claim will sake mait ond enforced collection arnocessasy.
Very truly yours,
‘(Nan. I
anit.d States Attorney
enclosure
(ExHISI? S)
TSCA Compl .iance/Enforcooent A-45 Guidance Manual 1984
-------
Appendix lvhlbit fr-4
reits #atea Attern.yu’ OUire. for *iah a
Dep!r snt Of Juatics Dcswd Litter ou 4
preosred aed ac1 ided La the CCLI Psckcse
judicial DLctr .ct Cite of Bsed uarters Office
Alab e • Iliddi .
Alabcsa, Itutkeeu reaiio
Al lake koraqi
Arkaa s, lectern Little leak
Arkanea . reitsen rest Itith
Cal Lforni , rertkera g
Co etticet levi s
Delawere
Plorida, fos’tkere fesasisia
atqM , D3id41.
Zo , lerthere lapid.
LoIUetw. middle Butis leue
Niasiasippi, Buutksra
miacueri, leeteis It • f uLa
iSicasert, ste!e les.es City
Mubracka
forMs Lea ii
rev Ikapabire
esr York, Sectors
rev York, leutlorn fo York
fo Yeck, foatoes 1sf fejo
forth Carolina, Iliddla leo.ecbsre
Berth Carolina, footers libeville
Portland
Penncyl tonia, middle Bereaton
Puerto Woo late lay
cde Xc i n d Providence
leuth CarOlina Col bie
fesoesaco, laiddlo l Saikvi.ll,
Tozee, tDatera Ian Mtonio
Voronet Burl inoton
Virqiaia, footers foosok.
rest Vtrqinie, L ortkora isoelinq
(Attaskasat to Unbibit II
TSCA Co p1iance/Enforceesnt A-46 Guidance Ibnual 1984
-------
tppend1x 1b1t £4
a
osportaset of Justice Ae oowLedqu.ot ° .sbaak raet.r
U.S._D PA W OW J S ZC1
S?*T V121
(*qeeayj
)(NailL 5l edd .seJ
)
s ccipt of (Veso of k encyI Claic
(Dcbtor’El full a oi LAS? S OS. 2Lr t i e. middle n eJ
f Lie c dais idootificoties a b.rj
Umited States Mtarocym cala
This La to .cbmviodq. receipt of the i uo refcroccod claim
was sent to thin office for enforced collection. You will
be edvised of the suacso of ocr efforts La this roqard to due
If year future. correspondence ow ester ceceunicatico with
thia off ice relative to this matter references the dotter • n full
• n and our civil dais nueber store. v iii be able to respond
te quickly. P1. annotate your tile aceerdthqiy.
Ibey truly yours.
)(NamOI
United States Attorney
(SXSXSI? 1
TSCA Cocpliancei anforcocent A-4 7 Guidance nuai 1984
-------
• Appendix lwh1bit &-4
ospartasat of Juatice Deficiency or Deal imation Letter
U.S. DSPUT S? OP IIUSTICZ
Z?ID S?ATS$ AT?OUZY
> ITitlel
) (Agenayj
)(toilinq eddves.3
)
ne flases of A secyJ laAn
)(Debtor’s bill na .i &i ? ! aS. firmt acne. middle name3
Ikqeaeys fil, or claim ideatificatiom nuaber
Dear)
Our initial rariow of the abevessaptioned claim which you recently
referred to this office for enforced collection revealed that
the claim, as forwarded • dose not mont the minimum standards
fm referral of iceb claims to the United Staten Attorney for
litigation. An you mow, the Federal Claims Callection Standards
4 C.P. a. 55101—105) require that certain information be forwarded
to United States Attorneys with each claim.
11k. reason(s) why wa consider this claim to he deficient and w
presently decline to inferno cell.sction of the claim through
litigatiol La (are) indicated below.
_____ Claim usa net referred wall within the tine
limited for bringing a timely suit against
the debtor.
- Claim van ieee than $600.
— Claim did set include the debtor’s current
recidenee addreen for service of complaint
and oonasne.
_____ Claim was not aóconpanied by credit data obtained
within the months indicating the present
or eTTf E i avaiianLlity of assets or income
from which a cubn ontial sun may be obtained by
enforced cell n ce Tnqs.
I!XIX3IT 101
TSCA Coispliance/Enforconent A-48 Guidance ) nal 1984
-------
Appendix Rrh(bit A—4
_____ .L. s t .ces mat.d by a ravy 4
o.tia 4os asntstise e1 the actions pwe
vious. y taizee to acileot (taa3.udIaq a sncy
dsea a Low po wsnt . sweeviaJ. inestvt n with
debtor) ow an 5 4ae the e im.
_____ CiMus i1ection LLtiqetion topont oct
.cuatsLy on J.t.d. $00 t (u)
Please prowide r.qu.otsd ia erseti& Wan
es$anat Los oL why you eansee.
IL you ere hi. to provide a vith the ebave—indicatod Lofewnation
U required by the Nderal aains Collection andaedn. then you
should resoheit the Main to ea for appropriat, action.
very My
anitod States Attorney
-2—
TSCA Coapliance/kforcosent A—49 Guidance Wanual 1984
p.
-------
Appendix E h(bit A—4
U. I • A?IOUIII’ ISAILliS 0flhIII &U?
0W 00&aT030 0Ifl E
Ala — 0S3’tkofo 200 P3 .rsl IsildLsq
1000 P11th A aau. Sloth
BLv.taq , AL 31303
A1± fliddls Slat 000ics — 107
Slstccscsy. AL 30101
Alabcss — 8sutka fl Slat 00! ice .. . I
Sl L1o, AL 30101
Alaska cOerol aeil4iaq LI. Csartkcees
701 C Slrcet, Slat C-252
l oU x 9
A 00913
Arisons 4000 0.0. owt sucs
230 Sloth Pitot atus
Slosais. Al 85025
Slat Office los 1220
LLttlc lock, * 72203
Arkeasas - eseesat Slat Of! Las Is, 1124
Vo,tIsLth.* 73101
California - bothers 450 blOcs Sate Arises
Ian Poancisco. 04102
California • lantern 3309 PsOsoal Suildie
050 Capitol loll
Saercesato, CA 95814
California - Caneral 312 lorth Spriaq Itrast
Los Angeles. CA 90012
California - 3o ath.ra 940 Froat Strict
lo Gs 3—0—19, LI. esthoses
San Disgo, CA 92180
Colorado 1061 Itout Street
Suits 1200
Podoral Office luild Lag
Drsusr 3615
Darer, CO $0254
Comi.eticut bet Office 001 1824
New Haven, C? 0650$
rzaaIsx? 111
TSCA Coapliance/Enforcatent A-50 Guidance Man’ a1 1984
-------
Appendix Exhibit &-4
0s.Lai gs 7. Ssqgs Nd.raL $uii.d Lag
044 SLag Street, m 5001
tltla5aqtaa, 01 19001
DLatrtet if 1 ia • ass. 2900
5. 9. ss’t ss..
3r 6 atitetLea Avoas., I.PJ.
asa Lagtss. DC 20001
Fiend. usetbua 100 nth Pilaf e a Street
Ses.307
Peseai eta, PT. 32591
Florid. • 9Ldd1. lsbent Ter3.a s Saud Lag
300 ks Street. Ses. 410
? s. PL 33602
Fiends - lttsau 135 Seeth lissi &ns.us
ateet , PT. 33130
0s.iqta - lsntSein Sjebevd PnsssU Ieildiaq
Sass 1900
73 Spniag Street, s.n.
M.tants, 01 30333
310 n 9t1 Itt dle Seat Off Li Sea a
SaSs., 01 31203
Qaonqia - Southern Peat Office Sea $999
Ssvma . 01 31412
Soite 502 — 5. 901
230 O’Sora Street
Age... 05 36910
!avsl i Ross C —242
Pt7 redena.L 3uildiag
a 50153
300 Ala Rosa . Seialevard
Ronolulu, I! 36930
daho Seam 693, Federal Ssildizuq
330 W. Sect Str.t, Roe 037
asia .. I D $3724
Iliiaoia - Soathern EVw .tt Rolialey Dirkeen
lauding, Ross 1300 3
219 3. Dearborn Street
cbic.go, 60604
-a—
TSCá Coepliance A-51 Guidance 1 nua1 1984
a.
-------
Appendix R hfbit A—4
X ICA& DISTRICT UIAXU&*TIM
Illinois — Soathean dpoo. 330
750 Missouri Avwius
last St. Louis, IL 62202
IllinoLa — Central Post Office lox 375
Sprinqti.ld. IL 62705
Indiana • lerth.ca Federal luildinq, loom 312
307 State Street
laceond, II 46320
Indiana • Southern 274 0. 3. Courthouse
46 Mnst Ohio Street
Indianapolis. II 46204
Iowa • Morthegu Poet Offic, lea 4710
Cider lepid.. LA 52407
Iowa • Is there 122 0. 3 • Cougthsuae
S let and Ilalnut Street
Des Moines, LA 30309
444 Quinep Street
Topeka. 5$ 66613
a.ntucky — lantern Poet Office lox 1490
Lexington, ST 40501
ontucky • atorn PO 5 Oourthouas • loom 211
601 West roadway
Louii,ille, 17 40202
Leuiaiana — Sasteru Mali loqqs Federal. lui ldiaq
500 Ca Street
sew Orleans, LA 70130
Louiniana — r idd1e 352 Florida Street
Saton Rouge, LA 70801
Eoui iana — Mostern Room 3312
Federal luildthq
3hr. oport. LA 71161
P. 0. lox 151$
Portland, M X 04104
Maryland 8th Floor, U. S. Courthouse
101 5. Lombard Street
laltimors. MD 21201
—3—
TSCL Co p1ianca/3nforcessnt A-52 Gui4a ce Mantimi 1984
-------
Appendix l h4 bit A-4
JUDICtA!. DIS? IC? BZADOUA8?EU O?P!CE
4aasmcflussttl It 37 John N. McCormick Fed. 314g.
tJSPO a Courthouse
BOStOfl, MA 02109
Michigan — Iaatsvi 31 7 Federal Building
231 N. Iayette
Detroit, NI 4822$
ichigan — MeatsIn 399 Federal Building
Orand Bapids. ((I 49503
Minneleta 234 0. 3. Courthouse
I tO South 4th Street
Nina.apolia, M I 55401
Mississippi — Northern Post Off ice Drawer 336
Oxford, NI 38653
Mississippi — Southern Pose Office Box 2091
Jackson, MI 39205
Missouri - lantern 0.8. Court 8 Custon Nouns
1114 Market Street, Boon 414
St. 4uii, MD 33101
Missouri — INstsrn 549 0. 3. Courthous.
311 Grand Avseu•
linus Cit I, 50 64106
Montana Pout Office BOx 1470
Billings, 5? 59103
Nebraska Post Off ice Box 1223, D?S
Omaha, NE 68101
Nevada 3 i 16030
Lao Vegas, 1V 89101
New 5anpsh re Federal Building
Concord, MI 03301
New Jersey Federal Building
Boom 502
970 Broad Street
Mwark, M I 07102
New Mxico Post Office Boi 07
Albuqu.rqu., MM 87103
-4—
TSCA Coapliance/Enforceinent A-53 Guidance nua1 1984
-------
Appendix
leM bit A—4
Poet Office Box 1258
Poderal Build Log
Syracuse, WY 13201
One St. Andrews Plasm
New York, WY 10007
0. 3. court) uc.
235 Codsen Plum last
ceklyn. NY 11201
302 0. 3. Cugtkouao
Court 6 Pranki in Streeta
WY 14202
Post Office lox 2U17
IIo.Loigfl ,NC 27611
Post Office Box 1858
roessboro, IC 27403
Poet Office Box 132
Ashe iUs. IC 28802
Poet Off ice Box 2305
Purge, 3810$
Suite 500
1404 last Ninth Street
Cleweland. 05 44114
220 OSPO 6 Courthouse
5th e Wataut Streets
Cincfrtinati, 01 45202
Boon 460
0. 8. Courthouse
333 West Fourth Street
?ulsa, 01 74103
Post Office lox 1009
Mu koqee. OK 74401
Boon 4434
U. S. Courthouse & Pdiral
Office Building
Oklahees City, 01 73102
3 12 U. S. Courthouse
620 S.W. Main Street
Portland. 0 5 97205
—5—
JUDICAL DISTRICT l & OUAR?!M OPTICS
New York - Northern
New York - Southern
NSw YO k • lastern
New York - Western
North Carolina — lectern
North Carolina — Middle
North Carolina - Western
North DUota
Ohio - Northern
Ohio - Southern
OkLahcea - Northern
Oklahoem - lectern
O klehcea - Western
Oregon
TSCA co pliance/ nforceeent
A- 54
Guidance Manual 1984
-------
Appendix Rvhtbjt A—4
Jul ZCZAt. OXtr*ZC? IIA00UA7 T1U OrflCE
psgm.y1.sa a - 1 1 10av5 3310 0.3. OuItt.ias
401 litks* 3tr..t
Xi e idit.i liU st
*iL .1p io. M 10104
PsaaiylvaeLs - ____ 0flt $ 304
lirant.s. Pt 1330?
PsaiayL anLa - stsrit $33 TIll 4 urthmiie
7th Av...s $ aa$ Street
Ptttabu h, PA 13219
puerto aLas Is4auL Off Las liuldlaq
lias tot
Canoe I. andsii Street
lets liy, P0 0091$
u4s aLa Post Off Las lii 14,1
52 03101
South rsLisa Poet Offles l ii 2264
1asbLa. 10 21202
South lit.ta Post Office las 1073
Podsva L 2u13,dillq s Co.zrtheiase
400 Isuth PVdUipe &.euius
hose ?alls . 31 37102
?nissass - Posters Net Office lie 072
oa’tU., 30 37901
Tesessass - NIddle 0. 3. urtt uss
SOl Oroadvay. lice $79
30 37203
Tese.sa.e - lsstera 102$ PoderaL Office Buildthg
167 rth main htzsst
30 38103
- $orthsm 310 0. 3. Crt ues
10th 6 Lasar Streets
Fort Porth, TX 76102
TexaS — Southern Post Off ice lix 61129
Isultos, T X 77208
Texas - Posters Post Office lox 1310
Isaumast TX 77704
—4—
TSCA Coispliance/Enforcasent A—55 Guidance 1 nua1 1984
-------
Appendix ‘ ‘4 bit £—4
J D!CtAZ 1 0!S?*XCT SZAOOUAR’rBRS O?VXCB
?exu — Weatirn John B. Imod , Jr. Ped.ral Bldg.
655 Best Durango Boulsvard
San Antonio, TX 78206
200 Boat Office & Cthes. Bldg.
350 Suth Item Strant
Salt fake City, U? 84101
ver mont Pout Off ice Box 570
Poderel Suild log
ourliaqtmo. !ft 05402
Virgin Zalanda Po(it Office Box 1440
St. IhOWIS , Vt 00801 -1440
Virginia - lantern 2nd P10cc
701 rine. Street
?leunndria, VA 22314
Virginia - ve.tsrn Boat Off ice Son 1709
VA 24000
Washington lantern Post Office Boa 1494
Spokane, WA 99210
xahinqt.n — Western 3600 Seat irut 5th Avenue Plaza
000 Pifth Avsnue
Seattle, WA 98104
uese virgiafa — Worthern Post Office lox 591
Wheeling, WV 26003
We t Virginia — Southern Poet Office Box 3234
iarleeton, WV 25332
Wisconsin — lantern 330 Paderal Building
517 Beat Wiaconsin Avenue
Nilwsukee, W I 33202
Winconain — Weatern Peat Office Box 112
Nedisce, Vt 53701
Wyoainq Boat Office Box
ey.nan, WV 82003
N. Nariana lalanda c/c U.S. Attorneys Office
Post Office Box Z
CD 96910
—7—
TSCA Compliance/Enforcement A—56 Guidance Manual 1984
-------
Appendix
2 Expert Witnesses
Selection of Witnesses _________
Administrative, civil, and criminal enforcement actions sometimes require
the presentation of expert testimony on behalf of the Agency. Witnesses
should be chosen for their direct knowledge of the circumstances
surrounding the suspected violation. Below follows some guidelines to aid
the EPA attorney in choosing witnesses for judicial proceedings.
Headquarters Witnesses
Many of the records pertaining to, and technical experts with knowledge of,
regulations concerning chemical substances or mixtures are located within
the Office of Toxic Substances at Headquarters. Witnesses from the Office
of Toxic Substances are available to testify on:
• Whether a chemical substance or mixture is subject to TSCA;
• Technical data and studies relating to the health and environmental
effects of a chemical substance or mixture; and
• The significance of a discrepancy as it relates to the sample’s
chemical composition or toxicity.
Regional Witnesses
Technical experts in the Regions will generally testify as to: -
• Inspection procedures and the facts and findings surrounding an
investigation; and
• Programmatic procedures such as inspection schemes, penalty
calculations, TSCA violations, etc.
TSCA Coispliance [ Enforcement A-57 Guidance Manual 1984
-------
Appendix -______________ _____ Expert Vitneasee
Other Government Witnesses
EPA personnel often work with other federal government personnel in
developing casework, either through interagency agreements (LAGs) or
memorandums of understanding (MOUs). Other government employees of
agencies such as the Food and Drug Administration may be called upon to
te ttfy concerning:
• Test procedures, findings, and conclusions reLated to chemical
device studies; and
• Information collected during an investigation but referred to EPA
for enforcement.
Contractor Witnesses
Expert wiiJnesses will occasionally have to be utilized under contract to
testify a; to:
• Test procedures, findings, and conclusions related to chemical or
other scientific studies they have conducted; and
• Technical matters for which there are no Agency experts available
for testimony.
Procedures for Requesting Witnesses
All requests for witnesses who are not regional personnel should be made in
writing to the appropriate HQCDO. The }IQCOO will, in turn, arrange for the
proper witness to represent the Agency in court and will provide a status
of the witness’s availability to the requesting Region.
Appearing_as a Witness ______ ___________________-
Vigorous enforcement programs wiLl increase the probability that an
inspector wilt be called upon to testify in court. 3y the time a case has
entered the judicial system, inspectors and case proceedings personnel will
have invested many hours in developing a sound program for,prosecution.
When a wttness is called to testify, it is imperative that quality
testimony is provided and a prufeasional image is projected in the
courtroom.
A-3 Thuidance nua1 1984
-------
Appendix - ____ V I _____
A witness, to he effecrive, must make si itttami.i 1) 1st .qr. uuiiierqtaitili;hle
.ind must hnv. them J4t e(’pted us truth by 1w jlliIgu or jut y. Lu uddi t I tin lu
h i’ I it t rut I liti I anti huiu’ t , a w [ titass ‘a pr tiw I pal i tin should be to make a
favorable Impression on the court. The guidelines presented in this
section will help prepare the witness to be effective and credible.
Personal Appearance and Conduct -
Dress is important. A well—groomed, neatly attired witness makes a more
favorable impression in the courtroom. Conduct should reflect the solemn
nature of the Judicial proceedings. In order that a witness presents the
appropriate image, the following considerations should be kept in mind at
all times. -
Go to the courtroom prepared. Be thoroughly familiar with your facts.
Pertinent time and dates should he checked. Order all documents and
exhibits so that testimony will be presented without fumbling. Be on time
when court opens and be available immediately when called to testify.
Try to avoid: -
• Doing anything that may attract attention to you. Make yourself as
inconspicuous as possible;
• Sitting in groups of more than two or three colleagues. Spread out
in the courtroom;
• Whispering or talking to another person or causing any disturbance
in the courtroom;
• Showing incredulity or surprise at any testimony given from the
witness stand or at statements made by the defense attorney. Avoid
expressing approval or disapproval of aLly testimony by nod, glance,
or other gesture;
• Having anything In your mouth (such as gum, toothpick, tobacco,
candy, or food);
• Sitting within the enclosure unless instructed to do so;
• Discussing the case with the defendant or the defending attorney;
• Talking to the jurors or discussing the case within their hearing;
• Consulting with case personnel while court is in session, unless
directed to do so; a nd
• Holding conversations with principals or witnesses for the opposing
side. If conversations are unavoidable, confine remarks to matters
other than the trial.
TSCA Compliance/Enforcement A-59 Goidance Manual 1984
-------
Appendtx
.it ess ,CdUd re hi i ue
When called to the witness stand) unIes previously SWOLLI, go directly to
t1ii desk of the Clerk of the Court to be sworn. Take the oath in a solemn
maniler. Then proceed to the witness chair. If you have a long or unusual
name, give a card or paper with the correct spelling to the court
steLlographer. Assume and maintain proper posture, bearing, and demeanor.
Sit erect, but do not appear stiff or tense. Attempt to project an image
of poise and self—controL.
Speaking . Speak in a clear, distinct, and well—modulated voice. When
addressing a jury, look at and speak distinctly to them. Speak loud enough
so that the farthest juror can hear you.
Use simple language. If the subject is technical or scientific, reduce the
terminology to an understandable level or give definitions of terms used.
Avoid idioms or language particular to your profession or to the Agency.
Notes . You may bring notes with you to the witness stand. Rowever, do not
bring your field notebook or any other documents you do not want the
opposing side to examine. They have a right to see any notes you bring to
the witness stand.
Do not hesitate to ask permission to refer to your notes when testifying,
provided your notes were made at the time of, or immediately after, the
event about which you are testifying. You should not be embarrassed if you
cannot recalL exact details without referring to your notes. Try not read
long passages verbatim from your notes.
Answering Questions . Wait until a question is asked in its entirety before
beginning to answer. Never attempt to answer a question you do not fully
understand. Ask that the question be repeated or rephrased if its meaning
is not clear. If you do not know the answer to a question, say so. Do not
try to cover up a lack of knowledge of a particular subject.
Questions should be answered verbally——do not nod assent or shake your
head. Answer only what is asked fully and to the point without
volunteering information. Do not “spar” or attempt to match wits with the
questioning attorney.
Be truthful, and answer all questions frankly, factually, and confidently.
Try to limit your testimony to those facts about which you have first—hand
knowledge. Anything else may be considered hearsay. Do not exaggerate;
state the facts accurately.
Do not express opinions or conclusions unless you are testifying as an
expert witness. You cannot assume expert knowledge in a field unless you
are an expert by reason of your training and experience. If questioned on
a subject beyond your scope, admit that the subject is outside your field
‘ir knowledge.
TSCA Coiipliance7Knforc ent A-60 Guidance Nannal 1984
-------
ppendix __________ K pert Witneasee
Try not to become Listless or “dead pan” in your etfort to appear impartiaL
and unbiased. Be natural, candid, frank, and •alive. Conversely, you
should not appear impatient or overly anxious to testify. Attempt to
minimize nervous tendencies, such as arranging clothes, notes, etc.
I)o not speak to the judge unless he or she asks you a question.
Testifying Under Direct Examination
In a proceeding arising out of an Agency judicial enforcement action,
direct or re—direct examinations will generally be conducted by an EPA
attorney or a United States Attorney. The initial questions he or she will
ask will seek to establish:
• Your identity, occupation, and qualifications; and
• The relevancy of your testimony to the proceedings.
Subsequent questions will allow you to relate your testimony to the court.
In order to facilitate this questioning, you should:
• Try to give testimony in chronological order. Reveal your first
connection with the case. Then give facts in the order they
occurred. Your testimony should be memorized, if possible.
• If the opposing attorney objects to a question, do not try to get
in an answer before the judge has ruled whether the question is
proper.
• Do not try unnecessarily to help the questioning attorney. He will
ask additional questions to bring out further details to complete
your testimony.
• Be able to identify the defendant.
Testifying Under Cross Examination
Cross examination is the questioning of witnesses by attorneys representing
the opposing side. Under cross examination you may be subjected to
vigorous questioning.
I)u not Lw airaid to md nEt that you discussed your testimony with government
attorneys. There is nothing improper in a practical discussion of your
testimony with the attorneys.
The opposing counsel may attempt to intimidate you by attacking your
veracity and integrity, by making uncomplimentary references to your
qualifications or length of service, or by emphasizing errors you have
made. Remain calm and answer any question asked unless an objection is
raised and sustained. If the opposing counsel attempts to confuse you with
rapid questions, answer the questions deliberately and at a comfortable
A Cotiance/Enf em nt A-61 Guidance Manual 1984
-------
Appendix % ‘e t .W t es ee
pace. Ask the attorney to repeat or rephrase any question that is unclear
or confusing. If asked a double or “two—pronged” question, ask the
attorney to restate it, or carefully answer each part separately.
Wait several seconds before you answer a question put to you in cross
examination in order to give the government attorney an opportunity to
object. Avoid, however, undue delays in answering. If an objection has
been raised, do not answer any questions until a ruling on the objection
has been made.
Do not lose your patience or temper while testifying. A cross—examining
attorney often deliberately baits an irascible witness to anger the
witness. Try to remain calm and unruffled. Do not become argumentative
with the cross—examiner if your testimony is interrupted or for any other
reason. Beware of questions to which the cross—examiner demands a yes or
no answer if such an answer will not reveal the entire truth. These are
often leading questions. If a simple yes or no does not properly answer
the question, inform the cross—examiner that the question cannot be so
answered. If the cross examiner should misquote any of your earlier
testimony, you may correct the misquote before answering the question.
If you make au error while testifying, correct it at the first
opportunity. If you discover the error after you have completed your
testimony and have been dismissed, discuss the matter with the government
attorney.
You may be asked whether you regard certain persons in the field about
which you are testifying as recognized authorities. This is often
preparatory to asking you whether you agree with certain statements that
those authorities have made. If your answer is no, that you do not
recognize them as authorities, that line of cross—examination cannot be
pursued. Unless you definitely have heard of the named persons and are
faniliar with their works and do recognize them as authorities, do not
expose yourself by saying that you so recognize them.
Proper Conduct During Recess and After the Trial
During rccess, continue to maintain the same demeanor as in the courtroom.
Do not engage in loud conversatiou or joking, especially about the
proceedings. Be as discreet as possible when making any comments that
might be overheard.
After the trial, continue to conduct yourself in a manner that will bring
credit to you and to the Agency. Make no public display of elation or
disappointment over the outcome of the trial. If there is occasion to
speak to the defendants, be courteous regardless of their demeanor.
TSCA Co pliauce/Enforcement A-62 Qiidance Manual 1981.
-------
ppendix
3 Enforcement Response Policies
and Penalty Policies
The following Items are used by the Agency in establishing its penalty
policy guidelines:
• Guidelines for the Assessment of Civil Penalties Under Section 16
of the Toxic Substances Control Act; 45 Fed. Reg. 59770 (1980)
• Memorandum (8 Jul 1983) —— Enforcement Response Policy for the
Friable Asbestos—Containing Materials in Schools: Identification
and Notification Regulation
• Memorandum (8 Jul 1983) —— Dioxin Contaminated Waste Enforcement
Response Policy
• Interim Guidance for the Determination of Penalties for Violations
of the PCB Regulations.
TSCA Compliance/Enforcement A-63 Qildance Manual 1984
-------
Appendix
Enforcement Rea onae Policiea and Penalty Policiee
EIMRONVdEI(TAL P O7EC11CN
AGENCY
(Pg . ieoi-el -
GI d for lito Aonaccment of CM
i niti st eon ie ito
Toils Control Ao PC
Office of Enforcement.
Environmental Protection Agency (EPA
or the Agency).
YIOso Notice of a policy for
Imp ementatfon of the Toxic Substances
Control Act, with respect to the
assessment of civil penalties under
Section 1& Interim gul’I ” ’o for the
determination of penalties for violationo
ofthePCliregu latfona.
Section 16 of the Toxic
Substances Control Act (TECA or the
Act) authorizes the A’ 4 ’I trator of
EPA to aoseoa civil penalties for
violations of the Act. On March10, 190.,
Jeffrey C. Miller, Acting Aceictant
Mii hi4 trntor for Enforcement.
tr rnm , ,Itted to the EPA Regional
_____ a document which
Implemonta an administrative civil
ponalty policy for TSCA. This document
sets forth a genmul penalty amassment
policy whlö will be supplemented by
regulatIon-specIfic penalty aeaooaaent
guidance. Together. these documents
provide internal procedural guldolinec to
aid EPA personnel to seenca appropri trs
penalties. They are not re ulatIcma. ho
penalty a5000orsoct policy establishes
standardised definitions and
applications of the statutory factors that
the Act requires the MtnlxI .Irator to
consider In aceesoing e penalty. It also
provides a mochamam whereby Agoncy
personneL may. wlthfn specified
boundarlee exercise discretion In
negotiating consent agreements, and
otherwise adapt the proposed penalty to
the exigencies of special circumstances.
Separate gwdancea will apply the
penalty system to specific regulatory
and statutory provisions. Those
guidances will be developed on a
contlnwng as-needed basis.
On April 24. 1980. RIchard D. Wileon
deputy Assistant Administrator for
General Enforcement, transmitted to the
EPA Regional Administrators the ffr t of
the regulation specific penalty policies.
This document consisted of Interim
guidance for the determination of
penaltie, for violations of the PCB
regulations.
The TSCA civil penalty policy and the
PCB penalty policy were effective on
March 10. 1980 and April 24. 1980,
respectively, the dates these policies
were issued to the Regional Offices.
Although the Agency Is not required to
publish ibese documents, EPA Is doing
so in order to give them the wide
circulation that publication will praufd
•l’bu full text of the TSCA dvii penalty
policy. and the P penalty policy. wfth
the ap w rlato tr.i ,a ,n4ttal memoranda,
appear below in the “Supplementary
Information” section.
Lr flSN C
Ptsr J. Niemlec, Attorcey-Adviser,
Pesticide. and Toxic Substance.
Enforcemsnt vls1on -362), 498 M
SI., SW., Wulithgton. D.C. 98480 . (298)
756-9804.
ce ov e aemai om The
doucesenta appearing below were
franemitted to the EPA Regional
Administrators on March10, 1980, and
April 24.1281 respectIvely. The
“'Technical Support Document” referred
to In the TSCA civil penalty document
has not been reproduced, but Is
available upon request from the EPA
address above. -
Ostedz July?, 1am.
— G. MiuI ,
AcdngAcontA uWi ’fm’
TSCA a ø Penalty C w#. .
In buthzct lo is
The Tonic Subotelsoes Control Act
rscA). paneed by Congress and sigeed
into law in 1WI psoyldas for Inoreased
ruguladan of chemical substa mr and
mixtures. The ivfronmeutal Protirutico
Agency Is changed with carrying out and
esifoscing the requIrements of the Act
and any nibs promulgated under the
Act
Section 16 of the Act provides for civil
and a frial pomilitles for violations of
1ICA or TECA rules. Civil penalty
amounts may range up to $25000 per
violation, with-each day that a violation
contlnuee constituting a separate
violation. Civil penalties are to be
aa 4 i il 0utlvely Imposedo 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 afterthepoqaltybu
been Imposed by the AsInthi4 trator.
Section 16 of TSCA requires that a
number of factors be considered In
assessing a civil penalty, as follows.
In datermining the amotcet of. cavil
penalty, the M ,1 .1I.eetor shall take into
account the nature. circumstances, extent.
sad gravity of the violatio, or violation. and,
with respect to the violator, ability to pay.
effect on ability to continue to do busines..
and history of prior such violadona, the—
degree of culpability, and such ether matters
luatice may require.
The purpose of the general penalty
syatem is to assure that TSCA civil
TSCA Comp1iance/Enforce. era
A- 64
Guidance Nantial 1984
-------
Appendix
Guidelines for the Iseese at of Civil Penalties
peneltiec be ancecoed Is a fair, uniform
and consistent mennen that tha
penalties are apprvprioto far the
violation cni ,mi4ttod that cconcmlc
Incentives for violating TSCA are
a4.t .t.d and that pemono will be
deterred from comaduing T5CA
violations.
Scepe of the C lvii Penalty S atom
The penalty oyatam decoribod In this
dorument provides the general
framework for civil penalty acasoament
under TSCA. It establishes stendardleed
definitions and applicatlono of factors
the Act requite. the Adutinletrator to
consider In aesosaing a penalty. Ac
regulations axe developed, specific
penalty guldellnoo will be developed
adopting In detail the application of the
general penalty system to the new
regulation. These opaclfl.c guidelines will
generally be leaned when enfoscemont
strategie, axe leaned for each new
regulation.
Nssn. .—ThIs document done not diacuso
whether “ “ ‘,“t of a tivtl penalty I. the
acieGI enforcement reOp0000 tea 5lven
violative condition. Rather. this document
focuses on deterrelcieg what the proper civil
penalty should be lie decision baa been
med. that a civil ponalty to tho proper
..tarcemunt remedy to porcea.
Brief Description of the Syotant
Th. general civil penalty cystem is
designed to assign penalties for TSCA
violations in accordance with the
statutory requirementa of Section 15.
Penalties are determined In two otageo
(1) Detetinmatlon of a ‘gravity based
penalty” (CliP). and (2) adjustments to
thrgravlty hued penalty.
To determine the gravity booed
penalty. the following foctoro affecting a
violation’s grovtty are consideredi
• The ‘nature’ of the violation.
• The “extent” of environmental harm
that could result from a given violation,
and
• The “clrewnetancos” of the
violation.
These factor. are Incorporated on a
mat lx which allows determination of
the appropriate gravlt based penally.
Once the gravity based penalty has
been determined, upward or downward
adjustments to the penalty amount are
made in consideration of these other
factor.:
• Culpability.
• History of such violations.
• Ability to pay.
• Ability to continue In business, and
• Such other matters as justice may
requirs.
avil F elty System cad Its Application
This section descrIbes In detail the
general clvi) penalty system, how
specific penalty guidances will be
developed and applie and the
reasoning behind the development of the
syste
The Penalty Fectam
The Act reqialrc3 th conolderutlon of
eight named foctaa ls a y ty
asseosipent, so well as “other factors as
justice may require.”
The fact four footmu-aeture,
cizcumetanccu, i , and gr vity—
relate t the violetlon. Under the penalty
system thcec fotir factors are charted on
a matrIx whIch ytoldu the Gravity Ra I
Penalty (C P . Tbb matrix le.o ennotant
thiougheut the peachy system. As will
be seas b3!ow, ho ovor. the GpeclBc
ponolty t1k will Into which
ill L o lL ci the ‘ .
a Is machod, several
adjustment fac c -cnn apliadi
• An upward or
adjuotmant mop be made for particularly
culpobla or ncm.culpcblo conduct. An
upward usthiant of up to lC3 may
be made wlrao there Ia a history of such
a violation.
Two olhoradjaotmanto (not
spacificelly requited by the Act. but
authorized under the “as justice may
require” 1ai of 1b) ore terecever-’
cleanup coals paid by the United Stateo
and to reduc or oHeninatø ny fl iiithsI
or competitive odvantogn game ’ t by the
violator con reonk of his foilureto
follow theAct, or lb regulations. Other
cabyace’ndj iiaato may eke be
warranted isudea’ the “as jlmdco may
— la
• The final hL p adjuatmsn
factort sin the v M?o ability to pay.
and the effect on the violator e ability to
continue to do buclacea. For several
reacous we have corubinad the concepts
Involved In those factcse onto one
“ability to pay” factor. Thin factor will
often act as a limit on the amount of
penalty amassed, even whore other
fI ,wI1 , M a high ’ . penally La
warranted.
Calculation of Ut. Gravity Boned
Penalty
The gravity based penally (GUP) Is
found on the following metrbc
TSCA Compliance/Enforcement
A- 65
Guidance linnual 1984
-------
Appendix
Guidelines for the &aeesanent of Civil Penalties
- -
-
—
A
—
C w
I
en.en
suam
mess
2
m
tZ
3
3
1U52
tC
I ,
4
*50
•
liSS
3
IX 0
2.050
sass
1.50
me
50
____ - g I04 0
- — - - - - en Nl I 10%
.die1bot. ---- ---
The GBP Incorporates nature, extent
circumstances, and nvlty am follows
1. Naw.ru. The “nature” facter as all
foctare to the penalty e mJsu sed In
accordance with Its wW uly
usderstood mesain e . meutiai
character of a quality at qualities
that make something what It Is i enu, ”
(Webater’e New World DIctIooar7).
In the ic t of penalty so It
this footer hid tee winch specific
peneLty I ialbw should be *mod to
determine app . ,,rlate matete lavols of
“extent” and “circumotances!’ (of
enviroamestal harm surrounding the
violation). Them, thd nature (essential
character) of a violation Is best d,A,’.d
by the set of requirements violated, such
as the P( rule, or the prsmamrfactwe
notification requirement Since each’
TXCA section. rule, cm other i,,au it
coup of equfremente will have a
esparate specific penally gaId’ t that
will Inc ltide oriteti for acelgaing -
violations to the ssv rol levels of
“extent” of po” ' ’ 4 l hai ni , end
probability of harm, the specific
tailoring of these operational eritarla for
each section or rule ensures that.
penalties assessed will reflect the nature
of the violation.
Also Incorpcratsd in the concept of
“nature” Is whether the violation Is ala
chemical controL contzol .caeoc!otcd
data gathering, or hatard auemrmvJnt
naturs -
Chemical orntroL Chemical control
regulations are aimed at ml,,lmlvIng the
risk presented by a chemical eubmtant .
by placing constraints on how It Is
handled. Sections 0,7. 12. 13 and sub.
sections 5(e), and 5(1) authorIze a wide
variety of chemical control actions. from
labeling requirements to total bans on
manufacture. These requirements are
variously Imposed by rul ”.” ' ’ ’ g
v ”th 4trudve order court Injunction, or
by the Act It selL
ControMsiaaiated date gatherbig
Control-associated data gathering
requirements are the recordkseplng
and/or reporting requirements
associated with a chemical control
regulation. These requirements enable
the Agency to evaluate the effectiveness
of the regulation. and to monitor
Hatotdaraosenwn& hazard
aa ” .l nI requirements are used to
develop end gather the Information
to ht’.llIg.”tly weigh and
assess the risks and benefits presented
____ mbe s. and
to hepoac chemical control requirements
when date. The requlrmsnts
ludude those of premanufacture
notification ends’ I 5, testing under I 4.
and reporting and recordkeepteg under
18 .
As dismissed In the next two sections.
the “nature” of the violation wIll have a
direct effect on the measure used to
determine which ”.xtent” and
“circumetencee” categories are selected
on the GBP matrix .
2. KretenL ‘ Is used to take Into
coneideestlon the de ee. range, or
scope of the violation. The mairix
provides these levels for measuring
extent:
[ ned A (Ma ar
—Potential far “aerhee” d epi to hi a .
healthorfwmi4ordamsge to the
[ ned S ( 9 1 —”t ) ____
—Potential he “ ort”umo of
environment.
Level C (Minar ____
—Potential for a lesser . su ,oit of damege to
humawheelth or the enviroemesit.
A number of factors affect Into which
Level of ‘extent” a particular violation
fits. The specific application of these
factor, depends In large degese an the
specific penalty systems treatwsot of a
particular violation. For example, the
specific penally system will not only
provide guidance for PCBs in general.
but also for the type of P(.3 vtolatlon.
Chemical conti’ak Fore chemical
control Violation (e.g. rules for storage
TSC& Coapi iancefEntorcmaent
A— 66
Guidance l nual 1984
-------
Appendix
Guidelines for the A aesmant of Civil Penalties
i,,,l ,Il.;i...a1 .1 $ Pal. Ike Wt9 ”I’ p ,,(
Ii. ie uIgiu ,t ,uboIt ,ng ø liivi,lved uii hi
lie the principal basic fur celugor ing
extent. In other worth, a violation
involving under 10 pounda of a given
substance might be Level C. 10 to 100
pounds Level I andover 100 pounds
Level A.’ In the development of specific
guidelines. onvironmental impact data
and other analyses developed In support
of the chemical control rule mahing will
generally be the bcalo for determining
“extent” Levels.
Controlateddae .gothenn.ç
For control-associated data gathering
regulations, the quaqilty of regulated
substance Involved In the recordkeepthg
will be used as the indicator of the
extent of the violation. For example, not
roportin the whereaboute of 1.1300
pounds of PCBs In more coleus than not
reporting ous pound. In generaL the
quantity measures used to define the
“extanr of such a violation will be the
same as thone used to define the
“extanr categories of the control
violation with which It in aceoclated. As
with chemical control rubs, factors
other than quantity may be used when
appropriate to indicate the “oxtonr of
potential d so*je
Hazard asseaamenb Hornird
ase esment data-gathering regulations
require a dlflerent approach to mubo an
“axtenr determination. UnlIke ch Ical
control and contlol-ecocotated data-
gathering regulations, the degre. of
danger or “hazard” prectmted by the
substance In question may not be
known. Indeed, thin lack of knowledge Is
the principle reason far the data-
gathering. The measure of “extonr o2
harm will focus on the pain of the given
hazard assessment regulation, eM the
types of harm It Ia designed teprevont
For exaiupls, a 4 teat violation will be
of Level A extent if It “sorloucly” affects
thevalidityofa testonasubatance
which Is manufactured In large
quantities, with lesser violatlona treated
accordingly, whereas manufacturing a
chemical without submitting a
premanufacture notification form 00
days In advance, could either be treated
as (1) always being of Level A or, (2)
varying In level of “extent” according to
the volume Illegally manufactured. Thua
a great number of Jud ents must be
made In the formulation of the specific
penalty policy.
3. Cfrcumatances. “CIrcumstances” Is
used In the penalty policy to reflect on
the probability of the assigned level of
‘Other aftct a, such ao numbar of peopio
exposed or potentially oxpoo d. could have been
utilized heie. but (I) thou factor. are difficult and
eupsirnive to quantify for individual vIolaifon and
12) the., factor. are already Conaldered, to some
extent. undar ‘ckcumeinn es.”
6..SoI , 5 ‘.1 ha,ft, .s.li , llp i
..Iflor .varde. vartety of fct.t
surrounding the vwlatlons as it occurred
are ekanuned to determine whether the
circumstances of the violation are such
that there Is a h, h, medium. or/ow
probability that damage will occur. The
matrix provide. the following levels for
measuring circumstances (probability
factors):
Levolo 1 and 2 (Hlgb The violation Is
likaly to cauco dometjn.
Levels Send 4 (Madhim)m There hi a
, gnIfiacns chonuc that damc t will remIt
from the violation,
Levels SandS (Lo v ) There I a c sine!!
Ilkoithoed that damage will result from the
violation.
The probability of harm, an assessed
In evaluating circumstances, will always
bo based on the rink Inherent In the
violation no it wao.comznfttad In other
words, a violation which presented a
high probability of cacelag harm when It
wan committed (end/or was allowed to
e,det) moat be clacaifled no a “high
probability” violation and penalized as
ouch, even If through come fortuity no
actuol’harm reoultadin that particular
case. Othoririso came who commit
dangerooa violatiouc would be
absolved. SMeil rly, when harm has
actually resulted from a violation, the
“draumatuncea” of the violation should
be lovootlgetod to calculate what the
probabthtlea were for harm occurring at
the time of the violation, The theory Is
that violators should be pemtIi .d for
the violative ins4met , and the “good” or
“bad” luck of whothurornot the
pruernibed a mdn actually caused
harm should not be an overriding factor
In penalty asceosmout However, the
recpcnzilbthty for clean-up attaches
without regard to the probability of
harm (see Adtuatmont Factor 3,
CZovernmcnt Clean-Up Costa). An with
“extant,” the specific penalty gu$nHu ae
are an eooQnttnl tool In characterizIng
the circumstances of a violation.
Chonucoi canwok With chemical
control violations, probability is
determined primarily by physical factors
which affect the of Improper
exposure to the chemical’s effects. For
example, certain types of improper
storage of PCBs are more likely than
others to result In release of e into
the environment, and actual dumping of
PC e Is virtually certain to do some
harm. Criteria for assessing the
probability of harm resulting from a
violation will whenever possible be
based on Information developed In
support of the chemical control rule.
Data-gathering and hazard
assessmenL ’ A slIghtly dIfferent
approach Is taken to evaluate
circumstances of data-gathering
TSCA Compliance/Enfo rceiaent
It’- 7
Guidance nna1 1984
-------
Appendix
Guideliuian for the Ae esegent of Civil Penalties
violatlong. The effect on the Agency’s
ability to Implement of enforce the Act
Is the prinGipel i Ir umsianiie to be
considered. Thus. the matrix levele for
measuring circumstances (probability)
for data-gathering and hazard
assessment violations are as fbllows
Levels I and 2(Hlgh)—Vlolatlons which
seriously Impair the Ageocy’. ability to
monitor (data-gathering) or evaluate
chemicals (hazard aseesement).
Levels 3 and 4 (Mediumi—Vlolatiano
which Impair tha Agency’s ability to monitor
or ovaluato chemicals In a lees than critical
way.
Levels SandS (Low)—Vlolattons that
Impair the Agency’s ability to monitor or
evaluate chemicals In a less than Important
way.
Under these criteria, a violation of a
Section 4 test standard (serious enough
to make a opdy totally unreliable) ha. a
higher probability of resulting In harm to
the public through Its effect on the
Agency and would probably be L&vel I
or Z. while late cubmisslon of a required
report might be only a Level 5 ore
violation.
Whonover poseiblo. the specific
penalty syiatam will attempt to classify
certain typos of violations according to
probability of damtlge . For example.
certain types of violations of a disposal
rule might always Involve a high
probobifity of damage . Bat other types
of violations might Involve such a large
rungs of probability of harm that each
case would have to boovaluoted
lndMduafiy. Is flu, lattcn’ case, the
specific penalty guid lh .c wW Include
oriterfa to4uIdo tha evaluation of each
violation. It Is dIffIi ilt to estimate the
probability of harm proosutod by given
situation. particularly In light of the
many variables that make up
“circumstances.” However.
“circurastancea” can be evaluated for
guideline pupoceo by comparing
situations. For example. It is clear that,
as a general rule, there to a greater
probability of a falsified laboratory test
leading to actual damage, than to have
such damnge resulting from minor errors
In test report formatting.
The specific guidelines will also
address the reaga of probabilities within
each of the six “circumstances’
classifications. For some violations, any
probability of causing harm of over 10%
might be in the “high” range. while other
violations might be classified quite
differently. One particular factor that
may affect probability determinations Is
the length of time during which the
violation presents a threat to health or
the environment. Dumping PCBs in an
unapproved landfill may not cause harm
immediately but may inevitably cause
harm as it leaches Into nearby
groundwater. But whore only temporary
Improper ote Is Letondat and
removal Ia plonncd the probability of
harm would be deoreased accordingly.
4. GrovIly. “Cravar refers to the
overall aeslo ” of tim violatis.. s
used In this ponelty sys$ “ g.rlty ” Is
a dependent emlsb e, In., the es’ 1 ’—’ cs
of ‘ atoIO. ” “ Ir#1 d . ” and
1J Il will yield a dollar
figure on the ma in Ibot detummnes the
gravity b ad an*.
The A4smtuesfPimtu
The gravity beend prmelty refieài the
ato o vlolotiee’c tha ict to
health se.4 cnv1L’accant. Th, Aol den
requh’es tho Ageney ____
f wia &‘-.nuIsg the ___
o . c lyaBt,. hussy of each
ylclati ,, eb t to pay, end chilly to
conthori in In eAdltinu. the
‘Act tim A am seam
iay rm nim Under thu L *
authcrhmtiea, su taevnI aaste i3 mo
cumldersd 4 bch tho ca 2 of th
violation to ge cad tim
b,i .n tr , monived b de vtulatar dis to
his In ordee to cempoto
_____ isa lii gn1 fc1el aa ,
thee. nd nt em oonst ed
In the ls&v g oe ”
(2)
(3) Cost to the
(4 imm ao umpllaum and
( 8) AbIlity to pny/abi*y to
1. C il1 y. SInG Ilu lem —
requires the Agency to the
adpab llltyoftheviolstcraoa n
ad enQi cator. thermdsts.aseI.
violation one be aelahilakad without
relylntaaldgoe ”blamsivcutbtnes&’
factor; In o wccd .thu Agamp mop
purcue o pello of Ilablifty in
penah tMg a violation. tboi* some
allowrieae most be made based on tha
extent of the vlolaicVs cezipebility.’
Under this pcualty spatmo. the gravity
based penalty may beimmeneod or
dem’eesed, or may remain the sum
depeszdln en the vMliior ’s
“culpability.”
The twa pr4 .ni of
assessing culpnbllity em (a) the
violator’s àeuo* . of the partlcul .
TSCA requirement, and (b) the degree of
the vlolator’g control over the violative
condition.
on i— , w ue no
of Cod” ere altar ua—t--— -. . t ai 5y of a
compaay eessesl issy net tewilt Is asees l ale
vtolntloi ( no IcgoLIIabIIIty . Par snamply where
PC!s ate v s..-.’p stated, nod a pI ernebea I nto
the s mpa fn ty. cuming a spOt. (hers atdl
irotahly ho ss’
TSCL Goiupliance/ Enforcmoent
A- 6
Guidance Nanual 1984
-------
Appendix
Guidelinea for the Meenmuent of Civil Pena1tie
(a) The riola o imowh c The lack
of knowledge ala porticular
requirement would not accecoerily
reduce milp&,Illt ainco tho Agency ha.
co Intention of encoor fing Igeoronce of
TSCA d Ito roqedrc nb. The teat
under I’SCA will be wheth the vkilator
dvotmownoftbe
relevant T$CA requfroment oral the
general banardoncacoc of bin r’ .
Thu latter point will allow thra Agency
toflndavo’ f ullya tlp ab lo vo n lf -
he baa no knowledge ala partianlar
regidatcuy requirement whcnb dean
have knowledge that the particle,
substance ho woo doalln with oo
hawda*s. For evample, lack of
knowledge of the P rok wwild not
on II jf thoviolata, had
lgtowtst e that di 1ng alF o
macteas i- ” mia throoti. buwcm h l*. .
Then, a reduction In the penalty bucod
an lack of knotx d could only acme.
kers a p
r q-n pusv a Lu the vlolotor’o
position wosld hewo ?me that the
iy.wfn WWbQ vuc c violative of
1’SCA , It lo entinipeted that ova
albatlono and ar nt educUono will
berate,
(b) Degree ioa r Lit,
violatlon There may b tibatlonc
who , the vialater may ha boo than
fully responsible fur the vlolation’o
O uu Oi For aa kb oth
mavehadcaiu orola la
creating the violative ci edIftcno and
thurmost alao iharo In th loge!
reapeselbility bi the resulting
aoueqmecea. Or en y c e whoa
cmzdont ceumed the viokiticu may have
been dlcobeytug kIn cnzploye u
lna vctlooa, Suck ftc r uld
probably w t ce o r dnctiou Lu th
-
levels ofanlpabI&l rhevo boon aoal usd ,
as follow.:
Level It The violation hi willfuL La.. the
vto& —‘4tted on ao which
he knew would ha c vlolati.:i or woeld ha
hazaMmois health c the
en* ent.
—M ’It tbe e,
Level D The violator olths, had sufficient
knowledge to .- - - the maited
by bla conduct, or ntgntR * coti _l over the
sltua oa to avoId committing the violation.
—No adtunu..ig to the GaP.
Level flIt The violator la d coffleisat
knowledge of the potential banoid mastod by
hi. and also lacked aver th,
situation to ocCurrence c i the
violation.
Adjust the GaP dewnwa,d
It Is anticipated that moat cases will
present Lava! U culpability. Level I
el thin . . In many lnoo i could be
lbatad U imhtai violations (and often
will ho co txuotod). However, the
decision to file a cr 4 1 °’ l action baa no
effect on ciVIl penalty celcelatlone and
Ia a totally caparato Io ua
(d)AWtzth a/the VICIOIOZ(IIL
amassing the vlolatrWo “attlInde” the
Agency will lock at the following
factor.: Whether theviolatortu nt .LIiig
“good faith” efforte to comply with the
appropriate regulationu the prumpinees
of tho vtokito?e corrective action.: and
any acolotanco avon to A to niM1m4v
a syh aruitothaenv lronc tcmtcauoedby
the violation.
Since “attitude” Is akoudy reflected In
Level I oa!pab1litp and cinco It Is largely
In Level flI ndpabilhty , thIs
adfuo will really only be ntillrid
wharu 1z wlad o ” and “cou ol ” remit
In a Level!! cn cbtht!y Sadiug. While
Le l I ! uc f E y yinhdo no reduetian or
In p alt the attitudo of the
v Iolate !? may juotifp a p nl1y
odJuatzuttofv 1O18I O2thO GaP In
olt dfr wian. Ob mi io e ldocce,
suck _____ or codma of the
vialator ckouldboined to Justify auth
INk 7afgriwsn ioiaUons.
The prMty bcood panalty icatoin Is
designed to opply to “foot c 3udsra ,”
Where a violator has dernanatratod a
nhnlke ’ history of “osn violaftane,” the
Act roqtdrco the penclt tj to be adluatiad
edfar thoc upc iard
adJuaem t dcrivez frcta the clutor’s
not being alon y motivated to
a nq ly ( dotomed from ncmplythaj
by tho penalty co’ for the previous
violation, either bocenco of economic
facteri, anncaioucly enaiyend by the
&m ,orbacaucoolna lgance.Another
__fu — — v1d to
maro covamly than”&ot offendaro” to
tho I eccadco ocmont resources
that c cu the ___
The Apnoy?s pelby to t.: interpret
“p ath vtdaticne ” uc raferriull only
to prior utalationc of 7SC . even though
It would coom “Duck” could refer to any
vlolat*ou aclaPA staintoa. or remedial
statutes in gmtuel (o.g.. OSHA. Q SC).
How since Cc crio did not
expliaWy state It wanted the Agency to
go beyond IICA in determining
violation hiatcoy, tho Agency to using
this narrower Interpretation, The
penalty systom dIat4ngnlnh . between
previous I’SCA violations In general.
and previous vtolatlone of the some set
of regulatory requiremonts.
The following rules apply In
evaluating hIstory of prior oudi
violatinnu
(a) In order to constitute a prior
violation, the prior violation must have
resulted In a final oreha either ne a
result of an “ ‘ retasted complaint, or as
a result of a contacted complaint which
TSCA Compliance/Enforcestent
69
Guidance )Inmml 1984
-------
Appendix
Guideli ea for the Assessment of Civil Pen a1 ties
Is finafly resolved against the violator.
Violations litigated In the Federal
courts, under the Act’s rn4iieiIt hazard
( 7), specific enforcement and seizure
(I 17), and hii4viiI ( 10(b)) provia ona,
are part of a violator’s “history” for
penalty asaeasment purposes, a are
violations for which ol $l penalties hive
been previously asseseed, ! 1. _ .... , a
notice of nou.compIIa wI ? does not
constitute a )ilor ouch violation”, sioci
no violation has formally been found,
and no opportunity to contest the aodce
has boon g ivc
(b).To be omeldasod a “prior such
violation”, the violation must have
occurred within live yearn of the present
violation. This live year period begins
when the prior violation becomes a final
order. Beyond five yearn. the price
v1olath conduct becosece ton distant to
require compounding of the pesalty for
the present violation.
(c) Generally. companies with
multiple eatabil”hinonte arc conrildenid
as one when detemrlnlnll history. Thea,
if one ectab lacbment of a company
commits a TSCA violation, It counts as
history when anotha ostebliabment of
the aemo company. anywhere In the
country, mmItc another ICA
violation Huwviur . two companies held
by the came parunt corporation do not
necessarily affect each otheVs history If
they are In substantially dI warrt lines
of business, and they are substantially
indepundont of one another In their
nanageseisnt. and In the functioning of
their Boards of DIractor . In the case of
wholly. or pertly-owned sibeldlarles,
the violation history of a parent
corporation shall apply to Its
subsidiaries, and that of the subsidlarlee
to the parent.
(d) If the prior such violation Is of a
cil erent TSCA provision or regulation.
the penalty should beupwardly
adjusted 25 percent for a lirot repetition
and 50 percent for a eacanrl-repetitlon of
the violation. If the prior “such’
violation is of the same, or closely
similar provision or regulation, the
penalty should be upwardly adjusted 80
percent for the first repetition and 100
percent for the second repetition.
For these purposes, a prior such
violation is the “same or closely
related” if It Is aiim/ar to the present
violation. Each TSCA rule or regulation
is considered a separate entity for
“closely related’ purposes. Thus the
identical provision does not have to be
violated both times for this higher
adjustment to be made. For example.
two separate unlawful disposals of PCBe
may be “closely similar” if the PCBs
were unlawfully dwnpod on the
highways in the first instance. and in the
second Instance. PIBs of over 500 ppm
were burned In a facility that did not
comply with the Pd Incinerator
standards.
The .peai5c guidelines will give some
guidance on what violations are “closely
. 4MIIIa. ” to others, and may set up a sliding
scale of upward percsnagee
rather then the 50 p.. ....t or 100 p .t
figume — hers.
3. Government dean-up caste. An
adjustment factor not specified In the
statute. but which the Agrincy feels
iwjtlce ” ° require(s),” Is
reimbursement to the government for
funds expanded to Investigate, dean-np.
or otherwise mitIgate the effects of a
violation.
Generally, the dean-up expense of a
violator Is to be borne by the violatoras
a necessary cost of violation Ii addition
to any c lvii penalty urisemed. Tho
government may ceok a Federal district
court Injuvitlon under 7 or 17 to
roqufre. the violator to clean-up, but
thsre will almost certainly be situations
where the government will have to
clean-isp the violotic to quickly
ailevieto any hazards oreated. Where
these latter situations happen, the
government could probably fil, a non.
statutory suit In Federal district court to
rew er fund. which it expended, but It
could even mom easily assasa these
costs, when they iso su ciimtly low, In
an administrative proceeding under 110.
particularly where a I * particularly
where a IlOaction isgolug to be flied
anyway.
The malor limitation to seeldeg
reimbursement of government
Investigatory and dean-up costs Is the
limit of L0t 0 for each violation.
However, since each day a violation
continues constitutes a separate
violation far which a $25,000 penalty
may be assessed. In many Instances
dean-up and Investigatory costs can be
recovered where the violation is a
continuing one. However, where a
penalty would be In tho area of $25,000
for the violation even before government
investigatory and clean-up coats are
considered, a I 10 action would be of
little value In recovering these
additional costS.
In adjusting the penalty, the
government Investigatory and clean-up
cost should be added to the penalty
calculated thus far. Where the total
penalty under this method exceeds
525.000, the penalty should be cut back
to $28,000. As will be discussed later.
this type of situation lends itself to
utilization of the continuing violation
provisions of I 18.
It is important to note that
consideration of government
thveatlgatory and clean-up coats in the
TSCA Compliance! Entorcoment
A— 70
Guidance )bnual 1984
-------
Appendix
Gitidelines for the &snces ’ nt of Civil Penalties
penalty soacooment in not Intended to In
any way affect the rig( t of the
glruWUment to rccovarbvastigotozy and
cisan-up costa Inc oeparato court
action. A violator may nr uo that
investigatory and clocn.up costa have
been abrogated by cottlement of the
penalty. Thus, If there Ice roaconable
poulbility that the Agency will seek to
recover auth coats in a ospuroto suit.
this factor should not be utilisad In
aeeesalng the 1110 penalty. Thee the
Investigatory and clean-up coats will not
be inchided twice In calculating a
penalty for a violation.
4. Gaino from noncaanpliance.
Another adhu,tincnt factor which
‘luatic.’ ‘ ‘requlre(oj” to that the
itoicter not profit from Ito violative acts,
TSCA’e ability to p uvr,nt harm to public
health md tho environment b oovoioly
we fr ’i d whenever an coonomic
Incentive mdnto to v1ol to the 1ev ,. The
penalty nyotom attempts to oIIMInlitQ, or
at lust reduce, thoce twn4I !
lncsnthreo, by a ding to the beco
penalty an e mntnof the economic
galiis.abtalned by the violator no a
result oi hie “onromplience.
Among such economic game would be
money saved by not aventing In now
equipment, or by not following more
costly operating procedures, or profits
gained throes) the sale of illegal
products. Removing such gains not only
protects the public by deterring
violation., but also prevents violators
from g h i unfair competitive
advantage over those who are
complying with the law. For example, a
company which manufactures a new
chemical without submitting a
premanufacture notice. pursuant to § 5,
may gain a afrong competitive
advantage over another company who
Intends to manufacture the same
chemical, but follows the Q 5 procedure.
The violator should be penalised at least
to the extent of the economic gains
achieved through his noncompliance.
Any other result would put a premium
on noncompliance.
The specific penalty guidelines
should, where possible, indicate the
types of economic gains from
noncompliance, and Include either
standard estimates of such gains (e.g..
the purchase price of required new
equipment or facilities), or a procedure
for estimating the gain. In cases where
economic gains reaulted from the
company’s failure to make required
capital and operation and maintenance
expenditures, those gains must be
calculated In accordance with the
Agency’s September 27. 1978,
Support Document” for computing civil
penalties under the April 11. 1978, CivIl
Ponalty Policy. The reoulttng economic
figure moot be rcolowod by the
Civil nalty Policy Panel for
conslosoucy with that policy. In many
inetancen, the C P will ho o* öwit1y
high without ad uc ent title factor.
In other sthiadens whom thino Is no
economic motive or irurefit from
cmn impIIonw i , or when the cost of -
deaalng up a violation outweighs any
economic benefits received, thic
adjustment factor aced not be applied.
5. Ability to pay and ability to
continue in buzilesx . (a) Uongo of these
terms. The Act lioto “ability to pay” and
“ability to continue in buslneae” as tWo
adjustment factors, but for the purposes
of the penalty Dyotam the distinctions
between Ibo,two aro co narrow end
artificial that they ero eated ac em. In
mn this dotomelnedon It wan
considered that “ability to par’ might
ho limited (In the antiumo sauce) to suck
ted lentogu co the merhet value of the
violator In liquidation, the profits
acoruod by the firm over a given time
period, the not sales or iucoou
generated over a given limo period, the
value of cash and other liquid emote
haldby tho firm. ondthovuluoolall
liquid emote plus borrowabie cash.
Eceantlally, however, a firm can pay tap
to the point where It can no longer do
bualuaco , 5 H wuvur , It Ia ovldcmt that
Congeeso,by mooning them Iwo factors
into tha Act, for niece cooso did not
Intend that 1 CA civil penaltiec precant
so seat a burden as to pooe the threat
of destroying, on even cevorely
Impairing, a firm’s buelneco.
Menouring s flrm’o ability to pay ‘ a
cash penalty, withaut conning to be
openable. can be ouliumoly complex.
The focus to en the rmlvonq of the firm,
Rather than perforating mtanniva
financial analysis of a lam, which
would take an unrccaoucible effort on
the punt of both the Agency and the firm.
It Is bollevod theta yeas’s net incoms, as
datemolned bye fixed percentage of
total calee, will goncaully yield an
amotat which the ftrmcanaft’ord to
pay. The average ratio of net income to
sales level for U.S. manufacturing In the
past five years Is appro dmately five
parcont (1979 Economic Report of the
President). Since email flume are
generally allghtly lace profitable than
average sized firms, and since entail
fIrma are the ones moot likely to have
difficulty paying TSCA penalties, the
guideline Is reduced to four percent.
‘TechnIcally. a Sum would often bo able to pay
avon If lmpcolng a penalty would onuen It to Ill. far
bonkiupicy. since a root itleauca might still leave
the bonino.. In opoenttmi.
4 Henasfort “ability to pcf will housed to
totted. ‘ability to conulnuS to buatnuno”.
TSCA Compliance/Enforcement
Guidance pInmi 1 1984
-------
APoencliX
Guidelines for the Mses nt of Civil Penalties
Even where the net Income I i
negative. four percent of ce sales
should mill be used as the “ability to
pa g di4atMA , sinco companies with
h1e hsaleswpresiwmdtshave
suM .nt cub to pap penaltlee even
whets there have been net leeoee.
P piupoass of i . Lmk ng th. ability
to pay, figure. for the -- year end
the prior these yeses should be
averaged. Four percent of the overage
sa leow llleervo as theguldallie for
whether the ccmpcny has the abllity ’to
pay.
(b) Application of abS lily to pay.
While It would be poaalble for an
Inspector to utilize Dunn and &adstreet.
cite biqu iro d m 1nQthecou s eeof the
Inspection to ascertain sales data, the
firm should be procumed to have the
ability to pay at the time the oou !
is leaned. This Is preferable not only for
purpose of ln4i fruUvQ conv ’ t fl e.
but aloe becrsse many firms will not
have their seleu information in Dunn
and Bmdstreet or olmilar publIcatIons,
cad becr*uce tho Act ln&catea that
flnt2m j and mica data am only subject
to Inspection when “the nature and
of such date am described with
reasonable specificity to the written
(of j gp gf N 1*1(2). ThIs
ahigftng out by Congress of these factor.
hl f ! tf$ that they are not to be
routinely asked for In every inspection,
and since any alleged violator can raise
the Issue of ability to payinhie anower
3° the cnmpIaInf both the Agency and
the inspected firm will savo time and
resources by using this approach. Of
course. If euah Information con easily be
obtained prior to or during the
Inspection, there Is noharmmndolngso.
Iftheftmura lsos thelasneof Inability
to pay In its answer, or In the coarco of
settlement discussions, the four percent
guideline discusoad above should be the
model to folIow Tho firm should be
asked to bring appropriate
documentation to Ir 4h te what their
sales have been, ouch ag tax returns,
finandal statomeuta. etc. It the proposed
penalty exceeds four percent of total
sales, the penalty may be reduced to an
affordable loveL
There may be some cases wher. a
firm argues that it , aTuInt afford to pay
even though the penalty as adjusted
does not exceed four percent of sales. A
variety of factor,, too complex to
discuss here, might require such further
adjustment to be made. In complox
cues, the agency may need to rely on a
management dMsf on economist or an
accountant to analyze the firms ability
to pay and, on a cuo.by.casa basleb to
further reduce the proposed pen alty.
e. oth.rncto.r. at jUstice may
require. While two “other factors’ have
been Incorporated as adjustment
factors, other lames might aria., on a
oase.by-cass bails, which should be
consIdered In .sssuurg psnalties.
Amone thos. factor. arm
• Mbney spent byth. vIolator hr
d.wthtg £Q or otherwise mitigation the
harm caused by thi vioiatloe. Normally
thereebouldbenoreductionforthese.
costs, since It Is part of the cost of
violation. However, there may be
instances where the cost of penalty, plus
cost of alnaimp , are excossive for the
particular violation. an that some credit
for these expenditures should be given.
• New owraerelalp for “hlatoiy of
vIolalioanLlt may be unfair In some
came to burden now ownership with the
previous ownar i Watery.
o Notional defense.
• oityIgn fty .
o Conflict or ambiguity via .a..vis other
Federal slotutari and regulations (e.g..
OSH& UflD& DOE).
o &vvlanmantally beneficial
wzpendltere. Qrcamstancee may arise
whereavtolatorwjlloffertamake
expenditures for aa *----°ntally
br aficiaI perposee above and beyond
iho aerequ lrodbylsw. i nlieuofpayurg
civil penalties. The Agency. In penalty
actions In the U.8. District Courts under
the Clean Air and Water Acts. ha.
determined that oreditleg such
expenditnes Is consistent with the
purpos. of civil penalty esseor ’
Although civil penalties under TECA are
adminlstr ’alivoly asseeeed, the same
‘The analyst must he owssnI perticuin points
In mind. Shut. smaU theusftus repast an____
nd l janutds a eson. ct ir
.aer/opo,’U ou4 salads. and benefits such
15 a.1NN1 ,d pl sadie teeth. When
m tsne Sen ’s such flew. owucr/
operable shocid santo. as payneat 1w esMcss
— that wbish thay ceeld ebela far
psevidlag simm seuts.s bib. pseud labs,
maibeL Ths.eat at their — ,--—“ - should
hO er tO proat far tin . W.mpuiIy . Ths
massed pubs heap In mind ts i L 4 t,
mimes Is that enilL pdo.Isly-awusd plant, oft..
have sevasel nepasaSs.. mi up to beadle veeloan
napes the lqj ” ' — Umewmo..atthe..
ceipaisduns Is .Ip L in Sam, past of the TSCA
violation, ib. tax mesas to all Invoind
.aIqNMuIl shield be . ‘—“—i a ‘ ‘—“— ,d
cash flow psups.d. Ones the fine’s blsteeteul cub
flow. ha ,. bean “ “ '“ 'd . the analyst must mat.
s cm, — --— ‘ at the likely Insure path of the
campasy. lase dalep the analyst must consider the
fine’. abilhy to smu cash bias it. apmtion .. it s
abilfly te llquldato assets to mess psnslty amounts
(sad still remaIn In bualaso. and Its ability to ales
additional cash b um tendu. and Its ammos. The
analyst must hidse these factors without — cpsndlup
excessive resources on the analysts. Such a. uo. .
can be assisted thivupb dixuastoes with
I ndividuals knowlodgeablo In the pailenlar
Induatyr. such as local bankers. consultants. and
oth vs. II appropriate.
TSCA Compliance/Enforcetaint
A- 72
Guidance lInnual 1984
-------
Appendix
Guidelines for the Lelenament of Civil Penaltiee
rational applies. This idI tstm.at. which
constltutee a credit gPie4 the actual
penalty amount. wlil natmelly ho
d nissed only In the caere . of
settlement negotiations. The criteria fur
acceptable credits are & cussed In
detail In section VUl of the April 11. 1V7S
Civil Penalty ,bcy. Before propseed
credit assents can be tecorpohited Into
a est 1 t . the compla i sant must
assure hlaseU that the penally (with
credit edjustmentl Is consIstent with the
AprIl 11. IWP. avg Penalty Policy. and
that the eiuyeny has not already
received credits in another enfnwnii t
action for th, same envhonmtaafal ly
b ffM f siq,siulfture& 1 . e” t
agreement seek an
adfustment make clear what the
actual pwialty esssasmenLI after
which the a of the re 4 ” should
be spelled out Eu “ ‘ sad Is a clearly
enforceable
violations. O ” alZy a violation.
while of sf ” Mnl , will be so
doe, to the borderline etlparetht ‘ ‘ -
end otitoladsuB that the
— eq seem duprepoidenatoly
high. In thin situation,
reduction of up to n. oaths map
be applied before the other ad m t
fa are considered.
CordInuIrq VIoIatf
Since the Mt providse not only that
civil peiialtie, may be assessed up to
szs.ooo far a scii riotatfon. but that each
days violation eq” ’ ee constitutes a
separate if alifton for which ‘fonal
penaltIes maybe assessed, there l as
potential for vety large penaltieaja be
assessed In many situations. hr some
came, such large p”eI’( will be
appropriate for continuing vloladon ,
while Ice other ,, such as late 1.iwiitwy
reporti . assessing an additions)
penalty for each day of violation would
yield a penalty assessment foe greater
than the violation . .tn The p.lhn
penally guidrilnes will discuss th, types
ofcL. . .l violations which should be
assessed on a per-day basis . This
, Il.n , e1on should ‘ “ ‘ . bow criteria
such as this will b.app lled , ag.,whlch
continuing violation, should u er be
on apse-day basis, and which
should usually o aIwsye be so
When a penally f assessed ours pm’
day basis for a conthuing violation,
care maist be taken to assure that tb
adluslinent factor., “ , . ...... .,ant clean
up costs”, and “ cixiomic benefits from
non.compfiance7 are spread over the
entire penalty, since these figures are
calculated by looking at the entire
violative situation. For evample. Ifs
continuing violation lasted four days
nd generated *i000 in government
clean-up caste, these lllO ,000 in costs
sjiould be added to th, daily penalties
(altho r each day would still be Halted
to a muai -I-9m1 IC5P penally).
Coadadni vlolalfcus ore
dlsdngt*uisIfrsm iealdpls violations
and *‘ ‘ .ii ± saw iiusrul
es letise vluki!Lmis
will generally be separately - -:-
S.
Tha dens mat peecoutbe a
specific parcantage guMl.lh e for penalty
reductioso to the cases of sotilemant
While, ens general ith, penalties may
be altered to the ceases of_____
thee. shauld always be some
subetentive re gives which Cs to be
tocorperetad.In sup
— and at decree and final
orda for sup penalty reduction. Other
aspe of seftlM. tf are discussed In
the — 4 of particular penalty factors.
D,.7 .Laa Specifc aa1lp Cuii4w .
The epsuillo p ’ty ge sn which
will masily be developed as pert of the
enforereasut for a particular
regulation. will provide the detailed
infonnatlon to fit particular
violations Is the overall civil penalty
—
• Ye the enl sntposslble. thetypes of
wiletiem thotas a
• the eaters (Pa., whether
cl ker I lh1eI.al d
a laik M
• Hew to dat.ta 4l f
of per Me harm posed by a gives ,1e wlli
• Spatial ‘ ‘utions In using the
adfus ent factors, particularly including
mann at estbaffny , ,. .. .nunt cues-up
coats end r- - bessflt, Irma ama
• Hew and when to otiuisu the concept at
multl.dsy Violations,
• Any “other enuars as lustice may
requirs” which may particularly apply to the
gives .egulattor and
• A.. 7 tkl. ales n. r , 10 a ntteate
at the rugulaltor ad the Acrs
penalty pelicy.
App1yinga Specific Penalty Guidance
This section brIefly s” ’I as the
steps necessary to calculate a proposed
penalty assessment.
Step t U’ ” ’g th ap.dIk penalty
guidances. dstsrmlns the nature. enisat. and
cucunutsasas of the violation.
Step z Find the 5 u ,1 5t eutset end
circumateeses lavels on the graVity based
pesalty aside toduleralia, thegrutity bared
penalty (CDP)
Step 3: p.tàraln. the percentage
adjustment for culpability, if any.
TSCA Compliance! atorcament
A”- 73
Guidance PInnual 1984
-------
Appendix Guid•limee for the M r ol .4vi4
Step 4? Dtesaedae the pm te$.
adJhu snt for history. If cay.
Slap 5: Add the *.lmI” pircenligea
from itepa a add en apply the G . It tb.
to ww—’ d$SSJIS0 . ied &eS the
ly li____
Slap th P5 .il4pIy the step I 5a by the
numbor of dam of violation.
Stsp7 Apply , ent cleanup caste
If applicable. Addle the steps
9 Stop 5: Apply e.-u- —‘s gales from eon-
c a $w II applicable. Add to
the clap S ftpa.
Step5:tdaks other ad estmeats “u lustics
mey
Step 15: tome formal complaint proposing.
the panilty .
Step Th IOri 4 Ut — esy Ibis before
o Dial th % u iw Jm s’s deaistev
a I5 halud end
applicable , deomerla, oisl a ability to
pay. It tat redaat penalty to amount
ylc4th ocnc3oed Ill pay. P moy ho
______ a ccnthtirm of settlement.
Slap 2 leone Flesi m*r.
0 ,11 P cLt Aonasoment Wo est
Name of Respondent __________
____of Respondent
I ( pl _ LJ LU. Ne.D
2 Doto Ciie.plsfl4 latjad
Dab Aaav. flensiveth
4 Cite Default Ordur Sent
Dale Connmt
S Dale Pics4 frat
Dale R Ressivsth
1. Gristly es5 Paneutllr (GIP) from
inent 3--s
2. PaicanS teceeaeo c i deceases for
3. Paroenfinerseca fOr violation history.
4. Add linac 2 cad 3. %—.
3. MultIply G by p ..1 ge total on line
4. $.—%
6. Add lines I sad 5 (subtract lineS from
line I if eugitivo pslcestage). S—s
1. Enter lineS amount or St5ouO. whichever
Is lou. S—
8. MultIply lien I by the number of day. of
vio latlolL I—
R Guvunzwent dean-up coats, If any. 3—.
10.Econcaiic gain, from aon.ccmphlaace. if
approprlal 5
11. Add Iloma throej 10.3—.
12. Total of ctht zadjmementsae Justice
may tequlse. 3—
13. U Ilno 12 represents a set incznca. to
the penally add lIne 1210 line 11.5..—.
or
U lIne 12 represents a net ácesa. to the
penally eabitact line 12 free. lIz. 1.3—.
Noto—Un. 13 should be the proposed
penally for o given violation. This procedure
I; ropeated for each violation. -
TSCL Compliance/Enforcoment A-74 Guidance ) 6 ma1 1981s
-------
Appendix
Knforcetint Ie.poasae Policy: Mbsto.
Enforcement Response Policy: Asbestos
Asbestos In Schools Enforcement Response Policy
CONTE NTS
Part I Introduction
he Requirements
The Violations
Liability 3
- Action
PART II Detçrminina the Level of
Notice of Noncompliance
Final Response
Civil Penalty
Injunctive Action
Criminal Action
Y M1’ III AssesslnQ an AdmlnlstratTT
Gravity Based Penalty
Nature of VIo at1ons
Extent Category
Circumstances Category
Independent Assessment
Adjustment Factors
Ability to PayfAbility to Continue In Business
iu IV ApDlication or_the_ ‘oiicy
Appenoix A Sample Notice of Noncompliance H
Appendix 9 Mooel Compliance Program Schedule 12
—
3
4
4
5
Penalty
5
,
6
6
7
..
8
..
9
TSCA Coap1iancefEnforc ent
A- 75
Guidance Manual 1986
-------
Appendix forc nt lesponie Policy: âebesto .
PART I INTRODUCTION
The Enviromental Protection Agency (EPA) has published the
“Friable Asbestos—Containing Materlals in Schools: Identification
and Notification Rule” (Asbestos in Schools Rule) (47 Feceral
egister 23 b1, May 27, 1982 under Section 6(a) of the Toxic
Suostances Control Act (ISCA). The purpose of the rule is to
identify the location of friable asbestos in school builcings ana
to notify ersons who risk unwitting exposure to asbestos. ‘he rule
was effective on June 28, 1982, 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 t e ten Regions through thC 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 ln.schools, such as
aoatement and control procedures, are not requirements of tne 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 guidance to the
egions in enforcing the provisions of the Asbestos in Schools
ule. The remedies under Sections 16 and 17 of TSCA are available
for violations f this rule. Part II of this document provides
guidance in the use at notices of noncompliance, civil administrative
oenalty actions, injunctions and criminal actions for violations
of this rule. Part III of this document explains how to use the
General ISCA Civil Penalty System (45 Federal Register 59770,
September 10, 1980) to arrive at an appropriate c lvii 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)(1U) of the Elementary and Secondary
Education Act of 1965.
o The governing authority of any nonprofit elementary or
secondary school.
This rule imposes requi ements which may be divided :nto the
following five asic action areas:
o Ider tificatiofl inspection of all school buildings for
friable materials;
o Sarpling: Collection of samples of the friaole
materials;
TSCA Coinp1iance/ nforc ent A- 76 Guidance ) nua1 1984
-------
Appendix Enforce nt ksposse Policy: Asbestos
—2.
o Analysis: Analysis of the samples to determine If
they contain asbestos;
o NotificatIon: Informing the Parent Teachers Association
(or parents), faculty and other building users
of the presence of asbestos, posting the notice
to school employees form and distributing
of “A Guide for Reducing Asbestos Exposure”
to custodial ano 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 f 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 sc iool 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 “Corn.
pliance Assistance Guidelines”) need not regeat 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
June 28, 1983, are exempt from all requirements of the rule.
o Schools which certify for the record tnat all friable
materials will be treated as asbastos—contaln’flg materials for
purposes of this rule are exempt only from the inspection,
sampling and analysis requirements of this rule. This cert-
F ication must be in the school’s records.
i}’e Yiolatons
Failure to perform any requirement of the rule constitutes a
violation of TSCA. Thus, possible violations of the ‘rnule includeS
o Failure to inspect,
Failure to sample,
o Failure to analyze;
o Failure to notify, and
o Failure to keep records.
ISCA Compliance/Enforcesent Guidance P nual 1984
-------
Appendix Knforcesent Response Policy: Asbestos
—3—
The improper use of an exemption would result in at least one,
and possibly all of the above violations. If recoros or certi—
‘ication were falsified to support an exemption claim, the
falsification would be a separate violation. TSCA 16 provides
for civil and criminal penalties for any person who violates a
provision øf §15 if the violation is knowing or willful.
Liability
In taking enforcement action to redress violations of this rule,
EPA has th option of proceeding against the entity alleged to e in
violation and/or against tne responsible official who signs the
certi fication.
Generally, EPA will hold only the LEA liable for the actions
of its officers and employees. The Agency, however, reserves its
rignt 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.
PART 11 DETERMINING THE LEVEL OF ACTION
The regulations require school officials to perform certain
actions in identifying friable asbestos—containing materials and
ootifying specified persons of the presence of such materials.
Since the asbestos in schools regulatory program began as a volun-
tary program, the EPA will continue the program in the same spirit
of cooperation.
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 Noncompl iance
When a egional official determines that an LEA has violatea the
Asbestos in Schools Rule, the appropriate Regional office Should issue
a notice of noncompliance. Within 30 dayS of the receipt of the
notice of noncompl ance, the LEA should demonstrate compliance
with the Pule.
TSC& Compliance/Enforcement A—78 — Guidance P n.ie1 1984
-------
Appendix Enforce nt Respouse Policy: Mbe.to.
—4—
Since the LEA is the responsible party, the notice Of AOflCOC-
,Hance 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
tne rule within thirty days of the receipt of the notice. If the
LE 1 cannot achieve compliance within 30 days of the receipt of the
notice of noncompliance, the Regional office shoulø seek a final
response.
Final Responses
LEA’s which have received a notice of noncompliance and do not
comply with the rule withIn 30 days of the receipt of tPte notice
are subject to one or more types of final enforcement responses.
These are: (1) civil penalty, (2) injunctive action or (3) criminal
action. 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 a Civil
Complaint. The Civil Complaint will describe the violations and the
amount of the penalty to be assessed. Under certain conditions, all
or part of the penalty will be remitted under a negotiated Settlement
with Conoitions (SWC) if the LEA abides by a Compliance Program anc
Schedule (CPS). (The Settlement with Conditions is a separate docu-
ment prepared at the same time as the Civil Compliant.)
T 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 days to correct.
3. The LEA exhibits a good attitude towards coming into
compliance with the rule under a CPS.
4. A CPS acceptable to EPA can be negotiated. (A model CPS
for the Asbestos Iii Schools Rule is the subject of
Appendix B.)
More aetailed guidance concerning Settlement with Conditions
will be sent to the Regions in the near future. Please notice
that the only aspect of the rule under n egot1ation s the dead-
line for completion. An LEA may not, at this time, offer to
abate asbestos lfl the school if t does not have to notify
oarents. Any LEA which has allowed school children and staff
to De exposed to an friable asbestos containing material afte” June
2 , 1983, must inform the PTA or the parents directy anc the staff
of the school
TSCL Comp1ianceI nforce eut Guidance I nual 1984
-------
Appendix Enforce ut Respou8e PolicZ: Asbestos
If the LEA fails to demonstrate good faith in abiding by its
compliance program and schedifle, thC penalty will not be remitted
and the LEA will e required to pay the total penalty.
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 approprtate 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 DOJ only by the
Associate Administrator (AA), Office of Legal and Enforcement Councel
0LEC . or the AA’s designee. Requests for Injunctive action should
e forwarded to OLEC with a copy to the Comp1lance Monitoring Staff.
For futher guidance see following OLEC memoranda “General Operat ng
Proceoures for the Civil Enforcement Program” (July 6, 1982) ano “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 there is “guilty knowledge” or intent (“knowing
and willful” violations). Should be considered for criminal sactions.
Guidance on the use of criminal sanctions is available in “Criminal
Enforcement Priorities for the Environmental Protection Agency”
issued by OLEC October 12, 1982.
PART III ASSESSING AN ADMINISTRATIVE PENALTY
The purpose of this section of the enforcement response policy
is to explain how to use tne TSCA Civil Penalty System, (45 FR 59770,
September 10. 1980,) to arrive at an appropriate penalty wnere an
administrative penalty is the appropriate enforcement response.
The Gravity asea ?enalty
The gravity based penalty (G8P ’ . as defined by the TSCA Civil
Penalty System, is a function of three factors:
T he nature of the violation committed.
° ne ‘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.
TSCA Coiap1ianceJEnforc ient - A- 8O Guidance nua1 1984
-------
Appendix
Eufor ’.- nt Response Policy: Asbestos
-6-
0 The “circumstances of the violation, or the probability
that t e violation has impaired the ability of the Agency
and the public to assess the health hazard involved.
When all :nree of these factors are specified for a
violation, it is possiole to determine the gravity based
from the GBP matrix. That matrix, which was escaolisned
TSCA Civfl Penalty System, appears below.
MID 3
RANGE 4
LOW
S
RANGE
5
$15,000
$1 0,000
$5,000
Si 0,000
$6,000
$3,000
Nature of 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.
cxtent Category
In this case the potential risk arises from the inability
of tne 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 exoosed to asbestos and pre—
:ludes any adequate response to the problem.
I
Since the presence of friable asbestos-containing material
Is unknown in tne aosence of soecific information about the
uildirig, the possibility of risk can be considered to be evenly
oistributed among schools subject to the rule whiCh have not
coirplied with tue rule. Therefore, all violations are placed in
tue same extent category. he extent :ategory is the significant
category. In this case the information ‘snot reported to EPA
particular
penalty
in the
IiXTENT: MAJOR
SIGNIFICANT
MINOR
CIMCUMSTANCtS: I.EV L
HIGH
RANGE
1 $25,000
2 520,000
$17,000
$13,000
S5,000
I $3,000
$2,000
Sl,300
5200
51 .500
$1,000
$500
TSCA ConpliaIctelEnfárãáeut
k- Bi
Guidance ) ua1 1986
-------
Appendix Enfore t Response Policy: Asbestos
—7.
and will not ma&e a major Impact on its overall policy, nor does
the rule require any acton on the part of the LU In response
to tne rule. Thus the major category Is not appropriate. The
information would, however, ha ,e an important impact on local
programs and policies concerning asbestos In schools, so the
minor category is also Inapproprlète.
Circumstances Category
The circumstances axis measures the probability that the
v olation has Impaired the ability of the Agency and the public
to assess whether a health hazard may be Involved. The ability
of the public and the Agency to assess the health hazard from
asoestos is directly proportional. to the amount of good quality
information available to them. Thus, the violations have been
categorized based on the amount of information available to the
public and the Agency.
The Agencys 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
ower Level circumstance is applied.
Level 2 VIolations
o Falsification f 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
e iil may be worse than failure to keep those records in the first
place. Falsification of records or certification wnicn support an
exemption claim are violations in this category. In this case tne
LEA will oe assessed a penalty for falsification of records.
Level 4 Violations
o Failure to create and keep accurate records lincluding
certification statement for exemptions)
o Failure to inspect
o Failure to sample
Failure to analyze samples
o Failure to post warnings and notify (including failure to
distribute ‘A Guide for Reducing Asbestos Exposurel
TSCA Gomp1iance /&iforceinent A—82 Guidance Manual 1984
-------
Appendix Entorv ut luponae Policy: Asbestos
—8-
me intent of the Rule is to identify the loc&tlon of friable
asbestos—containing material in the school and to communicate that
informitlon to the school personnel and parents of the children.
The requirements of the rule are relatively simple and the Agency
‘ias 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 keowledge 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 maa
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.
Independent Assessment
although each school 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 viojation see “Circumstances’, page 7), but
cite al 1 others.
The violation for failure to keep records in the district office,
which occurs at the LEA level • should oe treated as a single
v’olation equa to the failure of one school to maintain records.
TSCA Coiep1ianàe/Enfocc ment A -83 Guidance Manual 1984
-------
Appendix Eafore nt Respoass Policy: £.be.toe
Adjustment Factors
ISCA requires the Agency to consider certain factors in
assessing the violators conduct: Culpability, history of such
violations, ability to pay and abVllty to continue in business.
The Act also authOrizes the Agency some discretion to consider
otner factors as justice may require’. In tne General TSCA Penalty
Policy, two factors are considered In this category: cost of the
violation to government and benefits received by the violator aue
to noncompliance. Since this is an Identification and notification
rule, which does not require any action in response to identification
of a nazard other than notification, It is difficult to calculate
the 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 appro-
priate to apply cost a id 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 culpability are the
violator’s knowled 9 e of a TSCA requirement and the violator’s
control over the violative condition. Other criteria are the
willfulness of the violator to commit the violation and the
attituoe 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 nas 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
e extremely rare. If such a situation does exist, the penalty
Could be adjusted downward as much as 25t.
There may be situations where the violator is less than fully
responsible for the violation. 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 255.
TSCA coiapliance/Eriforc, ent A-84 Cuidinee ) 6ni. 1 1984
-------
Appendix Enfor nt keaponse Policy: Asbestos
- 10 -
Attltuoe at the violator Is an important factor, particularly
with respect to this rule. “Good faith” efforts to comply with
t e rule can result in a reduction of the penalty by up to 15%.
Deliberate recalcitrance can result In an upward adjustment of
uo to 15%.
Aoility to PayfAbility to Continue In Business
For purposes of this rule the gravity based penalty will be
aeterml”ed based on the parameters and culpability factors already
aiscussed. This amount will be the penalty in the complaint.
The LEA may raise ability to pay as an issue. In t ts case the
Regional Office will have to determine what the LEA can be expected
to pay.
Many t.EA ’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 asbertos-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 e 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. (Ar RWC could allow remission of the
remaining 20% when the proper persons are notified.)
TSCA Goupliance/Enforcesent k -85 Guidance N nn 1 1984
-------
Appendix I Enforc ut Response Policy: Mbssto.
— 11 —
Apoenaix A: Sample - Notice of Noncompliance
Local Education Agency
Street
City. State
Zip Code
Dear
he United States Environmental Protection Agency (EPA) finds
(Name of LEA)
(Name of School, if applicable)
in vi lation of the Friable Asbestos—Containing Materials in
Scnools Identification and Notification Regulation, 40 CFR Part
763, Subpart F, promulgated under Section 5 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 sc ,hool personnel ano the PIAs
or parents) of the results of those efforts if asbestos is
discovered and to keep records of these activities.
An Agency investigation has determined that:
(Describe violation(s), citing the section(s)
of the regulation violated)
The EPA is issuing this Notice of Noncompliance rather than pursuing
further enforcement action coflcerning this violation at this time.
°lease write the Agency within 30 days of your receipt of this
letter describing the actions you have taken to achieve compliance.
Should you have any questions regarding this letter, or should
you need technical assistance, please contact ________________
at __________________________
Sincerely yours.
Name
Tit 1 e
Regional Office
TSCL Coap1iance/Knforc eut A 86 Guidance 1 u 1 1984
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Appendix Euforc t kaponee Policy: Mbeetoe
— 12
Apoenoix 8 Model ComplianceProgram Schedule
INTRODUCTION
it is the goal of this Coir 11ance Program Schedule to bring
all schools operated by the Local Education Agency (LEA) into
compliance with the Asbestos in Schools Rule with1 i a speciflea
t’me afte’r the effective date of this document. The effective
oate of this document is the date it is Signed by both the
Environmental Protection Agency (EPA) and the LEA. A school will
oe deemed to be in compliance when all five activities required by
the rule have been completed. These activities are:
o loentification: Inspection of all scho l 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 Recorlkeeping: 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 ‘ecords required by the rule to be kept at the LEA’s central
office and certification that all other requirements have been
net. EPA may verify the certification.
If an LEA completes all the compliance program tasks outlined
in this document by the dates agreed upo,n by both EPA and the LEA,
the % of the penalty assessed the LEA for violation of the rule
will De remitted y letter. -
COMPLIANCE PROGRAM TASKS
Determination of the Extent of Noncompliance
schools in cne LEA which have not documented compliance with
tne rule or qua’ified for an exemption, nust be Drought into
compliance witn this rule. EPA has assessed penalties for the
‘ollowing viol ti ns in the following schools;
TSCA pliance/Enforc ent Guidance nun1 1984
-------
Appendix Entori —’t Respoose Policy: Asbestos
.Appendix S cont. - 13 -
(List specific scnools, violations and penalties as they
appear in the civil complaint anø 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
he list to the Regtdnal Asbestos Coordinator. The final compliance
program schedule will adare s 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 shal 1 follow the Compliance Assistance Guidelines for the
Asbestos in Schools Rule deve1oped by the Environmental Protection
Agency (EPA), approved by the Assistant Admin 4 strator 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 tne rule. /
An EPA compliance monitoring inspector may visit .the LEA to confirm
compliance with the rule.
COMPLIANCE SCHEDULE
Tasks Schedule
• Determination of the extent of 30 days after effective
noncompliance date 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 Coordinator final compliance date
!“ At tne discretion of the Regional counsel other proofs of com-
pliance may be equired. Such as the a certified receipt from
the PTA off’cial who received not’fication.
TSCA Compliance/Enforc ent A-88 • Guidance Manual 1984
-------
Appendix Roforce nt Isapoase Policy: Asbestos
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 f the agreement, EPA shall not
initiate additional enforcement action against espondent for
yiolatlons 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 ISCA rule would preempt
such laws.
2. ot1ftcat1on of Technical or Operational Difficulties
espon0ent shall notify EPA immediately in all cases where technica’
or operational difficulties will make it impossi’ le for despondent
to ‘iieet any of the deadlines In the Compliance Schedule.
3. Technlc l Assistance
2A shall provide reasonable technical assistance to es ,onden
n questions concerning SUCh matters as samol 4 ng and analytical
. ocedures, and wording of notifications, for tn purpose of
complying with this Agreement.
. Amendments
Upon mutual consent of EPA and Respondent, this greement ‘iay 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)
nave oeen signed Dy authorized representatives of EPA and Respcnderit.
5. Evaluation
EPA will assist the LEA in the evaluation of the results of its
Asbestos !dentification and Notification, Program.
TSCA Co pliance/Enforc ent A-89 Guidance ) nual 1984
-------
Appendix - 8nforee at Response Policy: Asbestos
W dCä ffancefznT & j & i jt j j 1 9U thTIance Manual 1984
-------
A;pendix Response Policy: Dioxin
Enf orcernent Response. Policy: Dioxin
ENFORCEMENT RESPONSE POLICY FOR
THE DIOXIN CONTAMINATED WASTE RULE
PART I INTRODUCTION
Definitions
The Violation . . . 1
Substances Regulated 3
Persons Regulated 4
Exemptions
PART II DETERMINING THE LEVEL OF ACTION
Final Actions
Notice of Noncompliance. . . 6
Civil Penalty . 6
Injunctive Action . 7
Criminal Sanctions . . . . . 8
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 10
Extent 11
Circumstances: Ranges. . . 11
Circumstances: Levels. . . 12
Multiple Penalties . . . . 13
Adjustment Factors . . . . 13
Detailed Explanation of the Policy
Nature
Extent
Circumstances
Multiple Penalties
Definition as One Day Violations
Appendix 1: Hypothetical Cases 19
8
9
.9
Based
Penalty
I I I I
PART IV APPENDICES
14
14
15
17
18
T5C& GoapL lance! antorc ent
A-91
Guidance ! nuai 1954
-------
Appendix Essfore .int P.espooae Policy: Dio .n
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—dloxin (TCDD) (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 TCDO. Additionally, the
regulation requires all companies Intending to dispose of TCDD
contaminated wastes to notify the EPA prior to disposal. The
information provided in the notification allows the Agency to
make a case—specific assessment f the risks Involved in the
proposed form of disposal. Tho 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
TCOD using a specified technique to test their wastes. Actual
disposal of the waste may be rogulated by promulgation of a rule
under ISCA or application of the Resource Conservation and
Recovery Act (RCRA).
This enforcement response policy provides guidai ce to the Regions
in enforcing the requirements of the regulation entitled “Storage
and Disposal of Waste I ater1al ; Prohibition of Disposal of Tetra—
chlorodibenzo—P-Dloxin’ hereinafter, Dioxin Rule). This regulation
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, civil administrative penalty actions, injunctions
and criminal actions for violations of this rule. Part III
of this document explains how to use the TSCA Civil Penalt ’
System, 45 Federal Register 59770 (September 10, 1980) to arrive
at an appropriate civTl administrative penalty, where that remedy
is utilized.
Definitions
The Violations
Violations of the regulation may be divided into the following
categories:
TSCA Cowpliance/Faforcanent Guidance ntx*1 1954
-------
Appendix Enforc t Eeapoa8e Policy: Dioxin
—2—
o Noncompliance with Prohibitions
- Violation, by Vertac or other parties, of the prohibition
against removal for disposal of Vertac’s pie—May 12,
1980, TCD0-contamin ted wastes; and
— Vertac’s failure to place its post—May 12, 19 0, TCDO
contaminated waste In PCB—approved 1andfills.. /
o Notification Violations
— Vertac’s failure to notify EPA one week prior to ship-
ment of TCDD—contaminated post—May 12, 1980, waste to
PCB—approved landfills;
- Failure of persons subject to the regulation to notify
EPA 50 days prior to removing TCOO wastes for disposal;
— Submitting inaccurate information In a TCDD—contaminated
waste disposal notification;
— Falsifying information in a TCOO.contamlnated 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. tf the information Is promptly
provided, no violation has occurred.); and
— Late notification.
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. ./
li 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.
Vertac has complied with the testing requirement.
TSC& Co plianceIEnforc eut Guidance Manual 1984
-------
Appendix forc ’ Ut Reaponse Policy: Mozin
—3.
Substances Regulated
Waste materie’ containing TCDD is defined by the rule as:
o Waste material resulting from the manufacture or processing
of 2,4,5—Trichlorophenol (2,4,5—TCP) or its pesticide
der1vatives or
o Wastes resulting from manufacturing processes using
equipment that was at some time used in the manufacture
of 2,4,5 .TCP or its pesticide derivatives. For example,
2,4—0 Is often manufactured on equipment previously
used to manufacture 2,4,5—TCP or its pesticide derivatives:
Wastes from this 2,4—0 manufacture may also contain
2,3,7,8—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 TCDD 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 WCRA covering TCDD contaminated wastes
become final, the TSCA regulation will be repealed.
Far further guidance concerning substances regulated by the rule,
consult the chart below.
Regulationof Dioxin Containing Substances
Substance Law Regulating
Waste from manufacturing of TSCA
2,4,5—TCP or its pesticide
den vati yes
Sin 1 is of bulk manufacturing TSCA
intermediates of 2,4 . -TCP
or its pesticide deniviatives
Residue on equipment used to TSCA
manufacture 2,4,5—TCP or its
pesticide derivatives
TSCA Compliance/&Lforconent A-94 Guid e ? nua1 1984
-------
2o ’ m Reepo se Policy: OLozio
-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 TSCA)
Residue in bulk storage container TSCA
with no pesticide label
Technical grade pesticide in the TSCA
process of repackaging or repro-
cessing
Residue on repackaging or TSCA
reprocessing equipment
Repackaged, reprocessed labeled FIFRA
pesticide ready for diitribution
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
RCRA 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 d1 posers, parsons who operate storage
for disposal facilitiesj/ and others for whom disposal is
either for commercial advantage or incidental to their business
activities.
.a/ Additionally, the rule names Vertac Chemical Company
(Vertac) specifically, requiring special treatment of that
company’s wastes. As a result, a list of potential
violations of the rule includes violations naming Vertac,
although this does not indicate any greater likelihood
of noncon 1 pllance on the part of Vertac than on the part
of any other company subject to requirements of the
ru 1 a.
TSC& Co p1tance( torc ent A-95 Guidncie lbuual 1984
14’1
-------
Appendix Enfori t R8pon e Policy: Dioxin
The Ayency 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—contamlflated wastes, the waste generator should be
charged with a notification violation.
Persons holding wastes defined under this regulation
as TCOD-contaminated wastes may test their wastes for TCOD
using the TCDO detection methodoTogy 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 TCDD. ”)
TSCA Co ip1ianceI&sforcenent A-96 Guidance I nua1 1984
-------
Append].x n2o ci mnt Isepoui., Policy: Dioxin
-0•
PART
I! 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 TCOO 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 noncompliance 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 inforiwation. 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.
Additionally, if a respondent falls to achieve compliance
during the time period specified in the notice of noncompliance,
a civil penalty is the appropriate response. Civil penalties
TSC& CoNp11anee/EnrOrces nt A-97 - u1dance a1 L 4
a
-------
Appendix Enforc nt Response Policy: Moxin
—7—
should be assessed according to the guidelines In Part 111
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
Litlgation (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 ISCA 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 11
remedies should be limited to those instances where, in the
judgment of the I egion, 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 ‘lot appropriate.
Injunctive action is appropriate in the following cases:
o To prevent a company or person from violating the
TSCA 6 regulation by moving or disposing of con-
taminated waste without notifying the Agency 60 days
in advance as required by the rule.
o To order a clean—up of Improperly disposed TCDO—
contaminated waste under the authority of RCRA
7OO3.
The most probable subject of an injunction under Section 17
of ISCA would be a person with a significant amount of 2,3,7,8-
TCUD—contamlnated 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
tne Department of Justice (DOJ) and may be referred to OOJ only
by the Associate Administrator (AA), Office of Legal and Enforcement
Councel (OLEC). or the A#s designee. (If necessary, however, the
e 1on 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
should be sent to OL.EC with a copy to the Compliance Monitoring
Staff which will review the technical evidence and inspection pro-
cedures used to support the case.
TSCA Coimpliance/Enforcseent —. A-98 Guidance !‘ nna1 1984
-------
Appendix oforc— t kipouse Policy: Mo 1n
-8.
For additional guidance see the following OLEC memoranda, ‘General
Operating Procedures for the Ci,i1 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 crlm$nal 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-
ru I I y .
A second factor to consider is the nature and seriousness of the
offense. As a matter of resource allocation, EPA will investigate
and refer only the most serious forms of environmental misconduct.
Of primary importance to this assessment is the extent of environ-
nental contamination or human health hazard that resulted from, or
was threatened by, the prohibited conduct. Also of Significance
is the impact, real or potential, on EPA’s regulatory functions.
Third, the compliance history of the subject(s) of a potential
criminal case is important. Criminal sanctions become more
appropriate as Incidents of noncompliance increase. While not
a prerequisite, a history of environmental noncompliance wiTT
often indicate the need for criminal sanctions to achieve
effective individual deterrence.
The Criminal Enforcement Division of the Office of l.egal 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.)
ilultiple Remedies
There may be Instances where a particular situation will present
facts that suggest that more than one final action should be taken.
The purpose of this Section is to outline when multiple remedies
are appropriate.
TSCL Co.pflance/Enforceiment id ce 1 nua1 1984
LI.’
-------
Appendix Enfor .TIt Paaponae Policy: Mo (n
—9-
Criminal Sanctions
Simultaneous civil and criminal enforcement proceedings are legally
permissible. United States v. kordel , 397 U.S. 1, 11 (1910), 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 ,simultan.eous proceedings provides
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 permissiblo, 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 yeneral, a notice of noncompliance should not be used in con-
junction with any other final remedy. Where a particular situation
presents several violations, same of which wauld 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
in fract ions.
Civil Administrative Penalties and Specific Enforcement
The criteria Outlined above already anticipate that civil penalties
and specific e,nfnrcement 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.
TSCA Co p1tancefEasforce&ent A-100 Guidsoce ) nua1 1984
-------
ADDendix
Enforemi nt e ionae Policy: Moxin
- lu
PART UI - ASSESSING AN ADMINISTRATIVE PENALTY
Suigmarvot’ tile Penalty PolicY
Calculation of the Gravity Based Penalty fGBP )
The GBP, a function of the nature, extent, and circumstances
of each violation, is based on the following matrix:
Circumstances (Probability
of Oamaqes)
S
Aj a first step in locating a specific violation on the
matrix, the nature of the violation must be classified. A
violation may be either chemical control, control-associated
data gathering, or hazard assessment in nature. No violations
of this regulation are hazard assessment violations.
Chemical control violations of this regulation include:
o Noncompliance with prohibitions violations :
- Violation, by Vertac or other parties, of the
prohibition against removal for disposal of Vertac’s
pre-May 12, 1980 TCDD—contamlnated wastes;
o harking violation :
- Vertac’s failure to post its Jacksonville facility as
required by the rule.
Extent
of Potential Damage
A
MAJOII
SIGNIFICANT
C
MINOR
High Range:
1
2
20,000
$17,000
13,000
S5,000
3,000
Mid Range;
4
15,000
10,000
10,000
6,000
1,500
1,000
Low Range:
6
5000
2.000
3,000
1,300
500
2OO
T5cA
A .-iO1
Guidance i nua1 19U4
-------
Appendix Enforc t Reepoose Policy: Dioxin
— 11 —
Control associated data ather1ng violations include:
o Notification violations :
- Failure of persons subject to the regulation to
notify EPA 60 days prior to removing TCDO—contaminated
wastes for disposal;
- Submitting inaccurate information in a TODD—
contaminated waste disposal notification; and
- Falsifying information in a TCDD—contamlnated 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
Regional enforcement personnel should determiife the extent of the
violation based on the amount of TCOD—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 Greeter 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
follows:
High Range. Noncompliance with prohibitions
(Levels 1 & 2)
Medium Range: Marking violations
(Levels 3 6 4)
A 55—gallon drum is filled to a 50—gallon capacity.
!i The amount of dry powder that will fill a 55 gallon drum
is approximately 100-600 pounds.
TSCL CcapliancefEnforceeent A—102 GUidence ) nus1 1984
-------
Appendix
12
The range of control associated data gathering violations
should be classified on tne circumstances axis as follows:
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.
Low Range: Minor notification violations.
(Levels 5 6 6)
Circumstances: Levels
Regional enforcement personnel should determine the level of
circumstances of the violation based on the following criteria;
See page 16 -
‘in the chart.
Waste from production
of 2,4,5,.TCP and its
pesticide derivatives
or mixture of both
types of wastes In un-
known proportions.
Waste from production
on equipment previously
used in the production
of 2,4,5—TCP or Its
pesticide derivatives.
17 for a more detailed discussion of the Information
kforc nt 2eei onse Policy: I oxin
High Range:
(Levels 1 & 2)
Medium Range:
(Levels 3 6 4)
Non-compliance
with prohibitions
1’
Level 1
Level 2
Marking
Violations
Level 3
Level 4
Not I fication
Violations
Falsification or
over 60 days late
ornonreporting
30-60 days late
Minor Omissions
— — — Level 3
Level S
L v 1_2
Ltvtl_4
Level 6
TSCA pUceI iforc. n t
A-103
Guidance 1 nuaL 1984
-------
Appendix Enforc nt lespoDee Policy: Dioxin
— 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 violation is repeated
if t occurs on separate days. For example, if a waste holder
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.
Adjustiitent Factors
The adjustment factors discussed in the TSCA Penalty Policy
pages 9-17 should be applied as appropriate to violations of
this regulation.
Detailed Explanation of the Policy
This portion of the policy explains the reasons for the specific
structure of the ICOD-contaminated waste civil penalty policy
and provides detailed instructions on Its use.
As noted previously, the gravity based penalty (GBP) is a
function of three factors: nature, extent, and circumstances.
The basis for classifying each of these factors appears below.
TSCL Qiesp1iancefb.forc ent A-i 04 Guidance ! nua1 1984
-------
Ajpendix Eiifore”tReeponee Policj: oxin
- 14 -
Nature
To determine the nature of a violation, the TSCA Civil Penalty
System defines three types of TSCA violations:
o Chemical control violations;
o Control-associated data gathering violations; and
o Hazard assessment violations.
Chemical Control Violations . Noncompliance with prohibitions
and marking requirements are chemical control violations.
Chemical control violations attempt to minimize the risk
presented by a toxic substance by placing constraints on how
the substance Is handled. This rule places constraints
on the handling of TCDO-contamlnated waste in the following
manner:
o Waste holders must comply with the Agency’s
restrictions concerning disposal; and
o Vertac must conply with the specific requirements
set out in this rule (See p. 2-3 for complete
oescr lpt Ion)
Violations of these requirements are thus chemical control
violations by nature.
Control-Associated Data Gathering Violations . The notification
and testing requirements develop information necessary to allow
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 ax1 of the 08P 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.
TSCA Co.p1iance/bforc ent Guidance 1 nua1 1984
-------
Appendix Xnforc ut e.ponae Policy: Dloiin
— 15 —
Three weight/volume classes have been chosen to correspond to
the three extent categories of the TSCA 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—s 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
TCDD and thus a larger amount of TCOO. The Agency considers
this amount extremely serious, as indicated by the promulgation
of this rule, which ii 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 categories.
In cases where amounts cannot be determined, the Major extent
category shall apply.
Circumstances
The circumstances 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 TCDO 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-containinated 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:
TSCL pli nce/ sforce ent — A—lU 6 Guidance ) nual 1984
-------
Aypendix forc n t *e.!lolsse Policçy; Dioxin
- 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 or
environmental harm from TCDD—contamlnated 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 ranye .
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 TCOO-
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 kotification.”
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
inpaired by lack of notification, violations of this
type are classified as high range on the circumstances
axis.
o Late notification of more than 30 but less than 60
days is placed in the medium range .
o Minor omissions of Information on the notification
and notification less than 30days 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 vatives.
o Wastes from the production of other pesticides
(such as 2,4-0) if they are produced on equipment
previously used to produce 2.4,5. .TCP and its pesticide
derivatives.
TSC& Co p1iancef iforc ent Guidance i nua1 1954
-------
Appendix Euforc wnt Response Policy: Dioxin
17 —
wastes generated In the production of pesticides on contaminated
equipment are less contaminated than wastes from production
of 2,4,5-TCP or its pesticide derivatives. Therefore, a
lower level on the circumstances axis is assigned to violations
involving wastes produced on contaminated equipment. The
following background regarding the formation of TCDD in the
production of TCP and its pesticide derivatives-will explain
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 east
manufacturers attempt- to remove the substance from their product.
As a result, wastes from the production of 2,4,5—TCP contain
greater amounts of TCDO than the final product, depending on
the success of the process used to remove the contaminant.
The 2,4,S-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 degree of contamination depends on how much
TCDD was removed from the original TCP.
In some cases, pesticide producers manufacture 2,4.0 immedIately
after making 2,4,5—TCP. Residues of TCDD—contamlnated 2,4,5-TCP
left on the equipment cause the contamination of the 2,4—D
with TCDD. However, the level of contamination is lower
than that found In 2,4,5-TCP and its pesticide derivatives.
Additionally, with continued use of the equipment, the
concentration of tCDO 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. If 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.
o The violation is repeated.
TSCA Coepliance/Reforcseent A-108 Guidance nua1 1984
-------
Appendix EnXorc nt Reapoose Policy: Moxin
- 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 v oIation,
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.
oNotification Violations
The regulation requires any person who wishes to dispose
f 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 notificati n
violation nay occur. However, this violation is repeated if
disposal occurs again.
Two disposals that occur in one day constitute one violation.
Two olsposals that occur on two days constitute separate
violations, whether they take place on consecutive days or
whether they are separated by weeks or months. The extent of
the violations Is determined by the amount disposed of an 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 Marlcing Violation
Under established Agency policy all marking violations
are considered one-day violations. Therefore posting the
Vertac facility will be considered a one—day violation.
TSCA Co pl1ancef storceaent A-109 Guidance J nua1 1984
-------
Appendix Eisforc . nt lesponee Policy: Diozin
-, 19 -
Appendix 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—0
wastes produced on equipment used previously to manufacture
the pesticide 2,4,5-TCP. The shipments, each consisting of
250 drums, took place over 7 days.
Action
Region 1 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
penalty of S91,000.
Explanation
Using the one day equals one violation criterion, Region 1
determined that 7 violations had occurred. Regional enforcement
personnel used t’ie 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 of violation, failure to notify, placed the
violation in tne 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 fl3.000.
Seven violations, multiplied by $13,000 produced the total
penalty, $91 .000.
HYPOTHETICAL 2
Case
A company old not notify the Agency before disposing of 600 arums
of 2.4,b—T waste and 300 drums of 2,4-0 waste.
Act 1 on
Regional enforcement personnel charged the company with failing
to notify the Agency, assessing a total penalty of $38,000.
TSCA Comp1iance/En.forc ent A-i] o Guidance 1 nua1 1984
-------
Appendix Enfor,..-’— t Reepaasae Policy: Mozln
- 20
Expl 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 1, 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 manufacture 2,4—0
on-the same equipment. Before beginnIng 2,4-0 manufacture the
comany attempts to clean the equipment by rinsing it with water
into the city sewer. The company did not notify the Agency of the
disposal because it argued that the level of TCDO in the rinsate
was not detectable, even though the company did not test either
the rinsate or the residue on the equipment.
Action
CMS targetted the company as part of Its routine compliance
monitoring program. The inspection uncovered the violation
and a civil penalty of $17,000 was assessed.
Explanation
The company is in violation of the rule because ,t did not notify
the Assistant Administrator of the disposal, or quaillfy 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 yallons. Therefore, extent of the violation
is °siyn1f1cant . The waste in question resulted from the manufac-
ture of 2,4,5—T. so the circumstance of the violation is Level 1.
According to the matrix the appropriate Clvi 1 penalty $17,000.
TSCA Co pliance/&iforc nt - Goidance Ibnual 1984
-------
Appendix Rnforce nt Response Policy: 1*oxln
TSCA Goep llance/kforcement £412 - Guidance P nus1 1984
-------
Appendix
ii 1t, Policy: PCB
!ntzcducdon
Uadcgroimd
On March 10. 1980. the Agency Issued
a TSCA Clvii Penalty Policy
memorandum. That document
Implements a system for determining
penalties In administrative actions
brought pursuant to Suction ie of the
Toxic Substance Control Act (TSCAJ.
Under that system, penalties are
determined In Iwo stagem (1)
Determination of a “gravfty based
penalty” (GBP), end (2) adJustments to
the gravity based penalty.
To determine the gravity based
penalty, the following factors affecting a
violation’s gravity are consideredi
• The “nature” of tbo.vlclatliw.
• The “estent of envfronmental baiw that
could result from a pen violation. and
• The “clroumstancs&’ of the violation.
Thàe factor, are Incorporated on a
maetx which allows determination of
the appropriate gravity based penalty.
Once the gravity based penalty has
been determined, upward or downward
adjuetorents to the penalty amount are
made In consideration of these other
factors:
• Culpability.
• History of ou vtoI i ,
• Abliftyto pay.
• Ability to continue Is ti ”’ ” sad
• Suth other wafter, as julUse way
The TSCA Clvii Penalty Policy system
provides a framework for the
development of Individual penalty
guidances for each rule promulgated
under TSCA. This document sets forth
Agency policy ortho useof the GBP
Matrix to aseeei penalties for opecific
violations of the regulations regarding
polychlozlnated biphenyla (Pd.). These
regulations appear at 43 FR 7180 (Feb.
17,1978) and 44 FR 31514 (May 31,1979).
The document also will explain where
multiple violations should be charged,
end how penaltie, should be determined
for such violations.
This policy is being Issued as an
interim gt* 4 ’i . for the determination
of penalties forvioladomsof the Pd
regulations. The Agency will review its
experience with this policy before
Issuing a final penalty policy for the Pd
rule. The final policy will also address
any spedal considerations which the
Agency deddee should be used to apply
the adjustment factors (e.g., removing
benefits &,om non-compliance.)
A summary of the policy appears
immediately below the applicability
section. That 5.mrm y Is followed by a
detailed explanation of the policy.
Applicability
This policy Is Immediately applicable
and should be used to h nh.te
penalties for all a 0 ” tretIve actions
concerning Fda Instituted after the
date of the policy, regardless of the date
of violation. Pr’ding cases should be
reviewed to determine whether the
pnalty calculated under this policy Is
lower than the penalty In the civil
complaint. If this policy yields a lower
penalty, as dmaiit to the complaint
should be made to substitute the lower
penalty. This policy should not be used
to ratio penalties In existing actions. No
case should be settled faran amount
higher than the penalty which this policy
would yield.
Summery of the Policy
The gravity based penalty (dP I,
based on the nature, extent, and
cfrcumstanaes of the violation, Is found
from the following matitic
EuaS pc —
A
u
3
-
C
00w
“— - .-- - t th
i
2
2
001000
*000
11010
siren
‘3.000
11000
wore
3.000
1 . 300
ir
4
. 5
I
10.000
1000
3.000
1010
3a00
1.300
1.000
en
000
t. ir -
Since the purpose of the Pd
regulation Is to prevent additional PCBs
hem entering the environment, all
violation, of It are chemical control
violations by nature. Thus, the nature Is
the same for all violations. To use the
GBP matrix to determine a penalty for a
PCB violation. It Is necessary to
determine the extent and circumstances
of each violation.
The extent Is determined by the
amount and concentration of the PCB
material Involved. The total weIght of
PCB material should be ascertained for
each violation of the rule. That weight
should then be reduced. depending on
the concentration, as follows:
TSC& Compliance! Entorcenent
A—i 13
1 uidance pI n1pal j954
-------
Appendix
P n*lty Policy: PCB
Tablet!
Cancentrintlon Reductions
(1)50-400 ppm-.70% reduction.
(2)8004900 ppee—8on reduction.
(3) 10,000.10.900 ppee—20% reduction.
(4) over 101000 ppm—en reduction.
Exceptiow This reduction step doe.
not apply In the following
olrcumstance.
(I) Violations of 40 R 78110(d) (road
oiling. coating. duet ccntrol)
- (II) Whore the violation conalota of falling
to tact to qualify for en authotiaoUo or
(II I) For solids. whore the unit of
measurement Is other thea the actual wst#t.
Extant categories.’ The total weight
figure.. reduced by the concentration. if
applicable, are uaed to determine extent,
an follovvo
Table It!
(A) Majot .-6000 kg. on mare.
(B) Stgniflcant—1OCO kg. more, but lees
than 6000 kg.
(C Minor—Less than 1000 kg.
Alternative measurea If weight in not
available, une (hone alternative
meaeuren
Table IV
(A) Majoa
Liquid
(a)llCagnlln’ .uarmona. or
(b) a contsiniemted area of 790 square feet
or mere, or
(c) 300 or mere large capacitors.
Non-liquid
(a) 100 or more flfty.flve gallon drum.
containing cont ln tad soil, rage. dobnia or
email capacitorn or
(b) 28 or more drained transformers, or 100
or mere empty drum. which onco contained
PCB fluid, or any other PCE nolida having a
volume of 790 cubIc feet or mono.
(B) Sigrdf1can
Liquids
(a)290 gaflono or more but lose than 1100
gallons. or
(b) A convthnlnnted area of 150 square feet
or greater, but lena than 750 square feet. or
(C) 60 large capacitors or more, but Less
then 300 large capacitozu.
Non.Iiquids
(a) 20 or mo le, but less than 100 lUty.Rve
gallon drums containing contaminated soil.
rags, debris or small capacitors.
(b) 5 or more, but lena than 25. draIned
trenafonnero, or more than bui less than
i empty drum, which once contained
fluids, or any other solid having a volume of
150 or more, but less than 750 cubIc feeL
(C) Minor
(a)Lescthaa g alkms,a,
(b) A eontamia ted area of lass than 150
square feeL
Ic) Las. than 00 large apmci’om .
Nae-llquiá
(a) Lena than 50 fifty-five gallon dorms
containing sautemlietad saiL r . dshnls or
smell ospacitorn or
(b) Lass than 5 drained tisnoforsiem. 20
fifty-five gallon dnuee mhlthprevleedy
contained.— fluids, any other P solid
a volume of eggerstimataty 160 anton
Spills Into ivotei food orfee Any
P dispocal width reesita In
oonvam1n t1cn of fac. or geound
uater, or food or feeds Is always maIci
In extant.
Cfrvnmntancco fPnsbAbliityfoa”Donroge)
To determine which level on the
aircueratiancee aIde to use, classify oath
violietion of the regulation Intoons of
thoco aight czitegontan of violadoan
(1)
(3) fitonaga
( Pnocaulng
(8) Dlstebudos
(‘Jul.
(8)flex e dko sp i ng
After claaalf Ing the violations.
detcamino (ha level on the
drcumatancse axis from the following
chart
Table V
H hre
Ls;thwa
(2) Dlotilbutlen.
(3)j . pa .,u use.
Modlum re
Level thr.or
) Mater otorags v4nI
(2) M Ajor racoidheepleg violation., -
dupacal facilities.
(3) Major mashing vMs
L4v 0 1/awr
(1) Melon re keph-tios. ma led
otonago facilities.
Low m. er
Level flier
(1) Fethue to date PCB Items plaacd In
storage.
(2) Miner otorege violations
(3)Minonmas gviolatisss.
Le sto
(1) Mima remadheuping violmions
(2) FaIlure to uas “Pis PQs” lable an
Pl.ndlng the GBPpenal . The extent
and cfreumatances. as determined
above, will determine a penalty amount
on the CDP Matrix. Table I. This figure
ohould be entered on line one (1) of the
TSC GompliancefEntorcanuent
A—11 .4
Guidance Manual 1984
-------
AoPendix
Pemalty Policy: PCBa
CMI Penalty Ascoacesout Workohent,
(hereinafter. “workohoot”) attachod an
Appendix A. The other pomity factors,
such as aiIpsbllity ability to pay. and
others, uheuld be applied In the
desalbed In the TSCA Clvii Penalty
Policy.
Multiple Violations
Meee multiple violations against a
single violator In any of the following
(1) The ,felodoee fall Into mere then one
violation @ak y
(2) The violations are In subetunitnlly
different locations or
(3) There Ia evidence that the violation baa
been yimnittte on r.pee*.d O nl or baa
caudmiod for more than one day.
If multiple violations are charged
beaauoe of evidence of repeated or
continuing conditions, the penalty will
nâumally be calculated using tho
proportional penalty calculation. which
appanie In Teblo V I. below. l uwu’uvr ,
the Agency can exercise Its dkmiudon
efther to charge for only one dey, or to
charge one straight pot day or per
violation basic (GBP X number of days
or violations). depending on factors ouch
ae substantial actual harm, tho unusual
nature of risk presonted.orotharunique
d nces.
Table Vi
Step 1: PIed the total amount of P J
material. Involved. If morn then two times
the ma cr mdont (muse thou 10000
kg.) go to stepS. If lees the. tw o these the
— ‘ mo In the msjee’entsut
category (less than 10.000 kg.). usa this
amount to get a penalty from tho GB? Mania.
Divide the penalty by tim cuahar of dayo’
and oncean line one of the
(Appendix A).
Step Divide the amount from step ma by
the minimum amount In the mater ontcnl
category ( 5000kg). (Round fractious to one
decimal place.)
Stop 3: Multiply the amount form step two
by the dollar amount born the G B ? Merthi
male, orient uategory. This Is the total GB?
Stsp4e Divide the amount from Itap 3 by
the number of days or violation. Involved.
Enter this daily amount on line one of the
werkoheet (Appendix A).
Eipl i .nftun of Policy
Nature
Since the purpose of the PGB
regulation Is to prevent further
Introduction of P o Into the
environment, this regulation Is a
ii dmuId be noed that If the u,e*mal
penalty cslculsttoa I. baeed on repented vIoI.l un,
thee the oniculailon at lines of the woikob.st
shculd . . .j the number of vtolafto . rather
then the sambai of days.
chmnf n1 control regulation, as defined
by the TBCA Civil Penalty Policy.
Accordingly. most violations of this
regulation are chemical control
violations. The only exception would be
violations of the reomdkeephig
requIrements, which are conItul .
associated data.gatherlng to nature. The
Agency has taken this Into S000umt I D
designing a specific policy f.i ._ —
penalties. The definitions of the “extenr
and “cü etencce” categories below
reflect the nature of thee, violations.
Because the PCB regulations are
chemical control and control-assocIated
data’gatherthg In nature, the greater the
amount of PCB cont fnh g material
(harelnaftor, “PGB material”) involved in
a particular violation, the more likely It
Is that berm will result front the
violatioaofthoPGBru l es .Po,th ls
reason, the amount of -_ material
Involved In a particular Incident will
determine whether the ma)o
. Ig’If tiant , or minor extent category
should be used In deriving a penalty
front the GB? Matr& Since the
concentration of the PCB material
involved In an Incident will also affect
the potential for harm, this factor must
ala. be considered In deternilith g which
extent category Is applicable to a
particular violation.
Amount ofMotoiioi lnvo!vid
The moot obvious measure of the
emount af B material Involved In a
violation Is weight. Therefore, the
weight of the P material Involved In a
violation Ia the primary determinant of
the xteut categozyto bo coed to find
the GB?. To be consistent with the three
cutout catogoiles of the GBP Matrix (I.e.
malor. significant. and minor), three
weight classes have boon chosen to
define the extent of a PCB violation.
Thea. ciasoco are an foilowus
(A) Melon 5000 idlogrume or more.
(B) SIguIIk. . t Between 1051) and 5000
kilograms.
(C) Minor Lee. than 1000 kilograms.
The minor category weight was
defined as less then 1000 kilo ms
because this Is slightly lose than the
amount of PCBo In an average
tranaformar. SInce a malor portion of the
PCBs In existence are In transformers, it
Is essential that thece Items be disposed
of properly. Accordingly, the Agency
defined the minor category as an
amount of PCBa ieee than the contents
of an average transformer, so that moat
transformers would fall In the sIgnificant
category. The Agency believes this will
encourage the proper dIsposal of
transformers.
TSCL Compliance/Enforcement
A .-115
Guidance Manual 1984
-------
Appendix
Penalty Policy: PCB
The major category weight was
selected at 50 kg. kilograms. This is
slightly less than the contents of five
average size transformers, and
corresponds to the fact that the penalty
for a major Improper disposal Is five
times larger than that for a minor
improper disposal: that Is. $25000 versus
35.000. (As will be seen below, improper
disposal is always level one on the
circumstances axis.) The significant
category is defined as 1.000 kg. or
greater. but less than 5,000 kg. This
definition is a direct consequence of the
definition of the other two categories.
Units Other Than Weight
The Agency realizes that there will be
situations where the number of
kilo rams of PCB volved Innet easily
determined. in litany cases. other units
of measurement (e.g. gallons. cubIc feet.
etc.) may be more easily obtained.
Additionally, some violations will
involve non-liquid . material. usually
as a result of liquid PCBe being spilled
into or cleaned up by absorbent solid
materials. Such solids will often weigh
considerably more than liquid PCBo. If
the penalty for such solids were based
on the weight categories outlined above.
the result, in the Agency’s opinion.
would be inequitable.
For these reaoons. the Agency has
decided to define each of the three
extent categories by several different
units of measurement. Although these
units of measurement are not
necessarily equal, it Is the Agency’,
opinion that they are generally
comparable.
(A) Mo,or.
Liquid
(a) 1100 gallons or mote, or
(bJ A contaminsted area of 750 square feet
or more. Or
(c) 300 or more large capacitors
Non iiquid
(a) 100 or more fifty-five gallon drums
containing contaminated soil, rags, debris or
small capacitors, or
(b) 25cr more drained transformers, or 100
or more empty fifty-five gallon drums which
once contained PCB fluid, or any other PCB
solid having a volume of 750 cubic feet or
more.
(B) S,gnaficanL’
Liquids
(a) gallons or more, but less than 1.100
gallons, or
(b) A contaminated ores of 150 equere feet
or greater. but lea. than 750 square feet. or
(c) 60 large capacitors or more, but lea.
than 300 large capacitors.
Non-h quad.
(a) 20 or more but less than 1 (10. fifty-five
gallon drums contaiiuzig contaminated soil.
rage. debris or small capacitors.
(bI 5 or more, but lees than 25 dalned
transformerm or more than 20, but lees than
100. empty fifty-five gallon drum. which once
contained PCB fluids. or say oilier solid
having a volume of 150, but less then 750.
cubic feet.
(C) Minor?
Liquid.
Lass than 220 gsllons. or
(b) A contaminated area of lass thea 150
equaru foot. or
(c) Laos than 60 large capacitors.
Noj’s-! lquids
(a) Lass than 20 fifty-five gallon drums
contnlnlag contaminated soil. rage, debate or
small capacitors or
(b) Lens than 5 drainsd trtin.foi’mero, 20
fifty-five gallon drums which previously
containod PCB’s fluids. or any other PCB
solid having a volume of approximately 150
cubic feet.
The figures above are based on the
assumption that the density of PC3
fluids is 10 lbs. per gallon. which Is the
average density of high concentration
PCB’s. If the actual density of the fluid
involved Is known, then the actual
density should be used to convert the
volume of fluids Involved Into kilograms.
The figure for capacitors is based on an
average of 36 pounds of fluid in the most
popular models of isap capacitors.
Because It is often difficult to
dotermine the amount of PCB’s In a
solid, the Agency did not attempt t
define the extent categories for solids by
trying to estimate how much solid PCB
material had the same amount of PCB’s
as the average PCB transformer. Instead.
the Agency tried to maintain the same
economic incentives for solids as for
liquids. Thus. the decision to make 20
drums the cutoff point for the upper
limit of the minor category is based on
an estimate that the coat of disposing of
twenty 55 gallon drums, either empty or
containing PCB solids. Is approximately
the same as the cost of Incinerating the
liquid in one transformer.
In certain instances, the use of the
different units of measurement
discussed above would result in a
particular violation falling into more
than one category. For example, fluid
PCB material having a density less than
that of average high concentration PCB’s
may result in 250 gallons weighing as
little as 900 kilograms. Using the gallon
measurements, this would be a
significant violutlom but using the
kilogram measurement, this would be a
minor violation. In such Instances, the
penalty should be based on the category
determined by the actual weight. in
kilograms. of the material Involved, if
TSCA Compliance/Enforcement
A-116
Guidance Planiejil 1984
-------
Appendix
n*1 ty Policy: PCI.
this information is known. If the weight
is not known, the gallon measure should
be used.
Except /One to Extent Category
Spills into water. Whire any Improper
disposal recults In a contamination of
surface or ground water. the extent will
always be.consldered major. Since It Is
virtually impossible to remove all PCB’Q
from surface or ground water once a
spill occurs, environmental harm Is
almost acaured. Because of this clean.up
problem. such a. spill 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.
Sp,lls into food and feed Where any
improper diopoocl resulto directly In
coutsm1n tIon of food or feed, the
extent Is always major. If such spills are
not quickly detected, they will result in
direct human expocure. Even If the
problem is detected before humans eat
the contaminated food. It Is likely that
the coot of finding and destroying the
contaminated products will be high.
Thus, the Agency believes such
incidents should always be considered
major In extent.
Concenbvit /on Adjustments
The Agency rocograres that the
concentration of the PCI materials is a
relevant factor to consider in
detenninlng the amount of damage done
from a violation of this regulation.
Obviously, a spill of high concentration
PCB’s puts more contaminants Into the
environment than a spa11 of low
concentration PCI’s. Nonetheless,
because PCI’s can be toxic at vei i low
concentrations, a spill of a large amount
of low concentration PCB matorlal could
cause widespread harm. Thus. a system
which would reqwre the total weight of
PCB material involved to be reduced in
direct proportion to the concentration of
that material would severely undermine
the regulatory scheme.
The problem is illustrated by the
following hypothetical: Someone spills
2.000,000 lbs. (or 909.090 kgs.) of fluid
containing PCBs at a concentration of
1.000 parts per million (ppm). If, in
calculating the penalty, the total weight
of the fluid was reduced by the direct
proportion of the concentration, lesa
than 1.000 kilograms of PCBa would be
involved for the purpose of calculating a
penalty. As a result, this Incident would
be considered minor In extant, and the
violator would not be fined more than
38.000. A penalty as small as this would
not reflect the potential for harm to the
environment and would create an
enormous economic incentive for people
to Improperly dispose of PCI. at low
concenirntione, contrary to the Intent of
the rogulationo.
To account for the effect of the
concentration of PCI liquids In
determining the extent eta violation.
and at the same lime establish a system
which does not severely hinder the
agency’o program, the foIIowin system
has bean doveloped. To determine the
extant of probable & magn for a
particular violation, the total amount of
PCI material, Involved In en Incident
should bo reduced by tho poresutagea
which appear beiowi
(1) 50 -450 ppm-Thu reduction.
(2) 500 OC0 ppm-OWl rediacrica.
(3) 1O.0004a 550 ppm—50% reduction.
(4) soucco ppm or abovo—ao r.dpctioa.
Thus, In the hypothetical quoted
above, where L090 1 000 lbs. of PCI fluid
at a con ontrnUon of 1.000 ppm was
disposed of, the total amount would be
reducsd by 80%. Thus. thamount if
flulda fur dotormln1n the extent of the
probable harm irould b.i.000M0 lbs.,or
48 .549 kilograma.
Exceptiono to Concentmtlon Adjustment
Calculation
These cunc ”t,aUons adjustment
factoro are not used In the following
drcumotancem
Waste oil Th. use of weateoli that
contains detectable WuI u tratlons of
l’CBe as a sealant, coating, or dust
control agent. which Is prohibited by 40
CFR 78L10(d), Is one situation whore the
concentration reduction would not
apply. The agency chose to prohibit
these uaeo whenever any detectable
level of PCDo ware present because any
such us a of PCBa Is likely to result In
widespread environmental and health
damage. Thus, allowing any reduction of
the amount of PCBa used by virtue of
low concentration would be contrary to
the regulatory scheme.
Fm/wv to tooL ma concentration
reduction also does not apply where the
violation is the failure to test liquid
required to be testeth forexampls. the
contents of a heat transfer system that
has contained PCI ., 40 CPR 781.31(d)(1).
In such cases. the risk created by the
violation Is that the fluid will be high
concentration PCI ., and that this
material will continua In use. Thu.. the
Agency feels that these persons should
dot obtain a fortuitous benefit when the
liquid I . finally tested and found to be of
some lower concentration.
Alternative measuxe for solids.
FInally, the concentration adjustment
should not be used when the PCI
material Is measured by one of the
TSCL Compliance! Enforcement
A—117
Guidance 1984
-------
Appendix
Penalty Policy: PCIa
alternative measures for solids which
appear in Table IV. These alternative
measures were chosen to maintain
economic Incentives for proper disposaL
The cost of disposal of such materlalu Is
not dependent on the concentration of
the PCB In them. Accordingly, to allow
adjusIments for lower concentration
might remove the eca” 4 ’ incentives to
dispose of these materials properly.
Cl i v urnat wives
The other variable for deterinlithig a
penalty from the GBP Matrix is the
circumstances of the violation. 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
da ninge
ExplanaioaoFCatqorfes
Because there are many ways the PCB
regulation can be violated. cad becavea
each of these violations could occar In
so many different e vtroumental
contexts, It Is virtually Impossible to
assess In advance all the possible
factors that logically might have some
impact on the probability of damages for
a particular PCB violation. It would be
even more difficult to try to determine.
in advance, how all of thesa factors
would intet ct.In any particular
situation. For this reason, the Agency
believes It is av opriate to group the
different typec of . = violatlous. ena
the probability for harm resulting from
each type of violation. and then asolge
that type of violation to one of the levels
on the circumstances axis of the GBP
Matrix.
For the puroocoo of aesoosing the
probability of damages from a particular
type of PCB violation. all the possible
violations of the PCB rule can be
grouped into eight categories, as follows:
(1) DIsposal
(2) Mark Ing
(3) Storage
(4) ManufacturIng
(5) Processing
(6) DIstributing
(7) Use
(8) Recorrikeoping
Immediately below is a table assigning,
the different categories of PCB
violation. to the levels of probability of
damages on the CBP Matrix. After the
table, the reesoft for the assignment of
each category of violation to a level of
probability of damages is explained.
High Range
Level one.
(1) Improper disposal of PCBs. This -
includes operating disposal facilities at
conditions which di. agt meet the
requirements of the regulation.. It also
Includes any uncontrolled discharge of PCBe.
e.g.. Leakage frame stored container.
(2) Manufactorlag of P s without an
exemption or In violation of any condition of
an riemption.
Lovu! t
• (1) PseosesIng . — without en exemption
or In violation of any condition of an
exemption.
(2) DIstribution Ii commerce of PCBs
without exemption c iii violation of any
condition of an exemption.
(3) Improper use of . or using PCBs In
violation of soy condition of authorization.
For example, this Includes removing a coil
from a transformer for servicing, and the
failuts to teat a host transfer system that
once contained PCBs,
Medium Rcr#
Lo threw
(1) Mo Ist storage violation.. A major
storage violation meson a situatica where a
sit’Iflo .n portion of spilled material would
net be contaIned. tamplc, of such situctionc
are stags In ozone wlthno amblag. non .
continuous or ss flooring, or imo.aiod floor
th ol ie.Storsgeof 1naauesw ith
pomssbleflendng,orcivbiogwculdaisobe
a major storage violation.
(2) No records or major record heaping
_vIolaftees at disposal facilitIes. hw imril high
eMofenny holler, and l ndfill. Major record
keeping violation. would Include the failure
to keep data on Incinerator operating
parameters.
(33 Major marIdng r1oIatione. A major
marking violatioa Is a situation where there
is no Indication to “ ‘aoae who Is unfamiliar
with the,altuatfon that P a ate present.
L.veJIb. ‘ —
(1) No rs,.,..da or major recordkeoplng
violations at facilities that use or store PCB.
Mojorroeardkeeplng violations would
include th, absence of data on PCB
troasfOssesre, and the abeoncs of records on
any trensfor of P . from the site.
Low Rang.
Lets/firer
(1) FaIlure to date PCS 11cm. placed In
storage.
(2) MInor storage violations. Examples of
these are small cracks In walls, no roof, or
small macha in otherwise Impervious floor or
curbIng,
(3) MIner marking violations. These sic
situations in which all the requIrements of the
rule have not been followed, but there are
sufficient Indications to notify someone
unfamilar with the situation that PC !. are
present and enable them to Identify PC!
Items. An example would be the failure to
mark a trunsport vehicle containing PC!
items which are themselves marked.
Level n v
(1) Minor recosdkeeplng violation..
Examples of such violations are small errors
In the numbers of Large capacitors, small
errors In number of containers, or the
omission of the date of transfer on PCB.
(2) FaIlure to label small capacitors.
fluorescent tight ballasts, or large low voltage
capacitors with s “no PCEs label as required
by 40 CFR 7Si.m(g).
TSCL Coiapliaácà [ Knlorcemient
A—U8
Guidance Ptoàuài. 1984
-------
Appendix
Pen*lty Policy: P B.
Explanatioii for Msignment of Lavola of
Probability of Demote
Level ones This level contains the Iwo
violations which the Agenq considers
most serious. manufacturing and
improper dlepoeal. M nuactnslng to
extremely serious becauoo it atoe
new PCBs. In so doing, it enlarges the
risk of environmental and human
exposure, placeo additional burdeno on
disposal facilities, sad Inoronoos the
cost of protecting the public km thin
chemical. Improper disposal oroatca
grave risko of berm to the environment
or human hoalth. because it esourco the
entry of more a Into the
environment This Is contrary to tho
main thrust of the PCD reçslation. which
was to prevent further con’ ’”et1on of
the environment with PC& . Thea, those
violations ago considered to ha the moot
serious, and provide the standard
against which the other P violations
are monourod. -
Level two. The violations which wem
placed in level two on the GSF MatrU
wem those which the Agoncy
considered to ho the moot likely to roonit
in improper disposal. For example.
proceeslng or distribution of PCB
without an exemption o In violation of
a condition of an exemption Is likely to
result in spillage, Leakage. volatilloadan
or other uncontrolled discharges of
PCBe. Similarly, Improper use of a
wilL at worst result In P
contamination of a wide ru of
products (as when they are ucad in a
leaking hydraulic ayetcni), or at beet will
result in an increased risk of improper
disposal.
Level three. This level includno major
storage violatlono. major rocordkeaplng
violations at diapocal focilitiso, and
major marking violations. The Agency
regards storage violations. such or the
lack of a floor, to be somewhat ieee
dangerous than the risk incurred bywm.
processing, or distribution of PCBe
without an exemption. The latteraro
very likely to re ult In improper
disposal. However, storage violations
will only ammo damage whore there Is
an accident, or a leak. which probably
would be unintentional. Nonetheless. if
such events occurred, the possibility for
widespread contamination would be
highS
The tact of records, or inadequate
records, at disposal facilities similarly
does not present as severe a risk of
improper disposal as processing of PCEa
without an exemption. However, such a
violation severely reduces the Agency’s
ability to enforce the requirements of the
regulation as they pertain to the
operators of such facilities. Accordingly.
the absence of adequate records at
these facilitioc removes a significant
incentive for compliance. thus
substantially incresoing the rInk of
improper diopooaL
Major marking violationo have been
defined so those situations where
someone investlgcitlng a situation would
not know that P a were present or
would be unable to tell which Items
contained PCllo. Such a situation creates
a high risk of improper dispocal.
However. if tho tither portions of the
PCB regulatL a are observed, recordø
would be kept on Pd materials.
thereby creating at least acme chance
that Improper disposal would not occur.
For this reason. thin violation Is dot
concidered so risky as improper use-or
diotribuffon. Howo or, where major
marhing íü associated with other
violations, ouch so riacordkeeplng. the
Incroacod nob will be reflected by an
additional penalty.
Level four. Level four includes major
recordkocipin j viol tiona at facilities
thatuaoorotcroPdo. Major
recordkacplng violations at facilities
that use or store PC& present a
somewhat louer risk than major
recsrdktaeplng violations at,dlsposal
fnimiltica Since those facilities do not
themselves diopoca of the PC& , there is
a greeter c&mao that the PCllo will be
Idantiflad on ouch before they are
actually diopoced oL However the fact’
that these violations substantially
the Agency’s ability to trace the
movement of Pd’s means that they
make Improper disposal more likely. For
this reason, the Agency considet this
violation to be nlgnfficant.
Level f /va, 1uclud d In this category
are the failure to date Pd Items placed
in storage. minor storage violations, and
minor marking violations. The failure to
date Pd items placed in storage simply
m oans that the items may be stored
longer than to presently permitted by the
rule. Mourning those items are
otherwise treated In accordance with
the rule, the lengthy storage will simply
inaeaoo. by a small amount, the risk of
an accidental spill. Similarly, minor
marking violations are. by definition.
violations where there Is sufficient
marking to alert someone investigating
the situation that there are PCBs
present Thus. the likely ill effect of such
violations Is simply that, in emergency
situations, the length of time required to
discover the presence of PCBs might be
increased somewhat, This ehould not
significantly increase the amount of
damage done. Finally, minor storage
violations are those in which any spilled
matenal will be substantially contained.
Thus, the amount of damage that could
TSCLCompliancefEnfo cái
A—119
Guidance Manual 1984
-------
Appendix
Penalty Policy: Pd.
Example
An inspection of X Company reveals
that the following items are all stored
for disposal in a room with an earthen
floor:
1) eras 100.000 ppsi
1W Soa—io.asa .,
kg.
2 trsaksme,i
3 capacttws
All three capacitors have earns plates
that show that they contein high
concentration . and have a voltm
of 30 gallons each. sito tuimer
contains gallons and In tested at
io pp traaskimar
contains 300 g.IL. .. , end I. tutu ! at
Pd.. It Is leaking, and X ’s guiursi
foreman says that about 2ogalIon. have
leiket The eqid ’snt Is utarked, and X
has wln.ila on this eqelpent. Assume
the density of ill fluids Is 10 lbs/gaL
Slap 1 Detsimias the aa4.I.s of
Thee. era
Beonue thue are twqcaL.MIi..s
eskadatlon is nned J for each.
-
Slap 3: Flnd..tbc “ols tances” level. The
I a Io ul one. for disposaL
Step 3: FInd the total t involved.
Total diapeech gnOme.
20 gal. 1 10 ibo • 200 ibo.
gal.
200 lb.. * • 90 kg.
Step 4: hke ca alien edluatmsnt.
No redaction for PC s over 100.000
ppm. which Is what was ‘I 1 .d .
Stop & Not applicable.
Stop St Determine i U category.
00 kg. — Mince
Step ?t Find penalty from matrix.
Level one + Minor. $5000
Stap&Sntor$5.000o,lJn.i of the
worksheet (Appendix A)
Step 3: FInd “thcuomtances ’ leveL
Major storage (permeable floor) Is
levelS.
Slap 31 FInd total amount Involved.
result from such violations would be
relatively small.
Level six. Level six represents those
violations which the Agency believes
pose the least risk of causing harm. It
l c1udes only minor recordkeepIn
violations, and failure to label with the
no PCB” mark. In the case of minor
recordkeeplng violations. such
violations, although they might make
enforcement somewhat more difficult.
should not seriously Impair the Agency’s
enforcement efforts. The failure to label
with the no PCT mark will only result
in the disposal of certain Item. more
carefully than necessary. thereby
increasing the cost of compliance with
the regulation.
The risk to the environment and
human health in this case Is minimal.
Moveover, the Agency believes that
there are already substantial economic
Incentives for manufacturers to comply
with this labeling requirement. since
their customers would probably be
anxious to obtain equipment bearing.
such alabeL
Using the GBP Matrix To Find oPCR
Penalty
In order to determine a penalty Iota
specific PCB violation, the following
steps should be folioweth
Step 1: Detomuno which category of
violation is involved (I.e.. disposal. marking.
storage. intmufacturui . processing and
distribution, use, or recordkeeping). If more
than one violation category is involved.
repent the calculation in steps 2 through 8 for
each violation category.
Step z Find which level the violation fits
on the cuowactanoso axis of the GBP Matrix.
Step 3: Calculate the total amount of PCBo
involved in the violation. If there are several
inatenals involved which fall Into different
concantrntton rnageo. do a separate
calculation for eoch concentratIon.
Stop 4: Rethico the amounts In step 3 by the
concentrutlon adluonnent. (Se sure to note
the excepif one to this step).
Step 3: U different concentration ranges are
preoent. add up the figures from step 4.
Step Or Doteinilne which extent category
(rnalor. significant, or minori is applicable to
the amount from etep 5.
Step 7: Use the level from step 2 and the
extent from step 8 to locate the penalty on the
CliP Matrix (E.g.. Level 3. signIficant is
$io.ceO).
Step 8: Enter the amount from step 7 on line
I of the Clvii Penalty Assessment worksheet
attached to the TSCA Civil Penalty Policy.
Use that worksheet to complete the
calculation of the penalty accounting (or
factors such as culpability, history of
violations. etc.
I treautoceeg 5 100 q4. 500
3 catcic,:. 3 gal.
590 g4. * 10 .49
2559 q. e g isa,soo p
1 c:a.sfscass 5 300 gaL.
300 gal. S 15 1 .45 • 1350 9.
Stop 4: Make concentration adju .’. ’.t.
(a) over 1131000 ppm—no adjustment 2555
TSC& Compliance/Enforcement
A- .120
Guidance Manual 1984
-------
Appendix
p ’nalty Policy: PCB
(b) 800-iO .aDO ppa— 50t3 redsetlon 1350 I ,
X .50 kg.
Step Si Add fi wze from atop
+ c7 .
Step Si Oet Bth . extent c go y .
3330 kg. — S USreflL
Step t Pled the paachy frca th en (x.
Level S + lgelfii nt 910.001
Step tcs 910 .00Dca line I d tho
weskakeet (Appendix A).
Penalty iment for Multiple
Violations
Inthepeat . the O aeof tforcamunt
baa bad n rveua queodonc about
which dreumatanoes wore
for the usessmant of multiple penalties.
For the peupooc of promotin j
consistency between roglono and to be
consistent with the penalty a set
forth above. the following gwddlinco
should be followed fat ancooctag
multiple penalties.
When Not To Meant Multiple Penalilee
There are certain Inctancos when
separate counts should not be charged
and multiple penalties not assessed. The
Stat t e of case where this to not
appropriate Ia where a single situation
present. vioLations of many portions of
the regulation, which are all In the same
violation Category. For enample. If X
Company baa a .torago area which Is
uz marked. and whfchcontalns one
unmarked ._ contalnor, there arc t o
Infractions of tho ragukition The failure
to mark the coutalner..and the failure to
mark the storage area. Howover. only
one violation should be chnrged
namely, a ma$or marking violation. Both
infractions present the same rlak that La.
that no one will realize that PCBa are
present Accordingly. only one penalty
Is assessed. If the violation category is
one like marking, which appears at
several levels of the circumotancea axis,
the penalty should be assessed by
looking at the most serious Infraction
commftte
Another situation In which only one
count should be alleged and one penalty
charged Is where there are multiple
infractions of the same regulatory
requirement. For example, If five
transformers are unmarked, only one
penalty should be charged. Although
five tronoformero presont a greater risk
than one trrancfonner, this fact I .
accounted for by the Larger extent
category applicable to the situation with
five unmarked transformers. Again, the
naturo of the rtak.ptesentsd Is the s ”e .
so onlyonc penalty Is charged.
Mon Multipig Penalties 5 1 ordd Be
Aeant
The moat obvloue situation for
aoocsln j nudtlplo penaiftee Is where the
situation omictitutos Infractions of
dl A cot violation categorico (e.g.,
meriting and storage). In ouch Instances,
one count should be charged far each
violation catu y. Thin woe done In the
sample penalty calculation, above.
Anothar euample of multiple p .i .nnhlas
used pruperly is where one company
baa savant) PCB situations which are In
violatIon of tha rogulritlon in
eubotrinek’ Uy different locations.
Different buildings or yards on the same
ølte would ho ou clent fdta multiple
vtolatiom two sites In the same building
would agO, unloe the building Is very
large (for example, an auto assembly
bulldlnnJ. In these caoeo, the separate
locations precont separate and distinct
risks to human health and the
environment. Thus, separate penalties
are justified.
Maesaing Penalties for Continuing or
Repeated Violations
Section II of TSCA clearly gives the
Agency the power to assess penalties on
a daily basis for continuing situations,
such an whore a transfomer Is
Improperly otored for a month. It also
gives the Agency the discretion to
charge a penalty for each separate act of
a repented course of conduct, such al
whore someone manufactures PCBc on
twenty different occasions, without an
exemption. However, any simple rule
the Agency might develop concerning
when to charge multiple counts In such
cases Is likely to have undesirable
effects. For example, a policy which said
that only one charge will be assessed for
a continuing violation would not
adequately protect the environment
Under inch a policy, a company with a
leaking PCB transformer would have no
Incentivo to corveot the Leak, since how
quickly It acted would not affect the
penalty significantly. Alternatively, a
policy that required the Agency to
assess multiple penalties whenever
there wag evidence of a continuing
TSCA Compliance/Enforcement
A—]. 21
Guidance tlanual 1984
-------
Appendix
Penalty Policy: PCE.
violation would also cause undeofrablo
effects. Someone who stored en Intact
PCB transfomer Improperly for 3odaya
could be liablo for 33OO.CeO. ThIn
peooltv. In the ihooni’o or
ufrewno (oni, o. o omo o3u uOCIvo.
For those roonono, (ho A oncy hoc
developed (ha preportlonal ponolty
cclcimlatton” which to explolnod hi
detail below. This calculation ohoeld be
used whenever there Is evidence of
contluthiC violationo, or repeated
vtolatlone which are part of a olngle
cowvo of conduct. Excupt In umwnal
ctrcumotoacec, this calculation will ylold
the ponalty to bo charged for such
repeated or continuing violottona. The
effect of this cnlcu&3tlon Ia that the
penalty La mialttp&d-for ropoo $ or
continuing violetiono rh o nabot ffllnL
amountri of o erg Involved. The
Mflgrdtodr4 of (ho multiplication is
propc lioucl to i so amount of material
Involved sub joct to the lis .dtot1on of
028.033 p s day. the Agmuy bollovoc It
Is ap ilcto thot the very lor o
penaltico that con reoult from continuing
or repeated violattono be riacoocod In
thoco sitnaftono where lar j amounte of
ore Imrolvod.
Nonotheloas, the Agency reeiiccia that
there may ho oftuattono whero no
mnultipls penainco cro ap p 4ato. or
where the violation merito c penalty
calculated by multiplying (ho G
punchy dirootly by the numher of dcyo
or Incidento Involved. Acom diwjy , the
Agency rocervoc the dlcwetfon to oaceoo
penalties for repeatod c ’ continuing
vtolattonot,ftkout rcQcrd to the
proportional penalty calculeticu..
The Agency exponto that, In moot
cocoa the penalty far rcpeat d or
continuing violations will be computed
by use of the pr portioacl penalty
calculation. The dIc ’et1oa to csaao
penaitlee more or ese than. the
proportional penalty can ho exerdead
under the following cirownetancog
o Wb e oubotzim itiai actual bonn boa
occurred so a gocuft of the vto atian
o Whcre the unuoual circwnatuswe of the
violation gWo ns a to cuntcsdluory neho to
the envuonment: or
• Other typea of highly uneowil
drcwi ot snco
The decision to use isle diecretloc
should only be made after conoultetlono
with Headquarters personnel in which
the reaocsmoior this exwclae are
explained In detaiL
Explanation of the PrvpoMlonal Penalty
The proportional penalty Is calculated
in the following manner.
Step 1: Calculate the total amount of
PCBs involved in the situation, reduced
by the concentration adjuatinent. Using
as an example an Individual who
processes 20 gallons of PcBs for 200
days. the total amount Is 4.000 gallons
(assuming the concentration Is peater
than 100.000 ppm). If two 80 gallon
napeoltorO tint stored Iittptti;i.rIy r w 20
dayo, the amount Invol v ed to I tlU
gailono.
Stop Z If the amount from step lIe
boo than two limee the mulct extent
category (10.0111) kg. or 2,200 gallons). use
this amount to determine the extent
category and obtain a penalty from the
G OP Matrix. For nu ,lq the penalty
for the two capacitors Improperly aimed
fcr20dcouldbe01 .30 Twenty
counts would be charged, at a penalty oil
/ 3 1 )deyao r 75pordny. If the
amount from step its greater than 2
dm the tent cotogoflr, proceed to
step 3.
S*itp £‘ Divide the total amount from
stop I by the major extant category limit
(e.g. 8.000 ( J Lq3. or 1,100 gctllono).
Multiply the reoult by the amount In the
m*r penalty catcgory. This yields the
proportIonal ponalty. Using the example
of the indMdwsL who procoooeo 20
gctllonaofP e per day for200deya , the
calculation t?000 oo foflowo
3.ex .c110 (cc4cr lorol 2) 2.0X Total
Step c Divide the total’ponalty by the
number of days (or events) Involved.
tor this amount on lIne I of the TOGA
civil Penalty Asaceement Worlwheet, In
ouroxompim
We.cso total pcoialtp/mo deyoc *O per day.
• [ flfl 1f
worhoherai.
The proporifoncil penalty should
always be need unleoc the calculation
yields more than 021000 per day. In that
case. the penalty should be 025,000 per
day, thomcodmum allowed by statute.
The proportional penalty ahould be
used In the same wey asany other
penalty derived from the GOP Matrix.
The per day penalty should be entered
on lIne lof the TOGA Civil Penalty
Moeoement Worksheet. and should ho
adjusted by the factors. ouch as
culpability and violation history, shown
on that document, which Is attahced to
this policy.
Datech April za. issa
0. WRacu,
u A tantAdminsstrvwrforGeneroJ
bjba ’comoat.
Civil Paisley Accesomnoni Worinahast
Name of Respondent;
Address of Respondent:
(1) Complaint ID. Number
(2) Date Complaint Issued:
3 Date Answer Recelvoth
4 Date Default Order Sent:
5 Dote Consent Agreement Slgneth
o Dot. Final Order SouP
(?Dste Rentttanee Recolvgdt
5 p . .. 0-—-
a u s is to tp
& %
4t mssawd3
& eePbp..-i.,.omcaSis4 . . .... 5.—
S. —
e. ._____.. _______
7. asi s s ..w.oea, *a.- . a
s .—
—
C. Semonat eeeei00ee, Imp C —
tea em- _ le 5—
u.am aI*Ie a—
sOw : Z a imp a I..
Itos 12 .ks se ii n S 5—
n to eI2itosl1.
or
ins ea ..,... ,smsen — arapni. 5—.
ctps ns iete.nsi —
•U 3 Ow tons , . . we _
W s zOretio .& to c i oenca
P C
cam o
TSCA Cpliance/Enforceneeat
A—122
Guidance !bnual 1984
-------
Appendix
4 Settlement With Conditions
IntroductIon
1
Purposeand9ackground
1
Overview
2
When to use an SWC
z
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
6
Remittance Order
10
Roles and Relationships
11
Decis lontoUseSwC .
11
Preparation and issuance of Documents
12
Monitoring
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
8. Sample Documents
C. Penalty Remittance Worksheet
0. CPS Monitoring Sheet
TSC& Oo11aflcef fOrc ent A-lfl caidance P nua1 1984
-------
ADDend ix Sett1e— nt with CDnditiona
ln rodt c
tion
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 tot 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 ISCA.
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 16(a)(2)(A) of TSCA authorizes the Administrator to assess
civil penalties for violations of ISCA. Section 6(a)(2)(C) permits
the Administrator to compromise, modify, or remit. .J, with or without
conditions, any civil penalty which may be imposed under Section 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 portion of the penalty is uSettlement
with Conditionsu (SWC).
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 tern, 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.
TSC p1ince/ xforce.e”t -— A-124 - Guidance P nua1 1984
-------
Appendix Sett1 — t with Conditions
-2-
Over vi ew
An SWC is set forth in three documents: (1) a consent
agreement and consent order assessing an administrative civil
penalty according to Sections l6(a)(2)(A) and (B) and the Con-
solidated Rules or Practice, (2) a remittance agreement which
sets forth the conditions for Remittance (Compliance Program fnd
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
or 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 TS Tuntil they are discovered and then
offer to correct actions in hope of a remittance. Most CPSs will
describe actions which go beyond correction of vlolatlons.2/
A Settlement with Conditions should be considered when non-
profit entities are found to be in violation of ISCA. 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.
TSCL Conp1iance/ force ent A-425 1984
-------
Appendix Sett1 t ieith Conditions
—3—
settlements should not automatically be employed for settlement
with all nonprofit entities. The criteria listed below should
determine If an SWC Is an appropriate remedy, regardless of
whether the violator Is a profit or a non—profit entity.
Criteria for Choosing an SWC
In the 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 toward
solving the noncompliance and has no history of non-
compliance; and
o There are clear public benefits to use of an SUC; and
o An SWC acceptable to EPA can be negotiated.
Critei ia 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).
TSCA Coapliancel&itorcanent A-126 Guidance I nua1 1984
-------
Appendix Sett1 t with Conditioisa
-4-
Other Considerations
Comparison with Section 17
The CPS portion of the S C may impose performance require-
ments Identical with those contained In an order for Injunctive
relief obtained In federal district court under a Section 17 order.
Since such an action is more resource intensive than an SWCI/,
injunctive relief should be sought only where:
o SignIficant environmental contamination or health exposure
Is actually occurring, and the person responsible for
creating the problem refuses to take swift corrective
action; or
o The violator refuses to correct a substantial violation; or
o The compliance history and attitude of the violator are
such that the Agency believes that the contempt power of
the Court Is needed to insure that the violator adheres
to the program needed to achieve compliance.
I ncenti yes
Although remedies exist to enforce adherence to an SUC, 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 S C 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 SWC.
1’ Petitioning the Court requires the preparat on of formal
documents with supporting briefs, and the active Involvement of,
OLECIRC, 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
swc.
TSC& G p1ianceI&atorc ent A. . .127 - Guidance 1 nuai 19 4
-------
Appendix Sstt1 nt itb Co ditiaiie
—5.
o_ The Respondent may desire not to pay the remitted penalty
in addition to expenditijres 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 Gonsent 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 1s ued 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) & Ce).
Consent Agreement and Final Urder
This document must meet the requirements of 40 C.F.R. 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.2for “final
order 1 disposes of the •dmlnfstrative 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 ISCA. 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.
±1 Unlike judicial consent decrees and consent orders filed In
Federal court, the Administrative Law Judge, unlike a federal judge,
does not have continuing jurisdiction over a consent agreement and
consent order signed by the Regional Administrator. (see Consoli-
dated Rules of Practice, 40 C.F.R. Part 22)
TSCA ( mmp1 Lance! sforcaeent A-i 28 Gaidance nua1 1984
-------
Appendix Sett1 . nt with Cooditiofle
—6—
Findings of Fact
This section lIsts the findings of fact as to each allegation
In the complaint.
Conclusions of Law
This section contains conclusions of law which establish a
violation of TSCA.
Final Order
The final order contains the assessment of a final penalty
which is calculated based on the gravity based penalty matrix and
adjustment factors in the enforcement response poflcy 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, EP will agree to remit all or part of a penalty If the
Respondent performs specific actions. The actions usually include,
but go beyond. compliance with 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 iii this document without affecting the consent agreement
and consent order. A sample remittance agreement appears In
Appendix B.
The most important part of the remittance agreement Is the
commitment to the CPS. The CPS is referenced In the remittance
agreement and attached to It. An example of a CPS is appended to
this document In Appendix B.
Compliance Program and Schedule
Generally
The CPS details the steps the Respondent must take to remedy the
violations .and report Its progress to EPA.
The specific provisions of the CPS will vary with each settle-
ment depending upon the facts of the specific case; this guidance
discusses factors to consider In drafting any CPS.
TSCL r puanceI nforc aent A-129 Gii1. iice 1 nuai 1984
-------
Appendix Sett1PP1 t with Co itiona
—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 (1) the final standard
Is presently udattainable 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.
Monitoring
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
TSC& Compliance/Enforceisent -- A-130 Guidance ! nua1 1984
-------
Appendix S2tt1 t with CoMition.
-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 Dlfficulty
The CPS should provide for prompt notification to EPA by the
Respondent of unexpected technical or opQratlonat difficulties
which compromise the Respondent’s ability to mOot a deadline.
Technical Assistance
There may be a provision requiring EPA to provide reasonable
technical assistance concerning such matters as sampling, analytical
procedures, and acceptable disposal options for the purpose of
complying with the agreement. This requirement is only appropriate
where innovative technology or procedures which are new or not
well established are part of the performance requirements.
Amendments to CPS
The remittance agreement shauld contain an amendment procedure
upon mutual consent of EPA and the Respondent. This provision
should clarify that the CPS may be amended at any time to modify
or add technical and operational requirements (such as. but not
limited to. deadline modifications necessitated by technical or
operational difficulties) if needed to achieve compliance by the
Respondent. Other specific circumstances for amendment may be
discussed (I.e., the occurrence of events beyond control of the
Respondent, but not including an Increase in cost of compliance).
Any changes and/or amendment to the agreement will be deemed to be
Incorporated Into the agreement when it Is signed by authorized
representatives of EPA and the Respondent.
Standing alone, the mere fact that the Respondent is going to
miss a deadline should not lead to an amendment. Simple failure to
comply, wlthout 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.
TSCA CompIianceF1flforc e i s ent A-i 3i G iid ince nuai I 84
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Appendix Stt’ t vith Co itiona
-9.
o Thi burden is on the Respondent to prove that events
requiring the Qxtension 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
minl•ize 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. Complianc, 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 any
requirement of the CPS, the performance requirements must be stated
in a manner which is capable of only one interpretation. For
example, rather than simply requiring the Respondent to prepare
a sampling plan, the CPS should set forth the component parts of
the plan such as sample volume, method of collection, and sample
handling procedures, and location of each sampling point.
Requirements should not be so detailed as to be unnecessarily
burdensome or to eliminate the Respondent’s needed flexibility.
For example, it would normally not be necessary to specify the
type or brand of equipment necessary to perform certain construction—
related tasks. On the other hand, such specifications might be
necessary In the case of equipment to detect PCIs.
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 ISCA and iti 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.
TSCI it .f qçç nt A-132 : . Gu*dancs 1 nutl 195
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Appendix Sett1 t vith Conàitions
- 10 -
The remittance agreement should Include a statement that PA
shaH 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
p of the agreement. The clause should state clearly that
tiIi Insulat1on from enforcemont 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 ‘ocal 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 t here technical disputes
can be submitted to an expert respected by both parties. If
possible, this expert shou’d be selectod In advance and named in
the decree.
Confidentiality of Documents
The Respondent has the right under TSCA to claim that infor-
mation submitted to the Agency is Confidential Business Information.
This section should cover the procedures the company must follow to
exert a confidentiality claim. If the company waives its right
to exert a confidentiality claim, that should be stated in this
section.
Uemittance 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 pena’ty (or part of the penalty) Is remitted.
TSCA comp1iance/Eaiforce ient -. A-133 a ifd aciI &nua [ 1984
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Appendix Sett1 nt with Co itio a
— 11 —
Roles and Relationships
While headquarters may assume the lead on the few cases which
involve Issues of first Impression or national significance, the
Regions will primarily implement this guidance. Regions may organize
their offices in any way consistent with the Administrator’s guidance
on Regional organization; the suggested allocation of responsibility
with regard to SWCs between Program Offices and Counsel Is as follows:
Decision to Use SWC
As in any other choice of
remedy or
level of action deter-
mination, the Regional Program
Office is
responsible for this
decision following the criteria
set forth
in this document.
Negotiations
Negotiations.2J are a critical part of the SWC process. The
adequacy of the remedial measures to be incorporated into the SWC
will often depend on information In the Respondent’s possession.
Negotiations that take place prior to the filing of a cgmplaint
are the primary responsibility of the Regional Program Office!’. If
the Respondent Is represented by counsel, however, Regional Counsel
or Headquarters OLEC must attend.
At the start of negotiations, EPA’s representatives should
inform the Respondent’s representatives of the scope of their
authority to speak for the Agency and of Agency poltcy, regulations
and concurrence practices which may affect the terms of the SWC and
the time necessary for EPA to execute the SWC. Similarly, Agency
representatives 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
If P eliminary 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 1ltigation 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.
TSCL Comp1iancef forc ent A 34 Guidance P nua1 1984
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Appendix Sett1a ,i.t with Conditiosis
0
— 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 Documonts
-The Program Office should preparo the documents necessary for
an SWC, with review for legal sufficiency by Regional Counsel.
Drafts of these documont , 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 locus the d1 cussion 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 0 forth in the Dolegatlons 1anua1 and the Consolidated
Rules of Practice, the Regional Program Divi fon Director will
issue the complaint. The Regional Counsel will sign and execute
the consent agreement with concurrence from the Division Director,
and the Regional Administrator or Regional Judicial Officer will
issue the consent order.
In cases settled at Headquarters, the complaint will be
signed by the Assistant Administrator for the Office of Pesticides
and Toxic Substances or the delegate, the Director of the Com-
pliance Monitoring Staff, and the consent order by the Administrator
or the Headquarters Judicial Officer. The consent agreement will be
signed by the Assistant Administrator for Enforcement and Compliance
Monitoring or delegate with concurrence from the Assistant
Administrator for Pesticides and Toxic Substances or the Director
of the Compliance Monitoring Staff.
The remittance agreement may be negotiated by the Program
Office with consultation from the Regional 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.
Monitoring
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 Monitoring Worksheet. The worksheet should contain four
columns.
TSCL Coiap11ancefBnforc ent A-135 GÜda BiC e nUELI T 8
-------
Appendix S t nt with ona
— 13 -
o Column ei lists the task to be completed or the standard
to be achieved.
° Column •z lists the due dates for the Items In column #1.
° Column •3 lists the dates that the Items In column dl were
completed.
• Column 04 contains a brief evaluation of the quality and
timeliness of the completion of the Items in column dl.
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 dl should Indicate this, and column 04 should
Indicate the results of the evaluation or approval/disapproval by
the Agency. See Appendix 0 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
compromised. Criteria for determining that a violation which merits
an enforcement response has occurred during the CPS are:
• A milestone Is missed by a significant number of days and
the Respondent has reported no technical difficulties nor
Justified an amendment to the agreement (see Amendments
section);
o 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 nonremittance order.
TSCA CoaplIance/Enforce.ent A-136 Guidance 1 nua1 1984
-------
appenalx S.tt1e ut with Coi iUona
- 14 —
Responses to Noncompliance with the SHC
Penalty Payment
If the Respondent falls to adhere to the conditioni of the SWC,
the Agency wifl lssuo a nonronittanco order notifying the Respondent
that because the Respondent did not moot the conditions for remittance.
the uncollected penalty is duo and payable within 60 days. The non—
remittance order will specify the woys In which the conditions were
not met. If the Respondent refuses to poy, the Agency may refer
the action to the Department of Justico hicIi may bring a recovery
action under Section 16(a)(4) to collect the penalty that was
assessed.
iinspoction and Addtt1oi 1 E O ement Action
Inspoctions 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 SUC. Ind od, this is Ilitoly 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 St C, howovar, the Respondent is shielded
from additional enforcomont 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 vio1at1on during the term of the
SWC and prior to a notice to tho Respondont. The Respondent remains
liable, of course, for violations of regulatory and statutory
provisions not covered by the SHC.
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.
TSCA Co p1IncefXflforc ieflt GUid ince nua1 1984
-------
4ppendix Sstt1 s t sitth Cosditisag
APPENDIX A:
APPLICATION OP SWC CRITERIA TO PCO RULE
This Appendix Illustrates the application of the criteria
set forth In the SWC guidance document to some typical violations
qf the PCB rule (40 CFR Part 761; all references herein are to the
recodificatlon 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 4761.40
An SWC should not be considered for Marking violations, since
two of the criteria are not met. These violations are easily
correctable.
II. Recordkeepij g _ of Use and Disposal - 4761.45
An SWC should not be considered for Recordkeeping violations,
since these violations are easily correctable.
UI. Storage for Disposal — 45761.60 & 761.65
Genera ily
A storage violation could satisfy several criteria. However,
given the relative ease with which a violative storage facility
can be upgraded to meet the requirements of §76l.65(b)(l), the
fourth criterion will not be satisfied In the usual case. Likewise,
violations of the conditions for temporary storage of PCSs 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 ease 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.
TSCA Caump1iancefEnforc ent A-138 Guidance I nuai 1984
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Appendix E att1 et with Cosiditions
—2—
IV. Manufacturing - 5761.20
Intentional
Intentional manufacture of PCBs without obtaining an exemp-
tion 1 even where an exemption might have been granted, will never
satisfy the second criterion.
Incidental Loreater than 50 ppm )
Incidental generation of PCBs as a byproduct of the inanufac-
turing process nay qualify for an SWC. The first four criteria
may be satisfied, and the fifth criterion could be satisfied if
the violator (I) 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. Tho list 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 0 f such an SHC would be to encourage
the company to both reduce the concentration of PC8s to less than
50 ppm and develop a closed and controlled system.
! ncidental (less than SO 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.
I port/Export
Import or export of PCSs after M j 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 SUC. Although
the third criterion would not be met since the use could be stopped
at once, if the fourth criterion were met due to widespread con-
tamination, and the second criterion were met because the violator
had no reason to know that the oil contained PCBs, an SUC should be
considered.
TSCA C p11ance [ s.tOrc ient A-139 - Gdmnce nua1 1984
-------
Appendix Sett1e t iith Conditiona
—3—
V. Use —j76l.30
Generally
The PCB rule calls for the phase out of use of PCBs In a non—
enclosed canner 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 cay devise a program to bring the facility
Into compliance as expeditiously ai 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 thi data required by §76l.30(d)(5)
& (e)(6). The sixth and seventh criteria will be satisfied where
the alternative method will result in the conservation of heat
transfer or hydraulic fluid.
VI. Disposal - 76l.6O
PCS Articles
Unauthorized disposal of certain PCB articles, iuch 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 PC8S 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.
TSCA Coiep1ience/ xforconent A-140 Guidance ? nua1 1984
-------
Appendix Satt1 ant with Comdition8
-4.
• lecineration
Where PCBs must be Incinerated (i.e., fluids with PCB concen-
trations greater than 500 ppm), landfllllng evidences a knowing
violation and thus an SWC Is not appropriate.
Spills - 76l.60(d )
Many spills do not normally qualify for an SbIC because thc y
are not continuing violations and do not require a raajor clean—up
operation. If, however, the spill i 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, whore Respondent has committed a spill
of pipeline condensate from its gas distribution system, and EPA
needs that company to perform tasting of lovols of PCB in the
ambient air of homes connected to the system, EPA may remit the
penalty for the spill on condition of performing the testing. If
EPA could perform the testing itself with minor expenditure of
resources, an S C would not be warranted.
TSC& Cozp1Iance/ 1torceDent A -14 Gói mnce uU J T984
—I
-------
Appendix Sett1i. -init with Conditious
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.
TSCA Cme p1ianceIbforc ent A-14 2 Guidance P nua1 1984
-------
Appendix & tt1 ’it with Contttio a
UNITED STATES
ENVIRONMENTAL PROTECTION AGENCY
In re: ) Docket No. TSCA -
LOUISIANA WESTERN TRANSIIISSION
CORPORATION ) CONSENT AGREEMENT
719 5. C rro11ton Avenue ) AND
New Orleans. Louisiana 71301 ) FINAL ORDER
Respondent
Pre ii ml no y _ Stetemont
1. This adminlstrativQ proceeding for the asso siaent of a civil
penalty was initiated pursuant to Section 16(a) of the Toxic
Substances Control Act, 15 U.S.C. §2601 et g. (TSCA). The
action was Instituted by a complaint and no Tto of opportunity
for hearing, filed upon Louisiana Western TrUnsmi ssi on Corpora-
tion (respondent), on July 23. 1982. The complaint charges that
respondent used polychlorlnatced biphonyls (PCBs) In violation
of 40 C.F.R. §761.20(a), thereby violating Section l5(l)(C) of
TSCA, 15 U.S.C. §2614(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 1av
contained in this agreement.
3. Respondent explicitly waives tho right to request a hearing
on any issue contained In this agreement.
4. Respondent consents to the Issuance of the final order herein-
after recited.
Findings of Fact
I. Respondent Is a domestic corporation Incorporated under the laws
of the State of Delaware.
2. Between February 12, 1981. and June 12. 1981, respondent was
conducting its business of natural gas transmission at Armagh.
Bechtelsville, Bernvllle, Delmont, Entriken, Graritvllle, and Lilly,
Pennsylvania; Barton. Alabama; Danville, Kentucky; Gladeville,
Tennessee; l1anover, New Jersey; Kosciusko, Mississippi; and White
Castle. Louisiana, and other locations.
TSCA Co0p1ianceT forc aent A-14 3 ca ne áIT 8
-------
Appendix SSttl—Mt id.th Co d1tioue
—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 lette,r 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 4arch 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/natura 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 fflidings indicated that additional drain-
ing and refilling not contemplated by the regulation was required.
These findings were comparable to those relied upon by EPA n
Initially establishing a July 1, 1984, deadlIne for eliminating
PCSs from heat transfer and hydraulic systems. See 40 C.F.R.
§761.31(d) and (a); 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 ha 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.
TSC& pL1auce/ .torc ent A-144 Guidance ! nuaL 19 k
-------
Appendix Sett1 t with CoMitiona
—3—
Conclusion! of Law
By reason of the facts set forth in the Flndings of Fact,
it is concluded that repondent has violated Section 15(l)(C)
of TSCA, 15 U.S.C. §2614(l)(C), by falling to comply with a
rule issued under Section 6 of TSCA, is 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 ordor:
Order
Pursuant to the authority of Section 16(a) of TSCA, is u.s.c.
§2615(a), and upon consideration of: the Ftnd1ngs of Fact
and NConciusions of Law contained in the consent agreement;
the factors expressed in Section 16(a)(2)(B) of TSCA; PCB
Penalty Policy C4 5 Fed. Reg. 59,770 (1980)] tt Is hereby
ORDERED that:
Respondent is assessed a civil penalty in the amount of $158,800.
payable to the Treasurer. Unitod States of A rica. Such payment
shall be made by forwarding to the Hearing Clark (A—iOl), Environ-
mental Protection Agency, Washington, D.C. 20460, a cashier’s or
certified chock in the amount of the penalty auossod in this
order. Payment shall be made within sixty (60) days of receipt of
this consent agreement and final ordor. l4o ovor, 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 nonramittance.
(Sig!aturo
of
respondent)
(Signature
of
complainant)
Date: ________________At: ________
TSC& C p1iance/ forc aent A-145 tuidánce £ nuaI I984
-------
Appendix $stt1— ’t with Ca itiova
.4.
It is so ordered. This order shafl become effective Immediately.
( Signature of Headquarters Judicial Officer )
Judicial Officert
Date: _____________________ At: _____________
•or Regional Administrator
TSC& Caiap1tancel forc ent A- 146 Guidance ) nua1 1984
-------
Appendix S.tt1 nt with Conditions
-5—
SAMPLE REMITTANCE AGREEMENT
Introduction
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 (TSCA). 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
Maw 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 be equal to the amount which may be deleted If the compliance
program and schedule are adhered to by the Respondent.
TSCA Onnp11anceFEuZorc ent Ai4 Gui4ance nuaI 1984
-------
Appendix Sstt1 — t with Conditions
-6-
COMPUANCE 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 1x (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
TSCA ConpliancefEntorconeut A.148 - Guidance ) nua1 1984
-------
Appendix Sett1a nt with Conditione
—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 those co prassor(s) meet the
requirement for final compliance In Pert 1.
2. Sampling and Analysis : Sampling shall be conducted by
Respondent using EPA—approved sampling procedures. Information
on sampling doveloped by EPA and provided to Louisiana Western
as part of the EPA/natural gas industry cooperative sampling
program shall serve as guidance for this sa ipl1ng.
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 sp c1fic saa pl1ng point(s) on each
compressor to be sampled du.rlng each sa pl1ng 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.
T L Coap1iancef& forc ent A-149 GiiI ance ibnual T9 4
-------
Appendix Sett1 t with Conditions
-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 greater PCBs by thoroughly draining the
PC8 contaminated oil rrom 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
PCSs removed during decontamination operations shall be handled,
stored, and disposed of Tn accordance with the PCB Rule.
TSCL CoaplianeelEnforceaent A-iSO Guidance 1 nua1 1984
-------
Appendix Settl auit with Conditiona
-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 his been In operation for
a minimum of sixty (60) days after deSontamination.
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.
tf after sIx (6) months of operation since t io last decontamination,
PCB levels remain below 50 ppm, units shall be considered to be In
compliance as stated In Part I..
6. Add1t1ona Decontamination : If rosults of testing after
decontamination and sIxty (60) days or sIx (6) months of operation
show PCB levels of 50 ppm or greater, the compressor(s) shall be
decontaminated again In accordance with Part 4. Parts 4 through 7
shall be repeated until each compressor is deemed to be in final
compliance.
Ti me tab 1 a
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 rRferred 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
T’ CL cp11anceI .forc it A-151 19 4
-------
Appendix Sett1 nt with .i4j jon
- 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 (50) day result is
less than 50 ppm
S. 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.
L.oulslana 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;
TSCA Co p1ianceI forc enr A-152 - Guidance bnua1 1984
-------
Appendix $etP1 iit vita Conditions
— 11 —
a
(d) the location of the storage and/or disposal facility or facilities;
Ce) the amount of non-PC8 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 U, Director
Compliance Monitoring Staff
Office of Pesticides and Toxic Substances
U. S. EPA EN—342
401 N Street, S.W.
Washington, D.C. 20460
Inspectors from EPA may visit Louisiana Western facilities
at any time to exercise the Agency’s rights under section 11 of
ISCA and to inspect facilities and records to determine compliance
with this consent agreement.
Notification of Technical or Operational Difficulties :
If technical or operational difficulties will mate It impos-
sible for Louisiana Western to meet any of the deadlines In the
Compliance Schedule, Loulsana Western will immediately notify EPA.
Technical Assistance
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.
TSCL 1 p1Iancel nforc ent A-i G sidence 1 nu&fT984
-------
Appendix Sett1.— t with Conditions
— 12 —
Amendmd ’nts
Upon mutual consent of EPA and Louisiana Western, this Agreement
nay 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 amendaient(s) have been signed by authorized
representatives of EPA and Respondent.
If after complying with the chodule 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 1 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 may contain 50 ppm or greater PCBs. In the event that
Louisiana Western fails to meet the requirements of this agreement,
EPA nay issue a Notice of Reinstatement’ of Penalty nullifying this
Agreement and reinstating the penalty proposed in the Complaint and
Assessed by the Final Order.
TSC& Conpllancef&sforconent A-i 54 Guidance )bnual 1984
-------
Appendix Sstt1 nt with Conditions
— 13 —
This agreement does not insulate Louisiana Western from com-
pliance monitoring 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.
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 disputas ari o between Louisiana Wostorn and EPA
concerning compliance with the agreement, the parties nay resolve
the dispute by arbitration. EPA and the Respondent may submit
disputes of technical issues to Or. 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 busi 2 ess Information. The Louisiana
Western waives this right.
‘fSCL Comp1iancef nforc ent A-i 5 - G 1d5nC5 I cin&I I984
-------
Appendix Sett]. t vith Conditions
— 14 -
Louisiana Western Corporation
719 S. Carroilton Avenue
New Orleans, Louisiana 71301
RE: Remittance Order
Dear Mr.
This remittance order is Issued pursuant to section l5(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.u
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 agreemont 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 0. Ruckelshaus’
Admini strator
*or delegate
TSCA CoiapliancefEnforceiaent A-i 56 Guidance ) nua1 1984
-------
Date
ROUTING AND TRANSMITTAL SLIP
TO: (Name, office symbol, room number,
building, Agency/Post)
1.
Initials
Date
2.
3.
4.
5.
Action
File
Note and Return
Approval
— For Clearance
Per Conversation
As Requested
— For Correction
—
Prepare Reply
Circulate
For Your Information
See Me
Comment
—
— Investigate
—
—
Signature
Coordination
— Justify
-
REMARKS
DO NOT use this form as a RECORD of approvals, concurrences, disposals,
clearances, and similar actions
FROM: (Name, org. symbol, Agency/Post)
-
Room No —BIdg.
Phone
No.
OPTIONAL FORM 41 (Rev. 7-76)
Prsscribsd by C IA
FPMR(41 CFR)I01I1.206
se41 .1
U.S G.P.O 1991 281-781/40010
-------
Appendix Sett1.. mIIt with Conditions
- 15 -
Louisiana Western
719 S. Carroliton Avenue
New Orleans, LouIsiana 71301
RE: Nonremittance Order
Dear Mr.
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, 1903, Louisiana Western
and EPA entered into a remittance agreemont under which EPA agreed
to remit $158,800 of the penalty on condition that Loulsian Western
performed the activities refarencid in the agroomont.
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 Sch du1e 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, 5158.800 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. Ruckeishaus, Administrator
Environmental Protection Agency
TS L Ga pLiance/ torc ent A-i 57 -
-------
Appendix Sett1 mnt Lth Cond.ttiona
APPENDIX C
Penalty Remittance Worlsheet
Supplement to Penalty Calculation
_______________ Assessed penalty Jpstlflcatlon]
_______________ Amount due Immadlatoly
________________ Amount deferred
_______________ Cost of compflance
________________ Cost of additional conditions
________________ Total Cost of Performance under CPS
________________ Amount remitted at the end of the deferral period
________________ Total amount paid to the Agency
TSCA C zap11ancefEaforcemaent A-158 Guidance nua1 1984
-------
Appendix
Settl—t with Conditi na
Final Compliance Target
Date
APPENDIX 0
CPS Monitoring Sheet
Performance Requirement
Date
Due
Date
ComDleted
Performance Evaluation
Submit Sampling Plan
to the Agency for
9/3/82
9/3/82
Plan was sattsfi tOry;
It listed tan facill—
ties In tour states
and a realistic plan
for sampling.
Initial Testing
9/3/82
9/9/82
TestIng reports were
six days late but
otherwise satisfactory.
The 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 sup as a
result of this delay.
Assess Decontamination
2/3/83
additional
dates may be
be scheduled
Interim Reports Schedule
.
10/3/82
2/3/83
6/3/83
10/3/83
Work progressing.
o, u/W3
TSGA Uo pL lance, xorcanent
A—159
u.a ce a nuai. I O4
-------
ppendix Sen lsnt with CoSitiona
TSCA CoapliancefRaforceRent A - i S o - Guidance Iknual 1984
-------
Appendix
5 Additional Sources of Compliance/
Enforcement Information
The following is a listing of all TSCA compliance/enforcement—related
policies and guidances that are currently in effect 0
Copies ot these documents may be obtained from Headquarters PTSCMS and
OECM.
TITLE OF DOCU NT _______ DATE OF DOCUt U NT
General Guidance
Consolidated Rules of Practice Governing the Administra- 4/9/80
tive Assessment of Civil Penalties and the Revocation
or Suspension of Permits (45 Fed. Reg. 24,360)
Guidelines for Assessment of Civil Penalties Under 9/10/80
Section 16 of the Toxic Substances Control Act; PCB
Penalty Policy (45 Fed. Reg. 59 77O)
Technical Guidance
Gene r a I
•Neutral Administrative inspection Schemes for TSCA 11/7/79
Enfurccmeiit
Use of TSCA Section 11(c) Subpoenas 12/4/79
TSCA inspection Manual (Supplement: Volume Four: 1980 Edition
Sectton 5 Inspection Manual) (September
1981)
TSCA Compliance/Enforcement A-16 I ( aidance l 1anua1 1984
-------
Appendix Mditioual Sources of Co*pliance/Enforcament Information
Asbestos
Compliance Strategy for the Friable Asbestos—Containing
Materials in Schools: Identification and Notification
Regulation
Model Asbestos in Schools; Cooperative Compliance
Prog ram
Compliance Assistance Guidelines for the Asbestos—In—
Schools Rule
Enforcement Response Policy for the Friable Asbestos—
Containing Materials in Schools: Identification and
Notification Regulation
Dioxin
Dioxin Contaminated Waste Compliance Strategy
Dioxin Contaminated Waste Enforcement Responce Policy
Chioro fluorocarbons
Enforcement Facts and Strategy: Chiorofluorocarbons
Polychiorinated Biphenyls
Enforcement Facts and Strategy: Polychiorinated
Biphenyls (PCBs)
PCb Enforcement Policy Subsequent to Appellate
Court Opinion Remanding Portions of the PCB Regulation”
“New Requirements for PCB Transformers Pursuant to
Appellate Court Order”
Enforcement Facts and Strategy PCB Interim Measures
Program
Pre—manufac ture Notices
“Civil Penalty Cases Involving Use of PCBs in Hydraulic
Systems”
6/24/82
9/21/82
12/1 5/82
7/6/83
January 1982
7/6/83
November 1979
February 1980
10/11/80
3/9/81
August 1981
9/14/81
TSCA Couzpliance/Enforce ent
A—162
Guidance Manual 1984
-------
Appendix Additional Sourcea of Compliance/Enforcement Information
Enforcement Facts and Strategy: Premanufacture August 1980
Notification (PMN) (Includes strategy, neutral
administrative inspection scheme, and penalty policy.
Document will be revised in response to final PMN
re gu1ation.)
Compliance Strategy for the TSCA’ 5(h)(4) Premanufacture 11/15/83
Notice Exemption for Chemicals. Used in or for Instant
Photographic or Peel—Apart Film Articles
Reporting Policies
Inventory Enforcement Strategy 4/25/79
“Inventory Penalty Policy” 5/23/80
Compliance Strategy f or Preliminary Assessment Informa— 7/22/82
tion Reporting Rule (Level A)
Asbestos Reporting Rule Compliance Strategy 8/22/82
Compliance Strategy for TSCA Section 8(d) 11/21/83
State—Related Guidance
Guidance for Pilot TSCA Cooperative Enforcement 12/31/80
Agreements
Supplemental Guidance Procedures for State Inspectors 6/19/81
Acting Under the Authority of TSCA Section 11
TSCA Compliance Program Policies
6—PCB—1: Responsibility for Compliance with PCB Rule 3/4/82
6—PC —2: Distillation, Solvent Extraction, FIltration, 8/16/83
and Other Physical Separation Methods for PCBs
6—PCB—3: Residual PCBs in Processed Liquids and Solids 8/16/83
6—PCB—6: Allocation of Enforcement Liability for 8/16/83
Violation of the One—Year Disposal Deadline for PCB
Articles or PCB Containers
b—PCB—7: Reference Date for Violations of the One—Year 8/16/83
Storage for Disposal Deadline for PCB Waste Resulting
from Physical Separation
6—CFC—1: Product Labeling for Both Essential and Non— 8/30/82
Essential CFC Aerosol Propell .ent Uses
TSCA CO rrince/ for t - A-i r - Guidaice Manual 1984
-------
Appendix Mditioi 1 ourcea of p1i.uce/ forcemeut Infor tion
Compendium
General Enforcement Policy Compendium 3/3/83
Titles Contained Within Compendium :
• ‘Visitor’s Releases and Hold Harmless Agreements as a 11/8/72
Condition to Entry to EPA Employees on Industrial
Facilities”
Professional Obligations of Government Attorneys” 4119/76
“ morandum of Understanding Between the Department of 6/15/77
Justice and the Environmental Protection Agency”
•‘‘Ex Parte ’ Contacts in EPA Rulemaking” 8/4/77
‘Conduct of Inspections After the know’s Decision” 4/11/79
Contacts with Defendants and Potential Defendants in 10/7/81
Enforcement Litigation”
‘Ex Parte ’ Rules Covering Communication which are the 12/10/81
Subject of Formal Adjudicatory Hearings”
“Quantico Guidelines for Participation Litigation” 4/8/82
“Agency Guidelines for Participation in Grand Jury 4/30/82
Investigations”
“Reorganization of the Office of Regional Counsel 5/7/82
(includes Administrator’s I4emorandum of September 15,
1981)”
“Coordination ox Policy Development and Review” 6/23/82
“General Operating Procedures for EPA’s Civil 7/6/82
Enforcement Program”
“Case Referrals for Civil Litigation” 9/7/82
“Criminal Enforcement Priorities for the Environmental 10/12/82
Protection Agency”
“General Operating Procedures for the Criminal 10/27/82
Enforcement Program”
“Regional Counsel Reporting Relationship” 8/3/83
‘Guidance br Drafting Judicial Consent Decrees” 10/19/83
TSCA Compliance/Enforcement A- 164 Qildance Manual 1984
-------
Appen iix &dditioñal Sourcea of Coiipliance/Enforce ent Information
I (
“Implementation of Direct Referrals for Civil Cases” 11/28/83
“Consent Decree Tracking Guidance” 12/16/83
“Guidance on Evidence Audit of Case Files” 12/30/83
Additional Sources of TSCA Compliance/Enforcement Information
EPA Delegations of Authority Manual
NEIC Policies and Procedures Manual (Multi—Media)
Multi—Media Compliance Audit Inspection Procedures
TSCA Confidential Business Information Security Manual
TSCA Co pT e [ Enfoi cemenf TT6 Qiidance Manual i9B
-------
Appendix Mdittooal Sources of CospISaoce/k2orc nt Information
TSCA Compliance/Enforcement A—i 66 Guidance Manual 1984
-------
fttst,cRL , tc/t/,Y
-------
jsri,
‘J UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
30
OFFICE OF
ENFORCEMENT ANC
COMPLIANCE MONITCRING
SUBJECT: Federal Facility Enforcement Strategy for TSCA
and FIFRA Attorneys
FROM: Frederick F. Stiehl #/e tL I’ % i.4L7
Associate Enforcement Counsel for
Pesticides and Toxic Substances
TO: Pesticides and Toxic Substances Branch Chiefs
Office of Regional Counsel
Regions I through X
The need for enforcement at federal facilities is becoming
an increasingly public issue. Recently, James M. Strock, the new
Assistant Administrator for Enforcement and Compliance
Monitoring, pledged to take a tougher stance on enforcement of
environmental laws at federal facilities. Although it is EPA
policy not to directly sue other federal agencies in district
court, there are enforcement mechanisms available that can be
utilized by the Agency to encourage compliance. It, therefore,
is vital that the Regions become as skilled in this specialized
area, as they are in the area of enforcement against private
parties.
In an effort to provide assistance to the Regions in meeting
the challenge for TSCA/FIFRA enforcement at federal facilities,
the Toxics Litigation Division has prepared a two part strategy.
The overall purpose of the strategy is to insure national
uniformity and to provide case specific guidance where needed.
To effectuate this purpose, TLD proposes to:
(1) Education - Provide information to the Offices of
Regional Counsel as to the available enforcement tools that can
be used. Additionally, as the program evolves, information will
be routinely circulated by TLD to the ORC’s as to national
developments in the area of TSCA/FIFRA enforcement. To be able
to provide this type of information, TLD will begin a National
TSCA/FIFRA Repository of Federal Facility Enforcement Documents.
Pnnred on Reryded Paper
-------
The Repository should be extremely useful to the Regions as it
will provide a comprehensive resource where all can build on the
knowledge of prior experience. To establish and maintain the
Repository TLD is requesting all of the Regions to forward copies (‘
of all past and future NON’S, NOV’s, Complaints, Compliance
Agreements, Memorandums of Understanding and Responses by Federal )
Facilities to Headquarters. Upon receipt and routinely
thereafter, TLD will compile and disseminate to the Regions a
directory of current federal facility enforcement activities.
Copies of all documents should be sent to:
Helene Ambrosino, Attorney
Toxics Litigation Division, OECM
401 M Street, S.W. (LE 134P)
Washington, D.C. 20460
(2) Case—specific Counsel - Provide assistance upon request,
to all CRC’s in negotiating with federal facilities and drafting
enforcement documents. While the Office of Federal Activities is
available to advise EPA’s regional program representatives, it is
felt that TLD could provide the same service to regional
attorneys cn an as needed basis. TLD’s contact for case—specific
counsel will be Helene Ainbrosino. Ms. Ainbrosino may be reached
at FTS 475—9501.
To introduce the strategy, we have assembled several
pertinent documents for you to share with your staff. The
documents are as follows:
(1) Excerpt from the Federal Facilities Compliance
Strategy (“yellow book”) compiled by the Office of
Federal Affairs entitled, ItEnforcement Response to
Compliance Problems and Violations of
Environmental Laws at Federal Facilities”.
(2) Executive Order 12088
(3) Executive Order 12146
(4) Model Notification of Violation
(5) Model Response Form f or Certification of Violation
Correction
(6) Model Response Form for Remedial Action Plan
(7) Model Compliance Agreement
(8) Model Notification Form to Federal Facility of
Enforcement Action Against Contractor
-------
(9) DOE Idaho National Engineering Laboratory - TSCA
Complaint, Cover Letter and DOE’S Certification of
Violation
(10) Coast Guard Support Center, Kodiak, Alaska - TSCA
Complaint and follow-up letter
(11) McChord Air Force Base, Tacoma, Washington —
Memorandum of Agreement to comply with TSCA
(12) Rockwell International Corporation - Order denying
Motion of DOE to Intervene on behalf of Rockwell in
an administrative action under TSCA
(13) U.S. Army Aberdeen Proving Ground - Indictment of
federal employees for violations of RCRA at a
Federal Facility is included in this package to
indicate the possibility of proceeding criminally
against federal employees for violations of TSCA and
FIFRA.
Federal facility enforcement will be an evolving process.
As the program matures please provide comments as to how OECM can
further assist the ORC’s in pursuing enforcement activities at
federal facilities. I believe that the above-described approach
can form a basis for a vigorous federal facilities enforcement
program that provides national uniformity and strongly encourages
federal compliance with TSCA and FIFRA.
ATTACHMENT
cc: A.E. Conroy II
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preslcJentiol documents
(3!95—01-M3
Title 3—The President
Executive Order 12088 October 13, 1978
Fedr ConipG c. With Podlution Conirod St id. ’ds
By the authority vested in mc as President by the Constitution arid
statutes of the United States of Amenes, including Section 22 of theToxic
Sii 1 bstances Control Act (IS U.S.C. 2621). Section 313 of the Federal Water
Pollution Control Act, as amended (33 U.S.C. 1323). Section 1447 of the
Public Health Service Act, as amended by the Sak Drinking Water Act (42
tJ.5.C. 300j-6), Section 118 of the Clean Air Act, as amended (42 U.S.C.
7418(b)), Section 4 of the Noise Control Act of 1972 (42 U.S.C. 4903).
Section 6001 of the Solid Waste Disposal Ac. as amended (42 U.S.C. 696!).
and Section 301 of Tide S of the United States Code, and to ensure Federal
compliance with applicable pollution control standards, it is hereby ordered as
follows;
I-I. App4cnMsp of Polliiaon Coiw,! Stnidorá.
I—lOt. The had of cads Executive agency is responsible for ensuring hat
a ll necessary actions are taken for the pr evention 4 control, and abatement of
environmental pollution with respect to Federal facilities and activities under
the control of the agency.
1—102. The head of each Executive agency ‘is responsible for compliance
with applicable pollution . control standards. induduig those established pursu.
ant to, but not limited to. the following
(a) Toxic Substances Control Act (15 U.S.C. 2601 it
(b) Federal Watci Pollution Control Act, as amended (33 U.S.C. 1251 it
soq.).
Cc) Public Health Service Act, as amended by the Sak Drinking Water Act
(42 U.S.C. SOOf it
(d) Clean Air Act, as amended (42 U.S.C. 7401 it seq.).
Ce) Noise Control Act of 1972 (42 U.S.C. 4901 of ieqj.
(fl Solid Waste Disposal Act, as amended (42 U.S.C. 6901 of seq.).
(g) Radiation guidance pursuant to Section 274(h) of the Atomic Energy
Act of 1954, as amended (42 U.S.C. 2021(h); see also, the Radiation Protec-
tion Guidance to Federal Agencies for Diagnostic X Rays approved by the
Prcsidcnt on January 26. 1975 and published at page 4377 of the Faou.u..
Rzcisiu on February 1, 197 ).
(h) Marine Protection, Ri carch, and Sanctuaries Act of 1972. as amended
(33 U _S.C. 1401. 1402. 14 11—1421. 1441—1444 and 16 U.S.C. 1431—1434).
(i) Federal Insec t icide, Fungicide, and Rodenticide Act, as amended (7
U.S.C. 136 ii seq.).
I—lOS. “Applicable pollution control sundards’ means the same subsun-
tive, procedural, and other rcqwrcmcnu that would apply to a private person.
1-2. 4 cwq Coordination.
1-201. Each Executive agency shall cooperate with the Administrator of
the Environmental Protection Agency, hereinafter referred to as the Adnunis.
fltUU UGlmL VOl. 43. MC. 20 1 —TUuIDAY, OCTOSU Ii . %5?$
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47708 T)IE PRESiDENT
tr tor. and State. iniersc..ite. and Toc l act-noes in the prevenuon. cuncrol. and
abatement of efl .irOtUhlCflUl pullutian.
1—202. Each Eaccuii e agcn slull consult uth the drniiiiirjior and
with St iie. interstate, and 1o al agencies concerninc the best iediniquc ’, and
meLhods available for the prc enuon. concrul. and abatement of cn’ironmcn .
tal pollution.
I—S. Tahns&4dv, ’r and Oveing :.
I—SO!. The Administrator shall provide technical advice aaid assistance to
Executive agenoa order _zvre t .bar cost effecsive sod unicly compli-
ance with appbcable pollution control standards.
1-302. The admuuatrator shall conduct such reviews and inspections as
may be neces acy to monitor compIim ce tiath applicable pollution control
standards by Federal 8a!aue and acDviucl.
1.4. PolIwi.. Coauuof Pigs.
1—401. Each Executive agesscy shafl submit io the Direrior of the ornce of
?.fanageiuern and Budget. through the Adzrunua’aior. an annua’ plan for the
control of envtrunmeruai polluoon. The plan shall provide for any necernry
improvemem in the design. construction. management. opesauon. and mainte-
nance of Federal faàliue, and acuvities. and hail indude annual cost esu-
maee. The Adimniru’ztor shafl establish guidelines for deveioping such plans.
1—402. In preparing iu plan, each Execuu ’e agency shall ensure that the
plan provides for compliance with all applicable pollution coou ’oI standards.
1—403. The plan shall be submitted in ‘accordance v.u.h an’ other inscruc•
lions that the Director of the Orncc of Management and Bud;et may issue.
I-S. Fw,devg ’
1—501. The head of each Earcuinc agency shall ensure th it sufl’iocnc
funds for compliance with applicable pollution control standards are reqtested
in the agency budget.
1-502. The head of each Executive agency shalL ensure that funds appro.
pnated and apportioned for the prevcnuon. contro’ and abatement of en iron .
mental pollution re not used for ani other purpose unless permuted by law
and specs&alI% approved by the 00 1cc of Management and Budget.
1.6. Coiuphasn 111th Pollution Censrols.
1-601. Wheneset the Administrator or the appropriate State. interstate.
or local agency notifies an Executive agency that it is in iolauon of an
applicable pollution contror standard (see Section 1—102 of this Order), the
Execwise agency shall promptly consult with the notifusg i;enc ’ and prosid
for its approval a pLan to achie e and maintain compliance itIi the applicable
pollution control standard. This plan shall include an impkmentauun sdied’
We (or coming into compliance as soon practicable.
.1—602. The Administrator shall make cvcr efl ’ort to resolse conflicts
reprding suck s’iobuon between Executive agencies and, on request of any
party, such conflicu between an Executivc agency and a State. interstate, or a
local agenct. If the Administrator cannot resolve a conflict. the dmuüst.rator
shall request the Director of the 0 11 1cc of Management and Budget to resolve
the conflict.
1.603. The Director of the Olflce of Management and Rudgci shalT
consider unresolved conflicts at the Ft-quest of the Administrator. The Director
shall sc-eL time Adinmisirators tcchnulupcal judgment and dctcrnunatiun with
rc -garel to ilic ajijilicabilit’. of statutes and rc— pabuons.
flDUA& CIGITTEL VOL 43, NO 7OI—TUUOAY . OCTOIU 17. ISIS
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T)4E PtESlD NT 47709
l—G04. fliese con(iict resoluuon proccclurcs are in iddition to. nw in lieu
of. other procedures. including s3nCtion . cor the cn(orccmeni nf applicable
pollution control siandarth.
1-605 Except 33 e pressIv pro idcd by a Presidenual exemption under
this Order. nothing in this Ordcr. nor any acuon or Inaction undvr this Order.
thall be construed to revise or modify aiiy applicable pollution control
iundart
I — Lmuanonon Er.n.pn.is.
1-701. Exemptions from appli b1e pollution control sundards may only
be granted under sutuies cued in Section 1-102(a) through 1— 102( 1) if the
President makes the required appropriate statutory determination: that such
esempuon is necessary (a) in the interest of national security, or (b) in the
paramount interest of the United States.
1-702. The head of an Executive agency may. from ume to time, recom-
mend 10 the President through the Director of the Office o( Management and
Budget. that an activity or faclity. or uses thereof, be esempi from an applies.
ble pollution cornrol standard.
1-703. The Admitustrator shall advise the President. through the Director
of the Office of Management and Budget. whether he agrees or disagrees with
a recommendauon for exemption and his reasons therefor.
1-704. The Director of the Office of Management and Budget must
advise the President within sixty days of receipt of the Administrators views.
1-8. Central Presnnen&
140!. The head of each Executive agency. that is responsible for the
construction or operation of Federal iacthucs outside the Untied States shall
ensure that such construction or operation complies with the environmental
pollution control stand.irds of generai applicability in the host coonir’ or
,junsdicuon.
1402. Ezecuuve Order No. 11752 of December 17, 1973. is revoked.
Tua Wiurz Hotsz.
Ortoà.r 13. i97&
Ooe. 78-28106 Flied 10-13-78; 3:40 pm]
£wvoss*i. ?‘4ori The Presidents sisiuncra .( Oct. IS. 197$, on sipwle Cierutie Order
120U and his m twsndum for the held, of de ianmcnIi and aernewa. dated Oct. 13 I 78. on
Federal contptiaiiee ii pollution control .uz!sdarth are primed ut the Wccfrjv Compilation of
h s Document. (voL 14. an. 411.
IIM UG4I1L Vol. . NO. l—1U1SOAY. OCTOUS 17, 117$
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Federal Register I Vol. 44. No. 141 / Friday. July O. 1979 I Presidential Documents 42657
PresidentIal Documents
Executive Order 12148 of July 18, 1979
Management of Federal Legal Resources
By the authority vested in me as President by the Constitution and statutes of
the United States of America. it is hereby ordered as follows:
1.1. Establishment of the Federal Legal Council.
1—101. There is hereby established the Federal Legal Council. which shall be
composed of the Attorney General and the representatives of not more than
15 other agencies. The agency representative shall be designated by the head
of the agency.
1—102. The initial membership of the Council. in addition to the Attorney
General, shall consist of representatives designated by the heads of the
following agencies:
(a) The Department of Commerce.
(b) The Department of Defense.
(ci The Department of Energy.
(d) The Environmental Protection Agency.
(e) The Equal Employment Opportunity Commission.
(1) The Federal Trade Commission.
(g) The Department of Health. Education, and Welfare.
(h) The Interstate Commerce Commission.
(i) The Department of Labor.
(j) The National Labor Relations Board.
(k) The Securities and Exchange Commission.
(I) The Department of State.
(m) The Department of the Treasury.
(n) The United States Postal Service and
(a) the Veterans Administration.
1—103. The initial members of the Council shall serve for a term of two years.
Thereafter, the agencies which compose the membership shall be designated
annually by the Council and at least five positions on the Council. other than
that held by the Attorney General, shall rotate annually.
1—104. In addition to the above members, the Directors of the Office of
Management and Budget and the Office of Personnel Management, or their
designees. shall be advisory members of the Council.
1—105. The Attorney General shall chair the Council and provide staff for its
operation. Representatives of agencies that are not members of the Council
may serve on or chair subcommittees of the Council.
1-2. Functions of the CounciL
I—WI. The Council shall promote:
(a) coordination and communication among Federal legal offices:
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42658 Federal Register I Vol. 44. No. 141 1 Friday. fuly ), 1979 / Presidential Documents
(b) improved management of Federal lawyers, associated support personnel.
and informaLlon systems:
(c) Improvements In the training provided to Federal lawyers:
(d) the facilitation of the personal donation of pt.. bono legal servlces by
Federal attorneys:
(e) the use of Joint or shared legal facilities in field offices: and
(I) the delegation of legal work to field offices.
1—202. The Council shall study and_seek to r blerns in the efficient
ñdeffëëll management of Federal lej r resources that are beyond tl
capacity or authority of Individual agencies to resolve.
1—203. The Council shall develop recommendations for legislation and other
actions: (a) to increase the efficient and effective operation and management
of Federal legal resources, Including those matters specified in Section 1—201,
and (b) to avoid Inconsistent or unnecessary litigation by agencies.
1-3. Litigation Notice System.
1—301. The Attorney General shall establish and maintain a litigation notice
system that provides timely Information about all civil litigation pending in the
courts in which the Federal Coverzimertt Is a party or has a significant interesL
1—302. The Attorney General shall Issue rules to govern operation of the notice
system. The rules shall Indude the following requirement:
(a) All agencies with authority to litigate cases in court shall promptly notify
Lhe Attorney General about those cases that fall in classes or categories
designated from time to time by the Attorney General.
(b) The Attorney General shall provide all agencies reasonable access to the
information collected in the litigation notice system.
1-4. Resolution of lnlem.gency Legal Disputes.
1—401. Whenever two or more Executive agencies are unable to resolve a legal
dispute between them. Including the question of which has jurisdiction to
administer a particular program or to regulate a particular activity, each
agency is encouraged to submit the dispute to the Attorney General.
1-402. Whenever’two or more Executive agencies whose heads serve at the
pleasure of.the President are unable to resolve such a legal dispute, the
agencies shall submit the’ dispute to the Attorney General prior to proceeding
in any court, except where there is specific statutory vesting of responsibility
for a resolution elsewhere.
1-5. Access to Legal Opinions.
1—501. In addition, to the disclosure now required by law, all agencies are
encouraged to make available for public inspection and copying other opin’
ions of their legal officers that are statements of policy or interpretation that
have been adopted by the agency. unless the agency determines that disclo-
sure would result In demonstrable harm.
1—502. All agencies are encouraged t 9 make available on request other legal
opinions. when th agency determines that disclosure would not be harmful.
1-6. Automated Legal Research and Information Systems.
1-601. The Attorney General, in coordination with the Secretary of Defense
apd .other agency heads, shall provide for a computerized le8al research
system that will be .svailable to all Federal law offices on a ‘reimbursable
basis. The aysted may Include In Its data base euch Federal regulations, case
briefs, and legal opinions, as the Attorney General deems appropriate.
1—602. The Federal Legal Council shall provide leadership Idr all Federal legal
offices in establishing appropriate word processing and mana ement ,Informa’
tion systems.
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Federal Ro Ister I Vol. 44. No. 141 I Friday. July 20. 1979 / Presidentiul Documents 42659
1—7. Responsibilities of the Agencies.
1—701. Each agency shall (a) review the management and operation of Its legal
activities and report In one year to the Federal Legal Council all steps being
taken to Improve those operations, and (b) cooperate with the Federal Legal
Council and the Attorney General in the performance of the functions pro-
vided by this Order.
1—702. To the extent permitted by law, each agency shall furnish the Federal
Legal Council and the Attorney General with reports. information and assist-
ance as requested to carry out the provisions of this Order.
THE WHITE HOUSE /
July 18. 7979.
FR Doc. 79-
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COMPLIANCE AGREEMENT
U.S. ENVIRONMENTAL PROTECTION AGENCY
Name of Federal Facility Federal Facility
and Compliance
EPA Region Agreement
I
INTRODUCTION
The introductory paragraph should state the
following:
The U.S. Environmental Protection Agency, Region ____
(hereinafter Region _____), and the ( Facility name and
location ) (hereinafter abbreviated facility name ) are
the parties to this agreement which is entered into
pursuant to Executive Order 12088, October 13, 1978
t43 FR 47707]. The Office of Management and Budget and
the Department of Justice will take cognizance of this
agreement pursuant to their respective duties to assure
compliance with the environmental laws under Executive
Order 12088 and the particular statutes herein addressed.
A statement of agreement between the Federal facility
and EPA should include the following;
Executive Order 12088 was promulgated to insure
Federal compliance with applicable pollution control
standards. This agreement contains a “plan”, as
described in Section 1—601 of Executive Order 12088,
to achieve and maintain compliance with applicable
name of relevant statute(s ) standards for the name of
facility .
II
STATEMENT OF FACTS
This paragraph should provide a description of the
site in question and the violations identified. The
paragraph should detail the objectives and scope of
the agreement between the facility and EPA.
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COMPLIANCE AGREEMENT
(conti nued)
III
COMPLIANCE SCHEDULE
This paragraph should state the following:
The compliance schedule for the facility named is
intended to achieve compliance as expeditiously as
practicable, pursuant to Section 1-601 of Executive
Order 12088, and is set forth as Appendix to this
agreement. The attachment is incorporatedTnto and
made a part of this agreement. The schedule was
determined after consultation between Facility name
and Region —. The schedule contains interim
requirements reflecting design and construction
milestone dates. Wherever reasonably possible, name
of Facility will expedite the schedule.
Iv
FUNDING
If existing Agency funds are available to correct the
violations, the following paragraph should be stated:
Facility name has determined that the funds necessary to
correct the violations identified above are available for
this purpose and Agency name shall obligate such funds as
necessary to meet the timeframes for achieving compliance
as outlined in the attached schedule. If facility name
subsequently determines that additional funds are needed
to achieve compliance, it shall seek all existing funds
for this purpose by the most expeditious means possible
or, if necessary, shall request new authorizations
in the Agency’s budget in order to ensure the most
expeditious schedule of compliance in accordance with
sections 1-4 and 1—5 of Executive Order 12088 as implemented
by the Office of Management and Budget Circular A—106 (As
Amended). Section 1-5 of E.O. 12088 states that “The
head of each executive agency shall ensure that sufficient
funds for compliance with applicable pollution control
standards are requested in the Agency budget.” Failure
to obtain adequate funds or appropriations from Congress
does not, In any way, release Facility name from its
ultimate obligation to comply with name of relevant
statute(s ) as expeditiously as possible.
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COMPLIANCE AGREEMENT
(continued)
If Federal agency funds are either unavailable or inadequate
to correct the violations, then the following paragraph
should be stated:
All existing funds shall be sought for this purpose by
the most expeditious means possible, and/or new authorizations
sought from Congress, if necessary, to achieve the attached
schedule of compliance in accordance with Sections 1—4
and 1-5 of Executive Order 12088 as implemented by the
Office of Management and Budget Circular A—106 (As
Amended). Section 1—5 of E.O. 12088 states “The head of
each executive agency shall ensure that sufficient funds
for compliance with applicable pollution control standards
are requested in the Agency budget.” Failure to obtain
adequate funds or appropriations from Congress does not,
in any way, release Facility name from its obligation to
comply with name of relevant statute(s) .
V
REPORT REQUIREMENTS
The following should be included as Report
Requirements:
Name of Facility shall submit quarterly
progress reports by a set date and upon the
final compliance date as set forth in the
attachment. The progress reports will be
submitted to Region and the appropriate
local, State or regional environmental
agency. The status reports shall indicate
compliance or noncompliance with the
schedule. In the event of noncompliance,
the report shall include the cause of
noncompliance and any remedial actions
taken. If delay is anticipated in meeting
any schedule date, name of facility shall
immediately notify Region — in writing of
the anticipated delay, describing in detail
the anticipated length of delay, the precise
cause of the delay, the measures taken and
to be taken by name of facility to prevent
or minimize the delay and the timetable by
which the measures shall be implemented.
Name of facility will take reasonable action
to minimize any delay.
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COMPLIANCE AGREEMENT
(continued)
° In the event there is an amendment of the Act,
or changes to the regulations promulgated under
those statutes, the compliance schedule may be
renegotiated to reflect these changes. Such
renegotiation shall be governed by Executive
Order 12088. During the pendency of any renego-
tiation, the attached compliance schedule, to
the extent it does not conflict with statutory
or regulatory changes, shall remain in effect
unless specifically waived by Region —.
o On the date for final compliance, as shown on
the Attachment, compliance with applicable
permit requirements must be demonstrable by
testing and positive reporting of the achievement
of compliance, rather than by the mere completion
of construction of pollution abatement facilities.
o Upon the demonstration of compliance by name
of facility , there will be a continuing
obligation to comply with applicable permit
requirements under the Act.
o If funds are not appropriated from Congress as
requested and existing funds are not available
to achieve compliance In accordance with the
attached schedule, the Facility name shall
notify the EPA immediately in writing.
VI
CONFLICT RESOLUTION
This paragraph should read as follows:
In the event of any conflict involving violations of this
agreement, Region — and name of facility shall meet promptly
and work in good faith for a period of not less than thirty
(30) days In an effort to reach a mutually agreeable resolution
of the dispute. (If Region — and name of facility are unable
to reach agreement, then they may select an alternative dispute
resolution procedure to aid in the resolution of the dispute.
This procedure shall be for a period not to exceed — calendar
days.)* If the differences cannot be resolved by the two parties
in a timely manner, a proposed Order may be issued by EPA as
appropriate, and the escalation procedures in Sections 1-602,
1-603, and 1-604 of Executive Order 12088 shall apply. Additional
dispute resolution procedures may also be utilized if mutually
agreed to by both parties as part of this agreement.
° Regions may add this sentence on ADR as appropriate.”
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COMPLIANCE AGREEMENT
(continued)
VII
SANCTIONS
This section should state that enforcement measures
specified under the specific act violated will be used
should the facility not comply with this agreement.
Enforceability clauses should be included in this section
where appropriate.
VIII
CLOSING STATEMENT
This paragraph should read as follows:
This agreement in no way modifies Section ( number ) of
the name of Act. Nothing in the Agreement is intended
to nor should be construed to affect the rights of
nonparties to the Agreement.
Date: ___________________ Signed: ______________________
(Facility Contact Name
Title)
Date: ____________________ Signed: _______________________
(EPA Name and Title)
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FEDERAL FACILITY ENFORCEABILITY CLAUSES
Enforceability clauses can be included in new Federal Facility
Compliance Agreements or Consent Orders or be added to existing Federal
Facility Compliance Agreements, where feasible. The following is an
example of acceptable language from the RCRA program:
The (Department/Agency) recognizes its obligations to comply with
RCRA as set forth in Section 6001 of RCRA.
The provisions of this Agreement including those related to
statutory requirements, regulations, permits, closure plans, or
corrective action, including recordkeeping, reporting and schedules
of compliance, shall be enforceable under citizen suits pursuant
to 42 U.S.C. 9672(a)(1)(A), including actions or suits by the State
and its agencies. The (Department/Agency) agrees that the State
and its agencies are a “person” within the meaning of Section 7002(a)
of RCRA.
In the event of any action filed under Seciton 7002(a) of
RCRA alleging any violation of any such requirement of this Agreement,
it shall be presumed that the provisions of this Agreement including
those provisions which address recordkeeping, reporting, and schedules
of compliance are related to statutory requirements, regulations,
permits, closure plans, or corrective action, and are thus
enforceable under Section 7002(a) of RCRA.
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NOTIFICATION OF VIOLATION (NOV)*
CERTIFIED MAIL
RETURN RECEIPT REQUESTED
Facility Contact
Facility Address
Re: Notification of Violation - [ Name of Facility and I.D.#]
Dear [ Name of Contact]:
o The opening statement should include the
following information concerning the inspection:
— Date
— Type and purpose
— Names and affiliation of inspectors
o FollowIng the opening statement, the NOV should
discuss the results of the inspection, including:
— A description of each violation.
— A citation of the appropriate regulation or
the statute.
- A description of necessary corrective
actions, if appropriate.
o The closing statement should:
- State that the facility must submit either a
remedial action plan and schedule or written
certification that the violation has been
corrected by a specified date consistent with
applicable media timeframes.
— Any remdial action plan should contain the
following elements:
o description of noncompliance situation
O identification of corrective actions to be
taken
o outline of schedule for obtaining required
funds implementing corrective actions
o description of content and frequency of
progress reports
- State the number of days EPA will take to
review and comment on the remedial action plan.
* When using an enforcement action under RCRA refer to the January 25, 1988
memorandum contained in Appendix K.
1
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NOTIFICATION OF VIOLATION
(conti nued)
— Provide the name and address of where the
response is to be sent.
— Explain the adverse consequences of not submitting
a remedial action plan or written certification
in a timely manner. The following sentence may
be used in a NOV 1 “Failure either to respond
to this request by (date), or to achieve compliance
or mutual agreement on an acceptable response
to the above cited violations by (date) will
result in further escalation of this enforcement
action.” Relevant citizen suit provisions of involved
statutes may also be cited here.
Offer to meet with the Federal agency official
authorized to sign a Compliance Agreement and
comit the agency to actions described in the
remedial action plan.
Sincerely yours,
[ Name and Title]
2
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RESPONSE FORM FOR CERTIFI(ATION
OF VIOLATION CORREr.TION
IDa tel
CF.RTIFIEI) MAIL
RETuRN RFCEIPT REQUESTED
[ Facility Contacti
[ Facility Addressl
Re: C rtificatinn of Violation Correction
flear [ Facility (‘.ontact l:
EPA acknowledges receipt of the facility name certification
of violation correction. The certification addresses the
violations identified in the name enforcement response , dated
____ The facility should continue to take the necessary
steps to maintain and ensure compliance with all applicahie
Federal, State, and local environmental requirements.
If you have any questions, pl as call Federal Facilities
Coordinator or Program Staff name and number of my staff.
Sincerely,
Delegated Regional Enforcement Official
EPA Division
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RESPONSE FORM FOR REMEDIAL
ACTION PLAN
mat i
CERTIFIED MAIL
RETURN RECEIPT RFOIJESTEt)
[ Facility Contact]
fFacil ity Addressl
Re: Remedial Action Plan
Dear [ Facility Contacti:
EPA acknowledges receipt of the facility name remedial
action plan, dated _____. EPA will complete its review by
date . At that time we will notify you of our comments.
However, EPA’s receipt o the plan does not alter the facility
name liability for correcting the stated violation in a timely
manner and for taking all necessary steps to maintain compi lance
with all applicable Federal, State, and local environmental
requirements. While a remedial action plan may he used as the
basis for substantive agreement on steps necessary to achieve
compliance, it is not an enforceable agreement or order and may
only provide the basis for such enforcement agreements or
orders in those cases where these enforcement responses are
deemed necessary.
If you have any questions, please call Federal Facilities
Coordinator or Program staff name and number of my staff.
Si ncerely,
Delegated Regional Enforcement Official
EPA Division
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NOTIFICATION FORM TO FEDERAL FACILITY
OF ENFORCEMENT ACTION AGAINST CONTRACTOR
InATE1
CERTIFIF.fl MAIL
RETURN RECETPT REQUESTED
[ Facility Contact]
[ Facility Addressl
Re: Enforcement Action Against [ Facility Contractor]
Dear [ Facility Contact]:
Attached is a copy of the Environmental Protection Agency’s
( NOV. Administrative Complaint or other ) against contractor
name for violations of the name of statute at the name of
Federal facility .
We request your cooperation in working with the contractor
so that the violation will he corrected and the facility
returned to compliance as quickly as possible. We want to
emphasize the importance of your responsibility to effectively
overs’?e contractor operations to ensure compliance.
EPA may also decide whether subsequent enforcement actions
may he necessary against other parties in order to correct
the violation.
If you have any questions about the enforcement action,
please call Federal Facilities Coordinator or program staff
name and number of my staff.
Delegated Regional Enforcement Official
EPA Division
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VI. ENFORCEMENT RESPONSE TO COMPLIANCE
PROBLEMS AND VIOLATIONS OF ENVIRONMENTAL
LAWS AT FEDERAL FACILITIES
This Chapter outlines the basic approach and procedures which EPA uses when
responding to violations of environmental law at Federal facilities. 1 It explains the concept
of timely and appropriate enforcement response and why it is important to gaining high
levels of compliance. It discusses unique features of Federal enforcement procedures,
Staid enforcement responses to Federal facility violations as well as the enforcement roles
and responsibilities of each level of government. EPA media program offices also may
develop specific enforcement guidance for Federal facilities through either their annual
operating Guidance or in other program policy documents. However, any media-specific
enforcement guidance which is issued for Federal facilities will be consistent with the basic
framework and concepts set forth in this strategy.
In summary, EPA and States are to pursue “timely and appropriate” enforcement
responses to address violations at Federal facilities in a manner similar to actions taken to
address violations at non-Federal facilities. EPA’s enforcement response guidance
emphasizes that if a violation is not or will not be corrected within the timeframe for
violations of that class, a formal enforcement action must be taken consistent with media
program guidance, including required degrees of formality and timeliness.
EPA’s enforcement approach for Federal facilities emphasizes the importance of
negotiated responses for the correction of violations and schedules formalized through
Compliance Agreements or Consent Orders, depending upon program authorities and
guidance. Where agreement cannot be reached on all issues in a timely manner, EPA will
promptly utilize all available enforcement and dispute resolution mechanisms to effectively
resolve areas of disagreement.
This chapter also clarifies that Federal officials are expected to take all available
steps to obtain sufficient funds to achieve compliance on the most expeditious schedule
possible. While EPA recognizes that the Anti-Deficiency Act places certain limitations on
Federal officials’ abilities to commit funds which they have not been authorized to spend,
they may seek additional funds where needed to correct identified compliance problems.
EPA’s enforcement response for Executive Branch agencies differs somewhat from
its enforcement against non-Federal parties in that it is purely administrative, and neither
provides for civil judicial action nor assessment of civil penalties. 2 This does not apply to
enforcement actions taken by States as authorized under various statutes nor to EPA actions
directed to non-Federal operators of Federal facilities (e.g., GOCO’s). EPA will pursue
the full range of its enforcement responses against private operators of Federal facilities in
appropriate circumstances. In addition, sanctions may be sought against individual
employees of Federal agencies for criminal violations of environmental statutes.
The provisions of this Chapter are not applicable to enforcement actions under CERCLA/SARA. Any
references to CERCLA/SARA are included for information purposes only.
2 This limitation does not apply to penalties for violations of Interagency Agreements under Section 120
of the 1986 Superfund Amendments and Reauthorization Act (SARA) pursuant to Sections
109(aXIXE) and 122(g) of SARA.
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A. OVERALL COMPLIANCE POLICY AND PHILOSOPHY
Enforcement is an essential supplement to the strong public mandate for Federal
facilities to comply with Federal, State and local pollution control requirements to the same
extent as non-Federal entities. Enforcement reinforces the special sense of public duty to
comply that this mandate instills in our Federal officials. It is generally recognized by EPA
and the public that compliance promotion activities such as technical assistance and training
are not in themselves sufficient to create full compliance nor to provide the necessary
incentives for public ir private officials to affirmatively prevent and anticipate problems in
complying with environmental laws.
Federal agencies must comply with Federal environmental laws in the same manner
and degree as non-Federal entities and EPA will utilize the full range of its available
enforcement mechanisms to ensure Federal facilities compliance. Federal environmental
statutes require that, in most circumstances, facilities of the United States Government
comply with Federal, State, and local pollution control requirements to the same extent as
non-Federal entities. There are, however, certain limitations and differences in terms of the
types of enforcement actions which EPA will take against Federal facilities. Unique
considerations and procedures that arc applicable when enforcement is undertaken against
Federal facilities by EPA are explained in the next section of this Chapter.
Fqderal and Stare enforcement officials must adhere to the concept of timely and
appropriate enforcement response, which EPA and the States have defined for each
program to establish a strong, stable, and predictable national enforcement presence. What
this means is that if violators are not returned to compliance within a certain timeframe,
through a variety of infonnal contacts and enforcement responses, timely formal
enforcement action is required. Timely and appropriate enforcement response guidance,
with its timelines, required degree of formality, sanction and escalation, is deemed essential
to achieving high levels of Federal facility compliance.
National guidance issued for each environmental program establishes timelines for
key milestones in the enforcement Framework for Implementing State/Federal Enforcement
Agreements,” which sets forth the Agency’s general principles on timely and appropriate
enforcement response, and program implementing guidance are summarized in Exhibit VI-
1 and Appendix C. This exhibit also includes the criteria for defining what constitutes a
formal enforcement response. The principles of timely and appropriate enforcement
response apply to the full range of sources regulated under Federal statutes; however, the
application of specific timelines and definitions in Exhibit VI-I is generally directed to the
most significant violations in each environmental program. Appendix C contains each of
the EPA media programs’ definitions for significant noncompliance. Regions and States
should also apply these timeframnes to other types of violations at Federal facilities to the
extent possible with available resources and consistent with media program guidance.
The national timely and appropriate milestones are adapted to specific legal
enforcement mechanisms and procedures unique to each State. Agreements which embody
these “timely and appropriate” requirements and definitions are reached between EPA
Regions and States and committed to writing in State/EPA Enforcement Agreements,
discussed more fully in Chapter V I I. These agreements may also specifically address other
compliance activities and response actions of Federal facilities.
EPA emphasizes negotiation with responsible Federal officials on corrective actions
and schedules needed to expeditiously resolve noncompliance situations. EPA will
generally use either Compliance Agreements or Consent Orders (depending upon available
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statutory authorities and media program guidance) as the primary mechanism for
formalizing a eements with Federal facilities.
B. EPA RESPONSE TO FEDERAL FACILITIES VIOLATIONS
The Federal enforcement process outlined in this Section is designed to provide a
uniform approach to responding to violations at Federal facilities, recognizing that each
environmental statute ectablishes somewhat different enforcement response mechanisms.
There are several fact .; which distinguish EPA’s enforcement response LO Federal
facilities from enforcement at non-Federal facilities and by the States:
(a) EPA has a broad mandate to provide technical assistance and advice to Federal
agencies to ensure their compliance, as required under Executive Order 12088 (See
detail in Chapter II). However, implementing this mandate will not interfere with
the application by EPA (or States) of timely and appropriate enforcement
procedures to achieve the most expeditious schedule of compliance.
(b) EPA places emphasis on negotiations with responsible Federal officials in resolving
Federal facility noncompliance with enforcement documents issued on consent and
signed by both parties. This Strategy also explains how failure to reach agreement
in a timely manner will be resolved.
(c) Federal EPA enforcement actions and procedures for resolution of compliance
problems differ in certain respects for Federal VersUS non-Federal facilities:
1. EPA will no: bring civiljudicioi suit against Executive Branch Agencies and will
rely upon dminisuative enforcement mechanisms for Federal facilities as outlined
in Appendix I. This respects the position of the Department of Justice that civil
suits within the Federal establishment lack the constitutionally required ‘ justiciable
controversy.” (See Appendix H which contains the Justice Department’s testimony
on this issue at a Congresional oversight hearing in April, 1987).
ii. EPA generally will no: assess civil penalties against Federal facilities under
most environmental statutes. 3 This also is in response to the Justice Department
position discussed above as well as Federal District court rulings which have issued
conflicting decisions as to whether or not the United States government has clearly
and unambiquously waived its soverign immunity for penalties under various
environmental statutes. -
ui. EPA will negotiate Compliance Agreements or Consent Orders with Federal
agencies to address violations at Federal facilities. The timeframes for negotiation
of Compliance Agreements and Consent Orders are defined by EPA’s media
specific “timely and appropriate” criteria. Prior to issuing a final Compliance
Agreement or Consent Order to a Federal facility, the Federal Agency will be
provided an opportunity to meet with EPA to discuss key issues and to sign it on
3 This limitation does not apply to penalties for violations of Interagency Agreements under Section 120
of the 1986 Superfund Amendments and Reauthorization Act (SARA) pursuant to Sections
109(aXl)(E) and 122(g) of SARA.
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consent prior to the order or agreement becoming final and effective. 4 This
approach is also based in part on DOJ’s written position which states that
“Executive Branch agencies may not sue one another nor may one agency be
ordered by another to comply without the prior opportunity to contest the order
within the Executive Branch.”
iv. Additional dispute resolution procedures are provided in media program
guidance to resolve compliance issues through EPA, and if necessary, involve
0MB under E.0. 12088 for funding disputes, the Attorney General under E.0.
12146 for legal interpretation and the EPA Administrator under E.O. 12580 for
CERCLA/SARA.
v. Federal facilities, like all public entities,faceproble,ns in ensuring that funds
are adequate to meet environmental requirements and remedy noncompliance. The
obligation to comply is not altered by. such funding considerations; the most
expeditious means of achieving compliance and obtaining funds is expected.
However, the process for acquiring funds does pose unique considerations which
should be taken into account in negotiating compliance schedules as described in
Section B. l.f.
B.1 Federal Facilities Compliance Process: Civil Administrative
Enforcement Procedures
The Federal facilities compliance process outlines the administrative procedures
EPA will follow when responding to civil violations identified at Federal facilities. This
process is illustrated in Exhibit V1-2 and discussed below. These procedures apply when
civil enforcement responses are directed at facilities of Executive Branch Agencies.
B.1 .a Notification of Violation
EPA monitors compliance status and identifies violations at Federal facilities
through reviews of source self-monitoring and reporting documents, onsite inspections,
and the A-106 process. Once a violation is discovered, EPA makes a determination of
noncompliance and takes its initial enforcement response.
EPA’s initial enforcement response to an identified violation may vary depending
on the type of violation and nature of the violator. Media-specific guidance governs the
type of initial response and thneframe for such response. See Appendix I for types of
enforcement mechanisms used under each Federal environmental program. When EPA has
made its determination that a violation has occurred at a Federal facility, Federal Facilities
Coordinators or media program staff may informally notify the facility (e.g., via telephone)
prior to issuance of formal written notification. If Federal Facilities Coordinators provide
this informal notification, they should first consult with appropriate media program staff.
This will provide the Federal facility with some additional time to remedy the identified
violation before receiving formal written notification from EPA.
Generally, EPA issues a Notice of Violation (NOV), or other program equivalent as
the initial written notice for requiring response to address significant violations. NOVs or
program equivalents issued for violations at Federal facilities are similar to those issued for
EPA may issue unilaleral administrative orders to Federal facilities under Section 106 of SARA
following concuntnce by the Department of Justice pursuant to Section 4(b)(1) of Executive Order
12580.
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non-Federal violations except that they should not mention civil judicial actions by EPA.
Ac a minimum, NOVs or their program equivalent issued for Federal facilities Should:
. Be issued to base commander or facility director level officials.
• Describe the violation and how it was identified.
• State that the consequences of not meeting the requirements stated in the NOV in a
timely manner or responding to EPA by the dates specified will result in e
issuance of an order or formal escalation of the enforcement action. Relevant
citizen suit provisions of involved statutes may also be cited here.
• Explain that the Federal agency can either submit a written certification that it has
corrected the violation if only a short-term “fix” is required or an action plan and
schedule for a violation requiring more extensive remedial action. Selection of a
date for requiring submission of a certification of compliance or remedial action
plan and schedule is dependent on the timely and appropriate timefraines shown for
each program in Exhibit VI-l. In certain cases, EPA may also include a schedule,
proposed order, or proposed compliance agreement as part of or attached to the
NOV. The NOV should also state the number of days EPA will take to respond to
the reply.
• Refer to any available alternatives to compliance (e.g., Presidential exemptions or
specific legislative relief).
• Offer to schedule a meeting or conference with Federal agency officials who are
authorized to sign a Compliance Agreement or Consent Order. These officials must
also have the authority to make the necessary budget requests to correct the
violation according to the schedule outlined in the Agreement
The NOV, or program equivalents, should be tailored to address the specific
noncompliance situation identified at the facility. Appendix J provides a model for
developing an NOV. Copies of all NOVs and other enforcement actions issued by EPA to
Federal facilities shall be sent to the involved Headquarters media program enforcement
office with a copy to the Office of Federal Activities.
B.1 .b Response by Federal Facilities: Certification of Compliance
or Remedial Action Plans
Once a facility has received the official notice of violation or program equivalent, it
is required to submit either a certification of violation correction, or a remedial action plan
(RAP) to EPA. A facility can also dispute EPA’s noncompliance finding through appeals as
provided for through the dispute resolution process outlined in Section B.l.e.
The certification of violation correction will consist of a letter from the facility
which identifies the violation and describes remedial action taken. It is accompanied by
support documentation that demonstrates achievement of compliance. When remedial
actions needed to correct the violation will exceed the tüneframes for timely and appropriate
enforcement response for either achieving compliance or being subject to formal
enforcement response, the facility must submit a remedial action plan. The plan should:
• Describe the noncompliance situation;
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• Identify the corrective actions to be taken;
• Outline the schedule for implementing the remedial actions; and
• Describe the content and frequency of progress reports.
EPA will acknowledge the receipt of the proposed certifications and remedial action
plans with a written response. An example of such a Response Form is provided in
Appendix J. A response should be worded so the facility is not insulated from further EPA
or State enforcement action. The response should also specify a date by which EPA will
respond which should normally be within 30 days. In complex situations, detailed
comments may follow thereafter.
Remedial actions and schedules proposed by the Federal facility may serve as a
basis for a Compliance Agreement or Consent Order. Although a remedial action plan does
not constitute an EPA enforcement response, it may be used as a basis for monitoring
future compliance for violations that are not sufficiently significant, as defined in program
guidance, to mandate formal enforcement response.
In the event of disputes in instances where formal enforcement response is not
necessary, the Region may use the dispute resolution processes described in Section B.l.e
to further escalate and resolve compliance.
B.1.c initial Negotiation of Compliance Agreements or Consent
Orders
Where formal enforcement response is required, following the notification of
violation, EPA generally will use Compliance Agreements or Consent Orders as the
primary formal enforcement response to formalize bilateral agreements between EPA and a
Federal agency to ensure expeditious return to compliance. Compliance Agreements will be
used as EPA’s principal formal enforcement response unless media program guidance
indicates that statutory authorities are available for use of Consent Orders for Federal
facilities violations, Appendix I indicates the specific enforcement responses in each media
program and highlights those which arc available for usc at Federal facilities. Consent
0 ildbe used whenagiecinents arc negotiatedjointly with a Stateandthe Stare has
administrative order authority.
It is EPA policy that Compliance Agreements or Consent Orders should be
negc i ted within required media-specific, “timely and appropriate” tirneframes or EPA may
take further formal administrative enforcement action to achieve compliance. EPA will
prepare Compliance Agreements or Consent Orders for joint signature by the affected
facility and EPA. At a niinmuzn, all Compliance Agreements and Consent Orders should
stare that the violating facility is accountable for meeting timefranies and taking required
actions as outlined in the Agreement or Order or be subject to further enforcement action.
In certain cases , it may be necessary to negotiate a two phased agreement or order for the
same violation: the first detailing a schedule for studies necessary to correct the problem
and the second establishing a plan and schedule for remedying the problems based on the
results of the studies. The time schedules included in both may overlap or be concurrent
Environmental audit provisions will be emphasized in negotiations in instances in
which the Federal agency can constructively be directed to correct similar violations which
are likely to occur at other related facilities or there appear to be systematic compliance
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management problems. This is consistent with the July 9, 1986 Policy Statement on
Environmental Auditing, 51 FR 25004 (See Appendix D).
Federal Facility Coordinators will assist the media program offices and the Regional
Counsel’s office in preparing and negotiating Compliance Agreements or Consent Orders
with Federal agencies. Appendix J outlines a format to use when developing a Compliance
Agreement or Consent Order for a Federal facility. This sample Compliance Agreement
incorporates model language developed by the Department of Justice.
EPA media programs may consider including enforceability clauses in Compliance
Agreements with Federal facilities which reference the applicable citizen suit provisions of
the involved statute. The RCRA program has developed a model “Enforceability Clause”
to be included in all RCRA Federal Facility Compliance Agreements. These clauses
reference the use of applicable citizen suit provisions by States or citizens for failure to
comply with terms or schedules in Compliance Agreements. See Appendix J for a copy of
the RCRA Program Enforceability Clause. Certain EPA Media program offices also have
developed specific guidance concerning Compliance Agreements For example, the RCRA
program model language for Federal facility Compliance Agreements is contained in the
January 25, 1988 memorandum “Enforcement Actions under RCRA and CERCLA at
Federal Facilities,” which is contained in Appendix K.
Timely and Appropriate Response Criteria
EPA’s timely and appropriate enforcement guidance sets forth the criteria for the
commencement of an enforcement action ax a facility in violation. The negotiation of
Compliance agreements and Consent Orders at Federal facilities are subject to EPA’s timely
and appropriate enforcement response criteria. Based on the type of violation ax the facility,
this guidance establishes the dine it should take to issue the initial enforcement action, the
type of enforcement action that should be taken, and the amount of time it should take the
facility either to achieve full physical compliance or to enter into a Consent Order or
Compliance Agreement which incorporates a schedule for achieving compliance.
If compliance is not achieved or a Compliance Agreement or Consent Order can not
be negotiated within required media-specific timeframes, EPA generally will issue a
proposed order or proposed compliance agreement prior to escalating its enforcement action
using the dispute resolution procedures outlined in Section B.1.e.
Timeframes for issuance of proposed Administrative Orders or Compliance
Agreements and their program equivalents will follow media-specific timely and
appropriate guidance as shown in Exhibit Vii.
Informal assistance ( toni OFA and Headquarters media program offices can be used
at any point in the process. Regional program offices are encouraged to request OFA
assistance through the Federal Facilities Coordinators who will assist them in contacting
Federal agency regional operations and commands to resolve compliance problems. OFA
and the media program office will work directly with the parent agency’s Headquarters
office and appropriate EPA Headquarters and Regional legal and compliance program
offices to try to resolve the problem.
EPA Regional staff also should successively escalate unresolved issues up to the
Deputy Regional Administrator (DRA), to the extent appropriate before taking formal
administrative action due to unresolved issues in remedying compliance problems. The
DRA may then contact an equivalent level official of the other Federal Agency in an effort
to achieve resolution.
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B.1 .d issuance of Proposed Consent Orders or Proposed
Compliance Agreements
EPA may issue proposed administrative orders or proposed Compliance
Agreements at a number of different points in the compliance process in order to expedite
the timely resolution of violations by Federal facilities. Proposed orders or compliance
agreements generally are issued to Federal facilities when:
• A Federal facility fails to respond by the date(s) specified in a notification of
violation or program equivalent
• A Consent Order or Compliance Agreement cannot be or is not successfully
negotiated within the timeframes established in media-specific guidance because of
disagreement on proposed remedial actions, the schedule for correcting the
violation, or other outstanding issues.
• A Federal facility has violated the terms of a signed Compliance Agreement or
Consent Order.
• There is an imminent and substai tial endangerment to human health or the
environment which necessitates immediate action.
When initial negotiations for a Compliance Agreement or Consent Order to ad&ess
the violations at a Federal facility exceed the timely and appropriate enforcement response
rimeframes for resolving violations, EPA shall escalate the enforcement response action by
issuing either a proposed administrative order or a proposed Federal Facility Compliance
Agreement to the violating Federal facility. EPA s use of either a proposed order or a
compliance agreement as the formal enforcement mechanism for Federal facility violations
is dependent upon both the scope of EPA’s iñministrative order authority under each of the
environmental statutes and media program-specific enforcement guidance on the
appropriate use of Consent Orders vs. Compliance Agreements at Federal facilities.
Appendix I contains a statute-by-statute summary of EPA’s administrative enforcement
response authorities for Federal facility violations. Since there are certain procedural
differences when using orders vs. compliance agreements at Federal facilities, these two
mechanisms are discussed separately as follows:
• Compliance Agreements
Where agreement has not been reached within the media program’s timefranies for
formal enforcement action, EPA generally will issue a proposed compliance agreement
to a Federal facility and allow a specified period of time, usually 30 days, for the
Federal agency to respond in writing as to whether it apes with the terms of the
agreement or whether it will seek resolution of disputed issues through EPA dispute
resolution process procedures. Upon issuance of the proposed compliance agreement,
EPA will notify the Federal facility that failure to either agree to the conditions of the
agreement or resolve the remaining issues WithIn 30 days of issuance will trigger the
formal dispute resolution process. If at the end of the 30-day period, the Federal
agency chooses to accq r the proposed compliance agreement. the agreement will
become final and effective upon signature by both parties. If the Federal Agency
appeals the conditions of the compliance agreement in writing or fails to respond within
30 days, the formal EPA dispute resolution procedures will be initiated. See Section
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B.l.e. below which outlines the formal procedures for escalating and resolving disputes
between Executive Branch agencies.
Conseiu Orders
Where EPA has statutory administrative order authority for Federal facilities, and
where it is specified in media-program guidance, EPA will issue a proposed
administrative order to a Federal facility and allow a specified period of time, generally
30 days, for the Federal agency to respond in writing stating whether it will (a) accept
the terms of the proposed order on consent or (b) seek resolution through formal
administrative appeals procedures EPA has established for the type of order which was
issued (e.g., “Final Administrative Hearing Procedures for RCRA Section 3008 (h)
Orders,” issued by EPA on February 19, 1987). If the Federal facility chooses to
accept the proposed order within the 30-day time period, it will be signed by both
parties and become a final consent order.
If the Federal facility fails to take advantage of this opportunity and does not
respond to EPA within the 30-day time period specified in the proposed order, the
order will become a final administrative order, effective at the time established in the
proposed order. It is important to point out that it is incumbent upon the Federal
agency to respond to EPA in writing within the timeframe specified in the proposed
order (i.e., generally 30 days) or it will become a final administrative order which will
foreclose any further opportunity to negotiate and sign an order on consent. This
approach is consistent with the Justice Department’s position that EPA may not issue
Administrative Orders to other Federal agencies “without the prior opportunity to
contest the order within the Executive Branch.”
When a Federal facility has chosen to appeal a proposed order through EPA’s
established administrative appeals procedures, it shall be subjected to such proceedings
in the same manner and degree as any private party. If a settlement is reached through
the use of these appeals procedures, EPA and the involved Federal facility will both
sign a final administrative order on consent. If, however, these administrative
proceedings have been fully exhausted and agreement cannot be reached on consent,
the formal dispute resolution process will be initiated and the dispute will be escalated
to EPA Headquarters following the steps outlined in Section B. i.e. The proposed order
will be stayed pending escalation and resolution of the dispute.
B.1 .0 Internal EPA Dispute Resolution Procedures
This strategy sets forth EPA’s basic Federal Facilities Dispute Resolution Process
as described in detail in Section B. 1 .f below. There are however, certain existing formal
dniinisvative procedures which are applicable to all regulated entities and these will be
utilized for Federal facilities in appropnate circumstances. Certain media programs also
have issued specific written guidance for resolving disputes at Federal facilities which may
be followed consistent with the process outlined in Section B. 1 .f.below. The types of
internal EPA dispute resolution procedures that may be utilized to resolve compliance
problems at Federal facilities are:
1) Administrative procedures established for certain specific statutory authorities (e.g.,
“Final Administrative Hearing Procedures for RCRA Section 3008(h)”);
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2) Media-program specific written guidance for dispute resolution at Federal facilities
(e.g., “Elevation Process for Achieving Federal Facility Compliance Under
RCRA,” March 24, 1988 (See Appendix K)); or
3) EPA’s Federal Facilities Dispute Resolution Process as described below.
If availablc established administrative procedures should first be invoked to resolve
disputes between Executive Agencies. If there are no existing administrative procedures in
place to resolve a conflict at a Federal facility, the Regions should utilize media specific
guidance, when available, or the general Federal facilities EPA Dispute Resolution Process
outlined below. Media-specific dispute resolution procedures for Federal facilities still
follow the general concepts set forth in the EPA Federal Facilities Dispute Resolution
Process. However, media-specific guidance may contain certain variations to
accommodate media program procedural difference or preferences.
B.1 .1 Federal Facilities Dispute Resolution Process
The focus of EPA’s Federal Facilities Dispute Resolution Process is on cases where
EPA and the Federal agency are unable to agree on the conditions, terms or schedules to be
contained in a Compliance Agreement or Consent Order. This process is also sometimes
utilized for resolving disputes resulting from violations of signed agreements or orders. In
addition, certain EPA media programs (e.g., RCRA) have established other dispute
resolution procedures for use when a facility has violated the terms of a signed order or
agreement as described further in section B. l.f.
EPA will make every effort to resolve noncompliance disputes at the Regional Level.
However, when EPA and a Federal agency are unable to reach formal agreement in a
signed Consent Order or a signed Compliance Agreement, the dispute will be formally
referred by the Regional Administrator (RA) to the Assistant Administrator (AA) for the
affected media program, the AA for the Office of Enforcement and Compliance Monitoring
and the AA for External Affairs as shown in Exhibit VI-2. This joint referral should take
place only after the Regional Office has tried to resolve the issue within established
tiineframes for guiding what constitutes “timely and appropriate” enforcement response
(See Exhibit VI-1). In the Federal facility compliance process, the use of internal EPA
dispute resolution procedures is the functional equivalent of a referral of civil judicial
enforcement actions for prosecution in the sense that it provides a final forum in which
disputes may be resolved for Executive Branch Agencies
A formal referral shall be sent to EPA Headquarters within 60 days after the
established iiwhn thnefrazpe for formal enforcement action has been exceeded and the
Federal facility has failed to sign a proposed order or proposed compliance agreement If a
proposed order has been appealed, EPA’s formal administrative appeals procedures should
first be exhausted prior to making a formal referral to EPA Headquarters. The referral
package should describe the identified violation, provide a historical summary of the
communications and negotiations with the facility, identify enforcement actions taken
(including any State or citizen actions), identify the unresolved issues and include
appropriate support data, with documentation similar to a litigation report The referral
package must be signed by the EPA Regional Administrator.
The Office of Federal Activities, or the lead media program office, will notify the
RA in writing when Headquarters receives the referral package and also will report to the
Region informally on a monthly basis and quarterly on a formal basis the status of those
facilities formally referred to Headquarters. The involved EPA Headquarters media
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program office, with assistance from OFA and OECM, will attempt to negotiate an
acceptable solution with the parent Federal agency Headquarters office within a maximum
0190 days of the referral to EPA Headquarters. At the conclusion of thiS ninety-day
period, if these negotiations are unsuccessful, the Assistant EPA Admjnjs tor for the
affected medJa program will refer the dispute to the Administrator for resolution.
The EPA Administrator has primary responsibility for resolving environmental
disputes between Executive Branch agencies. The EPA Administrator will consult with the
head official of the parent Federal agency and make every effort to reach agreement on an
acceptable solution to the problem. If the EPA Administrator determines that there are
remaining issues that cannot be resolved, the Administrator may exercise his authority to
invoke the procedures afforded by Executive Order 12088 or Executive Order 12146 and
involve either 0MB or DOJ, respectively, in resolution of the dispute.
B.1.g Use of Executive Order 12088 - Federal Compliance with
Pollution Control Standards
Section 1-602 of Executive Order 12088 states that “the Administrator shall make
every effort to resolve conflicts regarding such violations between Executive agenices.”
The EPA Administrator may request OMB’s involvement particularly in cases where
funding or schedules are the primary issues in resolving the dispute. Section 1-603 further
clarifies that 0MB “shall consider unresolved conflicts at the request of the Administrator.”
This means that the EPA Administrator is the only Executive Branch official who can
formally request 0MB resolution of a conflict between Federal agencies under Executive
Order 12088. The section further states that in resolving such conflicts 0MB “shall seek
the Administrator’s technological judgment and determination with regard to the
applicability of statutes and regulations.”
I I also is important to point out that Section 1-604 of Executive Order 12088 states
that “these conflict resolution procedures are in addition to, not in lieu of, other procedures,
including sanctions, for the enforcement of applicable pollution control standards.” This
provision recognizes that applicable EPA internal dispute resolution procedures shall
utilized prior to Executive Order 12088 being invoked by the EPA Administrator.
B .1. h Use of Executive Order 12146 . Resolution of Interagency
Legal Disputes
Executive Order 12146 (Appendix B) provides for the submittal of legal disputes
between Federal agencies to the U.S. Attorney General whenever Executive Branch agency
heads are unable to resolve such legal disputes. The Executive Order clarifies that an
interagency “legal dispute” would include “the question of which [ agency] has jurisdiction
to administer a particular program or to regulate a particular activity.” In addition, Section
1-402 of Executive Order 12146 specifically stares that
“Whenever two or more Executive agencies whose heads serve at the
pleasure of the President arc unable to resolve such a legal dispute, the
agencies shall submit the dispute to the Attorney General prior to proceeding
in any court, except where there is specific statutory vesting of
responsibility for a resolution elsewhere.”
This means that while the EPA Administrator may invoke E.O. 12088 for Federal
facility disputes related primarily to funding and scheduling issues, he may invoke
Executive Order 12146 in cases involving legal disputes. Therefore, for Federal agency
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legal disputes the EPA will utilize it internal dispute resolution procedures prior to
invoking E.O. 12146 as outlined above. When a legal dispute cannot be resolved between
the EPA Administrator and the involved Agency head, the EPA Adminscrator may request
the involvement of the Justice Department in resolving the dispute as outlined in E.O.
12146. Another significant difference between the E.O. 12088 and the E.O. 12146 dispute
resolution procedures is that, unlike E.O. 12088, referral of disputes to the Attorney
General is not limited to EPA, i.e., either Federal agency or both that are involved in a legal
dispute may submit the case to the Justice Department.
B.1 .1 Use of Other Dispute Resolution Procedures for Violations of
Signed Agreements or Consent Orders
The internal dispute resolution procedures outlined above are used primarily to
resolve disputes which arise prior to the finalization of a signed Compliance Agreement or
Consent Order (e.g., the involved parties cannot agree on the terms, conditions or
schedules in the order or agreement). However, there are also situations where disputes
occur when a Federal facility violates the terms of a Compliance Agreement or Consent
Order which has already been signed by both EPA and the involved agency. In such cases,
other dispute resolution procedures may be utilized if EPA and the Federal facility had
previously agreed to use other means of resolving disputes that arise in the context of
signed agreements or consent orders. For example, the RCRA program has developed this
type of dispute resolution process as outlined in their January 25, 1988 guidance
memorandum “Enforcement Actions Under RCRA and CERCLA at Federal Facilities”
(See Appendix K). The primary differences between these procedures and what is provided
for in the Federal Facilities Dispute Resolution Process (Section B.1.f.) are different
timeframes and establishment of the EPA Administrator as the final arbiter for disputes
resulting from violations of signed agreements.
In addition, the use of alternative dispute resolution (ADR) procedures, i.e.,
employing neutrals such as mediators, fact-finders, or arbitrators, may be very helpful in
resolving compliance problems and disputes at a Federal facility (See the Administrator’s
Guidance on the Use of Alternative Dispute Resolution in EPA Enforcement Cases, dated
August 14, 1987).
B.1 .j Impact of Funds Availability on Achieving Compliance and
Negotiating Compliance Schedules
The Federal environmental statutes generally require that Federal facilities must
comply with pollution control requirements to the same extent as non-Federal entities. The
obligation of a Federal facility to comply is not solely contingent upon the availiability of
existing funds . In fact, Executive Order 12088 states that, “the head of each Executive
Branch agency shall ensure that sufficient funds for compliance with applicable pollution
control standards are requested in the agency budget.” Specific exemptions under the
statutes discussed in Section B.1.k. do provide a highly limited exception where the
President has specifically requested an appropriation as part of the budgetary process and
the Congress failed to make available such requested appropriation (See RCRA §6001,
CAA § 118, CWA §313).
Federal facilities are expected to seek all possible means of funding to achieve
environmental compliance. While the A-106 pollution abatement process is the prima y
vehicle which Federal agencies use to plan for environmental projects, it is not the only
funding related mechanism available. Many compliance problems may not require large
capital expenditures, e.g., operation and maintenance (O&M) activities, and Federal
VI- 12
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agencies are expected to use all available existing funds to return to compliance in such
circumstances. Some Federal agencies have O&M accounts or capital accounts for building
and construction funding, which can serve as a source of funds. If a compliance problem
does require significant capital expenditures, the agency can consider reprogramming
funds, transfer authority, or requesting a supplemental appropriation, which will enable an
agency to receive funds in the year in which they are needed.
During negotiations on Compliance Agreements and Consent Orders, Federal
officials will be expected to offer the most expeditious means of funding required remedial
action(s). However, EPA recognizes that the Anti-Deficiency Act (31 U.S.C. § 1341)
prohibits Federal officials from commiting funds beyond those they are authorized to
spend. Therefore, the language in the model Compliance Agreement in Appendix J simply
commits the Federal official to seek any additional necessary funding where existing funds
are unavailable to correct identified compliance problems. Additional appropriations should
be sought only where it has been determined that existing agency funds are either
unavailable or inadequate to address the violations. The Federal official signing a
Compliance Agreement or Consent Order should have the authority to obligate the funds or
make the necessary budget requests to expeditiously correct the violation according to the
schedule outlined in the Agreement or Order.
Section 1-602 of E.O. 12088 provides the opportunity for 0MB to consider such
alternate sources of compliance funding as reprogramming or environmental accounts and
should be used by Federal agencies to ensure that all possible avenues of securing
necessary funds are exhausted.
B.1.k Exemptions
As directed by Section 1-703 of E.0. 12088, EPA can advise the President on
recommendations made by Federal agencies concerning exemptions of facilities from
compliance with applicable environmental regulations. Exemptions may be granted only
where such exemptions are necessary in the interest of national security orin the paramount
interest of the United States. Additional requirements arc imposed in particular
environmental statutes, e.g., in some, such an exemption is authorized for one year and
may be renewed, if necessary. In addition, as noted in Section B.1.e, exemptions may
only be granted for lack of funds if the President specifically requests such funds from
Congress and they are denied. Section B of Chapter II summarizes the provisions of each
of the statutes which provide for such exemptions. It should be noted that while such
exemptions are provided for in the statutes, they have been rarely, if ever, invoked to date,
and it is not anticipated that there will be any increase in the request or granting of
exemptions in the future.
The Regional office will assist any Federal facility which believes it cannot comply
with pollution control requirements in finding ways to achieve compliance. Every effort
will be made to negotiate an alternative to an exemption which is acceptable to the parent
Federal agency, EPA, and State and local pollution control agencies.
If a Federal agency recommends that a facility receive an exemption, the EPA
Regional office will provide OFA, the Headquarters media enforcement office and OECM
with documentation of the problem so that EPA can establish a position on the exemption.
The Regional office should also submit its analysis of the pros and cons of granting such
an exemption. The analysis should include the positions of any affected States. OFA will
then submit a recommended position for the Administrator to submit to 0MB with the
views of all affected offices within EPA.
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If an exemption is granted to a Federal facility, EPA will provide assistance to the
facility in orderto correct the pollution problem as expeditiously as possible. The objective
is to bring the facility into compliance prior to the expiration of the exemption to preclude
the need for a renewal. A copy of the exemption will be sent to any affected States.
L2 Enforcement Actions For Violations at Federal Facilities
Directed at Non-Federal Parties
This section outlines EPA’s enforcement approach for addressing violations at
Federal facilities which are operated by private contractors or other non-Federal parties,
which generally are subject to the full range of EPA’s civil judicial and administrative
enforcement authorities.
B.2.a Limitation on Clvii Judicial Enforcement Actions Applies Only
to Executive Branch Agencies
Although EPA will not bring civil judicial enforcement action or assess civil
penalties under most statutes against other Executive Branch Departments and Agencies,
EPA intends to exercise its full authority to bring civil suits and assess civil penalties, as
appropriate, against parties that are not subject to this constraint.
B.2.b Contractor and Other Private Party Arrangements involving
Federal Facilities
Most environmental statutes authorize enforcement response to be pursued against
either facility owners, operators or both to correct violations of environmental law. There
arc numerous Federal facilities and public lands which have some level of private party or
non-Federal government involvement in their operation or use. In its April 28, 1987
Congressional testimony the Department of Justice stated that EPA has the authority to take
enforcement action against private contractors at Federal facilities (See Appendix H). Th
may be cases where it will be more appropriate to direct enforcement responses to these
other parties, or to both the non-Federal party and the Federal agency depending on the
nature of the non-Federal involvement, the language of the involved environmental statute
or other factors. This issue arises frequently at government-owned, contractor-operated
Federal facilities, commonly known as GOOD facilities.
• EPA Etforceinera Response Policy at GOCO Facilities
EPA’s initial enforcement response at GOCO facilities is influenced by a number of
factors including: the statutory language as to who can be held responsible, (i.e., providing
that enforcement can be directed at the owner, operator or both); decisions made by State
and EPA officials in deciding who the permit holder should be in the case of permit
violations; established contractual arrangements; the nature and type of violation(s); and
other factors which may determine where enforcement response will yield the most
expeditious return to compliance and deterrence for future violations. In this regard, it is
EPA policy to pursue the full range of its enforcement authorities against contractor
operators of government-owned facilities in appropriate circumstances. EPA also may take
enforcement actions against Federal agencies at GOCO facilities following the procedures
outlined earlier in this chapter. In certain situations, it may be appropnate to pursue
enforcement actions against both the private contractor and the involved Federal agency.
VI-14
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As a follow-up to this strategy, EPA will be developing an Agencywide GOCO
Enforcement Strategy which will provide more detailed criteria and factors to be considered
in determining which party or parties to pursue enforcement action against. This strategy
shall also address the extent to which there are certain Federal agency-specific
circumstances which could affect to whom EPA’s initial enforcement response should be
directet
Exhibit VI-3 provides definitions of the various types of facilities and lands with
Federal involvement. This exhibit designates which party EPA generally will direct its
initial enforcement response against when violations are identified (i.e., either the Federai
agency or the involved private party). Given the complex mix of public and private
ownership, operation, and use of the term “Federal facilities,” the guidelines in Exhibit VI-
3 should help EPA to eliminate delays in taking initial action to return violators to
compliance.
It is important to note that this approach focuses only on the party ax which EPA’s
“initial enforcement response” will be directed. Following this initial response, EPA’s
review of additional information and possible discussions with each party may affect
against which party any further enforcement action should be taken, if such further action is
necessary. In addition, EPA’s enforcement response against either or both parties does not
limit or otherwise resthct any future determination of their possible joint or several liability
in cases involving CERCLA or RCRA cleanup actions. Simultaneous enforcement actions
against both the Federal agency and the contractor should be considered if this would
facilitate resolution of the compliance problem.
• Nor ficarion Procedures for GOCO Epforceinent Actions
When EPA has determined which party it will pursue enforcement action against,
EPA will make every effort to notify (through, at a minimum, a formal copy (cc) of the
enforcement action) other involved parties of the action being taken against either the
Federal facility or the contractor. This is important not only to enhance effective
communication but also to assist in bringing about expeditious compliance and remedying
the violation as soon as possible.
When EPA determines that its initial enforcement response will be directed at the
contractor, EPA will take enforcement action appropriate for private parties. This will
usually be an NOV, dministradve complaint or the program equivalent (depending on the
nature of the violation and the niei1i program guidance) to the contractor explicitly stating
that they are primarily or individually responsible for correcting the violation in a timely
manner and for responding directly to EPA by the date specified. The limitations on civil
judicial enforcement and on the imposition of penalties that is applicable to enforcement
actions against Federal Executive Branch Agencies, are not applicable to enforcement
actions taken against non-Federal parties. Where the notice or complaint is sent to the
contractor, it also will state that the involved Federal agency has been simultaneously
notified of the action being taken against the contractor. A copy (cc) of the action taken
against the contractor should not only inform the Agency of the enforcement action being
taken against the contractor but also include a notice which emphasizes the importance of
their responsibility to effectively oversee their contractor to ensure compliance (See
Appendix J). It should also request the Agency’s complete cooperation in working with the
contractor to correct the violation and return the facility to compliance as quickly as
possible. In circumstances where Federal funding is required to correct the violation, the
approach and considerations described in Section B.I.j. are applicable and will be
considered in any agreements reached on expeditious compliance schedules.
VI- 15
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When EPA determines that its initial response should be directed at the involved
Federal facility, EPA will send, where appropriate, an NOV or the program equivalent to
the Federal facility stating that they are responsible for correcting the violation in a timely
manner and for responding to EPA by the date specified. A copy of the notice will be sent
simultaneously to the involved contractor.
B.2.c Contractor Listing
The regulations at 40 CFR Part 15 establish the contractor listing program in which
facilities that violate aean Air or Clean Water Act standards may be put on a List of
Violating Facilities. Any facility on the List is ineligible to receive any non-exempt Federal
government contract, grant, or loan, or other assistance. Contractors operating Federal
facilities are not exempt from being placed on the List.
Such listing is mandatory where a violation at a facility gives rise to a criminal
conviction under § 113(c) of the CAA or § 309(c) of the CWA. It is EPA policy to initiate
discretionary listing actions against recalcitrant contractors who are operating Federal
facilities in a manner which causes continuing or recurring violations of the CAA or the
CWA. Under the regulations, EPA may initiate a discretionary listing action against a
facility only if the facility is already the subject of requisite EPA or State enforcement action
against the contractor. The policies and procedures for the contractor listing program axe
described in guidance issued by OECM “Implementation of Mandatory Contractor Listing,”
August 8, 1984; “Implementation of Discretionary Listing Authority,” July 18, 1984; and
“Contractor Listing Protocols,” October 1987.
B.3 Criminal Enforcement Actions at Federal Facilities
In situations where employees of Federal agencies have committed criminal
violations of environmental statutes applicable criminal sanctions may be sought against
such individuals, in the same manner as is done with respect to employees of other types of
regulated entities. Such criminal violations will be addressed in accordance with the
investigative policies and procedures of the EPA/NEIC Office of Criminal Investigations
and the Agency’s criminal enforcement priorities set by the Office of Enforcement and
Compliance Monitoring.
B.4 Press Releases for EPA Enforcement Actions at Federal
Facilities
It is the policy of EPA to use the publicity of enforcement activities as a key element
of the Agency’s program to promote compliance and to deter noncompliance with
environmental laws and regulations. Publicizing EPA enforcement actions on an active and
timely basis informs both the public and the regulated community of EPA’s efforts to
ensure compliance and take enforcement actions at Federal facilities. The issuance of press
releases in appropriate circumstances can be a particularly effective tool for expediting
timely compliance at violating Federal facilities.
Consistent with EPA November 21, 1985, “Policy on Publicizing Enforcement
Actions,” (Appendix L) the strategy for EPA press releases on enforcement actions at
Federal facilities is as follows:
Press releases generally will be issued for major enforcement actions such as:
VI- 16
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- Significant Compliance Agreements or Consent Orders signed by both parties
(and approvals of major RAPs where Compliance Agreements are
unnecessary).
- Referral of disputes to EPA Headquarters when agreement cannot be reached at
the Regional level.
- Proposed contractor listings and the administrative decision to list.
All press releases should be done as a part of communications strategy which will
be developed for all EPA enforcement actions involving Federal facilities consistent with
EPA Order No. 1510.1 “Communication Strategy Document Development” issued April 7,
1987 and transmitted by memorandum from the Administrator to all EPA Senior Managers
on June 24, 1987. This order states that “Communication Strategy Documents will be
developed for all major actions by the appropriate AA or RA.” “Enforcement Actions” axe
included in the definition of Agency actions covered by the Order (See section 5 of EPA
Order 1510.1). At a minimum, these communication strategies should include provisions
for notifications to OEA and affected Headquarters program offices as well as a senior
ranking official at the affected Federal facility or agency.
EPA’s decision to issue a press release and the contents of press releases are not
negotiable with Federal agencies or other regulated entities. The publicity of enforcement
actions against Federal facilities must be consistent with EPA’s “Policy On Publicizing
Enforcement Actions” (GM-46) jointly issued on November 21, 1985 by the Office of
Enforcement and Compliance Monitoring and the Office of External Affairs; in addition, in
the case of criminal enforcement actions such publicity must be in accordance with the EPA
guidance memorandum (GM-55) “Media Relations on Matters Pertaining to EPA’s
Criminal Enforcement Program” jointly issued by the Office of Enforcement and
Compliance Monitoring and the Office of External Affairs on December 12 1986.
8.5 Monitoring Compliance
The EPA Regional office is responsible for monitoring a Federal facility’s
compliance with any remedial actions and associated schedules which have been agreed to
in formal EPA enforcement actions. Such Compliance Agreements or Consent Orders
between EPA and Federal facilities aie tracked in the EPA Consent Decree Tracking System
maintained by the Office of Enforcement and Compliance Monitoring. Regional Federal
Facilities Coordinators in cooperation with the regional program offices, must closely
review A- 106 submissions against all Compliance Agreements, Consent Orders, approved
remedial action plans or consent decrees to ensure that projects and corrective actions
agreed to are being requested as scheduled. Compliance monitoring and the A- 106 process
are further addressed in Chapter V.
VT-li
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EXHIBIT VI-2
FEDERAL FACILITIES ENFORCEMENT
RESPONSE PROCESS
YES
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EXHIBIT VI-2
(Continued)
FEDERAL FACILITIES DISPUTE RESOLUTION PROCESS
DOJ
UNDER
E.O. 12146
OF THE PARENT ‘ ADMINISTRATOR _________
HEAD OFFICAL EPA
FEDERAL AGENCY
0MB
_____________ _______ _______ UNDER
REFFERAL
WiTHIN 90 DAYS
AA FOR AFFECTED PARENT FEDERAL
MEDIA PROGRAM AGENCY HEAD-
AA, OECM; AND , QUARTERS
AA, OEA OFFICE
NEGOTIATIONS
______________ _______________ NOT TO EXCEED ______________
9ODAYS
REGIONAL
ADMINISTRATOR
FORMAL REFERRAL OF
DISPUTE WITHIN 60 DAYS
AFTER TIMEFRAME FOR
ENFORCEMENT ACTION IS
EXiT Wi..
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Department of Energy
Idaho Operations Office
Idaho Fa Ils, Idaho 83402 1
July 28, 1989 - AUG 1 1989
- Rc COUNSEL
‘ - -REGION X
Kenneth 0. Feigner, Chief
Pesticides and Toxic Substances Branch
U.S. Environmental Protection Agency
Region 10
1200 Sixth Avenue
Seattle, WA 98101
Re: EPA Complaint for TSCA Violations, Docket #1089—03—30—2615:
U.S. Department of Energy’s Certification of Violation Correction
Dear Mr. Feigner:
The U.S. Department of Energy, Idaho Operations Office (DOE—ID) certifies
that, to the extent of any past violations of the record keeping and/or
inspection requirements of the Toxic Substances Control Act (15 U.S.C.
Sec. 2615(a) (1976)) at the Idaho National Engineering Laboratory (INEL), as
identified In the referenced complaint, DOE—ID has addressed and corrected
such violations. This has been accomplished by DOE—ID’s implementation of a
comprehensive program for compliance with TSCA PCB requirements at INEL which
all DOE and contractor organizations must meet. As recognized by EPA in the
transmittal letter accompanying the complaint, as well as by members of your
staff at a recent meeting, DOE—ID’s current program meets these TSCA
requirements.
DOE—ID representatives recently met with members of your staff and provided
copies of relevant documentation to show that appropriate inspection and
annual report records have been maintained In the past and that a program
meeting ISCA regulatory requirements is currently In place. DOE—ID has
requested all INEL organizations to assess the status of their PCB equipment
and to report on plans to replace or retrofill this equipment. Exhibit A,
attached hereto, contains Information on all PCB equipment located at the
IHEL, with the exception of equipment located at Argonne National Laboratory
West (ANL—W). ANL—W has orally Informed DOE—ID that It has 69 PCB capacitors
located at Its facility and that it plans to replace these capacitors by
1991. As additional Information Is obtained from ANL—W concerning Its
capacitors, It will be transmitted to you. DOE—ID will also provide a
biannual progress report on the status of Implementing its removallreplacement
plans.
Following discussions with your staff, and based on their reconm endations ,
DOE—ID has given further direction to INEL organizations to clarify aspects of
their PCB r anagement plans. (See Exhibit B). DOE—ID is providing with this
letter, as Exhibit C, a copy of the section from its recently updated
Environmental Compliance Manual which addresses compliance with TSCA.
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All sections to this Environmental Compliance Manual
but no changes in the TSCA section are anticipated.
appear in the final printed version,
provided. When available, a copy of
Manual will be provided to you. As
procedures followed at INEL for PCB
EPA.
Information responding to specific questions raised by EPA concerning the
status of PCB cleanup activities by Argonne National Labs—West at the EBR—II
facility and the status of a sampling/removal plan for oily soils at the Naval
Reactors Facility, is enclosed (See Exhibit 0). Argonne expects to complete
its cleanup activity by August 1, 1989. NRF initiated a cleanup program
during the sumer of 1988 for soil contaminated with oil from past operations
and completed that program in September 1988.
We would like to take this opportunity to compliment members of your staff,
Ms. Juliane Matthews and Ms. Elaine Barrick, on the professional manner in
which this action has been resolved. DOE—ID is comitted to ensuring that all
applicable requirements are being met and will continue to work cooperatively
with EPA toward accomplishing that goal.
We hope the above actions are sufficient to close this matter. Please contact
Ms. Debra J. Bergquist, FTS 583—1457, if there is any additional information
you may require.
Sincerely,
ii. barry
Assistant Manager
Envir n ental, Safety
Enclosures
Jullane Matthews, Assistant Regional Counsel
U.S. EPA Region 10
Elaine Barrick, Environmental Protection Specialist
U.S. EPA Region 10
Kenneth Feigner, Chief —2—
July 28, 989
are not yet finalized,
However, if any changes
a new copy of this section will be
the finalized Environmental Compliance
mentioned earlier, copies of the current
management have already been provided to
and Health Programs
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j/fr /7A -/
U.S. ENVIRONMENTAL PROTECTION AGENCY
REGION 10
,ø 1200 SIXTH AVENUE
SEATTLE, WASHINGTON 98101
MAR 27 1989
REPLY TO AT083 2
CERTIFIED MAIL - RETURN RECEIPT REQUESTED
Chris Anderson, Environmental Scientist
Idaho National Engineering laboratory
U.S. Department of Energy
Idaho Operations Office
785 DOE Place
Idaho Falls, Idaho 83402
Re: Toxic Substances Control Act
Docket No. 1089—03-30-2615
Dear Mr. Anderson:
On September 27 and 28, 1988, an inspection of the Idaho National
Engineering Laboratory was performed by Mark 1. Masarik of the United States
Environmental Protection Agency (EPA) pursuant to Section 11 of the Toxic
Substances Control Act (TSCA). This inspection was conducted to determine
whether activities at the facility were in compliance with EPA regulations
governing polychiorinated biphenyls (PCBs): 40 C.F.R. Part 761.
This letter is a follow up to the discussions and correspondence between
EPA, the Department of Energy staff, and the Idaho National Engineering
Laboratory contractor personnel regarding the inspection.
Enclosed you will find a Complaint and Notice for Opportunity for
Negotiation. The complaint alleges that the Idaho National Engineering
Laboratory (INEL) violated the recordkeeping and use provisions of the PCB
Regulations issued pursuant to TSCA. As described further in the complaint,
it is necessary for you to contact EPA within 10 days of your receipt of this
letter to initiate resolution of this matter.
The violations cited in the Complaint are historical violations which
occurred prior to 1987. The EPA inspection report and evaluation concluded
that current programs appear to be in compliance with the PCB Regulations.
‘Ihis apparent compliance may be due to environnental audits of INEL performed
both by contractor and in—house staff, and the INEL Action Plan adopted in
response to the audits. Portions of the existing audits and action plan may
possibly be adopted or incorporated in the Memorandum of Agreement negotiated
with EPA. At the very least, you should arrange to have annual PCB Reports
prepared for the years J i984 1985, and i9 insuring to the extent
possible that the information required by S 761.180(a) is clearly stated in
the documents.
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2
Additionally, we would like to point out the following areas of the PCB
Regulations that may be relevant to the management of PCBs at INEL:
1. Amendments made to the PCB Regulations in June 1988 provide that
used oil to be burned for energy recovery is presumed to contain
quantifiable levels (2 ppm) of PCB unless tested otherwise. Used
oil containing any quantifiable level of PCBs may only b marketed
to qualified incinerators as defined in 40 C.F.R. S 761.3.
2. Since October 1988, the use and storage for reuse of large PCB
Capacitors are prohibited unless the capacitor is used within a
restricted-access electrical substation or in a contained and
restricted-access indoor installation.
3. 40 C.F.R. §761.65(a) provides that any PCBs removed from service
and stored for disposal must be disposed of in accordance with the
regulations within one year of the date when they were first placed
into storage. The EPA Inspector noted radioactive PCBs at INEL that
had been stored for disposal for longer than one year. We recognize
that there is currently no facility available to handle radioactive
PCBs, but we expect that INEL will properly dispose of these PCBs as
soon as a disposal site or facility becomes available.
Please understand that the steps described above are being recommended to
avoid risk to health and the environment. The Department of Energy bears the
ultimate responsibility for taking all steps necessary to comply with the
law. My staff is available to continue to work with you to insure expeditious
compliance with the regulations. We are optimistic that the problems noted
during the inspection can be promptly resolved. However, you should be
advised that, pursuant to Executive Order 12088, EPA will, if corrective
measures are not promptly taken, refer these matters to the General Manager of
the Department of Energy Idaho Operations Office for appropriate action or, if
necessary, present these problems to the Office of Management and Budget for
resolution. Criminal penalties may be imposed against individuals for knowing
and willful violations of the law. Correcting the conditions noted in the
attached complaint may prevent future violations. However, it will not
prevent actions on those violations that have already occurred. Nothing in
this letter should be construed to waive or limit any remedy available to EPA
by virtue of conditions at your facility or the acts or omissions of
responsible personnel of your organization.
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3
If you have any questions regarding this letter, Juliane Matthews, is
knowledgeable about these matters. She can be reached at EPA Region 10, 1200
Sixth Avenue, M/S SO—l25, Seattle, Washington, 98101; telephone (206)
442-1169. For your information, I have enclosed a copy of the document
“Federal Facilities Compliance Program which provides our framework for
negotiation and other administrative actions which may be necessary, and a
copy of the PCB regulations.
Sincerely,
. .. Kenneth D. Feigne9, Chief
Pesticides and Toxic Substances Branch
Enclosures
cc: John Foley, EPA HQ
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1
2
3
4
5
6
7
8 LJPIITED STATES ENVIRONMENTAL PROTECTION AGENCY
BEFORE THE REGIONAL ADMINISTRATOR
I Region 10
Seattle, Washington
10
In the Matter of the: ) DOCKET NO. 1089-03-30-2615
11 )
IDAHO NATIONAL ENGINEERING ) COMPLAINT AND NOTICE OF
12 )
I LABORATORY, ) OPPORTUNITY FOR NEGOTIATION
13 i )
Respondent. )
14 ________________________________)
15 1.
16 l JURISDICTION
17 1. This is an administrative action instituted pursuant to Section
18 16(a) of the Toxic Substances Control Act (hereinafter “TSCA”), 15 U.S.C.
19 S 2615(a) (1976), to formally notify you of violations of federal law and
20 I regulations at the cited installation and to negotiate an Agreement with Idaho
21 National Engineering Laboratory, prescribing a corrective control program.
22 The Complainant is Region 10, United States Environmental Protection Agency
23 (hereinafter “EPA”). Complainant has reason to believe that the above-named
24 espondent has violated federal regulations addressing the use and/or disposal
25 of polychlorinated biphenyls (PCBs), (40 C.F.R. Part 761 et seq. (1986),
26 promulgated under Section 6 of TSCA 15 U.S.C. S 2605 (1975)) and thereby
27 violated Section 15 of TSCA, 15 U.S.C. S 2614 (1976).
COMPLAINT - Page 1 of 5
Orrn (‘60 83
‘876 DOJ
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1 II.
2 FINDINGS AND VIOLATION
2. On September 27 and 28, 1988, an EPA inspection w s performed
at Idaho National Engineering Laboratory (hereinafter called the Respondent).
The purpose of the inspection was to determine compliance with the Toxic
6 Substances Control Act (ISCA) (15 U.S.C. 52601, etseq.) and specifically the
7 PCB Regulations, 40 C.F.R. Part 761 etseq. (1986). The inspection disclosed
8 the following violations:
9 I 3. REGULATION - RECORDKEEPING (Annual Reports) : 40 C.F.R.
10 761.180(a) requires that facilities using or storing at one time at least 45
kilograms (99.4 pounds) of PCBs contained in PCB Containers, or one or more
12 PCB Transformers, or 50 or more PCB Large Capacitors, develop and maintain
13 records on the disposition of the PCBs and PCB Items. The records shall form
14 the basis of an annual document prepared by July 1, covering the previous
15 1! calendar year.
16 4. VIOLATION ONE : Respondent failed to prepare annual
17 documents prior to 1987.
18 5. REGULATION - USE AUTHORIZATIONS (Quarterly Inspections) :
19 40 C.F.R. S 76l.30(a)(1) requires that owners of PCB Transformers in use or
20 stored for reuse perform complete visual inspections of PCB Transformers at
21 specified regular intervals and maintain specific written records of
22 inspection and maintenance history.
23 6. VIOLATION TWO: Respondent failed to properly maintain
24 inspection and maintenance records for PCB Transformers prior to 1987.
25
26
27
28
‘so•Ia3 - Page 2 of 5
76 DOJ
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1 III .
2 PROPOSED CIVIL PENALTY
3 7. Section 16 of TSCA, 15 U.S.C. S 2615 (1976), and the
4 regulations promulgated thereunder, 40 C.F.R. S 761, et seq. (1986), authorize
5 a civil penalty of up to $25 000 per day for each violation of TSCA. Based on
6 the facts given in Section II above, the nature, circumstances, extent and
7 gravity of the above—cited violations, as well as the Respondent’s ability to
8 pay, effect on ability to conduct its programs, and degree of culpability, the
9 j following penalties would normally be proposed upon a non—federal installation:
10 Regulation Requirement Penalty Amount
11 1. 40 C.F.R. S 761.180(a) Annual Reports $40,000
12 2. 40 C.F.R. S 761.30(a)(l) Quarterly Inspections $20,000
13 Total $60,000
14 8. Because a federal facility is involved, this administrative
15 action seeks a compliance program in lieu of cash penalties and a Memorandum
16 of Agreement assuring an implementation plan to avoid future violations.
17 I’
18 IV.
19 SETTLEMENT CONFERENCE
20 9. Within ten (10) days of your receipt of this administrative
21 Complaint, please respond in writing concerning: 1) whether the alleged
22 violations in fact occurred as set forth in Section II above; and 2) your
23 commitment to continue your compliance program, through a Memorandum of
24 Agreement with EPA, regarding regulatory requirements of 40 C.F.R. Part 761
25 (1g86).
26
27
28
COMPLAINT - Page 3 of 5
Orrrt C6D T 3
28 76 DOj
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1 10. Arrangements should be made for a settlement conference
2 within ten (10) days of your receipt of this administrative complaint which
will initiate the compliance program and its implementation. To schedule
this conference, please contact Jul jane Matthews, Assistant Regional
5 Counsel 1 at EPA, Office of Regional Counsel, 1200 Sixth Avenue, S0-125,
6 Seattle, Washington 98101, or telephone at number (206) 442-1169.
7
8 VI
9 ALTERNATE ADMINISTRATIVE RESOLUTION
10 11. As prescribed in our applicable Federal Facilities Executive
Order and its guidance, if corrective measures are not properly taken, the
12 problem will be reported to the General Manager of the Department of Energy
13 Idaho Operations Office for appropriate action, or, if necessary, presented
14 to the Office of Management and Budget for resolution.
15 12. Executive Order No. 12088 provides an effective
16 administrative mechanism conducive to mutually acceptable resolution of
17 federal facilities’ compliance problems which best promotes the public
18 interest as a whole. Where agreement on a solution cannot be reached, our
19 Regional Administrator is asked to escalate the issue within the Agency or
20 to the Office of Management and Budget. There, competing national interests
21 will be weighed and a decision made as to whether your facility must be
22 brought Into compliance or qualifies for exemption.
23
24
25
26
27
28
COMPLAINT - Page 4 of 5
Form 080 183
128.76 003
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I
1 13. Executive Order No. 12146, 3 C.F.R. S 409 (1979), Management
2 of Federal Legal Resources, is a second administrative mechanism for
3 resolving compliance problems between EPA and other federal agencies.
Executive Order No. 12146 supra , applies whenever a legal dispute exists
5 between agencies, e.g., disputes regarding the meaning and/or applicability
6 of an environmental statute to the agency’s program or a disagreement as to
7 whether a certain response action is required.
8 We are hopeful that our mutual efforts at the regional level will
9 resolve this matter satisfactorily and obviate the need to resort to either
10 of these.
12 DATED this _______ day of - -- , 1989.
13
14 KENNETH D. FEIGNER, h ef
Pesticides and Toxic ubstances Branch
15
16
17
18
19
20
21
22
23
24
25
26
27
28 COIIPLAINT - Page 5 of 5
Form o6o.isa
‘28-76 DOi
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ATTACHMENT A
U.S. ENVIRONMENTAL PROTECTION AGENCY
REGION 10
1200 SIXTh AVENUE
SEAULE, WASHINGTON 98101
MIS AT-083 $ 14
CERTIFIED MAIL
Rear Admiral Edward Nelson, Jr.
Comñiander (D)
17th Coast Guard District
P.O. Box 3-5000
Juneau, Alaska 99802
Re: Toxic Substances Control Act
Docket Number 1086-02-01-2615 and
Docket Number 1089-03-02-2615
Dear Admiral Nelson:
This letter concerns continuing PCB (polychlorlnated biphenyl)
contamination which exists at the Coast Guard Support Center, Kodiak.
A Complaint and Notice of Opportunity for Negotiation pursuant to the
Toxic Substances Control Act (TSCA) was Issued to the U.S. Coast Guard Support
Center Kodiak on July Ii, 1986. A copy of that document and the transmittal
letter is enclosed for your reference. The Complaint was based on an
Environmental Protection Agency (EPA) inspection conducted pursuant to Section
11 of TSCA on June 19 and 20. 1985.
The Complaint, which Is unresolved as of this date, alleges that the
Coast Guard Support Center Kodiak violated the quarterly inspection (use
authorization), recordkeeping, and marking provisions of the PCB Regulations
which were promulgated pursuant to TSCA. In addition, and equally
significant, the letter accompanying the Complaint Identified several areas of
concern that EPA felt the Coast Guard needed to address to ensure compliance
with the PCB Regulations. The primary concern was outlined In Items (2) and
(3) on pages 2 and 3 of the letter, and dealt with potential PCB contamination
at the Support Center Kodiak (which contamination has been clearly documented
since that time), and the need for cleaning up the contamination.
It seerns clear that significant PCB contamination exists at the Support
Center. It has been well documented by a joint sampling program conducted in
1987 by the Coast Guard and Kodiak Electric Association. It also appears to
us that this contamination existed prior to the sale of the•electrical
distribution system at the Support Center Kodiak to Kodiak Electrical
As soc I at ion.
We are very concerned that no apparent progress has been made towards the
cleanup of PCB contamination at this facility. The Coast Guard’s position has
been that the sale of the property, as Is, where ls, to Kodiak Electric
Association relieves the Coast Guard of responsibility for the cleanup. This
REPLY TO
ATTN OF
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2
position is not supported by the history of events at the Support Center
Kodiak (and the documentation which exists of those events).
Captain J.S. 8tackett, Commanding Officer of the Coast Guard Support
Center, Kodiak, indicated, in a letter dated July 7, 1988, that they had hired
an Environmental Protection Specialist whose first assignment would be to
develop a plan for PC8 cleanup at the Support Center. Correspondence from
Roger R. Kemppel, General Counsel for Kodiak Electric Association, to Captain
Blackett appears to indicate that very little progress in this direction has
been accomplished. EPA has not been informed by the Support Center Kodiak 0 f
any progress or efforts made in the development of such a cleanup plan.
A further review of documentation received during and subsequent to the
June 19—20, 1985 PCB inspection has Indicated to us that the sale of the
electrical system to Kodiak Electrical Association violated applicable PCB
regulations. The distribution in commerce of equipment containing PCBs at
concentrations of 50 parts per million PC8 or greater is in conformity with
the regulations only if the equipment is Intact and nonleaking. Information
we have reviewed Indicates that much of the equipment was leaking at the time
of the sale.
Enclosed is an additional Complaint and Notice of Opportunity for
Negotiation, alleging that the United States Coast Guard violated provisions
of the PCB Regulations concerning the distribution in commerce of PCBs. We
would like to resolve this matter with the development of a Memorandum of
Agreement between the United States Coast Guard and the Environmental
Protection Agency which will result in the expeditious cleanup of PCB
contamination at the Coast Guard Support Center. Specific Items we would like
to see addressed in any such Memorandum of Agreement are:
1. Proper disposal of all electrical equipment stored on Pad 95.
2. Cleanup or disposal of Pad 95. If cleanup is performed,
cleanup should be at least to the numerical and perfornance
standards of the PCB Spill Cleanup Policy, 40 C.F.R. Part 761,
Subpart G.
3. !)evelopment of a comprehensive cleanup plan which addresses the
cleanup of PCB contamination identified In the sampling
programs conducted by the Coast Guard and Kodiak Electric
Association during 1987. This plan should provide specific
time frames for all cleanup.
4. A renegotiation between the Coast Guard and Kodiak Electric
Association to determine the conditions under which Kodiak
Electric Association will accept ownership of the electrical
distribution system, and which guarantees that the equipment is
intact and that any PCB contamination resulting prior to such
guarantee is cleaned up.
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3
The Agency believes that the violations that have been noted at the Coast
Guard Support Center Kodiak constitute a continuing threat to human health and
the environment. The failure to address the violations, and specifically the
cleanup of the PCB contamination, is exacerbated by any delay in the cleanup.
Accordingly, it is important that you attend to this matter immediately.
You should be advised that, pursuant to Executive Order 12088, EPA will,
if corrective measures are not promptly taken, refer these matters to EPA
Administrator William K. Reilly for consideration of referral to the Office of
Management and Budget for resolution. Criminal penalties are also authorized
for knowing and willful violations of the law. Correcting the conditions
noted in the attached complaint may prevent the Coast Guard from further
violating the PCB regulations. However, it will not prevent actions on any
other violations that have already occurred or on any future violations.
Nothing in this letter should be construed to waive or limit any remedy
available to EPA by virtue of conditions at the Coast Guard Support Center
Kodiak or the acts or omissions of your organization.
Please understand that the above steps are being recommended to avoid
risk to health and the environment. The U.S. Coast Guard bears the ultimate
responsibility for taking all steps necessary to comply with the law.
If you have any questions, please contact Joan Shirley, Assistant
Regional Counsel. She is knowledgeable about the subject and can be reached
at EPA Region 10, 1200 Sixth Avenue, H/S SO—125, Seattle, Washington 98101,
telephone (206) 442-0978.
Sincerely,
Kenneth D. Feigner, f
Pesticides and Toxic Substances Branch
En cl Os u re
cc: Cathy Hutson, EPA HO, OFA
Clark Smith, EPA Region 10
Federal Facilities Coordinator
Charles Elkins, EPA/HQ—OTS
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1
2
3
4j
5f
6
‘
8 I’
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
BEFORE THE REGIONAL ADMINISTRATOR
Region 10
10 Seattle, Washington
In the Matter of the: ) DOCKET NO. 1089-03-02-2615
)
12 ) COMPLAINT AND NOTICE OF
UNITED STATES COAST GUARD, ) OPPORTUNITY FOR NEGOTIATION
13 SEVENTEENTH COAST GUARD DISTRICT, )
Juneau, Alaska,
14 Respondent. )
15
I.
16
I JURISDICTION
17
I 1. This is an administrative action instituted pursuant to Section
18 ii
l6(a) of the Toxic Substances Control Act (hereinafter NTSCAU), 15 U.S.C.
19
S26l5(a) (1976), to formally notify you of violations of federal law and
20 Ii
I regulations at the cited installation and to negotiate an Agreement with the
21
United States Coast Guard, Seventeenth Coast Guard District, prescribing a
22
corrective control program. The Complainant is Region 10, United States
23
Environmental Protection Agency (hereinafter EPAN). Complainant has reason
24 1 -
to believe that the above-named respondent has violated federal regulations
25
addressing the use and/or disposal of polychlorinated biphenyls (PCBs), (40
26
C.F.R. Part 761 et !.!. • (1984), promulgated tinder Section 6 of TSCA, 15 U.S.C.
27
I S2605 (1976)) and thereby violated Section 15 of TSCA, 15 U.S.C. S2614 (1976).
28
COMPLAINT - PAGE ONE
rrnCBO:183
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1 II.
2
3 FINDINGS OF FACT
4
5 2. The U.S. Coast Guard, Coast Guard Support Center Kodiak,
6 Kodiak, Alaska (hereinafter, Respondent), via General Services Administration,
7 transferred ownership of the “U.S. Coast Guard Power Transmission System in
8 Kodiak, Alaska” to Kodiak Electric Association, Inc. (KEA), effective November
13, 1984. Official notification of the ownership transfer was made to KEA in
10 a letter dated tlovember 9, 1984, from Kenneth E. Lindebak, Director, Disposal
11 Division, Office of Public Buildings and Real Property, General Services
12 Administration (Auburn, Washington).
13
14 3. The electrical distribution system which was transferred to KEA
15 was known by the Kodiak Support Center to have significant PCB contamination
16 in vaults, buildings, and on Pad 95, after the 1981 cleanup activity
17 occurred. EPA has no documentation that additional cleanup occurred after
18 that time.
19
20 4. ExtensIve sampling of the electrical equipment in the system
21 was conducted during May 1987 by the Pacific Strike Team. The results of the
22 samplIng were submitted to EPA in a letter dated September 16, 1987 from T.M.
23 Smith, Ensign U.S. Coast Guard, USCG Support Center, by direction of the
24 Commandi g Officer. This sampling showed extensive PCB contamination
25 throughout the distribution system, with high levels of PCB contamination well
26 in excess of 50 parts per million detected in vaults, underground manholes,
27
28
COMPLAINT - PAGE TWO
‘ C6O.183
-------
1 cable enclosures, and on Pad 95. Respondent, In a document entitled
2 uproceedlngs of a Board of Survey,u dated September 15, 1983, states, on Page
3 2, Item 7, that Nail distribution equipment, such as transformers, containing
polychiorinated biphenyls (PCBs) has been removed from the system and disposed
S of.u The uproceedings of a Board of Survey TM report was also provided to KEA
6 by the Coast Guard at the time of KEA’s purchase of the distribution system.
7
8 5. The property purchased by Kodiak Electric Association does not
9 include any real estate. No land or structures (i.e., vaults or manholes
10 contaIning electrical equipment) were purchased by Kodiak Electric
11 AssociatIon. All land and structures containing electrical equipment remain
12 the property of the U.S. Coast Guard.
13
14 6. The Coast Guard Support Center Kodiak appears never to have
15 conducted a complete PCB Inventory of electrical equipment. Enclosure (1) to
16 I a memo dated August 22, 1986, from Commanding Officer, USCG Support Center
17 Kodiak to Commander, Seventeenth Coast Guard District, states that •a number
18 of these transformers (PCB Transformers) were in storage at the time and
19 therefore did not require removal or replacement under the 1981 contract. lb
20 I Inventory data exists for the remaining distribution system transformers.”
21
22 7. On June 19 and 20, 1985, an EPA inspection was performed at
23 Respondent’s facility. The purpose of the inspection was to determine
24 compHance with the Toxic Substances Control Act (TSCA) (IS U.S.C. 52601, et
25 g.) and specifically the PCB Regulations, 40 C.F.R. Part 761 (1984).
26
27
28
COMPLAINT - PAGE TI.IREE
m OBD.183
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1 REGULATION — DISTRIBUTION IN COI ERCE
2
3 8. 40 C.F.R. S 761.20(c)(l) states that •PCBs at concentrations of
4 50 ppm or greater, or PCB Items with PCB concentrations of 50 ppm or greater,
5 sold before July 1, 1979,for purposes other than resale may be distributed in
6 contnerce only in a totally enclosed manner after that date.N
7
8 VIOLATION AND CLAIM FOR RELIEF
9
10 9. Paragraphs One through Eight are realleged and incorporated
11 hereIn by reference.
12 I,
I lfl. The United States Coast Guard, through General Services
14 i Administration, sold the electrical distribution system at the United States
15 Coast Guard, Coast Guard Support Center Kodiak, Kodiak, Alaska,to a privately
16 J owned utility, Kodiak Electric Association, Inc., Kodiak, Alaska. The
17 J equipment comprising the electrical distribution system contained PCB Items
18 that were not intact and which were leaking at the time of the sale of the
19 Ij distribution system. This siTe of leaking PCB Items constituted the illegal
20 distribution in commerce of PCBs.
21
22 III.
23
24 PROPOSED CIVIL PENALTY
25
26 11. Section 16 of TSCA, 15 U.S.C. S2615 (1976), and the regulations
27 promulgated thereunder, 40 C.F.R. %761, (1986), authorize a civil
28
COMPLAINT - PAGE FOUR
oar ‘a3
7 rv r
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I penalty of up to S25,000 per day for each violation of TSCA. Based on the
2 facts given in Section II above, the nature, Circumstances, extent and gravity
3 of the above—cited violations, as well as the respondent’s ability to pay,
effect on ability to conduct Its programs, and degree of culpability, EPA
5 would normally propose penalties not in excess of S25,000 per day upon a
6 non-federal facility.
7
8 12. Because a federal facility Is involved herein, this
9 administrative action seeks a compliance program in lieu of cash penalties
10 and a Memorandum of Agreement assuring an implementation plan to avoid
future violations.
12
13 iv.
14
15 SETTLEMENT CONFERENCE
16
17 13. WIthin ten (10) days of your receipt of this administrative
18 Complaint, please respond in writing concerning: 1) whether the alleged
19 violations In fact occurred as set forth In Section II above; and 2) your
20 commitment to develop a compliance program, through a Memorandum of
21 Agreement with EPA, regarding regulatory requirements of 40 CSF.R. Part 761
22 ( lQea .
23
24 14. Arrangements should be made for a settlement conference
25 within ten (10) days of your receipt of this administrative complaint which
26 1 will initiate the compliance program and its implementation. To schedule
27
28
COMPLAINT - PAGE FIVE
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1 thIs conference, please contact Joan Shirley, Assistant Regional Counsel, at
2 EPA, Office of Regional Counsel, 1200 Sixth Avenue, SO—125, Seattle,
3 Washington 98101, or telephone number (206) 442-0978. A remedial
4 implementatIon plan must be submitted to EPA Region 10 for approval within
5 thirty (30) days after this meeting.
6
7
8
9 ALTERNATE ADMINISTRATIVE RESOLUTION
10
11 15. Executive Order No. 12088 provides an effective
12 administrative mechanism conducive to mutually acceptable resolution of
13 federal facilities’ compliance problems which best promotes the public
14 interest as a whole. Where agreement on a solution cannot be reiched, our
15 Regional Administrator is asked to escalate the issue within the Agency or
16 to the Office of Management and Budget. There, competing national interests
17 will be weighed and a decision made as to whether your facility must be
18 brought into compliance or qualifies for exemption.
19
20 i 16. As prescribed in our applicable Federal Facilities Executive
21 Order and its guidance, if corrective measures are not properly taken, the
22 problem will be referred to EPA Administrator William K. Reilly for
23 consideration of referral to the Office of Management and Budget for
24 resolution.
25
26 I 17. Executive Order No. 12146, 3 C.F.R. S4O9 (1979), Management
27 of Federal Legal Resources, is a second administrative mechanism for
28 COMPLAINT - PAGE SIx
-------
resolving compliance problems between EPA and other federal agencies.
2 Executive Order No. 12146 supra , applies whenever a legal dispute exists
3 between agencies, e.g., disputes regarding the meaning and/or applicability
4 of an environmental statute to the agency’s program or a disagreement as to
S whether a certain response action is required.
6
8 DATED this ______ day of . . ....Junc. , 17a9
10
Pes icides and Toxic Su stances Branch
11
12
i:
15
16
17
18
19
20 Ii
21
22
25
U
183 COMPLAINT — PAGE SEVEN
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1
2 RECEIVED
: RIN 21
HFAR! JGS C CP (
CPA4 E3ION )
6
7
8 MEMORANDUM OF AGREEMENT
9 BENEEN
UNITED STATES AIR FORCE
10 McCHORD AIR FORCE BASE,
TACOMA, WASHINGTON
11 AND
THE ENVIRONMENTAL PROTECTION AGENCY
12 REGION 10, SEATTLE, WASHINGTON
13 DOCKET NO. 1088—12—23-2615
14
15 I.
16 AUTHORITY
17
18 1. Region 10 of the United States Environmental Protection Agency (EPA)
19 and the United States McChord Air Force Base are parties to this agreement
20 whIch is entered Into under the authority of Executive Order (E.O.) 12088,
21 October 13, 1978 (43 Federal Register 41707). It Is being entered into in
22 settlement of an enforcement action against a federal facility and Is
23 consistent with E.O. 12088 and Agency policy which favor interagency
24 settlement over more formal enforcement action. Nothing in this agreement
25 shall be construed to require a violation of the Anti-Deficiency Act,
26 31 U.S.C. 51341.
27
28 MEMORANDUM OF AGREEMENT - Page 1 of 8
Form 080.183
12.8.76 DW
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1 II.
2 PURPOSE
3
2. EPA and McChord Air Force Base are entering into this agreement to
5 clarify each Agency’s responsibilities and commitments for conducting actions
6 required and/or authorized by the Toxic Substances Control Act (TSCA),
7 15 U.S.C. 5 2601 et q., the PCB (polychiorinated biphenyl) Regulations at
8 40 C.F.R. Part 761, and applicable portions of E.O. 12088.
9
10 III .
11 SCOPE
12 3. This agreement is entered into by the parties to assure compliance
13 at PlcChord Air Force Base, Tacoma, Washington, by the United States Air Force,
14 with the PCB Regulations (40 C.F.R. Part 761) which were promulgated under
15 Section 6 of the Toxic Substances Control Act (TSCA), (15 U.S.C.
16 2605 (1976)).
17 4. ThIs agreement is not and shall not be construed to be a vehicle to
18 relIeve McChord Air Force Base or Its contractors of any legal obligations
19 under TSCA which are In addition to or different from matters covered In this
20 agreement. Neither does the agreement relieve NcChord Air Force Base of the
21 responsIbility to comply with any other environmental laws or regulations.
22 The agreement does not create or change any substantive or procedural rights
23 in other parties and is intended only for the administrative purposes of EPA
24 and McChord Air Force Base. Nothing In this agreement shall diminish any
25 power or legal responsibility which EPA or IcChord Air Force Base now have.
26
27
28 MEMORANDUM OF AGREEMENT - Page 2 of 8
Form OBD- 83
124.76 DOI
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1 5. This agreement contains a uplanN as described in section 1-601 of
2 E.O. 12088 to achieve and maintain compliance with the PCB Regulations at
3 40 C.F.R. Part 761.
4 6. It is the goal of this Compliance Plan and Schedule to have the
5 United States Air Force bring conditions at McChord Air Force Base,
6 Washington, into full compliance with Section 15 of TSCA, 15 U.S.C. S 2614.
7
8 IV.
9 PLANNING REQUIREMENTS
10
11 7. McChord Air Force Base agrees to promptly carry out the following
12 activIties:
13 a. Insure that all areas in which PCBs are stored have: adequate
14 roof and walls to prevent rainwater from reaching stored PCBs
15 and PCB Items; an adequate floor constructed of continuous
16 smooth and Impervious materials with a continuous curbing a
17 mInimum of six Inches high; and no drain valves, floor drains,
18 or other openings that would permit liquids to flow from the
19 curbed area; and that all areas are properly marked with the
20 requIred PCB label.
21 b. Verify the completion of the upgrading of the storage for
22 disposal area, to meet the requirements of 40 C.F.R.
23 S 761.65(b) by submission of documentation to EPA within sixty
24 days from the date of the signed Memorandum of Agreement.
25
26
27
28 MEMORANDUM OF AGREEMENT - Page 3 of 8
Form 060-183
128.76 DOJ
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1 c. Implement a weekly inspection program for the storage for
2 disposal area. This program will include a check for leaks of
3 all PCBs and PCB Items stored for disposal and initiation of
4 cleanup of such leaks pursuant to the PCB Spill Cleanup Policy,
5 40 C.F.R. Part 761, Subpart G.
6 d. Develop an inventory log for the PCB storage for disposal area
7 and insure that all PCBs and PCB Items going into and out of
8 the PCB storage for disposal area are recorded in this log with
9 the dates of entry and exit.
10 e. Provide EPA with copies of the Inventory log and a description
11 of the weekly inspection program that was Implemented, within
12 sixty days from the date of the signed Memorandum of Agreement.
13 8. McChord Air Force Base agrees to perform the following activities by
14 the dates specified below:
15 a. Implement a revised quarterly inspection program as required by
16 40 C.F.R. S 761.30(a)(l)(xll—xlli) by June 30, 1989.
17 b. Submit copies of the quarterly inspection documents to EPA.
18 CopIes of this documentation will be due two weeks following
19 the end of each quarter and submission will be required until
20 and Including the quarter ending June 1991.
21 c. Inventory and classify all liquid—filled electrical equipment
22 at McChord Air Force Base by either gas chromatography chemical
23 analysis or application of the regulatory assumption
24 requlrenents (Sections I and II , In Appendix I) by
25 March 31, 1991.
26
27
MEMORANDUM OF AGREEMENT - Page 4 of 8
Form OeO.183
12 .8-70 DOJ
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1 d. Submit a completed copy of the inventory to EPA by
2 April 30, 1991.
3 e. Develop and submit by April 30, 1991, a copy of a schedule to
4 dispose of all PCB—Contaminated (50-500 parts per million PCB)
5 liquid-filled electrical equipment in the base electrical
6 distribution system.
7 f. Develop and submit to EPA progress reports on the
8 inventory/disposal program. Copies of this report will be due
g on January 1, and July 1 of each year, beginning July 1, 1989
10 and continuing through July 1, 1992. The report will Included
11 the following:
12 1. Number of pieces of electrical equipment inventoried.
13 2. InventorIed equipment Identified by PCB concentration.
14 3. EstImate of the number of pieces of electrical
15 equIpment remaining for Inventory.
16 3. Number of pieces of electrical equipment disposed of.
17 g. Dispose of all liquid—filled electrical equipment in the
18 electrical distribution system Identified in the current
11
19 inventory dated,January.24 1989 (see Attactrent A), as
20 contaIning 500 parts per million PCBs or greater by
21 July 31, 1991.
22 h. Dispose of all liquid-filled electrical equipment in the
23 electrIcal distribution system Identified In the Inventory
24 descrIbed In paragraph C. above as containing 500 parts per
25 mIllion PCBs or greater by December 30, 1991.
26
27
28
MEMORANDUM OF AGREEMENT - Page 5 of 8
Form OBD.183
12.8-76 DOS
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1 i. Provide to EPA by June 30, 1992, certificates of disposal for
2 all PCBs and PCB Items disposed of pursuant to this agreement.
3 j. Submit copies of Annual PCB Documents to EPA for the years
4 1989, 1990 and 1991. Copies of these documents will be due by
5 July 31 following the end of the calendar year.
6 9. All documentation required shall be sent to:
7 M. Eileen Hayes
8 U.S. Environmental Protection Agency
9 PestIcides and Toxic Substances Branch
10 MIS AT-083
11 1200 Sixth Avenue
12 Seattle, Washington 98101
13
14
15 CONFLICT RESOLUTION
16
17 10. EPA and McChord Air Force Base will each use a single point of
18 contact for implementing this Memorandum of Agreement and coordinating TSCA
19 PCB compliance matters. The point of contact for EPA will be
20 Ms. Eileen Hayes, Environmental Protection Specialist, Toxic Substances
21 Section, telephone (206) 442—2584. The point of contact for McChord Air Force
22 Base will be Michael Grenko, Environmental Program Manager, telephone
23 (206) 984-3801. EIther party may make a redesignatlon of its point of contact
24 upon written notification to the other party.
25
26
27
MEMORANDUM OF AGREEMENT - Page 6 of 8
Form 080-183
12.8.78 DOS
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1 11. At either EPAS5 or PlcChord Air Force Base’s request, EPA and McChord
2 Air Force Base points of contact will meet or confer by telephone to discuss
3 any questions or problems that arise.
4 12. McChord Air Force Base shall notify the EPA contact person
5 identified above at least 14 days prior to the required completion date in all
6 cases where McChord Air Force Base will not or anticipates it will not meet a
7 deadline in the Compliance Plan and Schedule.
8 13. Both parties to this agreement shall make reasonable efforts to
9 informally resolve, at the project manager or in ned1ate supervisor level, all
10 antIcipated noncompliance with, or violations of, this agreement. If
11 resolution of the dispute cannot be achieved, It will be elevated to the
12 signatorIes for resolution. If resolution of the dispute cannot be resolved
13 at the signatory level, It will be elevated to the Administrator of the EPA
14 and the Office of the Secretary of the Air Force for resolution. Finally, if
15 necessary, the Director, Office of Management and Budget, shall be notified
16 pursuant to Sections 1—602 and 1—603 of E.O. 12088. In this event the
17 DIrector, Office of Management and Budget, will consider such steps as
18 necessary to resolve any conflicts and remedy violations.
19
20 VI.
21 ENFORCOIENT
22
23 14. WhIle this agreement is In effect, EPA shall not Initiate
24 enforcement action against ticChord Air Force Base for violations of TSCA
25
26
27
MEMORANDUM OF AGREEMENT - Page 7 of 8
corm OBO.183
12476 DOJ
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regulations which are already the subject of this agreement. This does not
preclude EPA enforcement actions for subsequent violations of TSCA regulations
by either !lcChord Mr Force Base or its contractor(s).
VII.
EXPIRATION
15. This agreement will expire when compliance is reached as mutually
agreed between EPA and McChord Air Force Base. However, the United States Air
Force commits to continued compliance with the TSCA PCB Regulations after the
expiration of this agreement.
11TMt J I, ?
ROBIE C. RUSSELL
Regional Administrator
Environmental Protection Agency, Region 10
Date
MEMORANDUM OF AGREEMENT - Page 8 of 8
Date
\ 9
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3
4
5
6
7
8
9
10
11
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C tL
1ise Convnander
Headquarters
McChord Air For
Farm 080.183
12.8.76 DoJ
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APPENDIX I
I. TRANSFORMERS/OTHER ELECTRICAL EQUIPMENT
1. If a transformer does not have a nameplate or if there is
no information available to indicate the type of
dielectric fluid In it, the transformer must be assumed to
be a PCB Transformer unless it is tested and found to
contain less than 500 ppm PCB. !Reference: Federal
Register, Vol. 44, No. 106, May 31, 1979, page 31517,
column one] (Appendix II).
NOTE: All assumed—to—be PCB Transformers must meet all of
the regulatory requirements for PCB Transformers,
including, but not limited to, inclusion on Annual
Reports, registration with appropriate fire response
personnel, Quarterly Inspections, disposal, marking, and
response to spills and leaks.
11. upCB..Contamlnated Electrical Equipment” means any
electrical equipment, Including but not limited to
transformers (Including those used In railway locomotives,
and self-propelled cars), capacitors, circuit breakers,
reclosers, voltage regulators, switches (Including
sectionalizers and motor starters), electromagnets, and
cable, that contain 50 ppm or greater PCB, but less than
500 ppm PCB. Oil-filled electrical equipment other than
circuit breakers, reclosers, and cable whose PC
concentration Is unknown must be assumed to be
PCB-Contamlnated Electrical Equipment . LReference: Refer
to 40 C.F.R. S 761.3, deflnlt on of PCB-Contamlnated
Electrical Equipment.”] (Appendix III)
II. CAPACITORS
1. The disposal of any capacitor shall comply with all
requirements of this subpart unless It Is known from label
or nameplate Information, manufacturer’s literature
(Including documented coiimiunlcat ions with the
manufacturer), or chemical analysis that the capacitor
does not contain PCBs. (Reference: 40 C.F.R. S
761.60(b)(2).] (Appendix III)
II. Any capacitor that cannot be shown to be PCB-free by
examining label or nameplate lnfoniiat lon, must be assumed
to be a PCB Capacitor and must be marked with the PCB mark.
(Reference: Federal Register Vol. 44, No. 106, May 31,
1919, page 31522, column one. (Appendix II)
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cage . 3
REVISED 01/17/89
TRANSFURHERS CURRENTLY IN SERVICE
WITH
PCB cot1FENr ASSUMED >500ppin
oit. wr
ITEM KVA MANUFACL’LIRER SERIAl, I SITE FWID TYPE (kg)
== ===== = — === ==== ====—
TRNSFRMR 150 WESTDGIIOIJSE 2790216 HGR 162 INER EEN 1547
TRNSFR.MR 150 WESTD1CHOUSE 2790219 HGR 162 INERTEEN 1547
TRNSFRMR 150 WESTIM1IOUSE 2790220 11CR 162 INER ECN 1547
TRNSFRIIR 150 ALLIS CHALMERS 2789465 HGR 364 CHWREXTOL. 1547
TRNSFRMR 50 wEsrI HousE 2707612 HGR 364 INER EEN 363
TRNSFRMR 50 WESTI H0USE 2707619 HGR 364 INER EEN 363
TRNSFRHR 50 WESTIt H0USE 2707621 lKR 364 INCR EEN 363
TRNSFRMR 100 GENERAL ELECT 9795654 HGR 364 PYRANOL 680
TRNSFRZIR 100 GENERAL E [ 1 6cr 9795655 HGR 364 PYRAtO [ 680
TRNSFRMR 100 GENERAL ELECT 9795656 HGR 364 PYRANOL 680
TRNSFRMR 75 GENERAL ELECI’ 88971448 HGR 364 PYRAIVL 794
TRNSFRMR 37.5 Q3RIRAIII 681122382 BLDG 16 ASKAREL 234
TRNSFRtIR 37.5 a)RTRAIN 681122383 BLDG 16 ASKAREL 234
TRNSFRMR 37.5 RIRAIN 681122384 BLDG 16 ASKARE1 234
TRNSFRMR 300 WESrIIIJHOUSB 7372863 BD 100-2 INEREEEN 2803
TRNSFRMR 225 wErIwjl1oI E 7372865 BD 100—3 INER EEN 2508
TRNSFRHR 25 WESTItS 10USC 2979661 80 100—3 ASKARE I 210
TRNSFRMR 15 GEI€RAL ELECT 6046538 BD 100—3 PYRANOL 204
TRNSFRHR 75 WEST1I I0USE 2680767 BLDG 422 ASKAREI 635
TRNSFRIIR 75 WES It 10USE 2680766 BLDG 610 ASKARE I 635
ATCH A
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UNITED STATES
ENVIRONMENTAL PROTECTION AGENCY
BEFORE THE ADMINISTRATOR
IN THE MATTER OP )
)
ROCKWELL INTERNATIONAL ) Docket No. TSCA —PCB-VIII-86-028
CORPORATION,
)
Respondent )
ORDER
For the reasons stated in its motion to intervene (motion)
of June 2, 1987,1/ the United States Department of Energy (DOE)
seeks, pursuant to O C.P.R. S 22.11, to become a party to the
subject proceeding. DOE relates that Rockwell International
Corporation (respondent) supports the motion. On June 17, the
United States Environmental Protection Agency (complainant) served
It. response 2 ’ in which it set forth the reasons for opposing the
1/ Unless otherwise shown, all dates hereinafter are for the
year 1987.
2/ Complainant’s observation in a subsequent pleading that O
.P.R. 3 22.11(a) speaks of an “answer to a motion to intervene
is well—taken. As observed by the undersigned in an order, the
Consolidated Rules of Practice (Rules) provide that an acknowledge-
ment to a motion is a Rresponse.U O C.P.R. 3 22.16(b). This
stylistic difference apparently results from a lack of uniformness
in language of the Rules. In the interest of consistency here,
however, “response” will be used In lieu of “answer.”
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2
motion. By order of June 25, DOE was directed to serve additional
documents on the parties and the Administrative Law Judge (AU).
The order also directed complainant, following a receipt of the
documentation, to serve an amended response to the motion. By
letter of July 6, and attachment, DOE furnished the documentation,
including a copy of Contract No. DE-AC0 —76DP03533 (contract)
making reter ce to certain provisions thereof which it was of
the opinion supported its position. For reasons stated in its
amended response of July 21, complainant continued to oppose the
motion. 3 ’ The respective arguments of the parties, well—known to
them, have been assessed by the AU and they will not be repeated
here except to the extent deemed necessary for this order.
Before turning to the requirements of intervention found In
Z o C.P.R. S 22.11(c), certain arguments advanced by DOE will be
met here. First, its reliance upon the Federal Facilities
Compliance Program (Compliance Program) of January $, 198 l,
established pursuant to Executive Order 12088 (Executive Order)
of October 13, 1978 is misplaced. DOE’s intervention into the
proceeding would not bring the matter within the Compliance
Program, as the Rocky Flat. Plant, while government-owned, is
completely contractor—operated and as such, is not necessarily
3/ Complainant served an errata to the amended response on July 29
Tn which it corrected some language on the last paragraph on page
three of the amended response.
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3
a “federal facility.” An examination of the Compliance Program
does not prohibit bringing a civil administrative proceeding for
penaittes where the private contractor, as respondent here,
operates completely the federally owned facility. This position
is buttressed by Appendix E to the Compliance Program where the
Department of Justice (Department) in a letter of October 11,
1983 to Congressman Dingell provided its interpretation. ’ On
page six of Appendix E, the Department addressed the question of
its policy concerning enforcement actions against government-
owned, contractdr—operated facilities as here. A fair reading of
the Department’s opinion is that such facilities are outside the
ambit of the Executive Order, and that the Department “is prepared
to sue government-owned, contractor-operated facilities when the
contractor is the responsible party . . . .“
Turning to another preliminary matter, DOE cites an order
granting intervention in a like case. (Motion par. 8 at 3).
That case was In the Matter of Associated Universities , Docket
No. II TSCA—PCB—85—0255. There complainant’s response to the
Though this interpretation concerned the Department’s view
‘regarding enforcement actions and cleanup of federal facilities
under RCRA and CERLA” it is by analogy applicable to disputes
raised “under other statutes.” at 2. Por example, under the
Toxic Substances Control Act, 15 U.S.C. 2615, the statute under
which the complaint was issued in this proceeding.
.
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motion to intervene was tepid and could hardly be characterized
as one of opposition. Complainant merely requested that if’
intervention were granted it would be with the understanding that
the EPA forum would retain jurisdiction. The order granting
intervention in the matter was necessarily conclusionary and
did not discuss the arguments raised, or deal in detail with the
elements of 110 C.F.R S 22.11(a). As such, it is of questionable
precedential alu .
Subsection (c) of 40 C.P.R. S 22.11 (hereinafter Rule) is-
the pertinent portion ot the Consolidated Rules of Practice which
controls here. 5 ’ It provides:
(c) Disposition. Leave to intervene
!! be granted if movant demonstrates
1iit (1) his presence in the proceeding would
not unduly prolong or otherwise prejudice
the adjudication of the rights of the original
parties; (2) the movant will be adversely
affected by the final order; and (3) the
interests of the movant are not being adequately
represented by the original parties . . .
(emphasis supplied)
The three necessary elements are in the conjunctive and all
must be met before the motion may be granted.
Conasrnlng the first element, in its response complainant
asserts thst by “the thrust of its own motion” DOE admits that
its purpose in intervening is to impede complainant’s ability to
5/ Intervention in administrative proceedings is determined by
the rules of practice of the particular agency. 2 Am Jur 2,
Administrative Law 5 369.
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5
assess a penalty for the violation. (Response at 3). The reader
is denied details or reasoning. It is conceded that intervention
may result in some additional evidence. The AU, however, is not
persuaded that it would “unduly prolong” the proceeding or preju-
dice the rights of complainant or respondent. It is concluded
that DOE has met the first requirement of the Rule.
The second requisite of the Rule is more troublesome. To
show that it will be adversely affected, DOE has cited certain
S
sections of the contract. Complainant has also looked at the
pertinent provisions of the contract and reaches the opposite
conclusion. Its interpretation is that DOE would not be obli-
gated to respondent under the contract for the amount of any
potential penalty and is therefore not adversely affected. (Amended
Response at 3). DOE’s references to certain clauses of the con-
tract are without either analysis or explanation to support its
claim. The complainant addressed these and other clauses with
argument.
The AU has examined the clauses of the contract to which
DOE and complainant refer and he is of the view that whether
or not DOE will be adversely affected hinges upon the following:
Claus. 5* of the contract deals, in part, with Allowable Costs.
Subsection (d)(*) provides that items of allowable costs are
litigation expenses including payment of third party claims and
judgments. (at 112). This is generally in nature and must be
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6
read ii, conjunction with subparagraph (d)(16) of the same clause
which permits all costs incurred by the respondent concerning any
and all liability or penalties, such as civil sanctions, including
fines arising out of environmental, safety or health activities.
(at 116). However, such costs are unallowable If they result
from the respondent’s willful misconduct or lack of good faith.
(at 117, 20). Parenthetically, the AU is unpersuaded by com-
plainant’s bla ket assertion that respondent lacks good faith
“(Ojiven Rockwell’s nationwide history of TSCA violations and the
violations alleged in the complaint.” (Amended Response at 3).
Subparagraph (d)(16) of Clause 5 must also be examined in
connection with subparagraph (e)(12). The latter specifies items
of unallowable costs as fines and penalties resulting from
failure of respondent to comply with, among others, federal laws
or regulations, except when Incurred in accordance with the
written approval of the contracting officer or the result of
compliance with the provisions of the contract. (at 118, 19).
The exceptions in clauses (d)(16) and (e)(12) are issues
that may only be resolved after the unfolding of evidence con-
cerning any willful misconduct, lack of good faith or compliance
with th. provision. of the contract, questions which are not
necessarily germane In this proceeding. Absent clearer and more
precise language, it cannot be determined now from the contract,
standing alone, whether or not DOE “will” be responsible under
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7
its terms for any potential civil penalty assessed against respon-
dent. It is concluded that DOE has not demonstrated that it will
be adversely affected by any assessment of penalty against respon-
dent.
There is another consideration. Assuming arguendo, that DOE
would be responsible under the terms of the contract for any
potential civil penalties assessed against the respondent, it
does not neces*arily follow that DOE would meet the second require-
ment of the Rule that it would be adversely affected. By itself,
a final order against respondent does not affect DOE adversely.
It is only when the order is connected to the contract that there
may be potential liability. Continuing on the assumption that
the contract may be •the legal link to liability, 6 ’ DOE was the
architect of that document and created its own potential mis-
fortune. The possible liability stems from DOE’s openhanded
treatment to recompense respondent and not necessarily solely
from the results of the proceeding.
The Rule also demands DOE demonstrate that its interests are
not being adequately represented. Nowhere in the motion is it
demonstrated, or even mentioned by DOE, that the respondent is
6/ It is observed in passing, that in non admiflietrative law
attera the courts are divided concerning whether a party ulti-
mately liable for a judgment between litigants should be allowed
to intervene. 59 Am Jur 2d, Intervention l 7.
.
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8
not adequately representing its interest, or that it will riot
adequately defend itself against the alleged violation. This
is a clinching consideration.
In sum, a review of the contract shows that it remains an
open question concerning whether or not DOE may be liable by any
potential civil penalty and it has failed to demonstrate that it
would be advereely affected. Additionally, DOE has not shown that
it is not being adequately represented by the respondent. It is
concluded that DOE has not met all three requirements stated in
the Rule.
IT IS ORDERED that:
1. The motion to intervene be DENIED .
2. If this matter is not settled 7 ’ by September 1’s, the
parties shall engage in prehearing exchanges no later than
September 21.
Administrative Law Judge
Dated: ‘ i ‘7(7
7/ As that word is defined in the footnote on page two of the May
!i Notice and Order.
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IN THE MATTER OP ROCKWELL INTERNATIONAL CORPORATION , Respondent,
Docket No. TSCA-PCB—VIII- 6-02
Certificate of Service
I certify that the foregoing Order dated /922 ,
was sent this day in the following manner to the ow addfhessees :
Original by Regular Mail to: Joanne McKinstry
Regional Hearing Clerk
U. S. Environmental Protection
Agency
Region VIII - - —
999 18th Street, Suite 500
Denver, CO 8O2O2—2 iO5
Copy by Regular Mall to:
Attorney for Complainant: vid J. Jantk, Esquire
Office of Regional Counsel
U. S. Environmental Protection
Agency
Region VIII
999 18th Street, Suite 500
Denver, CO 8O2O2-2 I05
Attorney for Respondent: Robert C. Lerche, Esquire
Rockwell International
North American Space Operations
Rocky Flats Plant
P. 0. Box 1 6l$
Golden, CO 8O1iO2—0’ 6’1
Attorney for Proposed
Intervenor: Patrick 0. Currier, Esquire
- U. S. Department of Energy
Rocky Flats Area Office
P. 0. Box 928
Golden, CO 8O O2—O928
A Secretary
Dated: ( Iii /41917
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VMCunts ATTACHMENT C
IND—112].
USAO #86—02534
IN THE UNITED STATES DISTRICT COURT
FOR TEE DISTRICT OF MARYLAND
UNITED STATES OF AMERICA * CRIMINAL NO. EAR-88-02].1 .
/ *
v. / * Treatment, Storage and Dis-
__ : ::.* posal of Hazardous Wastes,
WILLIAM DEE ____ -____ 42 U.S.C. S 6928(d); Water
ROBERT LENTZ * Pollution, 33 U.S.C. SS1311
and 1 ) * (a) and 1319(c); Aiding and
CARL GEPP * Abetting, 18 U.S.C. S 2)
- • .00000. •
SUPERSEDING INDICTMENT
Introduction
The Grand Jury for the District of Maryland charges
that:
1. At times pertinent to this Indictment, the Aberdeen
Proving Ground (APG) was a Test and Evaluation Command
installation within the United States Army Materiel Command. It
consisted of offices, directorates and tenant activities.
2. At all times pertinent to this Indictment, APG was
located in Baltimore County and Harford County, Maryland and was
divided into two areas: the Aberdeen area and the Edgewood
area. The total area of APG was over 79,000 acres. Approximately
17,000 acres of Land were in the Aberdeen area and approximately
13,000 acres were in the Edgewood area; the remaining area was
water.
3. At all times pertinent to this Indictment, the
Gunpowder River, Bush River, and Canal Creek were navigable
waters of the United States as defined in Title 33, United States
Code, Section 1362(F).
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4. At all times pertinent to this Indictment, all.
federal facilities were required by Executive Order 12088 to
comply with all applicable state-and federal environmental laws.
5. At times pertinent to this Indictment, the Chemical
Research and Development Center (CRDC) was the primary tenant and
main activity at the Edgewood area of APG. In or about 1985, the
name of the tenant was changed from CRDC to Chemical Research,
Development and Engineering Center (CRDEC). For purposes of th:s
Indictment, this tenant organLzation is referred to as CRDC,
unless otherwise noted.
6. At times pertinent to this Indictment, there were
nine Directorates within CRDC, one of which was the Munitions
Directorate. The Munitions Directorate was known as he
Munitions Division prior to 1985. For purposes of this
Indictment, it will be referred to as the Munitions Directorate.
7. At all times pertinent to this Indictment, the main
mission of the Munitions Directorate was to manage exploratory,
advanced, and engineering development, manufacturing technology,
and industrial engineering programs for deterrent chemical
material.
8. At all times pertinent to this Indictment, the
Munitions Directorate was a generator of hazardous waste and
could only store the waste it generated for a period not to
exceed 90 days from the date of generation.
9. At all times pertinent to this Indictment, APG
Regulation 200—2 assigned responsibilities and established
policies and procedures for the management and disposal of solid
and hazardous waste materials at APG. This regulation applied to
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all elements of the APG Command, relevant command activities arid
organizations, and to all users of APG facilities.
10. At all times pertinent to this Indictment, Standard
Operations Procedure (SOP) No. 710—1 set forth the policies,
responsibilities and procedures for control of laboratory
chemicals arid waste chemical material.
11. At all times pertinent to this Indictment, APG arid
all tenants were authorized to store hazardous waste only at the
APG Hazardous Waste Storage Facility: Buildings £5864, £5866 arid
E5850.
12. At all times pertinent to this Indictment, WILLIAM
DEE was either the Chief of the Munitions Division or the
Director of the Munitions Directorate, CRDC.
13. At all times pertinent to this Indictment, ROB T
LENTZ was either Chief of the Producibility, Engineering and
Technology Branch, Munitions Division, or Chief of the
Producibility, Engineering and Technology Division, Munitions
Directorate, CRDC.
14. At all times pertinent to this Indictment, CARL
GEPP was Chief of the Process Technology Branch (or Section) of
the Producibility, Engineering and Technology Division (or
Branch), of the Munitions Directorate, CRDC arid the plant manager
of the Pilot Plant, Building £5625.
The Pilot Plant - Building £5625 Compound
15. At all, times pertinent to this Indictment, Building
£5625, known as the “Pilot Plant”, was operated by the Munitions
Directorate at the £dgeuood area of APG.
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16. At all times pertinent to this Indictment, the
Pilot Plant Compound consisted of Building £5625, the Pilot
Plant, Building E5627, the administration building, Building
E5633, a storage shed, and the surrounding land, all located
behind a security fence. At times pertinent to this Indictment,
a conex container was also located in this compound.
17. At al]. times pertinent to this Indictment, there
was a purported toxic waste neutralization system at the Pilot
Plant. The purpose of this system was to neutralize toxic liquid
waste with a pH of 12 or higher to a pH of 6 to 8 by the addition
of sulfuric acid and to release the neutralized liquid to the
sanitary sewer.
18. At all times pertinent to this Indictment, the
toxic waste neutralization system was designed to detoxify
certain military chemical surety material including lethal and
incapacitating chemical warfare agents but was not capable of
treating solvents and certain other hazardous waste.
19. At times pertinent to this Indictment, the Pilot
Plant was in poor physical condition and its sanitary waste
system, toxic waste system, caustic system and piping were in a
deteriorated condition.
20. At times pertinent to this Indictment, CRDC safety
inspectors issued notices of violations to the Munitions
Directorate reporting the improper storage of excess chemicals,
incompatible storage of chemicals, storage of unknown wastes and
the failure to properly turn in wastes generated at the Pilot
Plant complex.
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Charge
2].. From on or about June, 1983 to on or about August,
1984, in the State and District of Maryland,
WILLIAM DEE
ROBERT LENTZ
and
CARL GEPP
did knowingly store and dispose of, and did knowingly cause to be
stored and disposed of, hazardous waste, to wit: waste dimethyl
polysulfide (NM) at the Pilot Plant, Building E5625, without
interim status or a permit as required by Title 42, United States
Code, Sections 6925 and 6926.
42 U.S.C. S 6928(d)(2)(A)
18 U.S.C. 5 2
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COUNT TWO
And the Grand Jury for the District of Maryland further
charges:
1. The allegations contained in paragraphs 1. through
20 of Count One are realleged and incorporated herein as if fully
set forth in this count of the Indictment.
2. At times pertinent to this Indictment, the United
States Coast Guard initiated the Chemical Hazardous Response
Information System (CHRIS) Project and contracted with the United
States Army to test hazardous chemicals. These CHRIS reagents
were compounds that were known to be hazardous and they were
given to CRDC because of CRDC’s alleged “unique ability” to
safely handle hazardous materials in the laboratory. The purpose
of the CHRIS project was to assist the Coast Guard in
implementing effective hazardous spill response plans for
potential chemical spills on navigable waters of the United
States.
3. At times pertinent to this Indictment, numerous
chemical reagents were sent to the Pilot Plant and were distri-
buted to various sites for testing as part of the CHRIS
Project.
4. At times pertinent to this Indictment, excess CHRIS
chemicals were placed into Building E5633, a storage shed within
the Pilot Plant compound, and other Pilot Plant compound loca—
tions. There were no temperature or ventilation controls in this
shed and containers of chemicals placed there froze, broke, and
were severely corroded.
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5. From or about June, 1983 to on or about April 2,
1986, in the State and District of Maryland,
WILLIAM DEE
ROBERT LENTZ
and
CARL GEPP
did knowingly store and dispose of, arid did knowingly cause to be
stored and disposed of, hazardous waste, to wit, the following:
1, 2—dichloropropane acrolein
aniline arsenic peritoxide
arsenic trioxide benzene
chloroform cresol
crotonaidehyde cyclohexane
dLmethylcarbamoyl chloride ether (ethyl ether)
ethyl acetate ethyl methacrylate
ethylene dichloride furfural
hexachiorocyclopentadiene hydrazine
lead acetate maleic acid hydrazide
nitric acid nonene
parathion phosphoric acid
picric acid potassium cyanide
potassium chromate pyridine
sodium cyanide sodium hydride
sulfamic acid sulfur monochioride
tetramethylethylenediamine toluene
trans—i, 2—dichioroethylene trichioroethane
trichioroethylene trichlorosilane
hydrochloric acid hydrofluoric acid
hexamethyl disiloxane 1, 2—dichloroethane
cyclohexanone acetonitrile
sodium hydroxide carbon tetrachioride
chlorobenzene
• at various locations within the Pilot Plant compound, without
interim status or a permit as required by Title 42, United States
Code, Sections 6925 and 6926.
42 U.S.C. S 6928(d)(2)(A)
18 U.S.C. S 2
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COUNT TREE
And the Grand Jury for the District of Maryland further
charges that:
1. The allegations contained in paragraphs 1 through
20 of Count One are rea].leged and incorporated herein as if fully
set forth in this count of the Indictment.
2. At times pertinent to this Indictment, Pilot Plant
employees were directed to dump waste chemicals into the tox.c
sumps at the Pilot Plant, Building E5625.
3. From on or about June, 1983 to on or about March,
1986, in the State and District of Maryland,
WILLIAM DEE
ROBERT LENTZ
and
CARL GEPP
did knowingly treat and dispose of, and did knowingly cause to be
treated and disposed of, hazardous waste, to wit, the following:
1, 2—dichloroberizene 1,3, 5—trimethylbenzene
1, 4—dichlorobenzene benzene
acetone chloroform
chlorobenzene dimethy]. disulfide
cyclohexane ethy lbenzerte
ethanol methyl chloride
m—xy lene methyl cyclohexane
p—xylene methyl sulfide
methyldichiorophosphine oxide methylene chloride
nitrobenzene o—xylene
2—prepanol propyl ether
tetrachioroethene tr ichioroethene
(trifluoromethyl) benzene
at the Pilot Plant, Building E5625, without interim status or a
permit as required by Title 42, United States Code, Sections 6925
and 6926.
42 U.S.C. S 6928(d)(2)(A)
18 U.S.C. 5 2
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- COUNT FOUR
And the Grand Jury for the District of Maryland further
charges that:
1. The allegations contained in paragraphs 1. through
14 of Count One are realleged and incorporated herein as if fully
set forth in this count of the Indictment.
2. At all times pertinent to this Indictment, the
Building E3640 area consisted of Building E3640, referred to
hereafter as the “old pilot plant”; Building £3641, which
contained caustic scrubbing towers; Building E3642, a storage
area; Building E3643, an office building; Building £3646, art
overseas shipping container under a roof that was used for
chemical storage, and the surrounding land.
3. At all times pertinent to this Indictment, the old
pilot plant area was under the direction and control of the
Munitions Directorate.
4. On or about 1978, all operations in the old pilot
plant were ceased and all personnel were transferred to other
areas.
5. At times pertinent to this Indictment, safety
surveys were conducted at the old pilot plant area and numerous
chemicals were identified as being improperly stored and
presenting a potential hazard.
6. At times pertinent to this Indictment, drums
containing hazardous wastes were stored in a drum storage rack
outside the old pilot plant and these drums were corroded and
deteriorated.
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7. From on or about June, 1983 to on or about August,
1986, in the State and District of Maryland,
WILLIAM DEE
ROB T LENTZ
and
CARL GEPP
did knowingly store and dispose of, and did knowingly cause to be
stored and disposed of, hazardous waste, to wit, the following:
arsenic trioxide
arsenic pentoxide
caustic scrubber waste
cycloheptat riene
denatured ethanol
methyldichiorophosphine oxide
diethylaminoethanol
diisopropylamino ethanol
dimethyl disulfide
glycolic acid
hydrochloric acid
mercury
dimethy]. polysulfide
sodium amide
sulfuric acid
at the old pilot plant area, without interim status or a permit
as required by Title 42, United States Code, Sections 6925 and
6926.
42 U.S.C. 5 6928(d)(2)(A)
18 U.S.C. S 2
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COUNT FIVE
And the Grand Jury for the District of Maryland further
charges:
1. The allegations contained in paragraphs 1 through
20 of Count One are realleged and incorporated herein as if fully
set forth in this count of the Indictment.
2. At all times pertinent to this Indictment, the
Federal Water Pollution Control Act, Title 33, United States
Code, Section 1251 et prohibited the discharge of any
pollutant into the waters of the United States except in
accordance with, among other things, the terms and conditions of
a National Pollutant Discharge Elimination System (hereinafter
“NPDES”) permit.
3. At all times pertinent to this Indictment, a
storage tank, which contained sulfuric acid, was located inside a
diked area outside the Pilot Plant, Building E5625.
4. At all times pertinent to this Indictment, the
contaInment dike surrounding the sulfuric acid tank was in a
deteriorated condition and incapable of containing an acid spill.
5. From on or about September 17, 1985 to on or about
Spetember 18, 1985, in the State and District of Maryland,
WILLIAM DEE
ROBERT LENTZ
and
CARL GEPP
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did negligently discharge and did cause to be negligently
discharged, pollutants, namely sulfuric acid, from a point source
into Canal Creek, a navigable water of the United States, without
a NPDES permit.
33 U.S.C. S 1311(a) and 1319(c)(1)
18 U.S.C. S 2
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BRECKINRIDGE L. )‘JILLCOX
United States Attorney
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END—0626
USAO #86—02534
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND -.
UNITED STATES OF AMERICA CRIMINAL NO. c -:
v. * Treatment, Storage and Dis-
* posal of Hazardous Wastes,
WILLIAM DEE a 42 U.S.C. S 6928(d); Water
ROBERT LENTZ * Pollution, 33 U.S.C. 551311
and * (a) and 1319(c); Aiding and
CARL GEPP * Abetting, 18 U.S.C. S 2)
00000.
INDICTMENT
Introduction
The Grand Jury for the District of Maryland charges
that:
1. At times pertinent to this Indictment, the Aberdeen
Proving Ground (APG) was a Test and Evaluation Command
installation within the United States Army Materiel Command. It
consisted of offices, directorates and tenant activities.
2. At all times pertinent to this Indictment, APG was
located in Baltimore County and Harford County, Maryland and was
divided into two areas: the Aberdeen area and the dgewood
area. The total area of APG was over 79,000 acres. Approximately
17,000 acres of land were in the Aberdeen area and approximately
13,000 acres were in the Edgewood area; the remaining area was
water.
3. At all times pertinent to this Indictment, the
Gunpowder River, Bush River, and Canal Creek were navigable
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waters of the United States as defined in Title 33, United States
Code, Section 1362(F).
4. At all times pertinent to this Indictment, all
federal facilities were required by Executive Order 12088 to
comply with all applicable state and federal environmental Laws.
5. At times pertinent to this Indictment, the Chem ca .
Research and Development Center (CRDC) was the primary tenant a:id
main activity at the Edgewood area of APG. In or about 1985, the
name of the tenant was changed from CRDC to Chemical Research,
Development and Engineering Center (CRDEC). For purposes of this
Indictment, this tenant organization is referred to as CRDC,
unless otherwise noted.
6. At times pertinent to this Indictment, there were
nine Directorates within CRDC, one of which was the Munitions
Directorate. The Munitions Directorate was known as the
Munitions Division prior to 1985. For purposes of this
Indictment, it will be referred to as the Munitions Directorate.
7. At all times pertinent to this Indictment, the main
mission of the Munitions Directorate was to manage exploratory,
advanced, and engineering development, manufacturing technology,
and industrial engineering programs for deterrent chemical
material.
8. At all, times pertinent to this Indictment, :-e
Munitions Directorate was a generator of hazardous waste and
could only store the waste it generated for a period riot to
exceed 90 days from the date of generation.
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9. At all times pertinent to this Indictment, APG
ReguLation 200—2 assigned responsibilities and established
policies and procedures for the management and disposal of solid
and hazardous waste materials at APG. This regulation applied to
all elements of the APG Command, relevant command activities arid
organizations, and to all users of APC facilities.
10. At all times pertinent to this Indictment, Standard
Operations Procedure (SOP) No. 710—1 set forth the policies,
responsibilities arid procedures for control of laboratory
chemicals and waste chemical material.
Li. At all times pertinent to this Indictment, APG and
all tenants were authorized to store hazardous waste only at the
APG Hazardous Waste Storage Facility: Buildings £5864, E5866 and
£5850.
12. At all times pertinent to this Indictment, WILLIAM
DEE was either the Chief of the Munitions Division or the
Director of the Munitions Directorate, CRDC.
13. At all times pertinent to this Indictment, ROBERT
LENTZ was either Chief of the Producibility, Engineering and
Technology Branch, Munitions Division, or Chief of the
Producibility, Engineering and Technology Division, Munitions
Directorate, CRDC.
14. At all times pertinent to this Indictment, CARL
GEPP was Chief of the Process Technology Branch (or Section) of
the Producibility, Engineering and Technology Division (or
3ranch), of the Munitions Directorate, CRDC and the plant manager
of the Pilot Plant, Bui.ding E5625.
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The Pilot Plant - Building E5625 Compound
15. At all times pertinent to this Indictment, Build:ng
E5625, known as the “Pilot Plant”, was operated by the Mur.it cns
Directorate at the Edgewood area of APG.
16. At all times pertinent to this Indictment, the
Pilot Plant Compound consisted of Building E5625, the Pilot
Plant, Building E5627, the administration building, Building
E5633, a storage shed, and the surrounding land, all located
behind a security fence. At times pertinent to this Indictment,
a conex container was also located in this compound.
17. At all times pertinent to this Indictment, there
was a purported toxic waste neutralization system at the Pilot
Plant. The purpose of this system was to neutralize toxic liquid
waste with a pH of 12 or higher to a pH of 6 to 8 by the addition
of hydrosulfuric acid and to release the neutralized liquid to
the sanitary sewer.
18. At all times pertinent to this Indictment, the
toxic waste neutralization system was designed to detoxify
certain military chemical surety material including lethal and
incapacitating chemical warfare agents but was not capable of
treating solvents and certain other hazardous waste.
19. At times pertinent to this Indictment, the Pilot
Plant was in poor physical condition and its sanitary waste
system, toxic waste system, caustic system arid piping were in a
deteriorated condition.
20. At times pertinent to this Indictment, CRDC safety
inspectors issued notices of violations to the Munitions
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Directorate reporting the improper storage of excess chemicals,
incompatible storage of chemicals, storage of unknown wastes aid
the failure to properly turn in wastes generated at the Pilot
Plant complex.
Charge
21. From on or about June, 1983 to on or about August,
1984, in the State and District of Maryland,
WILLIAM DEE
ROBERT LENTZ
and
CARL GEPP
did knowingly store and dispose of, and did knowingly cause to be
stored and disposed of, hazardous waste, to wit: waste dimethy].
polysulfide (NM) at the Pilot Plant, Building £5625, without
interim status or a permit as required by Title 42, United States
Code, Sections 6925 and 6926.
42 U.S.C. S 6928(d)(2)(A)
18 U.S.C. S 2
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COUNT TWO
And the Grand Jury for the District of Maryland further
charges:
1. The allegations contained in paragraphs I through
20 of Count One are realleged and incorporated herein as if fuily
set forth in this count of the Indictment.
2. At times pertinent to this Indictment, the United
States Coast Guard initiated the Chemical Hazardous Response
Information System (CHRIS) Project and contracted with the United
States Army to test hazardous chemicals. These CHRIS reagents
were compounds that were known to be hazardous and they were
given to CRDC because of CRDC’s alleged “unique ability” to
safely handle hazardous materials in the laboratory. The purpose
of the CHRIS project was to assist the Coast Guard in
implementing effective hazardous spill response plans for
potential chemical spills on navigable waters of the United
States.
3. At times pertinent to this Indictment, numerous
chemical reagents were sent to the Pilot Plant and were distri-
buted to various sites for testing as part of the CHRIS
Project.
4. At times pertinent to this Indictment, excess CMRIS
chemicals were placed into Building E5633, a storage shed within
the Pilot Plant compound, and other Pilot Plant compound loca-
tions. There were no temperature or ventilation controls in this
shed and containers of chemicals placed there froze, broke, and
were severely corroded.
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5. From or about June, 1983 to on or about April 2,
1986, in the State and District of Maryland,
WILLIAM DEE
ROBERT LENTZ
a rid
CARL GEPP
did knowingly store and dispose of, and did knowingly cause to e
stored and disposed of, hazardous waste, to wit, the followLrig:
1, 2 dichioropropane 2,4 pentadione
acrolein aniline
arsenic oxides benzene phosphorous dichioride
chloroform creso].
crotonaldehyde cyclohexane
dimethylcarbomyl ether
ethyl acetate ethyl ether
ethyl methacrylate ethylene dichi.oride
furfural hexachiorocyclopentadierte
hydrazine lead acetate
magnesium chloride maleic acid hydrazide
nitric acid nonene
parathion phosphoric acid
picric acid potassium nitrate
pyridine sodium cyanide
sodium hydride sulfonic acid
sulfur mortochloride tetramethyl ethylene diamine
toluene 2,4 diisocynate
trans 1,2 dichioroethylene trichloroetharie
t r ichloroethylene
at various locations within the Pilot Plant compound, without
interim status or a permit as required by Title 42, United States
Code, Sections 6925 and 6926.
42 U.S.C. S 6928(d)(2)(A)
18 U.S.C. S 2
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COUNT THREE
And the Grand Jury for the District of Maryland further
charges that:
1. The allegations contained in paragraphs 1 through
20 of Count One are realleged and incorporated herein as if fully
set forth in this count of the Indictment.
2. At times pertinent to this Indictment, Pilot Plar t
employees were directed to dump waste chemicals into the toxic
sumps at the Pilot Plant, Building £5625.
3. From on or about June, 1983 to on or about March,
1986, in the State and District of Maryland,
WILLIAM DEE
ROBERT L 1 ENTZ
and
CARL GEPP
did knowingly treat and dispose of, and did knowingly cause to be
treated and disposed of, hazardous waste, to wit, the following:
1,2 dichjorobenzene 1,2,3 trichlorobertzene
1,2,4 trichlorobenzene 1,3,5 triethylbenzerte
1,4 dichlorobenzene 2—methyl thiobenzothiazole
2—bis (1 —methylethyl) acenapehene
amino ethanol benzene
acetone bromodichloromethane
benzothiazole chloroform
chlorobenzene dimethyl disulfide
cyclohexane ethylbenzene
ethanol methyl chloride
m,p, — xylene methyl cyclohexane
methyl sulfide methyldichloropnosphirie x:de
methylene chloride, nitrobenzene
o—xy lene phenarithrene
phosphonic acid propanol,
propyl ether pyrene
tee rachioroethene trichioroethene
trifluoromethyl benzerte 2—ethyl—l-hexarlol
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at the Pilot Plant, Building £5625, without interim status or a
permit as required by Title 42, (Jnited States Code, Sections 6925
and 6926.
42 U.S.C. § 6928(d)(2)(A)
18 U.S.C. S 2
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COUNT FOUR
And the Grand Jury for the District of Maryland further
charges that:
1. The allegations contained in paragraphs 1 through
14 of Count One are realleged and incorporated herein as if fully
set forth in this count of the Indictment.
2. At all times pertinent to this Indictment, the
Building £3640 area consisted of Building £3640, referred to
hereafter as the “old pilot plant”; Building £3641, which
contained caustic scrubbing towers; Building £3642, a storage
area; Building E3643, an office building; Building £3646, an
overseas shipping container under a roof that was used for
chemical storage, and the surrounding land.
3. At all times pertinent to this Indictment, the old
pilot plant area was under the direction and control of the
Munitions Directorate.
4. On or about 1978, all operations in the old pilot
plant were ceased and all personnel were transferred to other
areas.
5. At times pertinent to this Indictment, safety
surveys were conducted at the old pilot plant area and numerous
chemicals were identified as being improperly stored and
presenting a potential hazard.
6. At times pertinent to this Indictment, drums
containing hazardous wastes were stored in a drum storage rack
outside the old pilot plant and these drums were corroded and
deteriorated.
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7. From on or about June, 1983 to on or about August,
1986, in the State and District of Maryland,
WILLIAM DEE
ROBERT LENTZ
and
CARL GEPP
did knowingly store and dispose of, and did knowingly cause to be
stored and disposed of, hazardous waste, to wit, the following:
arsenic trioxide
arsenic pentoxide
caustic scrubber waste
cycloheptatriene
denatured ethanol
methyldichiorophosphine oxide
diethylaminoethanol
diisopropylamino ethanol
dimethyl disulfide
glycolic acid
hydrochioLic acid
mey
dimethyl polysulfide
sodium amide
sulfuric acid
at the old pilot plant area, without interim status or a permit
as required by Title 42, United States Code, Sections 6925 and
6926.
42 U.S.C. S 6928(d)(2)(A)
18 U.S.C. S 2
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COUNT FIVE
And the Grand Jury for the District of Maryland further
charges:
1. The allegations contained in paragraphs 1 through
20 of Count One are realleged and incorporated herein as if fully
set forth in this count of the Indictment.
2. At all times pertinent to this Indictment, the
Federal Water Pollution Control Act, Title 33, United States
Code, Section 1251 et g., pr ohibited the discharge of any
pollutant into the waters of the United States except in
accordance with, among other things, the terms and conditions of
a National Pollutant Discharge Elimination System (hereinafter
“NPDES”) permit.
3. At all, times pertinent to this Indictment, a
storage tank, which contained hydrosu1fu ic acid, was located
inside a diked area outside the Pilot Plant, Building £5625.
4. At all times pertinent to this Indictment, the
containment dike surrounding the hydrosulfuric acid tank was in a
deteriorated condition and incapable of containing an acid spill.
5. From on or about September 17, 1985 to on or about
tember 18, 1985, in the State and District of Maryland,
WILLIAM DEE
ROBERT LENTZ
and
CARL GEPP
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did negligently discharge and did cause to be negligently..
discharged, pollutants 1 namely hydrosulfuric acid, from a poi t
source into Canal Creek, a navigable water of the United States,
without a NPDES permit.
33 U.S.C. S 1311(a) and 1319(c)(l)
18 U.S.C. S 2
J)jfAQ . áII
CKINRIDGE L.’ ILL .X
United States Attorney
A TRUE BILL:
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