f/EPA Toxic Substances Control Act
Compliance/Enforcement
Guidance Manual
Policy Compendium
U.S. Environmental Protection Agency
Washington DC 20460
Issued by
Pesticides and Toxic Substances
Compliance Monitoring Staff
and
Office of Enforcement and Compliance Monitoring
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(jiyW
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^5^. \ UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
m
P«o^G
MAR 5 1984
MEMORANDUM
SUBJECT: FIFRA and TSCA Compliance/Enforcement
Guidance Manual Policy Compendiums
FROM: A. E. Conroy II, Director
Compliance Monitoring Staff
Office of Pesticides and Toxic Substances
Glenn Unterberger, Director
Office of Legal and Enforcement Policy
Office of Enforcement and Compliance Monitoring
TO:
Addressees
As part of our effort to produce guidance manuals for
personnel involved in case development activities for the
United States Environmental Protection Agency, we are trans-
mitting to you the Compendium of Operative Enforcement Policies
for the Federal Insecticide, Fungicide, and Rodenticide Act
(FIFRA) and the Toxic Substances Control Act (TSCA). The
Compendiums not only identify those FIFRA and TSCA compliance/
.•of> • •nrr.ont guidances and p"1 :. <*ioP t-hat are currently in effect,
but they also provide a mechanism for organizing such memoranda.
We intend to update the Compendiums periodically and
we welcome comments on them or on policy issues that might
be addressed in the future. Questions or comments on the
contents of the Compendiums can be addressed to Ted Firetog
(FTS 426-7503) or Barbara Paul (FTS 382-7826).
Property of U.S. Environmental
Protection Agency Library MD-108
JUN 08 1989
1200 Sixth Avenue/Seattle, WA 98101
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-2-
Addressees:
Regional Counsels
Associate Enforcement Counsel for Pesticides
and Toxic Substances
Director, Office of Criminal Investigations
Director, NEIC
Director, Air Management Division - Region I
Director, Air and Waste Management Division - Regions II,
IV, VI, VII, VIII, and X
Director, Environmental Services Division - Region III
Director, Waste Management Division - Region V
Director, Toxics and Waste Management Division - Region IX
Attachments
cc: Assistant Administrator for Pesticides
and Toxic Substances
Assistant Administrator for Enforcement
and Compliance Monitoring
General Counsel
Senior Enforcement Counsel
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Table of Contents
This Compendium contains the following TSCA Compliance/Enforcement-related
policies and guidances currently in effect.
Any questions or comments concerning these documents should be addressed
to:
Director of Compliance Monitoring Staff
Office of Pesticides and Toxic Substances (EN-342)
U.S. Environmental Protection Agency
401 M Street, S.W.
Washington, D.C. 20460
TITLE OF DOCUMENT
DATE OF DOCUMENT
General Guidance
Consolidated Rules of Practice Governing the
Administrative Assessment of Civil Penalties
and the Revocation or Suspension of Permits
(45 Fed. Reg. 24,360)
Guidelines for Assessment of Civil Penalties
under Section 16 of the Toxic Substances
Control Act; PCB Penalty Policy (45 Fed. Reg.
59,770)
Settlement with Conditions
4/9/80
9/10/80
11/15/83
Technical Guidance
General
"Neutral Administrative Inspection Schemes for
TSCA Enforcement"
Use of TSCA Section 11(c) Subpoenas
11/7/79
12/4/79
TSCA Compliance/Enforcement
Guidance Manual 1984
-------
Table of Contents
Asbestos
Compliance Strategy for the Friable Asbestos-
Containing Materials in Schools:
Identification and Notification Regulation
"Model Asbestos in Schools; Cooperative
Compliance Program"
"Compliance Assistance Guidelines for the
Asbestos-In-Schools Rule"
Enforcement Response Policy for the Friable
Asbestos-Containing Materials in Schools:
Identification and Notification Regulation
6/24/82
9/21/82
12/15/82
7/6/83
Dioxin
Dioxin Contaminated Waste Compliance Strategy
Dioxin Contaminated Waste Enforcement
Response Policy
January 1982
7/6/83
Chlorofluorocarbons
Enforcement Facts and Strategy:
Chlorofluorocarbons
November 1979
Polychlorinated Biphenyls
Enforcement Facts and Strategy:
Polychlorinated 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
February 1980
10/11/80
3/9/81
August 1981
TSCA Coapliance/Enforcement
ii
Guidance Manual 1984
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Policy Compendium
Table of Contents
Premanufacture Notices
Enforcement Facts and Strategy: Premanufacture August 1980
Notification (R4N) (Includes strategy, neutral
administrative inspection scheme, and penalty
policy. Document will be revised in response to
final IWN regulation.)
Compliance Strategy for TSCA 55(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
"Inventory Penalty Policy"
Compliance Strategy for Preliminary Assessment
Information Reporting Rule (Level A)
Asbestos Reporting Rule Compliance Strategy
Compliance Strategy for TSCA Section 8(d)
4/25/79
5/23/80
7/22/82
8/30/83
11/21/83
State Related Guidance
"Guidance for Pilot TSCA Cooperative Enforcement 12/31/80
Agreements"
"Supplemental Guidance Procedures for State 6/19/81
Inspectors Acting Under the Authority of TSCA
Section 11"
TSCA Program Compendium
6-PCB-l: Responsibility for Compliance with PCB 3/4/82
Rule
6-PCB-2: Distillation, Solvent Extraction, 8/16/83
Filtration, and Other Physical Separation Methods
for PCBs
6-PCB-3: Residual PCBs in Processed Liquids and 8/16/83
Solids
6-PCB-6: Allocation of Enforcement Liability for 8/16/83
Violation of the One-Year Disposal Deadline for PCB
Articles or PCB Containers
TSCA Conpliance7Enforceaent
iii
Guidance Manual 1984
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Policy Compendium
6-PCB-7: Reference Date for Violations of the
One-Year Storage for Disposal Deadline for PCB
Waste Resulting from Physical Separation
6-CFC-l: Product Labeling for Both Essential and
Non-Essential CFC Aerosol Propellent Uses
8/16/83
8/30/82
Additional Sources of Compliance/Enforcement Information
General Enforcement Policy Compendium
Titles Contained Within Compendium:
GM-1: "Visitor's Releases and Hold Harmless Agreements as
a Condition to Entry to EPA Employees on Industrial
Facilities"
GM-2: "Professional Obligations of Government Attorneys"
CM-3: "Memorandum of Understanding Between the Department
of Justice and the Environmental Protection Agency"
GM-4: "'Ex Parte' Contacts in EPA Rulemaking"
04-5: "Conduct of Inspections After the Barlow's Decision"
GM-6: "Contacts with Defendants and Potential Defendants
in Enforcement Litigation"
Gl-7: "'Ex Parte' Rules Covering Communication Which are
the Subject of Formal Adjudicatory Hearings"
GM-8: "Quantico Guidelines for Participation Litigation"
GM-9: "Agency Guidelines for Participation in Grand Jury
Investigations"
GM—10: "Reorganization of the Office of Regional Counsel
(includes Administrator's memorandum of September
15, 1981)"
CM-11: "Coordination of Policy Development and Review"
G4-12: "General Operating Procedures for EPA's Civil
Enforcement Program"
GM-13: "Case Referrals for Civil Litigation"
<24-14: "Criminal Enforcement Priorities for the
Environmental Protection Agency"
11/8/72
4/19/76
6/15/77
8/4/77
4/11/79
10/7/81
12/10/81
4/8/82
4/30/82
5/7/82
6/23/82
7/6/82
9/7/82
10/12/82
TSCA Compliance/Enforcement iv Guidance Manual 1984
-------
Policy Compendium
Table of Contents
GM-15: "General Operating Procedures for the Criminal
Enforcement Program"
10/27/82
GM-16: "Regional Counsel Reporting Relationship"
8/3/83
Gl-17: "Guidance for Drafting Judicial Consent Decrees
10/19/83
CM-18: "Implementation of Direct Referrals for Civil Cases"
11/28/83
(M-19: "Consent Decree Tracking Guidance
12/16/83
Qi-20: "Guidance on Evidence Audit of Case Files
12/30/83
Miscellaneous Sources (These sources are not contained in this Compendium
but may be obtained from Headquarters.)
EPA Delegations of Authority Manual
Multi-Media Compliance Audit Inspection Procedures
NEIC Policies and Procedures Manual (Multi-Media)
TSCA Confidential Business Information Security
Manual
TSCA Inspection Manual (Including Supplement: Volume Four: Section Five
Inspection Manual)
TSCA Coapliance/Enforcaent v Guidance Manual 1984
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r;
.
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L_J
Wednesday
April 9, 1980
Exhibit 1
Part III
Environmental
Protection Agency
Consolidated Rules of Practices
Governing the Administrative Assessment
of Chril Penalties and the Revocation or
Suspension of Permits
51
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rvuenu Kvguivr f tol ^ornio. f Wedneiaiy. AtWl 9.1MH0 / Kales and Regulations
ENVIRONMENTAL PWOTECDOH
AGENCY
40 CFR Part* 22, *0, 1U, 226
1J37-4J
v»n*oitaat»d Rule* of Practice
Governing tf>« Administrative
Aiuunwnt of CMI Penalties and the
Revocation or SuspenaJon of Permits
AOfwcr Environmental Protection
Agency (CA).
Acno«c Final rulei of practice.
-summary: This document sets forth
consolidated rule* of practice to be
followed by partie* litigating
administratively assessed civil penalties
and revocations or suspension* of
permits under certain statutes
administered by EPA. These statutes are
listed in S 22.01(a) of the consolidated
rules. The consolidated rules are
designed to accomplish two purposes.
The tint is the development of a
common set of procedural rules for
several programs in order to reduce
paperwork, inconsistency, and the
burden on persons regulated. The
second is the improvement of formal
administrative adjudicatory procedures
through substantive revisions.
date These rules govern all
adjudicatory proceedings described in
ji|^,..01{a) for which a complaint is filed
April 9.1980.
, FURTHER INFOftMATIOM CONTACT.
Steve Leifer (EN-342). Pesticides and
Toxic Substances Enforcement Division.
Environmental Protection Agency, 401 M
Street SW., Washington, D.C. 20460,
202-755—0970.
-SUPPLEMENTARY INFORMATION: These
consolidated rules of practice govern all
adjudicatory proceedings for the
assessment of a civil penalty or for the
revocation or suspension of a permit
authorized by the statutory provisions
listed in { 22-CT1Cb)(1)—(5). 71>e
consolidated rules replace existing rules
of practice promulgated under section 14
of the Federal Insecticide. Fungicide,
and Rodenticide Act (FIFRA), 40 CFR
Part 168. section 211 of the Clean Air
Act 40 CFR Part 80.301-332. and section
105 of the Marine Protection. Research,
and Sanctuaries Act (Ocean Dumping
Act), 40 CFR Part 226. They are the
initial rules of practice promulgated in
final form under section 3006 of the
Solid Waste Disposal Act (SWDA) as
amended by the Resource Conservation
and Recovery Act (RCRA) and section
16 of the Toxic Substances Control Act
JFCA).
However, the rules in their final form
no longer cover revocation of permits
issued under RCRA. This does not
reflect any change in EPA's position that
a formal evidentiary hearing is required'
for such revocation. However, since
these rules were proposed for comment,
EPAhas poposed for comment and is
now preparing for final promulgation,
consolidated permit regulations under
which the permit procedures for four
EPA permit programs, including RCRA.
will be coordinated as much as possible.
One of the permit programs covered, the
NPDES program under the Qean Water
Act already provides for revocation of
permits through a formal evidentiary
hearing.
EPA's current intention is to use the
NPDES hearing procedures, with any
necessary changes, for revocation of
RCRA permits as well. Comments on
these regulations will be reconsidered in
that context. This will allow all the
procedures for changing RCRA permits
to be contained in the consolidated
permit regulations. In addition, the
consolidated permit hearing procedures
an more adapted to deal with major
policy problems than these regulations,
and RCRA revocation proceedings
appear likely to raise such issues. EPA
will make a final decision on this point
when the consolidated permit
regulations are promulgated.
RCRA civil penalties will still be
assessed through the Part 22 procedures.
The consolidated rules of practice
were published in interim and proposed
form on August 4,1878 (43 FR 34730).
The rules Were interim with regard to
TSCA. since then wen no rules of
practice in place to guide proceedings
which wen arising under the toxics
Erogram. The remaining programs either
ad rules of practice in place or did not
expect to conduct administrative
adjudications in the near future. Thus
the consolidated rules wen proposed
with nspect to the FIFRA. RCRA.
Mobile Sources, and Ocean Dumping .
programs.
Numerous comments to the August 4
proposal wen nceived from industry,
trade associations, and governmental
agencies. Responses to the mon
significant comments are set forth at the
end of this pnamble.
The consolidated rules an designed to
accomplish two purposes. The first is
the development of a common set of
procedural rules for several programs in
order to nduce paperwork,
inconsistency, and the burden on
persons ngulated. The second is the
improvement of formal administrative
adjudicatory procedures through
substantive revisions.
The rules proposed hen an similar to
the rules which currently guide
proceedings under section 14 of FIFRA.
section 211(d) of the Cleaa Air Act and
section 105(a) of the Ocean Dumping
Act The major substantive nvision to
these rules is a shift in appellate
Jurisdiction. The responsibility for
hearing appeals from initial decisions,
default ordere. and accelerated
decisions has been shifted from the
Regional Administrator to the
Administrator. This change was made m
order to foster consistency in Agency
dedsion-making nationwide. In
addition, consolidating appellate
nsponsibility into a single office will
facilitate the assembly and publication
of dvil penalty hearings decisions. The
Regional Administrator, however, will
retain the authority to issue consent
orders finalizing agreements between
parties.
Hearings under all but one of the four
statutory provisions covered by these
roles will be held in conformity with the
adjudicatory hearing provisions of the
Administrative Procedun Act (APA).
The only exception is hearings to assess
penalties for violating regulations on
fuels or fuel additives under section 211
of the Clean Air Act. The nasons for
concluding that the formal APA bearing
requirements do not apply to this
section were set forth at 40 FR 39963.
August 29.1975, when the original
hearing rules under that section were
promulgated.
Similarly, the rules providing for a
formal bearing in connection with the
assessment of penalties for violating
FIFRA and for assessing penalties and
revoking permits under the Ocean
Dumping Act follow the previous EPA
position on thew questions in 39 FR
27657, July 31,1974. and 42 FR 60702,
November 2& 1977, except that the
Ocean Dumping Procedures have been
rewritten to conform literally to the
APA.
For a further exposition of the
reasoning underlying the approach
taken is these final rules, see the
responses to significant comments
below.
Responses to Significant Comments
Qualifications of Office
1. Comment Several commenten
suggested that the Judidal Officer be
subject to the same restrictions
concerning conflicts of interest as is s
Regional judidal Officer.
Response: The Agency agrees with
this comment Section 22.04(b)(2) has
been rewritten to provide that the
Judicial Officer and the ten Regional
Judicial Officers must all conform to the
52
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Tadaral Register f Vol 48. Wo. TP / Wednesday, April i. I960 / Rule* and Regulation! 24361
X£aim*trativt Procedure Act section
g4(d) prohibition a^atnsl blending the
pwecutorUJ and decisloc-making
factions.
^jftraLfd Decision*
V 50 mm eat The groends for putlog
i notion for an accelerated decision
todei | 22.20 w undear. The section
confuses summary judgment and
involuntary dismissal situstions, and
contains the vague criterion of "such
other reasons as are just"
Response: The Agency agrees with
ttii comment, and has rewritten the
lecnon accordingly, separating as
accelerated decision from a decision to
dismiss. A party will be entitled to an
accelerated decision upon a ah owing
that there exists no genuine issue of
material fact and that the party is
entitled to judgment as a matter of law.
The Presiding Officer may dismiaa the
complaint on the basis of failure to
establish a prima fade case or other
pounds which show no right to relief od
the part of the complainant
Official Notice
3. Comment Several commenters took
exception to the provision in f 1232(f)
which authorized the trier of fact to take
oSaaJ notice of facts "within the
specialized knowledge and experience
of the Agency". The co mm en ten argued
consolidated rules should
c . to the more restrictive Federal
Rl a Evidence definition of judicial ¦
notice (Rule 201).
Response: The Agency believes that
official notice under the Administrative
Procedure Act was intended to be
broader than judidaJ notice. The
Attorney General's Manuel on the
Administrative Procedure Act (1947).
dting the legislative history of the APA,
Mates at pages 79-00, that
Ac process of offidal nodes should not be
halted to the traditional marten of judicial
aotice but extends properly to all matters as
to which the agency by reason of its functions
b presumed to be expert, such as or
Scientific facts within Its specialized
bow ledge.
There are seven] eases upholding this
interpretation of the APA, particularly
within the context of Federal Trade
Commission proceedings. (See. for
ttaaple, Brite Manufacturing Co. v.
TC, 347 F.2d 477 [D-C. Cir. 1965)). '
Respondents should not be prejudiced
Agency notice of facts within its
•per. alued knowledge since they will be
fven adequate opportunity to shew that
¦®ch facts are erroneously noticed.
Kkchided Evidence
4. Comment Several co mm enters
objected to the following language in
I 22.23(b) of the August 4 Proposal:
Where the Administrator deddes that the
ivhag of the ftweidlna Officer in exrtwting
tW evidence was both erroneous and
injudicial, the btaring may be reopened to
permit the taking of each evidence or. where
appropriate, the Administrator may evaluate
•ucb rvidtQo* In preparing his final order. If
the Administrator in the preparation of his
final order relies upon any evidence excluded
¦ at the hearing by the Preaiding Officer, be
ahall explidtly identify in the final order any
•ucfa excluded evidence relied upon end his
Mesons therefor.
Hie co mm en ten argued that reliance
by the Administrator on exduded
evidence would violate section 550 of
the APA. since (1) a party would not
have the opportunity to explore and/or
rebut the exduded evidence, and (2) the
Administrator would be relying on
evidence outside the record.
Response: Tbe Agency accepts this
comment The language In 122£3(b)
following "** * * permit the taking of
such evidence * " *" has been deleted.
Standard of Proof
8. Comment One oommenter took
issue with the "preponderance of the
evidence" standard prescribed for
Agency adjudications in 122J4 of the
Consolidsted Rules. The commenter
offered that the proper standard is the
APA section 556(d) requirement that a
sanction be supported by "reliable,
probative, and substantial evidence."
Response: The Agency disagrees with
this comment The language in section
556(d) quoted above goes to the scope of
Judicial review rather than to the degree
of proof required at tbe hearing level.
(See Woodby v. Immigration and
Naturalization Service, 385 U.S. 276
(1966), interpreting similar language in
the Immigration and Nationality Act).
The preponderance of the evidence
standard is the proper yardstick in .most
non-criminal proceedings, and indeed,
the Agency could require no lesser
standard here (such as "substantial
evidence"). "* * * in American law a
preponderance o! the evidence is rock
Bottom at the factfinding level of civil
litigation ' * * that the proceeding is
administrative rather than judidal does
not diminish this wholesome demand."
Charlton v. FTC. 543 F. 2d 903.907-6
(D.CQr. 1976). reviewing an order of
the FTC suspending an attorney from
practice before the Commission.
Amount of a Civil Penalty
6. Comment Commenters argued, on
ground of due process, that the Presiding
Officer should not be allowed to raise a
dvil penalty from the amount
(•commended to be assessed in s
complaint Farther, the Administrator
ahould not be allowed to raise a penalty
from the amount recommended to be
assessed by the Presiding Officer.
Response: For the most part the
Agency disagrees with these positions.
The Agency does agree, however, that
•either the Presiding Officer nor the
Administrator should raise any penalty
in an action where the respondent has
defaulted, and the Consolidsted Rules
have been modified accordingly.
In a contested dvil penalty action, the
dollar amounts contained in both the
complaint and tbe initial dedsion are
merely recommendations of penalties to
be assessed. After an appeal, only the
Administrator has the authority to
actually auett a penalty.
A respondent
Does not have any vested right to |o to
trial on the specific charge mentioned in the
dtatiaa or to be free from exposure to a
penalty in excess of that originally proposed.
Long Manufacturing Co, N.C. Inc. v.
Occupational Safety and Health Review
Commission, 554 F. 2d 903,907 (8th Cir.
1877).
As long as the penalty imposed by the
Administrator is within limits described
by the statute and supported by
nbstantial evidence, the penalty msy
exceed the amount proposed by the
Presiding Officer. (See Nees v. SEC. 414
F. 2d 211, 217 (Oth Cir. 1969).)
One commenter suggested that
language in several of the statutes
covered by the Consolidated Rules
authorizing tbe Administrator to
compromise, modify, remit or mitigate
penalties allowed the Administrstor to
only decrease penalties upon review of
an initial dedsion. The Agency believes,
however, that such language was
intended to authorize the Administrstor
to assess a penalty less than the
statutory maximum through settlement
proceedings. Moreover, other federal
agendas («.g. the FCC and the CAB),
have interpreted the mitigation dauses,
each as that contained in TSCA section
18(*)(2)(C), to apply only to collection of
those penalties which have already been
aaeessed. Thus the Agency sees no legal
obstade barring either the Presiding
Officer or the Administrator from raising
. a penalty recommended to be assessed
at a previous stage in the adjudicatory
process.
y. Comment Numerous commenters
objected to tbe requirement contained
in the Solid Waste Disposal Act
Supplemental Rules of Practice
(i 22.36(h) of tbe August 4 proposal),
that Presiding Officers must follow any
dvil penalty assessment guidelines
53
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24362 Federal Register f Vol 45, No. 70 / Wednesday, April 9. i960 f Rules and Regulations
promulgated by the Administrator. Hie
commenten argued th«t the amount of a
penalty ihould rest in the discretion of
the Presiding Officer. The co mm enter*
also felt that the penalty assessment
/^^•^ruidelinei ihould be made available
'Sc *)*ton they submit to a provision «uch
is that contained in { 22.38(h).
Response Section 22.38(b) bai bees
deleted from the final Consolidate*)
Ruler The Agency may, however,
resubmit luch a provision for comment
after penalty assessment yuidefenes
have been pubfesbed.
Issuet on Appeal ¦
&. Comment: Two comments saggested
-that the language is f 2U0(e) seemed Id
allow the Administrator to ana sponta
order argument on appeal with respect
to issues entirety new to the proceeding.
Response: Section 22.30(c) has bees
rewritten to more accurately reflect the
intent of the Agency. Under the Baal
Consolidated Rules, the Administrator,
on appeal may sua sponte ordv
argument only with respect to those
issues raised at the blaring The
Administrator will have the authority to
remand the case to receive evidence
relating to issues new to the proceeding.
Appellate Jurisdiction
9. Comment: Two commented
contested the shift in appellate
jurisdiction froa the Regional
Administrators to the Administrator.
^^Tbey felt that such a change from
p1*' listing civil penalty procedures would
V- ^ult is delay and would not allow the
appellate decision to adequately reflect
the needs of the regiaa.
Response: The Agency disagrees with
this comment The change in Juriadictian
wi'l:
(1J Foster consistency In agency
decision-making
(2) Centralize appellate responsibility,
so that a small number of ETA personnel
become proficient in hearing appeals
from administrative adjudications. Hie
centralization should result in a act
savings of time and effort to all parties,
and
(3) Bring a greater depee of
separation of functions to the
administrative process.
The increased quality and efficiency
of the appellate process should outweigh
any small delays which may result from
this change. Moreover, parties have
ample opportunity to bring issues of a
regional nature to the attention of the
Administrator.
Slaying the Final Order
10. Comment Two eossnentwa
argued that a final order should
automatically be stayed upon the filing
o
of a motion to reconsider under 122-32.
Hie coamentsrs envisioned a scenario
In which a respondeat woold be forced
to comply with a final order, and dies
would later prevail on his motion to
raooBsidar.
Response: Although cognizant of the
problem raised by the conuBeaters, the
Agency has elected sot to provide for
automatic stays. "Hie Agency is
concerned over (be possibility that
notions to reconsider will be used to
bring about unnecessary delay. The
Administrator is authorised. however, to
order stays in order to avoid any
hardship to the respondeat which may
result from what proves to be premature
compMaaca.
Deedfinm .and Tine ReqmirmentM
11. Comment Several comments were
received which objected to the brevity
of the time periods prescribed in the
Consolidated Rules.
Response: EPA has agreed to expand
the deadline, from 15 days to 20 days:
(1) For filing as answer to an
aaended complaint under | 22.14(d);
(2) For Sling an answer to the original
complaint under i 22.15(a); and
(3) For notifying the parties of a
bearing prior to the date set for the
hearing under | Tt 21(b).
The times for filing responses to
motions under I 22.J*b) (10 days),
proposed findings of fact mder f 22-20
(20 days) and motions to reconsider the
final order seder | 22 33 (19 days) have
remained tnchanged. These tine
periods have been found to be
satisfactory in cases arising seder B*A
and o
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Federal 1egbtar / VoL It, No. 70 / Wednesday. April B. 1980 / Rules and Regulation 24363
13a tad VUrti 17. lMOi
Dovgia*M. Co»rtii
Administrator.
£AAT K>—REGULATION OF FUELS
r ID FUEL ADDITIVES
*, (OJOV-M.sk (Subpart 0) [Revoked]
FART 1M—RULES OF PRACTICE
GOVERNING PROCEEDINGS
CONDUCTED IN THE ASSESSMENT OF
CIVIL PENALTIES UNDER THE
FEDERAL INSECTICIDE, FUNGICIDE,
AND RODENT1CIDE ACT, AS
AMENDED[REVOKED]
FART 22ft—ASSESSMENT OF CIVIL
PENALTIES AND REVOCATION AND
SUSPENSION OF PERMITS UNDER
SECTION 105 OF THE ACT [REVOKED]
1. 40 CFR 80.301-80.332 (Subpart D)
and 40 ux Parti 186 and 22fi an
revoked
2. 40 CFR Part 22 is added to read as
follows:
PART 22-CONSOUOATED RULES OF
PRACTICE GOVERNING THE
ADMINISTRATIVE ASSESSMENT OF
CrVIL PENALTIES AND THE
REVOCATION OR SUSPENSION OF
PERMITS
Subpert A ttwrt
tec.
£01 Scope -of these rule*.
W ' Um of number and (coder.
_ Definition*.
w-04 Power* and duties of the
Admini*trstar. Regional Admini*trator,
Judicial Officer. Regional Judicial Officer,
and Presiding Officer disqualification.
2&0S Filing. service. and form of pleading!
and document*.
22JX Plliig and tarriqe of ruling*, order*
and deaiion*
tun Computation and extension of tine.
22.06 Ex pane di*cussion of pronemliiiy
22JB Examinatioo of document* filed.
Subparts Parties and Appearances
22.10 Appearance*.
22.11 Intervention,
22.12 Ceasolidstion and severance.
ftfepart C Preheartng Procedures
22.13 Issusace of complaint
&14 Content of the
complaint.
22.15 Answer to the complaint
22.16 Motion*.
fi.17 Default order.
22-tt informal tettkmctst consent
agreement and order.
22-11 Prehearing conference.
22-20 Accelerated decision; decision to
dltmli*.
Marine Protection. Research, and
Sanctuaries Act as amended (33 U.S.C.
1415(a));
(4) The issuance of a compliance
order or the assessment of any civil
penalty conducted under section 3006 of
the Solid Waste Disposal Act as
amended (42 U.S.C. 0026):
(5) The assessment of any civil
penalty conducted under section 16(a) of
the Toxic Substances Control Act (is
U.S.C. 2615(a)).
(b) The Supplemental rules of practice
set forth in subpart H establish niles
governing those aspects of the
proceeding in question which are not
covered in Subparts A through G. and
also specify procedures which
supersede any conflicting^rocedures set
forth in those subparts.
(c) Questions arising at any stage of
the proceeding which are not addressed
in these rule* or in the relevant
supplementary procedures shall be
resolved at the discretion of the
Administrator. Regional Administrator,
or Presiding Officer, as appropriate.
I t2JD2 Uee of (umber and j
As used ia these rules of practice,
words in the singular also include the
plural and words in the masculine
tender also include the feminifte and
Subpart 0—Hearing I
B-Zl Scheduling the hearing
B-22 Evident*
MR Objection* and offers of proof.
V M Sorties of presentation harden of
possesion.
Piling the tranx^ipt
Proposed findings, conclusion*, and
order.
Subpart E—4nMaf PscMon and Motion To
Ssop*n a Hearing
22.27 Initial decision.
XUt Motion to reopen s bearing.
Subpart T Appeals and AdmMstrattve
Review
g 78 Appeal from or review of interlocutory
order* or ruling*.
22J0 Appeal from or review ofiaitial
decision.
Subpart G—Final Order on Appeal
22J1 Final order on appeal.
271? Motion to reconsider e final order.
Subpart II Supplemental Rutee
22-SJ Supplemental rales of practice
governing the sdminittistive ***e*smeat
of civil penalties nnder the Toxic
Substance* Control Act
' fiJ4 Supplemental rules of practice
governing the sdministrative assessment
d dvil penalties under Title 0 of the
Oeaa Air Act
BJ5 Supplemental rules of practice
governing the administrative sssessmsnt
of drti penalties under tht Federal
Insecticide. Fungiddt, and Rodenticide
«»=••• »•» «i«i~
of civil penalties and the revocation or
snspension of permit* under the Marine
Protection. Research, and Sanetuarie*
Act
22-S7 Supplemental rule* of practice
governing the administrative sssessmeot
of dvil penalties under the Solid Wette
Disposal Act
Appendix—Addresses of EPA Regional
Offices.
- Authority: Set 16 of the Toxic Substance*
Control Act sec*. 211 and 901 of the Clean
Air Act sacs. 14 and 25 of the Federal
lnsectidde. Fungiddt, and Rodentiade Act
sees. 106 and 106 of the Marine Protection.
Research, and Sanctuaries Act and sees.
1002 and 3006 of the Solid Waste Disposal
AcL
Subpart A—Otnpft)
122.01 Sobpe of theee ndea.
(a) These rules of practice govern all
adjudicatory proceedings for
(1) The assessment of any dvil
penalty conducted under section 14(a) of
the Federal Insecticide. Fungicide and
Rodenticide Act as amended (7 U.S.C.
1381(a)):
(2} The assessment of any dvil
penalty conducted under section 211 of
the Clean Act Act aa amended (42
U.S.C. 7545):
(3) The asaessaeat of any dvil
penalty or for the revocation or
suspension of any permit conducted
onder section 105 (a) and (f) of the
(22.03
(a) The following definitions apply to
Part 22:
"Act" means the particular statute
authorizing the institution of the
proceeding st issue.
"Administrative Law Judge" means an
Administrative Law Judge appointed
tinder 5 U.S.C. 3105 (see also Pub. L 95-
251, 82 Stat. 183).
"Administrator" means the
Administrator of the United States
Environmental Protection Agency or his
delegate.
"Agency" mean* the United States
Environmental Protection Agency.
"Complainant" means any person
Authorized to issue a complaint on
behalf of the Agency to persons alleged
to be ia violation of the Act. The
complainant ahall not be the Judicial
Officer. Regional Judidal Officer, or any
other person who will participate or
advise in the dedsion.
"Complaint" means a written
communication, alleging one or more
viblations of specific provisions of the
Act or regulations or a permit
promulgated thereunder, issued by the
oomplainant to a person under | i 22.13
and 22.14.
"Consent Agreement" means any
written documenL signed by the parties,
containing stipulations or condusions of
55
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24364 Federal Register f VoL 48, No, 7TJ / Wednesday, Aprfl 9. SUP / Rmle« and Regulations
fact or law and a proposed penalty or
proposed revocation or suspension
acceptable to both complainant end
respondent
"Final Order" means (a) an order
issued by the Administrator after an
appeal o( an initial decision, accelerated
decision, decision to dismiss, or default
order, diiposing of a matter in
controversy between the parties, or (b)
an initial decision which becomes a
final order under | 22.27(c).
"Hearing" means a hearing oe (fee
record open to the pubfic and coedwcted
under these rules of practice.
"Hearing CJeri" meens Owe Hearing
Clerk. A-110. United State*
Environmental Protection Agency, 401 U
St. SW„ Washington. DC 2046a
"Initial Decision' means the decision
issued by the Presiding Officer based
apon the record of tbe proceedings out
of which it arise*.
"Judicial Officer" means the person
designated by the Administrator nndar
I 22.04(b) to serre as the Judicial
Officer.
"Party" means any person that
participates in a hearing as complainant,
respondent, or intervenor.
"Permit" means a permit issued under
Section 102 of the Marine Protection.
Research, and Sanctuaries Act.
"Person" includes any individual,
partnership, association, corporation,
and any trustee, assignee, receiver or
legal successor thereof: any organized
('group of persons whether incorporated
/or not; and any officer, employee, agent
department agency or instrumentality of
the Federal Government of any State or
local unit of government or of any
foreign government
"Presiding Officer" means be
Administrative Law Judge designated by
the Chief Administrative Law Judge to
serve as Presiding Officer, unless
otherwise specified by my
Supplemental Rules.
"Regional Administrator" means the
Administrator of any Regional Office of
tbe Agency or any officer or employee
thereof to whom his authority is duly
delegated. Where the Regional
Administrator has authorized the
Regional Judicial Officer to act. the tern
"Regional Administrator" shall include
the Regional Judicial Officer. In a case
where the complainant is the Assistant
Administrator for Enforcement or hie
delegate, the tern "Regional
Administrator" as used in these ralea
shall mean the Administrator.
"Regional Heving Clerk" ¦tens an
individual duly authorized by fee
Regional Administrator to serve as
hearing clerk for a given region.
Correspondence may be addressed to
the Regional Hearing Clerk, United
States Environmental Protection Agency
(address of Regional Office aee
Appendix). In a case where the
complainant is the Assistant
Administrator for Enforcement at his
delegate, the term "Reyonal Hearing
Clerk" as used in these rules shall mean
the Hearing Clerk.
"Regional Judicial Officer" means a
person designated by the Regional
Administrator under | 22.04(b) to serre
as a Regional Judicial Officer.
"Respondent" means any person
proceeded against in the complaint
(b) Terms defined in the Act and not
defined in these rules of practic* are
used consistent witfc the mean tags gives
in the Act
f 22.04 Powers and duttee of the
Administrator, Re^onaf AdmWetretor,
Judicial Officer, Region* Judicial Officer,
and Pi millitg Officer, dtafrienfteafloft.
(a) Administrator utdRegiotmi
Administrator. The Administrator ad
tbe Regional Administrator shaO
exercise all powea and duties as
prescribed or delegated under the Act
and these rules of practice.
(b) Judicial Officer ead Regional
Judicial Officer.—{i) Office. One or
more Judxaal Officers may be
designated by tbe Administrator to
perform the fanctions described below.
One or more Regional Judicial Officers
may be designated by tbe Regional
Administrator to perform, within the
region of their designation, tbe functions
described below.
(2) QvalificatkHM. A Judidal Officer
or a Regional Judicial Officer shall be aa
attorney who is a permanent or
temporary employee of the Agency or
some other FedenU agency and who
may perform other duties within the
Agency. A Regional Judicial Officer
ahall not be employed by tha Region's
Enforcement Divieian or by the Regional
Division directly associated with the
type of violation at issue te the
proceeding. A Judicial Officer shall not
be employed by tha Office of
Enforcement or by any program offioe
directly associated with the type af
violation at iasoe in the preceding
Neither the Judicial Officer mat the
Regional Judicial Officer shall hare
performed preeecutortal or investigative
functions in connection with any heering
in which he serves es Judicial Officer or
any factually related hearing.
(3) Fmtctiamk lite Adirriniaratar any
delegate to the Jtididal Officer, or the
Regional Administrator may delegate In
the Regional Judicial Officer. aB or part
of his aathodity to ad in e given
proceeding. Thia delegation does not
prevent the Judidttl Officer or Regional
Judicial Officer ham referring any
motion at case to the Adnfanstralor or
Regional Administrator when
appropriate. The Judicial Officer and
Regional Judicial Officer ahall exercise
all powers' and duties presoibed or
delegated under *e Act or fease rale* of
practice.
(c) Pntidmj Officer. Tbe Presiding
Officer shell conduct e fair and
impartial proceeding assure that the
iects are fully elicited, adjudicate all
issues, and avoid delay. The Presiding
Officer shall have sulhority to:
(1) Conduct administrative hearings
under these rules of practice;'
(2) Rule upon motions, requests, and
offers af praot dispose of procedural
requests, and issue aS necessary orders
(3) Administer oaths and affirmations
and take affidavits;
. (4) Examine witnesses and receive
documentary or other evidence:
(5) For good causa. npoo notion or
sua sponte, order s party, or an officer
or agent thereat to produce testimony,
documents, or other nonprivileged
evidence, and failing the production
theieuf without good cause being
shown, draw adverse issuances against
that party;
(6) Admit or exclude evidence;
(7) Hear and decide questions of facts,
law, or discretion:
(8) Require parties to ettend
conferences for the settlement or
simplification of tbe iesues, or tbe
expedition of the lanrsnrtlriflii
(B) Issue subpoenas othohzed by the
Act and
(10) Do all other acts end take all
measures necessary br the maintenance
of order and for the efficient fair and
Impartial adjudication of |m"" arising
in proceedings governed by these rules.
(i^Ditfytuifieetiom wkkdrowml. (1)
The Administrator. Regional
Adarinietratov, Jvficial Offices. Regional
Judicial Officer or Presidhg Officer msy
pot peifmm fuutthiae provided for in
these raks of practice regarding any
¦latter is which they (i) have a financial
interest or (ii) have any relationship
with a party or with the subject matter
which would make it inappropriate for
them to ect Any party may at any time
by motion made to the Regional
Administrator request thet the Regional
Judicial Officer be disqualified from ths
proceeding. Any party may at any time
by motion to the Administrator request
that die Regional Administrator. Judical
Officer, or Presiding Officer be
disqualified or reqneet thet the
Administrator disqualify himself from
the jiiiw eeillug The Administrator,
Regional Administrator, Judkaal Officer,
Regional Judicial Officer m Presiding
Officer may at any time withdraw from
any proceeding in which they deem
56
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Teflan] l^lstv J ~d. 15, lio. ?P J "Wednesday. April 1 «C ] Ttolo and Regulation* 24385
tor Airy r***ofi. ^
(i] u fee ACtoMWitorlteiJoni
^^^.'xiirtr*toT. ^t|iuud ^wdifldaJ Ofl5u>»
nJ Officer, or Preiicfinj Officer la
X ' jified or withdraws froa the
proceeding. ¦ ^nahfied iadividuaJ wfca
hti nose of (be kafiraitJes Bated in
ptrKgrtpb (d)(1) ot this section AaB be
¦lipid ta mpiaoe fcio. Asaignme*t-of
i replacement for the Regiooai
Adoiru*tr»tor or )«ctci«i Officer, or for
the RegioaaJ Judicaal Officer shall be
made by the Administrator or the
Rfgrarni Administrator, r**peUiva]y.
The Administrator. ahoald be withdrew
or disqualify «K»T1
Regions] Administrator faun (he region
where (he cam originated to replace
him. If that Regional Administrator
would himself be disqualified. the
Administrator shall aasign a Regional
Administrator from another region to
replace the Administrator. Tire Regional
Administrator shall assign a new
Presiding Officer If the original Presiding
Officer was aot as Administrative Law
ludje. The Chief Administrative Lew
judge thai! assign a nrw Preaidtag
Officer frwns moag available
Administrative Law Judges if Ike
criminal Presiding Officer waa «a
Administrative Law Jadge.
(3) The Chrf Admizristretive Law
Judge, at any stage in the proceeding.
m^^retsMga the cam to aa
strsave Law Judge othar thaa the
'finally assigned is the eveni of
the unavailability of the Adainietratiue
Law Judge or where reassignment will
result in efficiency in the scheduling of
hearings and would sot prejudice the
parties.
} S2-0S mv m and lotnt 91
(a] Filmg ofploodingi and doaunenta.
(1) Except as otherwise provided, the
original and one copy of the complaint
and the original of the answer and of all
other documents served in the
proceeding shal be Bled wtth the
Regional Hearing Clerk.
(2) A certificate at servioa riuD
accompany each dommant filed or
served. Except ss atherwiaa provided, a
party filing documents with the Regional
Hearing Dark, after the filing of the
answer, shall earve copies thereof upon
>11 other parties and the Presiding
Officer. The Presiding Officer ahall
maintain a duplicate file during the
course of tht proceeding.
(3) When the Presiding Officer
corresponds directly wtth Jtbe parties,
the original of (ha correspondence AaB
be sent to the Regional Hearing Qark. a
copy shall be maintained by the
ng Officer in the duplicate lie,
ad • wpj mtTD Ml pm&i.
flai wfao lmii i ¦¦iniii J Arvctty wtth
Prwl4mi0ffie» nil] to aAhtian to
serviogu other pWm mod ¦ copy of
all such uuuee^Kiodcaoe to the Regional
Hearing Qerk. A certificate at service
ahaS accompany aadh docmaenrt sailed
ander this nAnection.
(bj Serin ofphadtngt and
¦ docamvntr—^l] Service ef aompiatrt. ft)
Service of a copy rf fee signed origin*!
of the complaint, together with a sopy of
these rules of practice, may be made
.personally or by certified asaiL retara
reoaipt requested, an the respondent (or
his representative}.
(ii] Servioe apoe a domestic or loraign
corporation or upon a "partnership or
othar unincorporated ssanristinm which
is subject to suit ander a nmnmnn name
.ahall be made by personal service or
certified mail, as prescribed by
paragraph fbXl)W of this sartinn.
directed to an officer, partner, a
m»n»g«r Presiding Officer, as appropriate.
1£2?
ofdere, and i
All rulings, orders, decisions, and
.other documents issued by the Regional
Administrate!. Regional Judicial Officer.
¦or Presiding Officer, aa appropriate.
ahaS be Bled wfih the Regional Hearing
•Gerk. All such rioonments iasued by the
Administrator or Judicial Officer shall
•be filed with the Hearing Clerk. Copies
mt snch rulings, orders, decisions, or
other documents ahall be served
fpenonally, ar by certified mall return
veceipt requested, upon all nar&es by
the Administrator, Regional
Administrator. Judicial Officer. Regional
Judicial Officer, ar foaiding Officer, as
appropriate.
12107 Computation and
(a) Computation In computing any
period of time prvsaibed or allowed in
these rules of practice, except as
otherwise provided, the day of the event
nom which the designated period begin*
57
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24366 Federal Register/VoL 45, No. 70 / Wednesday, April 9. 1B80 f Rule« and Rfcgulstions
to run shall not be included. Saturdays,
Sunday*, and Federal legal holidays
(hall be Included. When a stated time
expires on a Saturday, Sunday or legal
Hobday, the itated time period (hall be
extended to Include the next buainaas
Jay.
(b) Extensioni of time. The
Administrator Regional Administrator,
or Presiding Officer, as appropriate, may
jrant an extension of time for the filing
of any pleading, document, or motion [1]
upoo timely motion of a party to the
proceeding, for good cause shown, and
after consideration of prejudice to other
parties, or (2} upon his own motion.
Such a motion by a party may only be
made after notice to all other parties,
unless the movant can show good cause
why serving notice is impracticable. The
motion shall be filed in advance of the
date on which the pleading, document or
motion is due to be filed, unless the
failure of a party to make timely motion
for extension of time was the result of
excusable neglect
(c) Service by mail. Service of the
complaint is complete when the return
receipt is signed. Service of all other
pleadings and documents is complete
upon mailing. Where a pleading or
document is served by mail, five (5)
days shall be added to the time allowed
by these rules for the filing of a
responsive pleading or document
122.04 Ex parte ffscnaston of prooeeane.
At no time after the issuance of the
Complaint shall the Administrator,
Regional Administrator. Judicial Officer,
Regional Judicial Officer, Presiding
Officer, or any other person who is
likely to advise these officials in the
decision on the case, discuss ex parte
the merits of the proceeding with any
interested person outside the Agency,
with any Agency staff member who
performs a prosecutorial or investigative
function in such proceeding or a
factually related proceeding, or with any
representative of such person. Any ex
parte memorandum or other
communication addressed to the
Administrator. Regional Administrator.
Judicial Officer. Regional Judicial
Officer, or the Presiding Officer during
the pendency of the proceeding and
relating to the merits thereof, by or on
behalf of any party shall be regarded as
argument made in the proceeding and
shall be served upon all other parties.
The other parties shall be given an
opportunity to reply to such
memorandum or communication.
122.0* Examination of doewwenta AM.
(a) Subject to the proviaions of law
restricting the public disclosure of
confidential information, any person
may, during Agency business hours,
inspect ana copy any document filed in
any proceeding. Such documents shall
be made available by the Regional
Hearing Clerk or Hearing Clerk, as
appropriate.
(b) The cost of duplicating documents
filed in any proceeding shall be borne
by the person seeking oopies of such
documents. The Agency may waive this
cost ip appropriate cases.
Subpart B—Parties and Appearancae
(2X10 Appearances.
Any party may appear in person or by
counsel or other representative. A
partner may appear on behalf of a
partnership and an officer may appear
on behalf of a corporation. Persons who
appear as counsel or other
representative must conform to the
standards of conduct and ethics
required of practitioners before the
courts of the United States.
{22.11 Intervention.
(a) Motion. A motion for leave to
Intervene in any proceeding conducted
tinder these rules of practice must set
forth the grounds for the proposed
intervention, the posftion and interest of
the movant and the likely impact that
Intervention will have on the
expeditious progress of the proceeding.
Any person already e party to the
proceeding may file an answer to a
motion to intervene, making specific
reference to the factors set forth in the
foregoing sentence and paragraph (c) of
this section, within ten (10) days after
service of the motion for leave to
intervene.
fb) When fihtd. A motion tor leave to
intervene in a proceeding must
ordinarily be filed before *ht first
prehearing conference or, in the absence
of a prehearing conference, before the
Initiation of correspondence under
122.19(e), or if there is no such
correspondence, prior to the setting of a
time awl place for a hearing. Any
motion filed after that time must include,
in addition to the information set forth
in paragraph (a) of this section, a
statement of good cause for the failure
to file in a timely manner. The r
intervener shall be bound by any
agreements, arrangements and other
matters previously made in the
proceeding.
(c) Disposition. Leave to intervene
may be granted only if the movant
demonatrates that (1) his presence in the
proceeding would not unduly prolong or
otherwise prejudiot the edjudication of
the rights of the original partes; (2) the
movant will be adversely affected by a
final order, and (3) the interests of die
movant are not being adequately
represented by the original parties. The
intervenor shall become e full party to
the proceeding upon the granting of
leave to intervene.
(d) Amicus curiae. Persons not parties
to this proceeding who wish to file bhefs
may so move. The motion shall identify
the interest of the applicant and shall
state the reasons why the proposed
amicus brief is desirable. U the motion is
granted, the Presiding Officer or
Administrator shall issue an order
Mtting the time for filing such brief. An
emicus curiae ia eligible to participate in
any briefing after his motion is granted,
and shall be served with all briefs, reply
briefs, motions, and orders relating to
issues to be briefed.
122.12 ConeoMetton and aeveranca.
(a) Consolidation. The Presiding
Officer may, by motion or sue sponte,
consolidate any or ail matters at issue in
two or more proceedings docketed
nader these rules of practice where (1)
there exist* common parties or common
questions of fact or law, (2)
consolidation would expedite and
simplify consideration of the iasues. and
(3) consolidation would not adversely
affect the rights of parties engaged in
otherwiae separate proceedings.
(b) Severance. Tha Presiding Officer
may, by motion or sua sponte. for good
cause shown order any proceedings
severed with respect to any or all
parties or issues.
Subpart C 1 Prehearing Procedure*
122.13 laouaneo of oompiairtt.
If the complainant has reason to
believe that a person has violated any
provision of the Act or regulations
promulgated or a permit issued under
(be Act, he oq institute a proceeding
for the assessment of a dvU penalty by
issuing a complaint under the Act and
these rules of practice. If the
complainant boss reason to believe that
(a) A permittee violated any tara or
condition of the permit or .
(b) A permittee misrepresented or
inaccurately deecribed any material fact
in the pennit application or failed to
disclose all relevant facts in the permit
application, or
(c) Other good cause exists for such
action, he may institute a proceeding for
the revocation or suspension of a permit
by issuing a. complaint under the Act
and tbese rales of practice. A complaint
may be for the suspension or revocation
of a permit in eddition to the assessment
of a dvil penalty.
58
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Federal Heglstar f ¥tA. *5. Wo. 79 f Wednesaay. ftprfl ». ItBD f ThJai and Kegulalitms M367
ZWCorrtsoi id ¦uaaJwiant rf con^aint for Ike
Tit of » rivfl .penalty fcsfi
(lS .""Statement JwJlisg lie se«Aori(*]
the Act antiormng the issuance of
t JJCJUiplaii3t.
(2) Specffic refcremetoeedh
o vision of the Ad and tm^TemerrSng
fJaooai which respondent i» *5eyed
have violated
(3) A concise statement of the factual
isis for aHegiag the vicflation;
(4) The UBoun'. of the civil penaSty
bch u proposed to be tntried;
(5) A statement explaintag Hie
atoning behind tie -prepoted penalty;
(6) "Notice flf respondent's right to
quest i bearing on -any material feet
istainrf TEtht oomplamt or on fce
iprepneienm of the amoantefthe
¦oposed penalty.
copy of these rule* of practice 4ha9
axmpany each oozapUlxrt served,
fbj Camjikimlfor Hit rertocaUtm or
itpentian of a penrdl Each cosqplsinl
i: th? revocation or suspension nf-a
ennit shall In chute
(1) A statement red ting tire sections)
f the Act. regulations, ind/orpemfll
uthormng the issnnae of the
Displ∫
(2) Specific reference to each term or
pnditioD of the permit which the
;nt is alleged to have violated,
B'\./;ieged inaccuracy or
aim, "esentation in respondent's
'erxi: application, to each fact which
he respondent allegedly failed to
liiclote in hit permit application, or to
ither reasons which form the bam for
he complaint:
(3) A coo saw statemedl tff'fre factual
>a»u far neb allegations:
(4) A reqeett far an eaderlo tWLei
woke or suspend the permit »d a
itatenest of the tanas and«ondRi
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24368 Federal Register / VoL 45, No. 70 / Wednesday. April fl, 1960 / Rules and Regulations
defaulting party shall havt twenty (20)
days from tervice to reply to the motion.
Default by respondent constitutes. for
purposes of the pending action only, an
admission of all facta alleged in the
complaint and a waiver of respondent's
right to a hearing on such factual
allegations. If the complaint is fof the
assessment of s civil penalty, the
penalty proposed in the complaint shall
become due and payable by respondent
without further proceedings sixty (60)
days after a final order issued upon
default If the complaint is for the
revocation or suspension of a permit the
conditions of revocation or suspension
proposed in the complaint shall become
effective without further proceedings on
the date designated by the
Administrator in his final order issued
upon default Default by the
complainant shall result in the dismissal
of the complaint with prejudice.
(b) Procedures upon default When
Regional Administrator or Presiding
Officer finds s default has occurred, he
shall issue a default order against the
defaulting party. This order shall
constitute the initial decision, and shall
be filed with the Regional Hearing Gerk.
(c) Contentt of a default order. A
default order ahall include findings of
fact showing the grounds for the ordeT.
conclusions regarding all material issues
of Is w or discretion, and the penalty
which is recommended to be assessed
or the terms and conditions of permit
revocation or suspension, as
appropriate.
(d) For good cause ahown the
Regional Administrator or the Presiding
Officer, as appropriate, may set aside a
default order.
122.11 Informal settlement content
agreement and order.
(s) Settlement policy. The Agency
encourages settlement of a proceeding
at any time if the settlement Is
consistent with the provisions and
objectives of the Act and applicable
regulations. Hie respondent may confer
with complainant concerning settlement
whether or not the respondent requests
a hearing. Settlement conferences "hall
not affect the respondent's obligation to
file a timely answer under | 22.16.
(b) Consent agreement The parties
shall forward a written consent
agreement and a proposed consent order
to the Regional Administrator whenever
settlement or compromise is proposed.
The consent agreement shall state that,
for the purpose of this proceeding,
respondent (1) admits the jurisdictional
allegstions of the complaint (2) admits
the facts stipulsted in the consent
agreement or neither admits nor denies
specific factual allegations contained in
the complaint and (3) consents to the
assessment of a stated dvil penalty or
to the stated permit revocation or
suspension, as the oase may be. The
consent agreement ahall include any and
all terms of the agreement and shall be
signed by all parties or their counsel or
representatives.
(c) Content order. No settlement or
consent agreement shall dispose of any
proceeding under these rules of practice
without a consent order from the
Regional Administrator. In preparing
such an order, the Regional
Administrator may require that the
parties to the settlement appear before
him to answer inquiries relating to the
consent agreement or order.
ttiv nmnmy wiiwwwl
(a) Purpote of prehearing conference.
Unless a conference appears
unnecessary, the Presiding Officer, at
any time before the hearing begins, shall
direct the parties and their counsel or
other representatives to appear at a
conference before him to consider
{1) The settlement of the case;
(2) The simplification of issues and
stipulation of facts not in dispute;
(3) The necessity or desirability of
amendments to pleadings;
(4) The exchange of exhibits,
documents, prepared testimony, and
admissions or stipulations of fact which
will avoid unnecessary proof,
(5) The limitation of the number of
expert or other witnesses;
(A) Setting a time and place for the
hearing; and
(7) Any other matters which may
expedite the disposition of the
proceeding.
(b) Exchange of witneet lifts and
document*. Unless otherwise ordered by
the Presiding Officer, each party at the
prehearing conference shall make
available to all other parties (1) the
names of the expert and other witnesses
he intends to call, together with a brief
narrative summary of their expected
testimony, and (2) copies of all
documents and exhibits which each
party intends to introduce into evidence.
Documents and exhibits shall be marked
for identification as ordered by the
Presiding Officer. Documents that have
not been exchanged and witnesses
whoss names have not been exchanged
shall not be introduced into evidence or
allowed to testify without permission of
the Presiding Officer. The Presiding
Officer shall allow die parties
reasonable opportunity to review new
evidence.
(c) Record of the prehearing
conference. No transcript of a
prehearing conference relating to
settlement shall be made. With respect
to other prehearing conferences, no
transcript of any prehearing conferences
shall be made unless ordered by the
Presiding Officer upon motion of a party
or sua sponte. The Presiding Officer
shall prepare and file for the record a
written summary of the action taken st
the conference. The summary shall
incorporate any written stipulations or
agreements of the parties and aH rulings
and appropriate onlers containing
directions to the parties.
(dl Location of prehearing conference.
The prehearing conference shsll be held
in the county where the respondent
resides or conducts the business which
the hearing concerns, in the city in
which the relevant Environmental
Protection Agency Regional Office is
located, or in Washington. D.C.. unless
(1) the Presiding Officer determines that
there is good cause to hold it at another
location in a region or by telephone, or
(2) the Supplemental rules of practice
provide otherwise.
(e) Unavailability of a prehearing
conference. If a prehearing conference is
unnecessary or impracticable, the
Presiding Officer, on motion or sua
sponte. may direct the parties to
correspond with him to accomplish any
of the objectives set forth in this section.
(f) Other discovery. (U Except as
provided by paragraph (b) of this
section, further discovery, under this
section, shall be permitted only upon
determination by the Presiding Officer
(1) That such discovery will not is any
way unreasonsbly delsy the proceeding;
(VI) That the information to be
obtained is not otherwise obtainable;
and
(ill) That such information has
significant probative value.
(2) The Presiding Officer shall order
depositions upon oral questions only
upon a showing of good cause and upon
a finding that
(I) lie information sought cannot be
obtained by alternative methods; or
(ti) Than is a substantial reason to
believe that relevant and probative
evidenoe nay otherwise not be
preeuved for presentation by a witness
at the hearing.
(9) Any party to the proceeding
desiring an order of discovery shall
make a motion therefor. Such a motion
ahall sat forth:
(i) The circumstances warranting the
taking of the discovery:
(ti] The nature of the Information
expected to be discovered and
(tti) The proposed time and place
when it will be taken. If the Presiding
Officer determines that the motion
should be granted, he shall issue an
order for the taking of such discovery
60
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Dgether with tha ooivtitincs aad tsnns
hereof. . ,
(4) When ths Inform*ban sought to be
i* within the oontrol ai one of
,'.^r tie*, failure to comply with an
" jjued pursuantto this paragraph
My lead to (i) the inference that the
afonaatioD to be discovered would be
idvene to the party from whom the
afonnation wai sought or
(tij The issuance of« default order
mder | 22.17(a).
22.20 Accalarstad dfc&occ, decision to
lamiaa.
(a) General The Presiding Officer,
ipon motion of any party or ana sponte,
Day at any time render an accelerated
leaiion is favor of the complainant or
be respondent u to all or any part of
be proceeding, without further hearing
ir upon such limited additional
rvidence, such at affidavit!.-at he may
equire, if no genuine iaaue of material
iact exists and a party is entitled to
udgment ai a matter of law. as to all or
my pari of the proceeding to addition,
be Presiding Officer, upon motion of the
Mpondent. may at any time dismiss an
tction without further bearing or upon
loch limited additional evidence as be
tequiret, on the basis of failure to
latsblish a prima fade case or other
pounds which show no right to relief on
be part of the complainant.
Q^Effect (1) If as accelerated
or a decision to dismiss is
iV z' a to all the issues and claims in
fee proceeding, the decision constitutes
Is initial decision of the Presiding
Dfficer, and shall be filed with the
Reposal Hearing Clerk. •
(2) If an accelerated decision or a
decision to dismiss is rendered on less
than all issues or claims is the
proceeding, the Presiding Officer shall
determine what material facts exist
Ivitbout substantial controversy and
*hat material facts remain controverted
(n good faith. He shall thereupon iaaue
Ki interlocutory order specifying the
cts which appear substantially
Incontroverted, and the issues and
fclaimi upon which the hearing will
proceed.
iufepen t> ¦ Heerlnq Prooedure
f*L21 Scheduling the hearing.
(a) When an answer is filed, the
Regional Hearing Clerk shall forward
'the complaint the answer, and any
other documents filed thus far is the
proceedmg-to the Chief Administrative
flaw Judge who shall assign himself or
1 mother Administrstive Law Judge as
Presiding Officer, unless otherwise
;provided in the Supplemental rules of
, The Presiding Officer shall
6>et> obtain tbe cam file from the Chief
Administrative Law Judge and notify the
parties of his assignment.
(b) Notiot of hearing. If the
respondent requests a hearing in his
answer, or one is ordered by the
Presiding Officer under 122.15(c), the
Presiding Officer shall serve upon the
parties a notice of hearing setting forth a
time and place for the hearing. Tbe
Presiding Officer may issue the notice of
hearing at an/ appropriate time, but sot
later than twenty (20) days prior to the
date set for the hearing.
(c) Postponement of hearing. No
request (at postponement of a bearing
•hall be granted except upon motion and
for good cause shown.
(a) Location of the hearing The
location of the hearing shall be
determined in accordance with the
method for determining the location of a
prehearing conference under 122.19(d).
12122 (Mdenee.
(a) General. The Presiding Officer
¦hail admit all evidence which is not
irrelevant, immaterial unduly
repetitious, or otherwise unreliable or of
little probative value, except that
evidence relating to settlement which
would be excluded in the federal courts
ttnder Rule 400 of the Tederal Rules of
Evidence is not admissible. Is the
presentation, admission, disposition,
end use of evidence, the Presiding
Officer shall preserve the confidentiality
of trade secrets and other commercial
and financial information. The
confidential or trade secret status of aay
information shall not, however, preclude
its being introduced into evidence. The
Presiding Officer aay make such orders
as may be necessary to consider such
evidence in camera including the
preparation of a supplemental initial
decision to address questions of law,
fact or discretion which arise out of that
portion of the evidence which is
confidential or which includes trade
eeaeta.
(b) Examination of witnesses.
Witnesses shall be examined orally,
osder oath or affirmation, except as
otherwise provided in these rules of
practice or by the Presiding Officer.
Parties shall have tbe right to cross*
examine a witness who appears at the
hearing provided that such cross-
examination is sot unduly repetitious.
(c) Verified statements. The Presiding
Officer may admit an insert into the
record as evidence, in lieu of oral
testimony, statements of fact or opinion
prepared by a witness. The admissibility
of the evidence contained in the
statement shall be subject to the same
rules as if the testimony were produced
under oral examination. Before any such
/ Rules end Regulations 24369
statement is read or admitted into
evidence, the witness shall deliver a
copy of the statement to the Presiding
Officer, the reporter, and opposing
oounsel. The witness presenting the
statement shall swear to or affirm the
statement and shall be subject to
appropriate oral cross-examination
upon the costests thereof. .
(d) Admission of affidavits where the
witness is unavailable. Tbe Presiding
Officer may admit isto evidence
affidavits of witnesses who are
unavailable. The term "unavailable"
ah all have the meaning accorded to it by
Rule 804(a) of the Federal Rules of
Evidence.
(e) Exhibits- Where practicable, an
original and one copy of each exhibit
shall be filed with the Presiding Officer
for the record and a copy shall be
furnished to each party. A true copy of
any exhibit may be substituted for the
original.
(I) Official notice. Official notice may
be taken of any matter judicially noticed
in the Federal courts and of other facts
within tbe specialized knowledge and
experience of tbe Agency. Opposing
parties shall be gives adequate
opportunity to ahow that auch facts are
erroseoualy noticed.
f 22 23 Obfrcttone and offers of proof.
(a) Objection. Any objection
concerning the conduct of the hearing
may be stated orally or in writing during
the bearing. Tbe party raising tbe
objectios must supply s short statement
of its grounds. The ruling by the
Presiding Officer os any objection and
tbe reasons given for it shall be part of
the record. As exceptios to each
objectios ovemiled shall be automatic
end is not waived by further
participation is the hearing
(b) Offer of proof. Whenever evidence
is excluded from the record, the party
offering the evidence may make an offer
of proof, which ahall be included in the
record. He offer of proof for excluded
oral testimony shall conaist of a brief
statement describing the nature of the
evidence excluded. The offer of proof for
excluded documents or exhibits shall
eonslst of tbe insertion is the record of
the documents or exhibits excluded.
Where the Administrator decides that
the ruling of the Presiding Officer in
excluding the evidence was both
erroneous and prejudicial, the bearing
may be reopened to permit the taking of
euch evidence.
'122.24 Burden of presentation; burden of
persuasion.
The complainant has the burden of
going forward with and of proving that
the violation occurred as set forth is the
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24370 Federal Register / Vol 45, No. 70 / Wednesday, April 0. 1980 / Rulee and Regulation
complaint ud that the proposed cfvfl
penalty, revocation, or suspension. ••
the ca»e may be. It appropriate.
'ollowing the establishment of a prima
be case, respondent shall have the
oorden of presenting and of going
forward with any defense to the
allegations set forth in the complaint.
Each matter of controversy shall be
determined by the Presiding Officer
upoo a preponderance of the evidence.
f 7} ?5 FTMrvj tfw franacripL
The bearing shall be transcribed
verbatim. Promptly following the taking
of the last evidence, the reporter shall
transmit to the Regional Hearing Clerk
the original and as many copies ot the
transcript of testimony as ire called for
in the re porter'» contract with the
Agency, and also shall transmit to the
Presiding Officer a copy of the
transcript A certificate of service shall
accompany each copy of the transcript
The Regional Hearing Qerk shall notify
all parties of the availability of the
transcript and ahall famish the parties
with a copy of the transcript upon
payment of the cost of reproduction,'
unless s party can show that tbe cost is
unduly burdensome. Any person not a
party to the proceeding may receive a
copy of the transcript upon payment of
the reproduction fee. except for those
parts of the transcript order to be kept
•amfidential by the Presiding Officer.
t 22-2% Proposed flnonga. conclusion*,
and order.
Within twenty (20) days after the
parties art notified of the availability of
the transcript or within such kmger time
as may be fixed by the Presiding Officer,
any party say submit for the
consideration of the Prefidiag Officer,
proposed findings of fact, conclusions at
law. and a proposed ordet. together with
briefs m support thereof. The Presiding
Officer shall set a time by which reply
briefs must be submitted All
submissions shall be in writing, shall be
served upoo all parties, and shall
contain adequate references to tbe
record and authorities relied on.
Subpart E—tnttial Dadaion and Motion
To Reopen a Hearing
I22J7 MtWdeetaien.
(a) Filing and contents. The Presiding
Officer shall issue and file with the
Regional Hearing Qerk his initial
decision at soon as practicable after the
period for filing reply briefs under
I 22.28 has expired. Tbe Presiding
Officer shall retain a copy of the
complaint in the duplicate file. The
initial decision shall contain his findings
of fact conclusions regarding all
material is soes of law or dtsavtios. ae
well as leasooa therefor, a
recommended dvil penalty assessment,
if appropriate, and a proposed final
order. U^an receipt of an initial
decision, the Regional Hearing Qerk
shell forward a copy to all parties, and
shall send the original, along with the
record of the proceeding, to the Hearing
Clerk. The Hearing Oerii shall forward
a copy of the initial decision to the
Administrator.
(b) Amount of aril penalty. If the
Presiding Officer determines thet a
violation has occurred, the Presiding
Officer shall determine tbe dollar
amount of the recommended civil
penalty to be assessed la the initial
decision k> accordance with any criteria
set forth in the Act relating to the prop*
amount of a cm! penalty, and must
consider any civil penalty guidelines
issued under the Act. If the Presiding
Officer decides to assess a penalty
different in amount from the penalty
recommended to be assetsed is tbe
complaint tbe Presiding Officer shall set
forth in the initial decision tbe specific
reason! far the increase or decrease.
The Presiding Officer shall not rcfee a'
penalty from that recommended to be
assessed in the complaint if the
respondent has defaulted
(cj Effect of initio} decision. He
initial decision of the Presiding Officer
shall become the final order of the
Administrator within forty-five (45) day»
after its service upon the parties and
without further proceedings unless (I)
an appeal to the Administrator is taken
from it by a party to the proceedings, or
(2) the Administrator electa, toe sponta.
"to review the initial decision.
12239 Motion to reopen a hearing.
(a) Filing and content. Amotion to
reopen a hearing to take forth*
evidence must be made no later than
twenty (90) days after service of the
initial decision on the parties and shall
(1} state the specific grounds apoa
which relief is sought (2) state briefly
the nature and purpose of the evidence
to be adduced. (3) show that auch
evidence is not cumulative, and (4) show
good eeuee why such evidence was not
adduced at the bearing. The motion
ahall be made to the Presiding Officer
and filed with the Regional Hearing
Qerk.
fbj Disposition of motion to mipem a
hearing. Within ten (10) days fallowing
the terviee af e motion ts reopee a
hearing, any other party to the
proceeding may file with the Regional
Hearing Qerk and serve on all other
parties an answer thereto. The Presiding
Officer shallhis intent to
pant or deny such motion at soce as
practicable thereafter. The cundurt of
any proceeding which may be required
ae a result of the granting of any notion
allowed in this section shall be
governed by the provision* of the
sppliceble sections at theee nilea The
Itling of e motion to reopen a hearing
KatamaticaUy stay the naming of
ell time periods specified under these
Rules until such time ps the motion is
denied or the reopened bearing is
concluded
Subpart ^—Appeate and
Administrative Review
(23L2S Appeal from or review of
Merloeutory order* or rutaga.
(a) Request far interlocutory appeal.
Except as provided in this section,
appeals to the Administrator shall
obtain as a matter at right only from s
default ordet. an accelerated decision or
decision to dismiss issued under
I 27 7fl(b)(l). or an initial decision
rendered after an evidentiary hearing.
Appeals from other orders or rulings
ahall lie only If the Presiding Officer or
Regional Administrator, as appropriate,
upon motion of a party, certifies such
order* or rulings to tbe Administrator on
appeal Requesta for such certification
ahall be filed in writing within six (6)
days of notiae af the ruling or service of
tbe order, and shall state briefly the
pounds to be relied upon on appeal.
(b) A YailabSity of interlocutory
appeal The Presiding Officer may
certify any ruling fat appeal to the
Administrator whan (1) the order or
ruling involves an important question of
law or policy concerning which there is
substantial pounds for difference of
opinion, and C2] either fl) aa immediate
appeal from the aider or ruling wi'l
materially advance tbe altinaie
termination oi the proceeding, or (ii)
review after the final order is issued will
ha inadequate or ineffective.
(c) Decision. If the Administrator
determines that certification wee
(¦providently granted or if he tekes no
action within thirty (30) days af the
certification, the eppeal is dismissed.
When the Presiding Officer declines to
certify an order or ruling to the
Administrator on interlocutory appeal it
mey be reviewed by the Administrator
only upon appeal from the initial
decision, except when the Administrator
determines, upon motion of a party and
In exceptional drrauaetancae. that to
delay review woald be em&ary to the
pabfic interact. Bach motioa shall be
mads within fttx (•) day* of service of an
order af the Presiding Officer refusing to
certify a ruling for interlocutory appeal
Id the Administrator. Ordinarily, the
interlocutory appeal will be decided on
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k^m.I VoL ii. No. 70 I W«to^.y. April ». IMP / Kute. «¦* R«yJ.lio».
24371
e basis of tiie submissions made by
t Presiding Officer. The Administrator
ly, however, allow further briefs and
j^-yument
,?>¦ of proceeding!. "Hie Presiding
' nay stay the proceedings
'• nuiag a decision by the Administrator
on an order or ruling certified by the
esiding Officer for as interlocutory
peal Proceedingi will not be stayed
cept in extraordinary circumstances,
here the Presiding Officer grants a
iy of more than thirty (30) days, such
ly must be separately approved by the
imioistrator.
2.X AppeaI from or nd for review, argument cm the
; ssented. and a short conclusion
n— .ae precise relief sought, together
ti appropriate references to the
Sord.
(2) Within fifteen (15) days of the
rvice of notice* of appeal and briefs
ider paragraph (a)(1) of this auction.
y other party or amicus curiae may
e and serve with the Hearing Clerk a
ply brief responding to argument
Ued by the appellant, together with
ferencei to the relevant portions of the
Cord, initial decision, or opposing
lef. Reply briefs shall be limited to the
ppe of the appeal brieLTurther briefs
(all be Sled only with the permission of
le Administrator.
Kb) Sua spout* review by the
Vministrator. Whenever the
ttministrator determines na sponte to
(view an initial decision. the Hearing
lerk shall serve notice of such
lention on the parties within forty-live
B] dayi after the initial decision te
trved upon the parties. The notice shell
iclude a statement of issues to be
Kefed by the parties and a time
iheduie for the service and filing of
Kef,.
i lCj Scope of appeal or rwriew. The
^peal of the initial decision shall be
those issues raised by the
parties during the oourse of the
proceeding. U the Administrator
determines that issues raised, but not
appealed by the parties, should be
.argued, he shall give counsel for the
parties reasonable written notice of
such determination to permit
preparation of adequate argument
Nothing herein shall prohibit the
Administrator from remanding the case
to the Presiding Officer for further
proceedings.
fd) Argument before the
Administrator. The Administrator may,
upon request of a party or sua sponte,
assign a time and place for oral
argument after giving consideration to
the convenience of the parties.
Subpart Q—Final Order en Appeal
122J1 Rnal order on appeal.
(a) Contents of the final order. When
an appeal hat been taken or the
Administrator issues a notice of intent
to conduct review sua sponte. the
Administrator (ball issue a final order
as soon as practicable after the filing of
all appellate briefs or oral argument
whichever is later. The Administrator
ahall adopt modify or set aside the
findings and conclusions contained in
the decision or order being reviewed,
and ahall set forth in the final order the
reesons for his ections. The
Administrator may, in his disoetion.
increase or decrease the assessed
penalty from the amount recommended
to be assessed in the decision or order
being reviewed, except that if the order
being reviewed is a default order, the
Administrator may not increase the
amount of the penalty.
(b) Payment of a civil penalty. The
lespondent ahall pay the full amount of
the civil penalty assessed in the final
order within sixty (00) days after receipt
of the final order unless otherwise
•greed by the parties. Payment shall be
Btade by forwarding to the Regional
Hearing Clark a eaahier'a check or
certified cheek is the amount of the
penalty assessed in the final order,
payable to the Treasurer. United States
of America.
fZL43 MottofttorveoneWeraHnetorder.
Motions to reconsider a final order
ahall be filed within ten (10) days after
eervice of the final order. Every such
motion must set forth the matters
claimed to have been erroneously
decided and the nature of the alleged
errors. Such motion shall not stay the
effective date of the final order unless
specifically so ordered by the
Administrator.
Subpart H—Supplemental Rules
| 12-53 Supplemental rules of practice
foramina the adminletrsttve assessment
of cMl penelties under the Toxic
Substances Control Act
(a) Scope of these Supplemental rules.
These Supplemental rules of practice
shall govern, in conjunction with the
preceding consolidated rules of prsctice
(40 CFR Part 22). all formal
adjudications for the assessment of any
civil penalty conducted under section
16(a) of the Toxic Substances Control
Act (15 VS.C. 2815(a)). Where
inconsistencies exist between these
Supplemental rules and the
Consolidated rules, (|f 22.01-22.32).
these Supplemental rules shall apply.
(b) Subpoenas. (1) The attendance of
witnesses or the production of
documentary evidence may be required
by aubpoena. The Presiding Officer may
grant a request for a aubpoena upon a
ahowing of (i] the grounds and necessity
therefor, and (ii) the materiality and
relevancy of die evidence to be
adduced. Requests for the production of
documents shall desaibe the evidence
eought es specifically as practicable.
(2) Subpoenas shall be served in
accordance with | 22.05(b)(1) of the
Consolidated Rules of Prsctice.
(S) Witnesses summoned before the
Presiding Officer shall be paid the same
fees and mileage that are paid witnesses
is the courts of the United States.'Fees
•hall be paid by the party at whose
Instance the witness appears. Where a
witness appears pursuant to s request
initisted by the Presiding Officer, fees
•hall be paid by the agency.
| t2M Supple mental rule* of practioe
yovemlng the edmlnietrettve eeeeeement
•f eMt penettea under TWe li of the Clean
Air Act
(a) Scope Of these Supplemental rules.
These Supplemental rules of practice
•hall govern, in conjunction with the
Kceding Consolidated Rules of
ctiee (40 CFR Part 22). all formal
adjudications for the assessment of any
dvil penalty conducted under Section
HI of the dean Air Act as amended (42
U.S.C. 7445). Where inconsistencies
exist between these Supplemental rules
and the Consolidated Rules. (If 22.01-
Z2.32), these Supplemental rules shall
apply.
(b) Headquarters enforcement Where
the complainant is ths Assistant
Administrator for Enforcement or hit
delegate, the prehearing conference and
bearing ahall be held in Washington.
DC unless the'Presiding Officer
determines that there is good cause for it
to be held at another location.
(e) "Presiding Officer". For purposes
of heatings conducted pursuant to | 211
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24372 Federal Registar / VoL 45, No. 70 / Wednesday. April 9. I960 f Rules and Regalations
of the Clean Air Act, Tniidinj Officer"
means the Administrative Law Judge
^•tjpointed under 5 U.S.C. 5106 (see also
'•). L 35-251, 82 Stat 183) or as
jmey who ii an employee or
^authorized represents#** of the Agency,
(d) Assignment of a Presiding Officer.
Upon the filing of an azwwer. the
Region*] Hearing Cleric or Hearing
Clerk, in appropriate, shall forward the
complaint answer, and any other
documents filed thai far in the
proceeding (o the Regional
Administrator or Administrator,
respectively, who thai) assign the
Presiding Officer. The Regional
Administrator or Administrator may.
however, forward the case ftie to the
Chief Administrative Law Judge and
request that he assign an Administrative
Law Judge as Presiding Officer. H the
Chief Admmiitrattre Law Judge finds
that such an assignment can be made
without impairing the ability of his
office to timely discharge its other
responsibilities, he shaD make the
assignment. Otherwise, he aha!) notify
the Regional Administrator or
Administrator that he it unable to make
such an assignment The Presiding
Officer assigned to the proceeding shal
obtain the ease file from the Chief
Administrative Law Judge, Regional
Administrator, or Administrator, as
appropriate, and notify the parties of fads
^ signment
,e) Evaluation of proposed ar3
"f^nalty. In determining the dollar
amount of the recommended rivfl
penalty assessed in the initial decision,
the Presiding Officer shall consider (1)
the gravity of the violation. (2) tha size
of respondent's business. (3) tha
respondent's history of oompbanee with
the Act. (4) the action taken by
respondent to remedy the specific
violation, aad (5) the effect of sock
proposed penalty an respondent's
ability to continue to business. The
Presiding Officer must also oooaider aay
guidelines for the Assessment of Civil
Penalties taaoad an riff tha Aol
f J2JI Supplemental rule* of practice
governing the administrative aaaeeament
of ctYl penaraet under the Federal
m. - 4jJ
IRQ ^OOvnO^^oV
(a) Scope of these Supplemental rules.
These Supplemental rules of practice
shall govern, in conjunction with the
preceding Consolidated Rules of
Practice (40 CFR Part 221 all formal
adjudications for the assessment of any
evil penalty conducted under Section
IV *) of the Federal Inaectidde.
Fungicide, and Rodenbcide Act as
amended (7 U.S.C. 1281(a)}. Where
-^consistencies exist between these
upplemental rules and tha
Consolidated rales. CIS 2241-22.32).
these Supplemental rules shall apply.
(bj Veuve. The prehearing conference
and the hearing ahaO be held in the
county, parish, or incorporated dty of
the residence of (he person charged,
unless otherwise agreed writing by all
parties.
(c) Evaluation of proposed ciriF
penalty. Id determining the dollar
amount of the recommended civfl
penalty assessed in the initial decision,
the Presiding Officer shaD consider, in
addition to the criteria hfted in section
14(a)(3) of the Act (1) respondent's
history of compliance with the Act or its
predecessor itrfcts aad (2) any
evidence of good faith or lack thereof.
'The Presiding Officer must also consider
the guidelines for the Assessment of
Civil Penalties published ia tha Federal
Register (39 FR 27711), and any
amendments or supplements thereto.
|22JN lupplewntslni*ofprecboe
governing the administrative assessment
Qvi pwumi ana vw rtTOcnoii it
euepeneion of permits under the Marino
Protection. Research, and Sanctuaries Act
(a] Scope of them Supplemental rules.
These Supplemental rules shall govern.
fat conjunction with the preceding
Consolidated Rules of J^mctice (40 CFR
Part 22], all formal adjudications
conducted under Section 105(a) or (f) of
the Marine Protection. Research, and
Sanctuaries Acf as amended (33 U.SC
1415(a) and (f)). Where inconsistencies
exist between these Supplemental rulet
and the Consolidsted Roles. [Ii 22.01-
22-32). these Supplemental rules shall
apply.
(b) Additional criterion far the
issuance of a coaiplaint far the
revocation or suspension of a permit In
addition to the Ane criteria listed in 4t
CFR 22.13 for issuing a complaint for the
(•vocation or suspension of a permit
ootnplaints may be issued era tiie basis
of a person's Itlhin to keep neords and
notify appropriate officials of damping
activities, as reqeired by 40 0K 224.1
and 223JL
|2ttJ7 gupplemental nJea of practice
governing the adwiniatrsttv assessment
•f cM penaWee wider the MM Waste
Mepoeal Act
(a) Scope of them Supplemental rules.
These Supplemental rales of practice
shall govern, in conjunction with the
preceding Consolidated Rules o£
Practice (40 CFR Part 22). al
proceedings to assess a civil penalty
conducted under Section 3006 at the
Solid Waste Disposal Act (42 U.S.C.
6826) (the "AcO Where incocsistendes
exist between these Supplemental rules
and the Consolidated Rules, (| J 22.01-
22J2J. these Supplement*? roles shall
Tf Issuance of notice. Whenever, on
the basis of any information, the
Administrator determines that any
person is in violation of fl) any
requirement of Subtitle C of tbe Act (2)
any regulation promulgated pursuant to
Subtitle C of the Act or (3) a term or
condition of a permit issued pursuant to
Subtitle C of the Act the Adminisfrato:
shall issue notice to the alleged violator
of his failure to comply with such
requirement regulation of permit
(c) Content of notice. Bach notice of
violation shall include:
(1) A specific reference to each
provision of the Ad regulation, or
permit term or condition which tha
alleged violator is alleged to have
violated; and
(2) A concise statement of (he factual
basis for such violation.
(d) Service of notice. Service of notice
ahall be made in accordance with
f 22£S(bK2) of the Consolidated Rales
of Practice.
(e) Issuance of the complaint. (1)
Except as provided in paragraph (e)(3)
of this section, the complainant may
issue a complaint whenever he has
reaaon to believe that any violation
extends beyond the thirtieth day after
service of the notice of violation.
(2) The complaint shall include, in
addition to the elements stated in
122.14 of the Consolidated Rules, an
order requiring compliance within a
specified time period The complaint
ahall be equivalent to the compliance
order referred to is Section 3006 of the
Aat
(3) Whenever e violation is of s non-
continuous or Intermittent nature, the
Administrator may iasue a complaint
without any prior notice to the violator,
pursuant to | 22.14 of the Consolidated
Rules of Practice which may also require
the violator to take any and all
measures necessary to offset all edverse
effects to health aad the environment
oeeted, directly or indirectly, es s result
of the violation.
(4) Notwithstanding | 22.15(a). any
answer to the complaint must be filed
with the Regional Hearing Clerk within
thirty (30) days after the filing of the
complaint
(f) Subpoenas. (1) The attendance cf
witnesses or the production of
documentary evidence may be required
by subpoena. The Presiding Officer may
grant a request for a ssbpoens upon.s
showing of (1) the grounds and necessity
therefor, and (ii) the materiality and
relevancy of die evidence to be
adduoed. Requests {or the production of
documents shall describe with
specificity the documents sought
64
-------
1980 I Rule» and Regulations ____24373
Subpoenas shall be »erv®d Is
4 accordance with { 22J»(b)(l) of tbe
Consolidated Rules of Practice.
(3) Witnesses summoned before tbe
Presiding Officer (hall be paid the same
fees tad mileage that ire paid witnesses
in the courts of tbe United State*. Fees
(hail be paid by the party at whose
instance the witneaa appear*. Where a
wiaeaa appears pursuant to a request
initiated by the FYesidir.g Officer, fees
shall be paid by tbe Agency.
Appendix—A itrtunii of EPA JUgioaa)
Offices
Repor i—}ohn F. Kennedy Federal Building
.. Boston. Massachusetts (£203
Regjs.i Z7—26 Federal Plaza. New York. New
York 100CT
Region £U—Curtis Tbifldiwj 6th and Walnut
Streets. J%iladelphia. Pennsylvania 19106
Region TV—MS Courtiand Street. NE.
Atlanta. Georps 3C306
Region V—230 South Dearborn Street.
Chisago. Illinois 00804
Repor V7—First International Building. 1201
i?a Street. Dallas, Texas 7&27D
Pr.uan W—Vii Baltimore Street. Kansas
City. Miaaouri A410B
.Acy/'on Vffl—1B8C ' SOMlDasrer.
Colorado 8CED3
Aay/or DC—21S Fremont Street San
/measco. California M105
• X—12DC 6th Avenue. Seattle.
\ ' ongion seicn
—: so-wjw rw mi u*i
c- -XI coot saao-st-*
65
-------
Wednesday
September 10, 1980
Part v
Environmental
Protection Agsncy
Guidelines for Assessment of Civil
Penalties Under Section 16 of the Toxic
Substances Control Act; PCS Penalty
Policy
-------
59770 Federal Register / Vol. 43, No. 177 / Wednesday. September 10.1980 / Notices
ENVIRONMENTAL PROTECTION
AGENCY
(FRL 1601-6]
Guidelines for the Assessment of Civil
Penalties Under Section 16 of the
Toxic Substances Control Act; PCS
Penalty Policy
agency: Office of Enforcement.
Environmental Protection Agency (EPA
or the Agency).
action: Notice of a policy for
implementation of the Toxic Substances
Control Act with respect to the
assessment of civil penalties under
Section 18: interim guidance for the
determination of penalties for violations
of the PCB regulations.
summary: Section 16 of the Toxic
Substances Control Act (TSCA or the
Act) authorizes the Administrator of
EPA to assess civil penalties for
violations of the Act. On March 10.1980,
Jeffrey G. Miller, Acting Assistant
Administrator for Enforcement,
transmitted to the EPA Regional
Administrators a document which
implements as administrative civil
penalty policy for TSCA. This document
sets forth a general penalty assessment
policy which wil! be supplemented by
regulation-specific penalty assessment
guidance. Together, these documents
provide internal procedural guidelines to
aid EPA personnel to assess appropriate
penalties. They are not regulations. The
penalty assessment policy establishes
standardized definitions and .
applications of the statutory factors that
the Act requires the Administrator to
consider in assessing a penalty. It also
provides a mechanism whereby Agency
personnel may, within specified
boundaries, exercise discretion in
negotiating consent agreements, and
otherwise adapt the proposed penalty to
the exigencies of special circumstances.
Separate guidances will apply the
penalty system to specific regulatory
and statutory provisions. These
guidances will be developed on a
continuing as-needed basis.
On Apni 24.1980. Richard D. Wilson,
deputy Assistant Administrator for
General Enforcement transmitted to the
EPA Regional Administrators the first of
the regulation specific penalty policies.
This document consisted of interim
guidance for the determination of
penalties for violations of the PCB
regulations.
The TSCA civil penalty policy and the
°C3 penalty policy were effective on
{arch 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 these documents, EPA is doing
so in order to give them the wide
circulation that publication will provide.
The full text of the TSCA civil penalty
policy, and the PCB penalty policy, with
the appropriate transmittal memoranda,
appear below in the "Supplementary
Information" section.
FOR FURTHER INFORMATION CONTACT:
Peter J. Niemiec. Attorney-Advisor.
Pesticides and Toxic Substances
Enforcement Division (EN-342), 401 M
St., SW., Washington, D.C. 20460, (202)
755-9404.
SUPPLEMENTARY INFORMATION: The
douanents appearing below were
transmitted to the EPA Regional
Administrators on March 10,1980, and
April 24.1980. respectively. The
"Technical Support Document" referred
to in the TSCA civil penalty document
has not been reproduced, but is
available upon request from the EPA
address above.
Dated: July 7,1980.
Jeffrey G. Miller,
A ctir.g Assistant Administrator for
Enforcement.
TSCA Civil Penalty System
Introduction
The Toxic Substances Control Act
(TSCA), passed by Congress and signed
into law in 1978. provides for increased
regulation of chemical substances and
mixtures. The Environmental Protection
Agency is charged with carrying out and
enforcing the requirements of the Act
and any rules promulgated under the
Act
Section 18 of the Act provides for civil
and criminal penalities for violations of
TSCA or TSCA rules. Civil penalty
amounts may range up to S23.000 per
violation, with each day that a violation
continues constituting a separate
violation. Civil penalties are to be
administratively imposed, after-the
person is given a written notice and the
opportunity to request a hearing. There
is a right to review in the United States
Courts of Appeals after the penalty has
been imposed by the Administrator.
Section 18 of TSCA requires that a
number of factors be considered ia
assessing a civil penalty, as follows:
In determining ths amount of a civil
penalty, the Administrator shall take into
account the nature, circumstances, extent,
and gravity of the violation or violations and,
with respect to the violator, ability to pay.
effect on ability to continue to da business,
and history of prior such violations, the
decree of culpability, and such other matters
as justice may require.
The purpose of the general penalty
system is to assure that TSCA civil
penalties be assessed in a fair, uniform
and consistent manner, that the
penalties are appropriate for the
violation committed: that economic
incentives for violating TSCA are
eliminated; and that persons wiil be
deterred from committing TSCA
violations.
Scope of the Civil Penalty System
The penalty system described in this
document provides the general
framework for civil penalty, assessment
under TSCA. It establishes standardized
definitions and applications of factors
the Act requires the Administrator to
consider in assessing a penalty. As
regulations are developed, specific
penalty guidelines will be developed
adopting in detail the application of the ^
general penalty system to the new
regulation. These specific guidelines will
generally be issued when enforcement
strategies are issued for each new
regulation.
Note.—This document does not discuss
whether assessment of a Civil penalty is the
correct enforcement response to a given
violative condition. Rather, this document
focuses on determining what the proper civil
penalty should be if a decision has been
made that a civil penalty is the proper
enforcement remedy to pursue.
Brief Description of the System
The general civil penalty system is
designed to assign penalties for TSCA
violations in accordance with the
statutory requirements cf Section 16.
Penalties are determined in two stages:
(1) Determination of a "gravity based
penalty" (GBP), and (2) adjustments to
the gravity based penalty.
To determine the gravity based
penalty, the following factors affecting a
violation's gravity are considered-
• The "nature" of the violation,
• The "extent" of environmental harm
that could result from a given violation,
and
• The "circumstances" of the
violation.
These factors are incorporated on a
matrix which allows determination of
the appropriate gravity based penalty.
Once the gravity based penalty has
been determined, upward or downward
adjustments to the penalty amount are
made in consideration of these other
factors:
• Culpability,
• History of such violations,
• Ability to pay,
• Ability ta continue in business, and
• Such other matters as justice may
require.
Civil Penalty System and Its Application
This section describes in detail the
-------
39771
¦al civil penalty system, how
fie penalty guidances will be
and applied, and the
behind the development of tha
'enclty Factors
l Act requires the consideration of
caned factors in any penalty
sment as well as "other factors as
e may require."
i first four factors—nature,
as lances, extent, and gravity—
to the violation. Under the penalty
a these four factors are charted on
rix which yields the Gravity Based
ty (GBP). This matrix is a constant
jhout the penalty system. As will
in below, however, the specific
ty guidelines will affect into which
sry along each axis of the matrix
olation will fall.
« a G3P figure is reached, several
taent factors are applied:
n upward or downward
trnent may be made for particularly
ble or non-culpable conduct. An
rd adjustment of up to 100% may
;de where.there is a history of such
ition.
no other adjustments (not
ically required by the Act. but
rized under the "as justice may
fe^p-guage of § 18) are to recover
"ts paid by the United States,
v ce or eliminate any financial
jpreTitive advantage gained by the
Dr as a result of his failure to
' the Act or its regulations. Other
ly-case adjustments ruay also be
rued under the "as justice may
e" language.
le final statutory adjustment
» are the violator's ability to pay
te effect on the violator's ability to
*ie to do business. For several
is we have combined the concepts
led in these factors onto one
Br to pay" factor. This factor will
let as a limit on the amount of
^ assessed. even where other
* indicate a higher penalty is
Bted.
htion of the Gravity Based
y
gravity based penalty (GBP] is
On the following matrix
ExMrtoi aocn««i axn«q«
QrojmmncM (pratMfeafty
ol t
ptywficm*
C mnat
Hign
-------
59772
Federal Register / Vol. 45. No. 177 I Wednesday, September 10. 19S0 / Notices
and disposal of PCBs), the quantity of
the regulated substance involved might
be the principal basis for categorizing
extent. In other words, a violation
involving under 10 pounds oi a given
substance might be Level C. 10 to 100
pounds Level B, and over 100 pounds
Level A.1 In the development of specific
guidelines, environmental impact data
and other analyses developed in support
of the chemical control rule making will
generally be the basis for determining
"extent" levels.
Control-associated data-gathering:
For control-associated data gathering
regulations, the quantity of regulated
substance involved in the recordkeeping
will be used as the indicator of the
extent of the violation. For example, not
reporting the whereabouts of 1.0C0
pounds of PCBs is more serious than not
reporting one pound. In generaL the
quantity measures used to define the
"extent" of such a violation will be, the
same as those used to define the
"extent" categories of the control
violation with which it is associated. As
with chemical control rules, factors
other than quantity may be used when
appropriate to indicate the "extent" of
potential damage.
Hazard assessment: Hazard
assessment data-gathering regulations
require a different approach to make an
"extent" determination. Unlike chemical
control and control-associated data-
gathering regulations, the degree of
danger or "hazard" presented by the
substance in question may not be
known. Indeed, this lack of knowledge is
the principle reason for the data-
gathering. The measure of "extent" of
harm will focus on the goals of the given
hazard assessment regulation, and the
types of ham it is designed to prevent
For example, a I 4 test violation will be
of Level A extent if it "seriously" affects
the validity of a test on a substance
which is manufactured in large
quantities, with lesser violations treated
accordingly, whereas manufacturing a
chemical without submitting a
premanufaeture notification form 90
day» 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. Thus,
a great number of judgments must be
made in the formulation of the specific
penalty policy.
3. Circumstances. "Circumstances" is
used in the penalty policy to reflect on
the probability of the assigned level of
1 Other cnttnt. such as number of people
exposed or potentially exposed. could have be«n
unload hare. but (1) those /acton art difficult and
expensive to quantify for individual violation*, and
III theae factors art airtady euntidcreo. to tome
extant, under "eveuautaneaa."
"extent" of harm actually occurring. In
other words, a variety of facts
surrounding the violations as it occurred
are examined to determine whether the
circumstances of the violation are such
that there is a high, medium, or low
probability that damace will occur. The
matrix provides the following levels for
measuring circumstances (probability
factors):
Levels 1 and 2 (High): The violation is
likely to cause damage.
Levels 3 and 4 (Medium): There is a
significant chance that damage will result
from the violation.
Levels 5 and 6 (Low): There is a small
likelihood that damage will result from the
viola tion.
The probability of harm, as assessed
in evaluating circumstances, will always
be based on the risk inherent in the
violation as it was committed. In other
words, a violation which presented a
high probability of causing harm when it
was committed (and/or was allowed to
exist] must be classified as a "high
probability" violation and penalized as
such, even if through some fortuity no
actual harm resulted in that particular
case. Otherwise some who commit
dangerous violations would be
absolved. Similarly, when harm has
actually resulted from a violation, the
"circumstances" oi the violation should
be investigated to calculate what the
probabilities were for harm occurring at
the time of the violation. The theory is
that violators should be penalized for
the violative conduct, and the "good" or
"bad" luck of whether or not the
proscribed conduct actually caused
harm should not be an overriding factor
in penalty assessment. However, the
responsibility for clean-up attaches
without regard to the probability of
harm (see Adjustment Factor 3,
Government Clean-up Costs). As with
"extent." the specific penalty guidelines
are an essential tool in characterizing
the circumstances of a violation.
Chemical control: With chemical
control violations, probability is
determined primarily by physical factors
which affect the chance 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 PCBs into
the environment, and actual dumping of
PCBs is virtually certain to do some
harm. Criteria-iorassessing the
probability of harm resulting from a
violation will whenever possible be
based on information developed in
support of the chemical control rale.
Data-sa.'herinf and hazard
assessment: A slightly different
approach is taken to evaluate
circumstances of data-gathering
violations. The effect on the Agency's
ability to implement of enforce the Act
is the principal circumstance to be
considered. Thus, the matrix levels for
measuring ciccumstances (probability)
for data-gathering and hazard
assessment violations are as follows:
Levels 1 and 2 (Hi3h)—Violations which
seriously impair the Aaency's ability to
monitor (data-gathering) or evaluate
chemicals (hazard assessment).
Levels 3 end 4 (i.leaium)—Violations
which impair the Agency's ability to monitor
or evaluate chemicals in a less thar* cntical
way.
Levels 5 and 8 (Law)—Violations 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 study totally unreliable) h^s a
higher probability of resulting in harm to
the public through its effect cn the
Agency and would probably be Level 1
or 2, while late submission o: a required
report might be only a Level 5 or 6
violation.
Whenever possible, the specific
penalty system wiirattempt to classify
certain types of violations according to
probability of damage. For example,
certain types of violations of a disposal
rule might always involve a high
probability of damage. But other types
of violations might involve such a large
range of probability of harm that each
case would have to be evaluated
individually. In the latter case, the
specific penalty guideline will include
criteria to guide the evaluation of each
violation, it is difficult to estimate the
probability of harm presented by given
situation, particularly in light of the
many variables that make up
"circumstances." However,
"circumstances" can be evaluated for
guideline purposes by comparing
situations. For example, it is clear that,
as a general rule, there is a greater
probability of a falsified laboratory test
leading to actual damage, than to have
such damage resulting from minor errors
in test report formatting.
The specific guidelines will also
address the range of probabilities within
each of the six "circumstances"
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
-------
59773
rounriwater. But where only temporary
^er storage is intended, ana
,,'.1 is planned. the probability of
j^^-ouia be decreased accordingly.
i. Graviry. "Gravity" refers to the
jversil seriousness of the eolation. As
jsad in this penalty system, "gravity" is
i dependent variable, i.e., the evaluation
if "nature." "extent." and
'cu'cumstances" will yield a dollar
figure on the matrix that determines the
gravity based penalty.
The Adjustment Factors
The gravity based penalty reflects the
seriousness of the violation's threat to
health and environment The Act also
requires the Agency to consider certain
factors in assessing the violator's
conduct Culpability, history of such
violations, ability to pay, and ability to
continue in business. In addition, the
Act authorizes the Agency some
discretion to consider "other factors as
justice may require." Under this last
authorization, two additional factors are
1 considered and balanced: the cost of the
violation to the government, and the
benefits received by the violator due to
his non-compliance. In order to compute
penalty adjustments in a logical fashion,
these adjustment factors are considered
following sequence:
* Culpability;
History,
(3) Cost to the government;
(4) Benefits from non-compliance: and
(5) Ability to pay/ability to continue
in business.
1. Culpability. Since the law only
requires the Agency to consider the
capability of the violator as an
adjustment factor, the existence of a
violation can be established without
retying solely on this "blameworthiness"
factor. In other words, the Agency may
pursue a policy of strict liability in
penalizing for a violation, though some
allowance must be made based on the
extent of the violator's culpability.1
j-?nder this penaky system, the gravity
cased penalty may be increased or
decreased, or may remain the same
depending on the violator's
"culpability."
The two principal criteria for
assessing culpability are (a) the
'••oiator's knowledge of the particular
TSCA requirement, and (b) the degree of
tn« violator's control over the violative-
condition.
1^,'There arc cartain cireumatanen w'ntrt an "act
od" ot «om» ottier etreumatanee touily oui oi •
>»ny » control may sol rasuil in assawmant oi a
iuon (no icgai Iwbuiiy). For tvampty wnere
-Si are prvoeriy jiorwJ. «nd a plane craihcs into
!l)« iionut* facility, cauains a «piiL Ware *>iii
PraaaMy Da no violation.
(a) The violator's knowledge: The lack
of knowledge of a particular
requirement would not necessarily
reduce culpability, since the Agency has
no intention of encouraging ignorance of
TSCA and its requirements. The test
under TSCA will be whether the violator
knew or should have knov/n of the
relevant TSCA requirement or of the
general hazardousness of his actions.
This latter point will allow the Agency
to find a violator fully culpable even if
he has no knowledge of a particular
regulatory requirement when he does
have knowledge that the particular
substance he was dealing with was
hazardous. For example, lack of
knowledge of the PCB rules would not
reduce culpability if the violator had
knowledge that the dumping of PCBs
creates a serious threat to human health.
Thus, a reduction in the penalty based
on lack of knowledge could only occur
where a reasonably prudent and
responsible person in the violator's
position would not h'ave known that the
conduct was hazardous or violative of ..
TSCA. It is anticipated that such
situations and attendant reductions will
be rare.
(b) Degree of control over the
violation: There may be situations
where the violator may be less than
fully responsible for the violation's
occurrence. For example, another
company may have had some role in
creating the violative conditions and
thus must also share in the legal
responsibility for the resulting
consequences. Or an employee whose
conduct caused the violation may have
been disobeying his employer's
instructions. Such situations would
probably warrant some reduction in the"
penalties.
(c) Initial culpability determination:
For penalty assessment purposes, three
levels of culpability have been assigned,
as follows:
Level I: The violation is willful, i.e.. the
violator intentionally committed an act which
he knew would be a violation or would be
hazardous to human health or the
environment
—Adjust the GBP Upward 25*.
Level LL The violator either nad sufficient
knowledge to recognize the hazard created
by his conduct or significant control over the
situation to avoid committing the violation.
—No adjustment to the C3P-
Level 111: The violator lacked sufficient
.knowledge of the potential hazard created by
his conduct, and also lacked control over the
situation to prevent occurrence of the
violation.
Adjust the GBP downward 25%.
It is anticipated that most cases will
present Level 11 culpability. Level I
situations, in many instances, could be
treated as criminal violations (and often
will be so treated). However, the
decision to file a "criminal action has no
effect on civilpenalty c-alcuiations and
is a totally separate issue.
(d) Attitude of the violator. In
assessing the violator's "attitude," the
Agency will look at the following
factors: Whether the violator is making
"good faith" efforts to comply with the
appropriate regulations: the promptness
of the violator's corrective actions: and
any assistance given to EPA to minimize
any ham to the environment caused by
the violation.
Since "attitude" is already reflected in
Level I culpability, and since it is largely
irrelevant to Level III culpability, this
adjustment will really only be utilized
where "knowledge" and "control" result
in a Level II culpability finding. While
Level Q normally yields no reduction or
increase in penalty, the attitude of the
violator may justify a penalty
adjustment of up to 15% of the GBP in
either direction. Objective evidence,
such as statements or actions of me
violator, should be used to justify such
adjustments.
2. History of prior such violations.
The gravity based penalty matrix is
designed to apply to "first offenders."
Where a violator has demonstrated a
similar history of "such violations." the
Act requires the penalty to be adjusted
upward. The need for such an upward
adjustment derives from the violator's
not being sufficiently motivated to
comply (deterred from non-complying)
by the penalty assessed for the previous
violation, either because of economic
factors consciously analyzed by the
firm, or because of negiisence. Another
reason for penalizing repeat violators
more severely than "first offenders" is
the Increased enforcement resources
that are spent on the same violator.
The Agency's policy is to interpret
"prior such violations" as referring only
to prior violations of TSCA. even though
it would seem "such" could refer to any
violations of EPA statutes, or remedial
statutes ia general {e.g.. OSHA. CPSC).
However, since Congress did not
explicitly state it wanted the Agency to
go beyond TSCA in determining
violation history, the Agency is using
this narrower interpretation. The
penalty system distinguishes between
previous TSCA violations in general
and previous violations of the same set
of regulator/ requirements.
The following rules apply in
evaluating history of prior such
violations:
(a) In order to constitute a prior
violation, the prior violation must have
resulted in a final order, either as a
result of an uncontested complaint or as
a result of a contested complaint which
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59774
Federal Register / Vol. 45. No. 177 / Wednesday, September 10. 1980 / Notices
is finally resolved against the violator.
Violations litigated in the Federal
courts, under the Act's imminent hazard
(§ 7), specific enforcement and seizure
(§ 17). and criminal (§ 16(b)) provisions,
are part of a violator's "history" for
penalty assessment purposes, as are
violations for which civil penalties have
i>een previously assessed. However, a
notice of non-compliance does net
constitute a "prior such violction", since
no violation has formally been found,
and no opportunity to contest the notice
has been given.
(b) To be considered a "prior such
violation", the violation must have
occurred within five years of the present
violation. This five year period begins
when the prior violation becomes a final
order. Beyond five years, the prior
violative conduct becomes too distant to
require compounding of the penalty for
the present violation.
(c) Generally, companies with
multiple establishments are considered
as one when determining history. Thus,
if one establishment of a company
commits a TSCA violation, it counts as
history when another establishment of
the same company, anywhere in the
country, commits another TSCA
violation However, two companies held
by the same parent corporation do not
necessarily affect each other's history if
they are in substantially different lines
of business, and they are substantially
independent of one another in their
management, and in the functioning of
their Boards of Directors. In the case of
wholly- or partly-owned subsidiaries,
the violation history of a parent
corporation shall apply to its
subsidiaries, and that of the subsidiaries
.to the parent.
(_d) If the prior such violation is of a
different TSCA provision or regulation,
the penalty should be upwardly
adjusted 25 percent for a first repetition
and 50 percent for a second repetition of
the violation. If the prior "such"
violation is of the same, or closely
similar provision or regulation, the
penalty should be upwardly adjusted 50
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 similar 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,
fivo separate unlawful disposals of PCBs
®ay be "closely similar" if the PCBs
were unlawfully dumped on the
highways in the first instance, and in the
second instance. PCBs of over 500 pprn
were burned in a facility that did not
comply with the PCB incinerator
standards.
The specific guidelines will give some
guidance or. what violations are "cioseiy
similar" to others, and may set up a sliding
scale of upward adjustment percentages
rather than the 50 percent or 100 percent
figures provided here.
3. Government ciean-up costs. An
adjustment farcr not specified in the
statute, but which :he Agency feels
"justice * ' * requiretsj." is
reimbursement to the government for
funds expended to investigate, clean-up,
or otherwise mitigate the effects of a
violation.
Generally, the clean-up expense of a
violator is to be bome by the violator as
a necessary cost of violation in addition
to any civil penalty assessed. The
government may seek a Federal district
court injunction under § § 7 or 17 to
require the violator to clean-up, but
there will almost certainly be situations
where the government will have to
clean-up the violation to quickly ¦
alleviate any hazards created. Where -
these latter situations happen, the
government could probably file a non-
statutory suit in Federal district court to
recover funds which it expended, but it
could even more easily assess these
costs, when they are sufficiently low, in
an administrative proceeding under § 16,
particularly where a § 16, particularly
where a § IS action is going to be filed
anyway.
The major limitation to seeking
reimbursement of government
investigatory and clean-up costs is the
limit of S25.C00 for each violation.
However, since each day a violation
continues constitutes a separate
violation for which a S25.000 penalty
may be assessed, in nar.y instances
clean-up and investigatory costs can be
recovered where the violation is a
continuing one. However, where a
penalty would be in the area of S25.0CO
for the violation even before government
investigatory and ciean-up costs are
considered, a § 16 action would be of
little value in recovering these
additional costs. -
In adjusting the penalty, the
government investigatory and clean-up
cost should be added to the penalty
calculated thus far. Where the total
penalty under this method exceeds
S25.0GO. the penalty should be cut back
to S25.000. As will be discussed later,
this type of situation lends itself to
utilization of the continuing violation
provisions of § lb.
It is important to note that
consideration of government
investigatory and" clean-up costs in the
penalty assessment is not intended to in
any way affect the right cf the
government to recover investigatory and
clean-up costs in a separate court
action. A violator may argue that
investigatory and clean-up costs have
been abrogated by settlement of the
penalty. Thus, if there is a reasonable
possibility that the Agency will seek to
recover such costs in a separate suit,
this factor should not be utilized in
assessing the § 16 penalty. Thus the
investigatory and clean-up costs will not
be included twice in calculating a
penalty for a violation.
-,4. Cains from noncompliance.
Another adjustment factor which
"justice * * * require(sj" is that the
violator not profit from its violative acts.
TSCA's ability to prevent harm to public
health and the environment is severely
weakened whenever an economic
incentive exists to violate the law. T^e
penalty system attempts to eliminate, or
at least reduce, these economic
incentives, by adding to the base
penalty an estimate of the economic
gains obtained by the violator at a
resultofhisnoncompliance. ""
Among such ecoopmic gains would be
money saved by not investing in new
equipment, or by not following more
costly operating procedures, or profits
gained through the sale of illegal
products. Removing such sains not only
protects the public by deterring
violations, but also prevents violators
from gaining unfair competitive
advantage over those who are
complying with the law. For example, a
company which manufactures a new
chemical wiihout submitting a
premanufacture notice, pursuant lo § 5,
may gain a strong competitive
advantage over another company who
intends to manufacture the same
chemical, but follows the § 5 procedure.
The violator should be penalized at least
to the extent of :he 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 gam. In cases where
economic gains resulted from the
company's failure to make required
capital and operation ar.d maintenance
expenditures, those gains must be
calculated in accordance with the
Agency's September 27.1S73. 'Technical
Support Document" for computing civil
penalties under the April 11." 1375. Civil
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5977S
jfp.alty Policy. The resulting economic
jjviiTgs figure must be reviewed by the
-^^^enairy Policy Panel for
'i^ar.cy with that policy. In many
-_es. the CBP will be sufficiently
^'fTwithout adjustment for this factor.
> otisr situations where there is no
•conomic motive or benefit from
incompliance, or when the cost of
:.eamng up a violation outweighs any
jconomic benefits received, this
idjascnent factor need not be applied.
5. Ability to pay and ability to
xntinue in business, {a) Usage of these
isms. The Act lists "ability to pay" and
•ability to continue in business" as two
adjustment factors, but for the purposes
of the penalty system the distinctions
between the two are so narrow and
artificial that they are treated as one. In
caking this determination it was
considered that "ability to pay" might
be limited (in the extreme sense) to such
indicators as the market value of the
violator in liquidation, the profits
accrued by the firm over a given time
?eriod. the net sales or income
generated over a given time period, the
vaiue of cash and other liquid assets
held by the firm, and the vaiue of ail
liquid assets plus borrowable cash.
Essentially, however, a firm can pay up
to the point where it can no longer do
/^fliS^ess'' However, it is evident that
,;¦ ®^jss, by inserting these two factors
Act, for most cases did not
intend that TSCA civil penalties present
so great a burden as to pose the threat
of destroying, or even severely
impairing, a firm's business.
Measuring a firm's ability to pay * a
cash penalty, without ceasing to be
operable, can be extremely complex.
Tfce focus is on the solvency of the firm,
-ather than performing extensive
nnancial analysis of a firm, which
^ould take an unreasonable effort on
the part of both the Agency and the firm.
" !s believed that a year's net income, as
determined by a fixed percentage of
total sales, will generally yield an
amount which the firm can afford to
Pay. The average ratio of net income to
Sales level for U.S. manufacturing in the
Past five years is approximately five
P-~ent (1S7S Economic Report of the
P^ssic'snt). Since small firms are
?9neral!y slightly less profitable than
®verage sized firms, and since small
j!;35s are '^e ones most likelv to have
auficuity paying TSCA penalties, the
Sideline is reduced to four percent.
Technically, a firm would often be able to pay
imposing a penally would cause it to file for
" 'Jiey. since a reorganization mi;ht still leave
v mess in operation.
. .^ncefurts "ability to pay" will be used to
"iciude "ability to continue m business'.
Even where the net income is
negative, four percent of gross sales
should still be used as the "ability to
pay" guideline, smce companies with
hich sales will be presumed to have
sufficient cash to pay penalties even
where there have been net losses.
For purposes of calculating the ability
to pay. figures for the current year and
the prior three years should be
averaged. Four percent of the average
sales will serve as the guideline for
whether the company has the ability to
pay.
(B) Application of ability to pay.
While it would be possible for an
inspector to utilize Dunn and Bradstreet
or to inquire during the course of the
inspection to ascertain sales data, the
firm should be presumed to have the
ability to pay at the time the complaint
is issued. This is preferable not only for
purposes of administrative convenience,
but also because many firms will not
have their sales information in Dunn
and Bradstreet or similarpublications.
and because the Act indicates that
financial and sales data are only subject
to inspection when "the nature and
extent of such data are described with
reasonable specificity in the written
notice (of inspection)." § ll[b)(r). This
singling out by Congress of these factors
indicates that they are not to be
routinely asked for in every inspection,
and since any alleged violator can raise
the issue of ability to pay in his answer
to the complaint, both the Agency and
the inspected firm will save time and'
resources by using this approach. Of
course, if such information can easily be
obtained prior to or during the
inspection, there is no harm in doing so.
If the firm raises the issue of inability
to pay in its answer, or in the course of
settlement discussions, the four percent
guideline discussed above should be the
model to follow. The firm should be
asked to bring appropriate
documentation to indicate what their
sales have been, such as tax returns,
financial statements, etc. If the proposed
penalty exceeds four percent of total
sales, the penalty may be reduced to an
affordable level.
There may be some cases where a
firm argues that it cannot afford to pay
even though the penalty 3S adjusted
does not exceed four percent of sales. A
variety of factors, too complex to
discuss here, might require such further
adjustment to be made. In complex
cases, the agency msy need to rely on a
management division economist or an
accountant to analyze the firm's ability
to pay and. on a case-by-case basis, to
further reduce the proposed penalty.4
6. Other factors at justice may
require. While two "other factors" have
been incorporated as adjustment
factors, other issues might arise, on a
case-by-case basis, which should be
considered in assessing penalties.
Among these factors are:
• Money spent by the violator in
cleaning up or otherwise mitigation the
harm caused by the violation. Normally
there should be no reduction for these ¦
costs, since it is part of the cost of
violation. However, there may be
instances where the cost of penalty, plus
cost of cleanup, are excessive for the
particular violation, so that some credit
for these expenditures should be given.
• New ownership for "history of
violations." It may be unfair in some
cases to burden new ownership with the
previous owner's history.
• National defense.
• Foreign policy.
• Conflict or ambiguity vis-a-vis other
Federal statutes and regulations (e.g.,
OSKA. USDA. DOE).
• Environmentally beneficial
expenditure. Circumstances may arise
where a violator will offer to make
expenditures for environmentally
beneficial purposes above and beyond
those required by law, in lieu of paying
civil penalties. The Agtr.cy, in Density
actions in the U.S. District Courts under
the Clean Air and Water Acts, has
determined that crediting such
expenditures is consistent with the
purpose of civil penalty assessment
Although civil penalties under TSCA are
administratively assessed, the same
•The analyst muat keep several particular points
In mind. Fine, (mall rims cftan report no laxaole
income, and instead provide a returs of their
owner/operators through salaries and benefits such
as automobiles, medical plans, and io forth. When
reconstructing the first's cash flow, owner/
operators should receive as payment .'cr services
or.'.y that amount which they could obtaia for
providing similar services in the ceneral labor
market. The rest of their compensation should
properly be assigned to profit for the company. The
second point to keep in nund in examining tag
returns ts that smaiL pnvatoly-owned plants often
have several corporations set up to handle various
aspects of the business. U one crmore of these
corporations is culpable for son-.e part of the 73CA
violation, the tax returns for ail involved
corporations should be txamined and a combined
cash flow prepared. Once the firm's historical cash
Rows have been assembled, tne analyst must rum
some assessment of the likely iuiure path o/ the
company. In so doina. the analyst must consider the
firm s ability to earn euh ira.-n.its operations, its
ability to liquidate assets to meet penalty amounts
(and itill remain in business), and its ability to raise
additional cash from lenders and its owners. The
analyst must judge these factors without expensing
excessive resources on the analysis. Such a process
can be assisted through discussions with
tsiiuiduxaknuvviiidjkuble in thi particular
industry, stteh as local bankrrs. consultants, and
others, it appropriate.
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Federal Register / Vol. 45. No. 177 / Wednesday, September 10. 19R0 / Notices
rational applies. This adjustment, which
constitutes a credit against the actual
penalty amount, will normally be
discussed only in the course of
settlement negotiations. The criteria for
acceptable credits are discussed in
detail in section VIII of the April 11.1978
Civil Penalty Policy. Before proposed
credit amounts can be incorporated into
a settlement, the complainant must
assure himself that the penalty (with
credit adjustment) is consistent with the
April 11, 1973. Civil Penalty Policy, and
that the company has not already
received credits in another enforcement
action for the same environmentally
beneficial expenditures. The settlement
agreement incorporating such an
adjustment should make clear what the
actual penalty assessment is, after
which the terms of the reduction should
be spelled out in detail and in a clearly
enforceable manner.
• Significant-minor borderline
violations. Occasionally a violation,
while of significant extent, will be so
close to the borderline separating minor
and signflcant violations that the
penalty may seem disproportionately
high. In this situation, additional
reduction of up to 25S off the GEP may
be applied before the other adjustment
factor are considered.
Continuing Violations
Since the Act provides not only that
civil penalties may be assessed up to
S23.000 for each violation, but that each
day a violation continues constitutes a
separate violation for which additional
penalties may be assessed, there is a
potential for very large penalties to be
assessed in many situations. In some
cases, such large penalties will be
appropriate for continuing violations,
while for others, such as late inventory
reporting, assessing an additional
penalty for each day of violation would
yield a penalty assessment for greater
than the violation merits. The specific
penalty guidelines will discuss the types
of continuing violations which should be
assessed on a per-day basis. This
discussion should indicate how criteria
such as this will be applied, e.g.. which
continuing violations should never be
penalized on a per-day basis, and which
should usually or always be so
penalized.
When a penalty is assessed on a per-
day basis for a continuing violation,
care must be taken to assure that the
adjustment factors, "government clean
up costs", and "economic benefits from
non-compliance" are spread over the
entire penalty, since these figures are
calculated by looking at the entire
violative situation. For example, if a
continuing violation lasted four days
and generated S40.000 in government
clean-up costs, these S-40.000 in costs
should be added to the daily penalties
(although each day would stiil be limited
to a maximum S25.0CQ penalty).
Continuing violations are
distinguished from multiple violations
and violations which occur several
separate times. These latter violations
will generally be separately assessed.
Settlement
This guidance does not prescribe a
specific percentage guideline for penalty
reductions ia the course of settlement
While, as a general rule, penalties nay
be altered in the course of settlement
there should always be some
substantive reason given, which is to be
incorporated in any settlement
agreement and consent decree and final
order for any penalty reduction. Other
aspects of settlement are discussed in
the context of particular penalty factors.
Designing and Applying a Specific
Penalty Guidance
Designing a Specific Penalty Guidance
The specific penalty guidar.ee. which
will usually be developed as part of the
enforcement strategy for a particular
regulation, will provide the detailed
information needed to fit particular
violations in the overall civil penalty
system. Each specific penalty guidance
will address:
• To the extent possible, the types of
violations that can occur
• How to evaluate the nature (i.e.. whether
chemicai control; or information gathering) of
a violation:
• How to determine and classify the extent
of possible harm posed by a given violations;
• Special considerations in using the
adjustment factors, particularly including
meant of estimating government clean-up
costs and economic benefits from non-
compliance;
• How and when to utilize the concept of
multi-day violations;
• Any "oiher matters as justice may
require" which may particularly apply to the
given regulation; ar.d
• Anything else necessary to effectuate
enforcement of the regulation and the Act's
penalty poiicy.
Applying a Specific Penalty Guidance
This section briefly summarizes the
steps necessary to calculate a proposed
penalty assessment
Step 1; Utilizing the specific penalty
guidances, determine the nature, extent, and
circumstances of the violation.
Step 2: Find the appropriate extent and
circumstances levels on the gravity based
penalty matrix to diamine the gravity based
penalty (C8P).
Step 3; Dctcrm:r.e the pcrccr.uje
adjustment fur cuipauiiity, if any.
Step 4; Determine the percentage
adjustment for history, if any.
Step 5; Add she adjustment percentases
from steps 3 and 4 and apply the CDP. If the
amount is tn excess of S25.00G, reduce the
penalty to S23.GCO.
Step & Multiply the step 5 figure by the
number of days of violation.
Step 7: Apply government cleanup costs
adjustment, if applicable. Add to the step 8
figure.
Step 8: Apply economic gains from non-
compliance adjustment, if applicable. Add to
the step 8 figure.
Step 9°. Make other adjustments "as justice
may require."
Step 13: Issue formal complaint proposing
the penalty.
Step 11; Discuss settlement any time before
a final administrative law judge's decision
(unless the complaint is not contested and
becomes final as a matter of law). If
applicable, determine violator's ability to
pay. Lf appropri jt2. reduce penalty to amount
violator can a/ford to pay. Per.al::es may be
reduced as a condition of settlement.
Step 12: Issue Final order.
Civil Penalty Assessment Worksheet
Name of Respondent: ¦¦
Address of Respondent: : —>—¦
(1) Complaint I.D. Number. ¦
(2) Date Complaint Issued: •
(3) Date Answer Received: -
4j Date Default Order Sent: -
.5) Date Consent Agreement Signed: ¦ ¦¦ ¦¦ ¦
(6) Date Final Ordjr 3*r.t: ¦
(7) Date Remittance Received: ________
1. Gravity Based Penalty [CSP) from
matrix, S .
2. Percent increase or decrease for
culpability. 5——.
3. Percent increase for violation history,
4. Add lines 2 and 3.
5. Multiply CBP by percentage total on line
8. Add lines 1 ar.d 5 (subtract line S from
line l if negative percentage). 5
7. Enter line 8 amount or 523.000, whichever
is less. S '
8. Multiply line 7 by '.he number of days of
violation, S-—.
9. Government clean-up costs, if any. 5
10. Economic gains ;'rom non-compliance, if
appropriate. S—.
11. Add lines 8 through 10. S
12. Total of other aojusunenu as justice
may require. S .
13. If lir.s 12 represaws a net incresss to
the penalty add iine 12 to line 11. 3 .
or
If line 12 represents a net decease to the
penalty subtract line 12 from line l.S ¦ ¦ .
Note.—Line 13 should be the proposed
penalty for a given violation. This procedure
is repeated for each violation.
PCB Penalty Policy
Introduction
Background
On March 10, i<>*0. th? Aconcv issucfi
a TSCA Civ J Tenuity Poiisy
memorandum. That document
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59777
implements a system for determining
penalties in administrative actions
t pursuant to Section 16 of the
'! Substance Control Act t'TSCA).
v—«Tr that system, penalties are
determined in two stages: (1)
Determination of a "gravity based
penaity" (G3P), ar.d (2) adjustments to
Lie gravity based penalty.
To determine the gravity based
penalty, the following factors affecting a
violation's gravity are considered:
• The "nature" of the violation.
• The "extent" of environmental harm that
could result from a given violation, and
• The "circumstances" of the notation.
These factors are incorporated on a
matrix which allows determination of
the appropriate gravity based penalty.
Once the gravity based penalty has
been determined, upward or downward
adjustments to the penalty amount are
made in consideration of these other
factors:
• Culpability,
• History of such nolationSj
• Ability to pay.
¦ Ability to continue in business, and
• Such other matters as justice may
require.
The TSCA Civil Penalty Policy system
provides a framework for the
^•Miopment of individual penalty
v aces for each rule promulgated
¦\ j: TSCA. This document sets forth
Agency policy for the use o£ the-GBP
Matrix to assess penalties for specific
violations of the regulations regarding
polychlorinated biphenyls (PC3s). These
regulations asoear at 43 FR 7150 (Feb.
17,1973) and 44 FR 31514 (May 31.1979).
Tne document also will explain where
multiple violations should be charged,
and how penalties should be determined
for such violations.
This policy is being issued as an
interim guidance for the determination
of penalties for violations of the PC3
regulations. The Agency will review its
experience with this policy before
issuing a final penalty policy for the PCB
rule. The final policy will also address
any special considerations which the
Agency decides, should be used to apply
the adjustment factors (e.g.. removing
benefits from non-compliance.)
A summary of the policy appears
immediately below the applicability
section. That summary is followed by a
detailed explanation of the policy.
Applicability
This policy is immediately applicable
and should be used to calculate
penalties for all administrative actions
concerning PCBs instituted after the
date of the policy, regardless of the date
of violation. Pending cases should be
reviewed to determine whether the
penalty calculated under this policy is
lower than the penalty in the civil
complaint. If this policy yields a lower
penalty, an amendment to the complaint
should be made to substitute the lower
penalty. Thispolicy should not be used
to raise penalties in existing actions. No
case should be settled for an amount
higher than the penalty which this policy
would yield.
Summary of the Policy
The gravity based penalty (GBP),
based on the nature, extent, and
circumstances of the violation, is found
from the following matrix:
Ttbi* I
bam of potential dam«9«
a e c
Mtfor Sqnrieam
Q*o*i*ano»» ipvoto*tr 9* aanngtr.
Hp* ranqm
U4 rv*9»_
1
125.000
S17.000
55 000
2
20.000
12.000
3.000
3
15.000
10.000
1.S00
4
10.000
9.000
1.000
5
5.000
3.000
500
•
2.000
1J00
200
Since the purpose of the PCB
, regulation is to prevent additional PCBs
from entering the environment, all
violations of it are chemical control
violations by nature. Thus, the nature is
the same for ail violations. To use the
jfQp matrix to determine a penalty for a
I violation, it is necessary to
* ermine the extent and circumstances
of each violation.
Extent
The extent is determined by the.
amount and concentration ot the PC3
material involved. The total weiqht of
PCB material should be ascertained for
each violation of the rule. That weight
should then be reduced, depending on
the concentration, as follows:
Table n
Concentration Reductions
(1) 50—199 ppm—70% reduction.
(2) SOO-9.9S9 ppm—30~j reduction.
(3) 10,000-99.999 ppm—:C^ reduction.
(4) over 100.000 ppm—noTeduction.
Exceptions: This reduction step does
not apply in the following
circumstances:
(i) Violations of 40 CF?. 761.10(d) (road
oiling, coating, dust control):
(:i) Where the violation consists of failing
to test to qualify for an authorization; or
(iii) For soiids, where the unit of
measurement is other than the actual weight
Extent categories: The total weight ¦
figures, reduced by the concentration, if
applicable, are used to determine extent,
as follows:
Table in
(A) Major—5000 kg. or more.
(B) Significant—1000 kj. more, but less
than 5GOO kg.
(C) Minor—less than 100-3 kg.
Alternative measures: If weight is not
available, use these alternative
measures:
Table rv
(A) Major
Liquid
(a) 1100 gallons or more, or
fo) a contaminated area of 750 square feet
or more, or
(c) 3QO or more large capacitors.
Non-liquid
(a) 100 or more fifty-five gallon drams
containing contaminated soil. mgs. debris or
small capacitors: or
(b) 25 or more drained transformers, or 100
or more empty drums which or.ee contained
PCB fluid, or any other PCS soiids having a
volume of 750 cubic feet or more.
(E) Significant
Liquids
(a) 220 gallons or more but less than 1100
gallons, or
(b) A contaiminated area of 153 square feet
or greater, but less than 750 square ieet. or
(c) 60 large capacitors or more, but less
than 300 large capacitors.
Non-liquids
(a) 20 or more, but less than 100 fifty-five
gallon drums containing contaminated soil,
rags, debris or small capacitors.
(b) 3 or more, but less man J5. drained
transformers, or more than 20. but less than
100. empty drums which once contained PCB
fluids, or any other solid having a volume of
150 or more, but less than 750 cubic feet
(CI Minor:
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Federal Register / Vol. 45. No. 177 / Wednesday, September 10, 1980 / Notices
Liquids
(i") Lei* than —0 gallant, or
(b) A contaminated area of less than 150
square feet.
(cj Leas than SO large capacitors.
Sort-liquids
(a) Less than ;0 fifty-five gallon durms
containing contaminated soil, rags, debris or
smail capacitors; or
(b) Less Wan 5 drained transformers. 20
fifty-five gallon drums which previously
contained PCB fluids, or any other PC3 solid
haviog a volume of approximately 150 cubic
feet
Spills into water, food or feeds. Any
PCB disposal which results in
contamination of surface or ground
water, or food or feeds is always major
in extent.
Circumstances (Probability for Damage)
To determine which level on the
circumstances axis to use. classify each
violation of the regulation into one of
these eight categories of violation:
(1) Disposal
(2) Marking
(3) Storage
(4) Manufacturing
(5) Processing
(6) Distribution
(7) Us.
(8) Recordkeeping
After classifying the violations,
determine the level on the
circumstances axis from the following
chart:
Table V
High range:
Level one:
[1] Improper disposal
(2) Manufacturing
Level two:
(1) Processing.
(2) Distribution.
(3) Improper use.
Medium range:
Level three:
(1) Major storage violation!.
(2) Major recordkeeping violations,
disposal facilities.
(3) Major marking violations.
Level four:
(1} Major recordkeeping violations, use and
storage facilities.
Low range:
Level five:
(1) Failure to date PCB items placed in
storage.
(2) Minor storage violations.
(3) Minor marking violations.
Level six:
(1) Minor recordkeeping violations.
(2) Failure to use "No PC3s" laole as
.-quired.
Finding the GBP penalty. The extent
and circumstances, as determined
above, will determine a penalty amount
on the GBP Matrix. Table L This figure
should be entered on line one (1) of the
Civil Penalty Assessment Worksheet,
(hereinafter, "worksheet") attached as
Appendix A. The other penalty factors,
such as culpability, ability to pay. and
others, should be applied in the manner
described in the TSCA Civil Penalty
Policy.
Multiple Violations
Assess multiple violations against a
single violator in any of the following
circumstances:
(1) The violations fall into more than one
violation category;
(2) The violations are in substantially
different locations: or
(3) There ia evidence that the violation has
been committed on repeated occasions or has
continued for more than one day.
If multiple violations are charged
because of evidence of repeated or
continuing conditions, the penalty will
normally be calculated using the
proportional penalty calculation, which
appears in Table VI, below. However,
the Agency can exercise its discretion
either to charge for only one day, or to
charge on a straight per day or per.
•violation basis (GBP X number of days
or violations], depending on factors such
as substantial actual harm, the unusual .
nature of risk presented, or other unique
circumstances.
Table VI
Proportional Penalty Calculation
Step 1: Find the total amount of PCB
material* involved. If more than two times
the major extent category, (more than 10.000
kg.) go to step 2. If less than two times the
minimum amount in the major extent
category (less than 10.000 kg.), use this
amount to get a penalty from the G5? Matrix.
Divide the penalty by the number of days 1
and enter on line one of the worksheet
(Appendix A).
Step 2: Divide the amount from step one by
the minimum amount in the major extent
category (5G0O kg]. (Round fractions to one
decimal place.)
Step 3: Multiply the amount form step two
by the dollar smount from the GBP Martix
major extent category. This is the total GBP
charged.
Step 4: Divide the amount from step 3 by
the number of days or violations involved.
Enter this daily amount on line one of the
worksheet (Appendix A).
Explanation of Policy
Nature
Since the purpose of the PCS
regulation is to prevent further
introduction of PCBs into the
environment, this regulation is a
' It should be soled that if the proportional
penalty calculation is based on repealed violations,
then the calculation at line J of the worksheet
should represent the number ot violiUons rather
than the number of days.
chemical control regulation, as defined
by the TSCA Civil Penalty Policy.
Accordingly, most violations of this
regulation are chemical control
violations. The only exception would be
violations of the recordkeeping
requirements, which are control-
associated data-gathering in nature. The
Agency has taken this into account in
designing a specific policy for PCB
penalties. The definitions of the "extent"
and "circumstances" categories below
reflect the nature of these violations.
Extent
Because the PCB regulations are
chemical control and control-associated
data-gathering in nature, the greater the
amount of PCB containing material
(hereinafter. "PCS material") involved in
a particular violation, the more likely it
is that harm will result from the
violation of the PCB rules. For this
reason, the amount of PCB material1
involved in a particular incident will
determine whether the major,
significant, or minor extent category
should be used in deriving a penalty
from the GBP Matrix. SLr.ce the
concentration of the PCB material
involved in an incident will also affect
the potential for harm, this factor must
also be considered in determining which
extent category is applicable to a
particular violation.
Amount of Material Involved
The most obvious measure of the
amount of PCS material involved in a
violation is weight. Therefore, the
weight of the PCB material involved in a
violation is the primary determinant of
the extent category to be used to find
the GBP. To be consistent with the three
extent categories of the GBP Matrix (i.e.
major, significant and minor), three
weight classes have been chosen to
define the extent of a PCB violation.
These classes are as follows:
(A) Major: 2000 kilograms or more.
(B) Significant: Between 1000 end 5000
kilograms.
(C) Minor. Less than 1000 kilograms.
The minor category weight was
defined as less than 1000 kilograms
because this is slightiy less than the
amount of PCBs in an average
transformer. Since a major portion of the
PCBs in existence are in transformers, it
is essential that these items be disposed
of properly. Accordingly, the Agency
defined the minor category as an
amount of PCBs less than the contents
of an average transformer, so that most
transformers would fall in the significant,
category. The Agency believes this will
encourage the proper disposal of
transformers.
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Federal Register / Vol. 45. \o. 177 / Wodnosr.'.-iv. S^nl^mber 10. 1980 / N'otices
30770
The rr.aior catescrv weight was
^eiected a: 30 kg. kilograms. This is
W 'ghtiy less ;han the contents of five
-erase size transformers, and
"corresponds to the fact that the penalty
for a major improper disposai is five
limes larger than that for a minor
improper disposai; that is. 3^5.000 versus
S3.000. (As wiil be seen below, improper
disposal is always level one on the
circumstances axis.) The significant
category is defined as l.OCO 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 Then Weight
The Agency realizes that there will be
situations where the number of
kilograms of PCBs involved is not easily
determined. In many cases, other units
of measurement (e.g. gallons, cubic feet,
etc.) may be more easily obtained.
Additionally, some violations will
involve non-liquid PC3. material, usually
as a result of liquid PCBs being spilled
into or cleaned up by absorbent soiid
materials. Such solids will often weigh
considerably more than liquid PCBs. If
the penalty for such solids were based
on the weight categories outlined above.
JA£ result, in the Agency's opinion.
™ ild be inequitable.
.^ or these reasons, the Agency has
decided to define each of the three
extent categories by several different
units of measurement Although these
units of measurement are not
necessarily equai. it is the Agency's
opinion that they are generally
comparable.
(A) Major
Liquid
(a) 1100 gallons or more, or
fb) A contaminated area of 730 square feet
or more, or
(cj 300 or mor« large capacitors
h'on-iiqiud
(a) 100 or more fifty-five gallon drums
containing contaminated soil, rags, debris or
small capacitors, or
!'o) 25 or more drained transformers, or 100
or more empty :i:':y-five gallon drums which
once contained PCS fluid, or any other PC3
soiid having a voiume of 730 cubic feet or
more.
fE) Significant
Liquids
[aJ 220 gallons or more, but less than 1.100
ns. cr
A contaminaitd area of ISO jcuare feet
-ater. but lest than 750 square feet, or
ic) 60 large capacitors or more, but less
ftan 300 large capacitors.
Non-iiquids
(a) CO or more but less than inn. fifty-five
gallon drums containing ccntaminaied soil,
razs. debr.s or small c;ipdci:r)rs.
(b) 5 or more, but less man 25. drained
transformers: cr more than 20. but less than
100. empty fifty-five gallon drums which once
contained PC3 fluids, or any oiher solid
having a volume oi 150. but less than 750,
cubic feet.
(c) Minor
Liquids
Less than 220 gallons, or
(b) A contaminated area of less then 150
square feet, or
(c) Less than 60 large capacitors.
Non-liquids
(a) Less than 20 fifty-five gailon drums
containing contaminated soil. rags, debris or
small capacitors: or
(b) Less than 5 drained transformers. 20
fifty-five gallon drums which previously
contained" PCB's fluids, or any other PC3
solid having a volume of approximately ISO
cubic feet
The figures above are based on the
assumption that tne'densityof 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 large capacitors.
Because it is often difficult to
determine the amount of PC3's in a
solid, the Agency did not attempt to
define the extent categories for soiids by
trying to estimate how much solid PC3
material had the same amount of PCB's
as the average PCB transformer. Instead,
the Agency tried to maintain the same
economic incentives for soiids as for
liquids. Thus, the decision to make 20
drums the cut off point for the upper
limit of the minor category is based on
an estimate that the cost of disposing of
twenty 55 gallon drums, either empty cr
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 ?C3's
may result in ISO gallons weighing as
-little as S00 kilograms. Using the gailon
measurements, this would be a
significant violation: but using the
kilogram measurement, this would be a
minor violation. In such instances, the
penalty should be bused on the category
determined by the actual weight, in
kilograms, of the material involved, if
this information is known. If the weieht
is not known, the gallon measure should
be used.
Exceptions to Extent Category
Spills into water. Where any improper
disposal results in a contamination of
surface or ground water, the extent will'
always be considered major. Since it is
virtually impossible to remove all PCB's
from surface or ground water once a
spill occurs, environmental harm is
almost assured. Because of this ciean-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.
Spills into food and feed. Where any
improper disposal results directly in
contamination of food or feed, the
extent is always major. If such spills are
not quickly detected, they wiil result in
direct human exposure. Even if the
problem is detected before humans eat
the contaminated fcod. it isiikeiy that
the cost of finding and destroying the
contaminated products will be high.
Thus, the Agency believes such
incidents should always be considered
major in extent.
Concentration A djust wen ts
The Agency recognizes that the
concentration of the PCB materials is a
relevant factor to consider in
determining 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 spill of low
concentration PCB's. Nonetheless,
because PC3's can be toxic at very low
concentrations, a spill of a lar^e amount
of low concentration PCB material could
cause widespread harm. Thus, a system
which would require 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-(pom). If. in
calculating ;r.e penaity, tne total weight
of the fluid was reduced by the direct
proportion cfthe concentration, less
than 1.000 kilograms of PCBs wouid be
involved for the purpose of calculating a
penalty. As a result, this incident wouid
be considered minor in extent, and the
violator would not be fined more than
55.000. A penalty as small as this would
not reflect the potential for harm to the
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59730
t-eaeral Kesjister / vol. 4o. .No. 1-7 / Wednesu;iy. beptemocr 10. maij / Notices
environment and would create an
enormous economic incentive for people
t^mproperly dispose of PCSs at low
¦'l^ientrattons. contrary to the intent of
_ emulations.
-~i'o account for the effect of the
concentration ot PCS liquids in
determining '.he extent of a violation,
ar.d at the same time establish a system
which does not severely hinder the
agency's program, the following system
has been developed. To determine the
extent of probable damage for a
particular viotation. the total amount of
PC3 material involved in an incident
should be reduced by the percentages
which appear below:
[t) 50-499 pom—7CTC reduction.
(2) 503-9.COO ppm—-50% reduction.
(3110.000-99.S99 ppm—20% reduction.
(4) lOC.OOO ppm or above—no reduction.
Thus, in the hypothetical quoted
above, where 2.000.000 lbs. of PCB fluid
at a concentration of 1.000 ppm was
•disposed of. the total amount would be
reduced by 5G%. Thus, the amount of
fluids for determining the extent of the
probable harm would be 1.000.000 lbs..or
454.545 kilograms.
Exceptions to Concentration Adjustment
Calculation
These concentrations adjustment
factors are not used in the following
vLrcumstances:
'•Vests oil The use of waste oil that
contains detectable concentrations of
PCBs as a sealant, coating, or dust
control agent, which is prohibited by 40
CFR "01.10(dl. is one situation where the
concentration reduction would not
apply. The agency chose to prohibit
these uses whenever any detectable
level of PCBs were present because any
•such use of PC3s is likely to result in
widespread environmental and heaith
damage. Thus, allowing any reduction of
the amount of PC3s used by virtue of
low concentration would be contrary to
the regulatory scheme.
Failure to test. The concentration
reduction also does not apply where the
violation is the failure to test liquid
required to be tested: for example, the
contents of a heat transfer system that
has contained PCBs. 40 CFR 731.31(d)(1).
In such cases, the risk created by the
violation is that the fluid will be high
concentration PCBs. and that this
material wiil continue in use. Thus, the
Agency feels that these persons should
not obtain a fortuitous benefit when the
liquid is finally tested and found to be of
some lower concentration.
Alternative measure far solids.
Finally, the concentration adjustment
should not be used when the PCS
material is measured by one of the
alternative measures for solids which
appear in Tabie IV. These alternative
measures were chosen to maintain
economic incentives for proper disposal.
The cost of disposal of such materials i3
not dependent on the concentration of
the PCBs in them. Accordingly, to allow
adjustments for lower concentration
might remove the economic incentives to
dispose of these materials properly.
Circumstances
The other variable for determining a
penalty from the GBP Matrix is the
circumstances of the violation, aiso
called the probability of damages. The
TSCA Civil Penalty System established
three ranges of probability of damages,
high, medium, and low, Each of these
ranges in turn has two different levels,
for a total of six levels of probability of
damages.
Explanation of Categories
Because there are many ways the PCB
regulation can ba violated, and because
each of these violations couid occur in
so many different environmental
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 ail of-these factors
would interact in any particular
situation. For this reason, the Agency
believes it is appropriate -ttrgroup the
different types of PCB violations, assess
the probability for harm resulting from
each type of violation, and then assign _
that type of violation to one of the levels
on the circumstances axis of the GBP
Matrix.
For the purposes of assessing the
probability of damages from a particular
type of PC3 violation, all the possioie
violations of the PCD rule can be
grouped into eight categories, as follows:
(1) Disposal
(2) Marking
(3) Storage
(4) Manufacturing
(5) Processing
(6) Distributing
(7) Use
(S) Recordkeeping
Immediately below is a table assigning
the different categories of PC3
violations to the levels of srenabiiiiy of
damages on the G3P Matrix. After the
table, the reasons tor the assignment of
each category of violation to a level of
probability of damages is explained.
High Range
Laval one:
(II Improper disposal of PCSj. This
includes operating disposal facilities at
conditions which ot not meet the
requirements of the regulations, jt also
includes any uncontrolled discharge of PC3s.
e.g.. Leakaae frcrn a stored container.
(2) Manufacturing of PCBs without an
exemption or in violation of any condition of
an exemption.
Level two:
(1) Processing PCEs without an exemption
or in violation of any condition of an
exemption.
(2) Distribution in commerce of PCBs
without exemption or in violation of any
condition of an exemption.
(0) Imprscer use o"?C2s or using PCSs in
violation of any condition of authorisation.
For example, this inciudos removing a coil
from a PCB transformer for servicing, and the
failure to test a heat transfer system that
once contained PCBs.
Medium Range
Level three:
(1) Major storage violations. A major
storage violation means a situation where a
significant poriion of spilled material would
not be contained. Examples of such situations
are storage in ar«2S with no curbing, nan-,
continuous or no flooring. or unsealed floor
drains. Storage of PCSs m a area with
permeable flooring or curbing would aiso be
a maior storage violation.
. (2) N'o records or major record keeping
violations at disposal facilities, including nigh
efficiency boilers and landfills. Major record
keeping violations would include the failure
to keep data on incinerator operating
parameters.
(3) Major marking violations. A major
marking violation is a situation where there
is no indication :o someone who is unfamiliar
with the situation ;h»t PCBs are present.
Level four
(1) No records or major recordkeeping
violations at facilities that use or store PCSs.
Major recordkeeping violations would
include the absence of aata on PC3
transformers, and the aosence of records on
any transfer of PCBs from the site.
Low Range
Ls\'e! five:
(1) Failure to daie PCB items p'acea m
storage.
(2) Minor storage violations. Examples of
these are small cracks in wails, no roof, cr
small cracks in otherwise impervious fioor or
curbing.
(3) Minor marking violations. These are
situations in which all the requirements of the
rule hava not been followed, but there are
sufficient indications to notify someone
unfarnilar with the situation tnat PCBs are
present and enable them to identify PCB
items. An example would be the failure to
mark a transport vehicle containing PCB
items which are themselves marked.
Levfi s;x:
(1) Minor recordkeeping violations.
Examples of such violations are small errors
in :ne numbers of large capacitors, smaii
errors in number of containers, or the
omission of the date of transfer on PCBs.
(2) Failure to label small capacttcrs.
fluorescent light bailasts, or large low voltasre
capacitors w;tn a "no i'CBs" Libel as retired
by 40 CFR 761.20fg).
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Wednesday. Seotember 10. 19C0 / Notices
59781
i:3.~tc::on ;cr Assignment of Levels of
: /flfcT 0f D cm age
.v. s. This level contains the two
iai.vrrs v»h:ch '-is Agency considers
«st serious, manufacturing and
proper disposal. Manufacturing is
-err.eiy serious because it creates
v% ?C3s. Ln so corns, it enlarges the
in cf environmental and human
iposure. places additional burdens on
S20S31 facilities. and increases the
-St of protecting tne public from this
temical. Improper disposal creates
rave nsx3 of harm to the environment
t human health, because it assures the
nay of more PCBs into the
nviror.ment. This is contrary to the
nain thrust of the PCB regulation, which
vas to prevent further contamination of
he environment with PCBs. Thus, these
(delations are considered to be the most
serious, and provide the standard
against which the other PCB violations
are measured.
Level two. The violations which were
placed Ln level two on the G3P Matrix
were those which the Agency ^
considered to be the most likely to resuit
in improper disposal. For example,
processing or distribution of PC3s
without an exemption or in violation of
a condition cf an exemption is likely to
;n spillage, leakage, volatilization
.r uncontrolled discharges of
^—<»: Similarly, improper use of PC3s
will, at worst, result in PCB
contamination of a wide range of
products (as when they are used in a
leaking hydraulic system), or at best will
result in an increased risk of improper
cisposal.
Level three. This level includes major
storage violations, major recordkeeping
Eolations at disposal facilities, and
Kajor marking violations. The Agency
regards storage violations, such as the
lack of a floor, to be somewhat less
dangerous than the risk incurred by use.
processing, or distribution of PCBs
without an exemption. The latter are
very likely to result in improper
disposal. However, storage violations
will only cause damage where there is
an accident, or a leak, which probably
would be unintentional. Nonetheless, if
such events occurred, the possibility for
widespread contamination would be
high. *
The lac: of records, or inadequate
records, at disposal facilities similarly
does not present as severe a nsk of
improper disposal as processing of PC3s
without an exemption. However, such a
lation severely reduces the Agency's
ity to enforce the requirements of the
-filiation as they pertain to the
operators of such facilities. Accordingly,
the absence of adequate records at
these facilities removes a significant
incentive for compliance, thus
substantially increasing the risk of
improper disposal.
Major marking violations have been
defined as those situations where
someone investisating a situation would
not know that PCBs were present or
would be unable to tell which items
contained PCBs. Such a situation creates
a high risk of improper disposal.
However, if the otner portions of the
PCB regulation are observed, records
would be kept on PCB materials,
thereby creating at least some chance
that improper disposal would not occur.
For this reason, this violation is not
considered as risky as improper use or
distribution. However, where major
marking is associated with other
violations, such as recordkeeping, the
increased risk will be reflected by an
additional penalty.
Level four. Level four includes major
recordkeeping violations at facilities
thatuse or s_tpre PCBs. Major
recordkeeprng^fiota tions at taeiiities
that use or store PCBs present a
somewhat lower risk than major
recordkeeping violations at disposal
facilities. Since these facilities do not
themseives dispose of the PCBs. there is
a greater chance that the PCBs will be
fdentified as such before they are
actually disposed of. However, the fact
.i substantially
aciuauy uu^uscu w**
that these violations substantially,
hinder the Agency's ability to trace the
movement of PCB's means that they
make improper disposal mare likely. For
tnis reason, the Agency considers this
violation to be significant.
Level five. Included in this category
are the failure to date PCB items placed
in storage, minor storage violations, and
minor marking violations. The failure to ._
date PCB items placed in storage simply
means that the items may be stored
longer than is presently permitted by the
rule. Assuming these items are
otherwise treated in accordance with
the rule, the lengthy storage will simply
increase, by a small amount, the risk of
an accidental spill. Similarly, minor
marking violations are. by definition. .
violations where there is sufficient
marking to alert someone investigating
the situation that there are PCBs
present. Thus, the likely ill effect of such
violations is simpiy that, in emergency
situations, the length of time.required to
discover the presence of PCBs might be
increased somewhat. This should not
significantly increase the amount of
damage done. Finally, minor storage
violations are those in which any spiiled
material will be substantially contained.
Thus, the amount of damage tfcalcould
result from such violations would be
relatively small.
Level six. Level six represents those
violations which the Ager.cy believes
pose the least risk of causing harm. It
includes oniy minor recordkeeping
violations, anc failure to label with the
"no PCEs" mark. In the case of minor
recordkeeping violations, such
violations, although they might make
enforcement somewhat more difficult,
shouid not seriousi> impair :he Agency's
enforcement efforts. The failure to label
with the "no PCS" mark will only result
in the disposal of certain items more
carefully than necessary, thereby
increasing the cost of compliance with
the regulation.
The risk to the 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 wcuid probably be
anxious to obtain equipment bearing
such a label.
Using the C3P Matrix Tj Find a PCS
Penalty
In order to determine a penalty fcr a
specific PCB violation, the following
steps should be followed:
Steo 1: Determine whic" calecory of
violation is involved li.e.. disposal, marking,
storage, m»auiacUi/LiE. processing and
distribution, use. or recordkeeping). If more
than one violation category is involved,
repeat the calculation in steps 2 through 8 for
each violation category.
Step 2: Find which level the v'oljtion liis
on the circumstances axis ot the OEP V.atv.x.
Step 3: Calculate the iota! amount of PCSs
invoiiL»d_in the violation. If there are several
materials involved which fail into different
concentration ranees, do a separate
calculation lor each concentration.
- -"Step 4: Reduce the amounts in step 3 by the
concentration adjustment. (Be sure to note
the exceptions to this stcn).
Step 5: If different conceniraiion ranges are
present, add up the figures, from step 4.
Step & Determine which extent cattaory
(major, significant, or minor! is applicable to
the amount from step 5.
Step 7: Use the level from step 2 and the
extent from step 6 to locate the penalty on the
GBP Matrix (E.g., Level 3, significant is
S10.000).
Step 8: Enter the amount from step " on line
1 of the Civil Penalty Assessment worxsheet
attached to ir.e 7SCA C.vil jVnaity ?ou.iv.
Use that worksheet to complete the
calculation of the penally accounting /or
factors such as cuipaoiiity. history of
violations, etc.
Example
An inspection of X Company reveals
that the following items are ail stored
for disposal ir. a room with an earthpr,
. floor
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33782
Federal Re^ster / Vol. 45. No. 177 / Wednesday. Sr?Dtember 10. 1930 / Notices
; trans/cmers
,^capac:;o a
il thr?o cacar.tors h ive name plates
-It show that they contain high
concentration PCBs and have a volume
of 30 gallons eacn. One transformer
contains 300 gallons, and is tested at
1000 ppm. The second transformer
contains 500 gallons, and is tested at
6-t% PCBs. It is leaking, and X's general
foreman says '.hat about ZO gallons have
leaked. The equipment is marked, and X
has records on -.h:s equipment. Assume
the density of all fluids is 10 lbs/gal.
Step 1: Determme tie categories of
violation.
These are:
Disposal
Storage
Because there are two categories, a
calculation is needed for each.
Disposal
Step 2: Find the "circumstances" level. Vait
is level one. for cisoosai.
Step 3: Find the total amount involved.
Total disposal: 20 gallons .
20 gal. X 10 Its - 200 lbs.
gal.
200 lbs. X .45 kc• 90 kg.
Step 4: Make concentration adjustment
No reduction far FCSs over 1(30.000
ppm. which u what was spiiied.
Step 5: Not applicable.
Step 6; Determine extent category.
90 kg. » Minor
Step 7: Find penalty from matrix.
L«vel one j- Minor «¦ S5.000
Step 8: Enter S5.Q00 or line 1 of the
wormneet (Acpendix A)
Storage
Step 2: Find "circumstances" level.
Major storage (permeable Hoor) is
level 3.
Siep 3: Find total amount involved.
<*l 0»»f ICS,000 ppai
1 t SCO til.
1 ei;.:is9:i ! :: t<:.
500
rii 1*1.
S'o 1*1. X 10 IS. I .45 £*.•
til. 1st
J»J3 tf. en: 1C0.0C0 p?«
tbj sce-io.aoo pp«r
! WMi!i:a( ~ 36!
JOO 1*1. K it lb. X .4} • 1350 «j.
-------
Federal Register / Vol. 43. N'o. ITT / Wednesday. September 10. I960 / Notices
39783
violation would also cause undesirable
fi'ects- Someone who stored an intact
trar.sfoner improperly for 30 days
^¦jid be liacie for S300.000. This
^ airy, in the absence of aggravating
^.-cumstances. seems excessive.
For these reasons, the Ajency has
jeveloped the "proportional penalty
calculation", which is explained in
detail below. This calculation should be
used whenever there is evidence of
ccntmuir.g violations, or repeated
violations which ar° part of a single
course of conduct. Except in unusual
circumstances, this calculation will yield
the penalty to be charged for such
repeated or continuing violations. The
effect of this calculation is that the
penalty is multiplied for repeated or
continuing violations where substantial
amounts of PC3s are involved. The
magnitude of the multiplication is
proportional to the amount of material
involved, subject to the limitation of
S25.COO per cay.' the Agency believes it
:s appropriate that the very large
penalties that can result from continuing
or repeated violations be assessed in
'-lose situations where large amounts of
PCBs are involved.
Nonetheless, the Agency realizes that
tnere nay be situations where no
fflultipie penalties are appropriate, or
where the violation merits a penalty
calculated by multiplying the G5P
^ aity directly by the number of days
•icidents involved. Accordingly, the
• -gency reserves the discretion to assess
Penalties for repeated or continuing
Eolations without regard to the
proportional penalty calculation.
The Agency expects that, in most
cases, the penalty for repeated or
continuing violations wiil be computed
use of the proportional penalty
calculation. The discretion to assess
Penalties more or less than the
Proportional penalty can be exercised
under the following circumstances:
* Where substantial actual haras has
occurred as a result of the violation:
. * Where the unusual circumstances of this
Rotation give rise to extraordinary risks-to
environment or
* Other types of highly unusual
^^Jmstances.
, The decision to use this discretion
Jnould only be made after consultations
*ith Headquarters personnel in whicn
the reasons for this exercise are
e*piained in detail.
^xpiancucn of the Proportional Penalty
. Tne proportional penalty is calculated
'R the following manner
_Step i; Calculate the total amount of
involved in the situation, reduced
¦e concentration adjustment. Using
-w example an individual who
processes 20 gallons of PCBs for 200
days, the total amount is 4.000 gallons
(assuming the concentration is jreater
than 100.000 ppm). If two 50 gallon
capacitors are stored improperly for CO
days, the amount involved is 100
gallons.
Step 1- If the amount from step 1 is
less than two times the major extent
category (10.000 kg. or 2.200 sallons), use
this amount to determine the extent
category and obtain a penalty from the
GBP Matrix. For example, the penalty
for the two capacitors improperly stored
for 20 days wouid be SI.500. Twenty
counts would be charged, at a penalty of
Sl.500/20 days or S75 per day. If the
amount from step 1 is greater than 2
times the extent category, proceed to
step 3.
Step 3: Divide the total amount from
step 1 by the major extent category limit
(e.g., 5.000 @ kg. or 1.100 gallons).
Multiply the result by the amount in the
major penalty category. This yields the
proportional penalty. Using the example
of the individual who processes 20
gallons of PCBs per day for 200 days, the
calculation goes as follows:
Amount frorn Step 1 —4,000 gal.
4.000 QALalfl.
. 1.100 QtL
I P«re«ni meraasa tor *0*400* rwiiory-—. %
4 aod i*** 2 anc 3 s
5. MuTCiy G3P Oy parcamaqa total on nn# 4 $ ¦ ¦¦¦
6. Add « o<*e«ntag«)
7. £r.;#c »na 6 amount 9r $25,000. «ro> i
son.
9. Goverrf^em c*earv S ¦
proenaia.
11. Afld aft—.a mrr.$
12. Total ot otnar ad)C4tm«ra* as juaooa mar ra- .
qur«.
II If Ina 12 raor»s«nts a mcr**ts to tTw %
par\a/ty and tew 12 10 kn« ti-
er
H ima 12 raoraMJili a r*i everaaa# 20 5«rv %
any iuctnci v* 12 ttom uoa 1.
'Lma ',2 ir-owd ba tna oroocsao oarartv tor a gvan viola-
tion. Th« prpeaoura « reoaatac 'or «acn vto-awn.
frs Doe. *V-rT80 Flltd fl -13 afa|
8IUJMO COOE 4540-41-41
(1) Corroi.urv \.D N*:.r.b-r
(2) Date CompUirt Issued:
-------
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
November 16, 1983
OFFICE OF
PESTICIDES AND TOXIC SUBSTANCES
¦1EM0RANDUM
TO:
Mr and Waste Management Divisi on_D1rectors
Environmenta 1 Services Division Directors
Toxic Substances Branch Chiefs
SUBJECT: Settlement with Conditions
Attached is a copy of the guidance for the Toxic Substances
Control Act Settlement with Conditions. This document has_
been changed significantly from the draft which was circulated
for comment last year. The procedure for executing a Settlement
with Conditions is to first sign a routine Consent Agreement
and Final Order but to defer payment of the penalty until
sixty days after the issuance of a remittance order. A
remittance agreement is then negotiated between EPA and the
violator. This agreement details the actions which the
violator must complete (the Compliance Program and Schedule)
as conditions for remittance of all or part of the penalty.
When the Agency is satisfied that the conditions have been
met, then the Administrator or his delegatee will remit the
penalty by signing a remittance order.^ Under the previous
procedure, the Compliance Program and Schedule could not be
amended because ft was part of a final order signed by the
Regional Administrator. There was also some doubt as to
whether the final order would be legally final if it contained
conditions regarding the collection of the penalty. The new
procedure avoids those problems.
Delegation of the authority to remit penalties with
conditions will be part of the new delegations manual to
be issued in the near future. Under the proposed delegation,
the Administrator will delegate his authority in this area
to Regional Administrators and the Assistant Administrator
for Pesticides and Toxic Substances, who may then delegate
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- 2 -
their authority to the division director level. Of course,
the delegates will consult with Regional Counsel or the
Office of Enforcement and Compliance Monitoring. If a
case comes up in your Region before the new delegations
manual is ready, contact Headquarters so that the proper
interim arrangements can be made.
These procedures should be applied to all appropriate
violations of the Asbestos in Schools Rule. This guidance
is referenced on page 4 of the Enforcement Response Policy
for the Asbestos in Schools Rule where specific criteria
for its application to violation of that rule are given.
If you have any questions about this policy or its
application, call Pamela Harris of my staff at FTS-382-5567.
This guidance document should be used in its present form,
but will be revised as experience with it shows the need
for refinement.
A. E
Comp'
Office of I stances
Attachment
cc: Glenn Unterberger
Steve Leifer
Sanford Harvey
-------
November 15, 1983
TOXIC SUBSTANCES CONTROL ACT
SETTLEMENT WITH CONDITIONS
-------
SETTLEMENT WITH CONDITIONS
TABLE OF CONTENTS
Introduction f
Purpose and Background 1
Overview 2
'.¦Inen to Use an SHC 2
Initial Criteria 2
Other Considerations 4
Incentives 4
Elements of Settlement With Conditions 5
Complaint 5
Consent Agreement and Final Order 5
Remittance Agreement . . 6
Compliance Program and Schedule 6
Remittance Order 10
RolesandRelationships 11
Decision to Use SWC
Preparation and Issuance of Documents 12
Monitoring
Determi nation of Violation 13
Responses to Noncompliance with the SMC 14
Reinspection and Additional Enforcement Action 14
Appendi ces
A. Application of SWC Criteria to PCB Rule
B. Sample Documents
C. Penalty Remittance Worksheet
D. CPS Monitoring Sheet
-------
Int rodu c t ion
Purpose and Background
This document provides guidance for the settlement of adminis-
trative cases involving alleged violations of the Toxic Substances
Control Act (TSCA) through a settlement with conditions. Using this
kind of settlement, the Environmental Protection Agency (EPA) may
remit all or part of a penalty in exchange for specific remedial
action performed by the Respondent.
Sections 16 and 17 of TSCA provide the EPA with a choice of
remedies with which to respond to violations of section 15 of TSCA.
These remedies include civil administrative penalties, injunctive
relief, and criminal sanctions. In addition to these remedies, the
Agency uses nonstatutory notices of noncompliance to respond to minor
technical violations. These remedies are described in TSCA Level of
Action Guidance documents, which provide criteria to assist Regions in
selecting the appropriate remedy.
Section 16(a)(2)(A) of TSCA authorizes the Administrator to assess
civil penalties for violations of TSCA. Section 16(a)(2)(C) permits
the Administrator to comp romi s e, _ modi fy , or ^ remit!./, 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 "Settlement
with Conditions" (S WC ).
The purpose of the Settlement with Conditions is to enhance
the level of compliance where violations require complex remedies.
In exchange for the amount of the proposed civil penalty which
the Agency is to remit, the violator agrees to take extensive and
specific remedial actions. These actions must exceed those normally
expected under the circumstances, must be taken within a specific
time period and will be strictly monitored by the Agency. The
remedial actions may be related not only to the violations dis-
covered by the Agency, but also to other current violations as yet
undiscovered, or to deterrence of future violations. In addition
to remittance of the penalty, the Agency will also agree to refrain
from taking further enforcement action with respect to the specific
situations covered by the settlement agreement for the term of the
agreement and, as long as the company acts in good faith, to abide
by the conditions. At the end of the term, if the Agency is not
satisfied that -the conditions have been met, the full amount of the
penalty is due. The Agency may then elect to reinspect the facility
to document further violations or to take injunctive action to
remedy the•vio1 ation .
1/ The term "remit" is not defined in Section 3 or discussed
i n the legislative history of Section 16. It has, however, been
used in other Federal enforcement statutes. In these contexts its
meaning is to release from a penalty; to refrain from enforcing;
to refrain from exacting as a penalty; to forgive a penalty in
whole or in part.
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- 2 -
0 v e rv iew
An SWC is set forth in three documents: (1) a consent
agreement and consent order assessing an administrative civil
penalty according to Sections 16(a)(2)(A) and (B) and the Con-
solidated Rules of Practice, (2) a remittance agreement which
sets forth the conditions for Remittance (Compliance Program and
Schedule (CPS)) and (3) a Remittance Order.
The consent agreement and final order assesses a total
penalty and disposes of the proceeding. This document cannot
contain any conditions precedent to the assessment of the penalty
or it will not be considered a final order.
The remittance agreement sets forth the CPS, the completion
of which is a condition precedent to the remittance of all or part
of the penalty.
The remittance order formally remits the penalty (or portion
of the penalty) and is executed when the Agency is satisfied that
the Respondent has met the conditions outlined in the CPS. If the
Respondent has not satisfied the conditions, the order in forms him
that the payment of the previously assessed penalty is due.
When to Use an SWC
Initial Criteria .
Using an SWC requires a two-step process: First, a decision
must be made to choose an SWC as the appropriate remedy. This is
done by applying the criteria set forth in the first part of this
section. Second, once an SWC is selected, the amount of the penalty
to be remitted is determined by considering the factors set forth
in the second part of this section.
Settlements with Conditions should be employed with some
restraint. SWCs should not be used in a manner which encourages
industries to violate TSCA until they are discovered and then
offer to correct actions 1n hope of a remittance. Most CPSs will
describe actions which go beyond correction of violations . 2/
A Settlement with Conditions should be considered when non-
profit entities are found to be in violation of TSCA. Such
settlements allow the Agency to avoid increasing the burden
or> public service institutions and at the same time increase
the level of compliance and benefit the public. However, these
y It is important that the remittance agreement specify that the
remedial actions are performed in lieu of a civil penalty since this
prevents the company from deducting as a business expense the cost
of such actions and gaining an unwarranted income tax advantage.
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- 3 -
settlements should not 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 SWC; and
o An SWC acceptable to EPA can be negotiated.
Criteria for Determining the Penalty Amount to be Remitted
The amount of the proposed penalty to be remitted should be
determined by considering the following factors:
o The severity of the environmental contamination or health
risk associated with the violation; and
o The degree of good faith the violator has demonstrated in
his efforts to correct the problem; and
o The relationship of the proposed penalty to the estimated
clean up cost or other environmentally beneficial expendi-
ture; and
o The need for the authority of the Agency to be vindicated.
Appendix A of this document provides explicit application of
these criteria to the PCB rule (40 C.F.R. Part 761).
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- 4 -
Oth e r Considerations
Conparison with Section 17
The CPS portion of the SWC may impose performance require-
nents identical with those contained in an order for injunctive
relief obtained in federal district court under a Section 17 order.
Since such an action is more resource intensive than an SWC.1/,
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 ocenti ves
Although remedies exist to enforce adherence to an SWC, the
Agency should not enter into this type of settlement unless the
violator is clearly acting in good faith. The Agency expects the
violator to strictly adhere to the compliance program and schedule
contained in the settlement. The violator's incentives to comply
with an SWC should be ex-a-mined in the context of each case. Possible
incentives to the Respondent can include:
o The Respondent may use the SWC to demonstrate his good
faith commitment to take responsible remedial action
or as evidence that adequate remedial action has been
taken. Thus, the SWC would give the Respondent a
favorable position in suits that may be brought against it
by citizens or other governmental bodies for correction of
conditions covered by the SWC.
o The Respondent will benefit from EPA's promise not to
reinspect and bring civil penalty actions for each day of
a continuing violation covered under the SWC.
3/ Petitioning the Court requires the preparation of formal
documents with supporting briefs, and the active involvement of,
OLEC/RC, the Department of Justice, and the local U.S. Attorneys
Office. Similar steps must be taken to amend a Section 17 court
order, in contrast to the simpler procedure required to amend an
SWC .
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- 5 -
o -The Respondent may desire not to pay the remitted penalty
in addition to expenditures needed to achieve compliance.
o The Respondent may receive favorable publicity from performance
of the acts outlined in the compliance program and schedule.
Elements of Settlement with Conditions
An SVJC, like any Section 16 settlement, consists of a complaint
(40 C.F.R. §22.14) and a consent agreement and consent order (40
C.F.R. §22.18). It also includes a remittance agreement and a
remittance order. This part of the guidance describes the specific
language which must be incorporated into these documents to constitute
a SWC.
C omp 1 a i nt
A complaint alleging violations of TSCA and proposing a
civil penalty must be issued to establish the Agency's allegations
that violations have occurred and to initiate any SWC negotiations.
The complaint should be issued in the same format as in any TSCA
administrative civil penalty action. The content of the complaint
is prescribed by 40 C.F.R. §§22.14(a) & (e).
Consent Agreement and Final Order
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 orders/or "final
order" disposes of the administrativeproceeding and is signed by
the Regional Administrator or the Assistant Administrator for OPTS.
A sample consent agreement and final order appear in Appendix B.
The consent agreement and final order should consist of the
following elements:
Preliminary Statement
This part of the document states that a civil penalty is
assessed for specific violations of TSCA. The Respondent admits
the jurisdiction of the complaint and may admit or neither admit
nor deny the allegations. The Respondent also waives its right to
a hearing and consents to the issuance of a final order and payment
of a civil penalty.
£/ Unlike judicial consent decrees and consent orders filed in
Federal court, the Administrative Law Judge, unlike a federal judge,
does not 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)
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- 6 -
Findings of Fact
This section
lists the findings of fact as to each allegation
in the complaint.
Conclusions of Law
This section
contains conclusions of law which establish a
violation of TSCA.
Final Order
The final order contains the assessment of a final penalty
which is calculated based on the gravity based penalty matrix and
adjustment factors in the enforcement response policy or civil
penalty assessment guidance for the rule. A final order in an SWC
should contain a statement that indicates that payment of the
assessed penalty may be deferred until 60 days after the remittance
(or nonremittance) order. Such a procedure is permitted under 40
C.F.R. §22.31(b).
Remittance Agreement =
At any point in the negotiation of the consent agreement and
consent order or after the final order is signed, the EPA and the
Respondent may enter into a Remittance Agreement. Under this
agreement, EPA will agree to remit all or part of a penalty if the
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 in this document without affecting the consent agreement
and consent order. A sample remittance agreement appears in
Appendix B .
The most important part of the remittance agreement is the
commitment to the CPS. The CPS is referenced in the remittance
agreement and attached to it. An example of a CPS is appended to
this document in Appendix B.
Compliance Program and Schedule
General ly _____
The CPS details the steps the Respondent must take to remedy the
vio1 ations .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.
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- 7 -
Final Compliance
This section of the CPS should state that the goal of the CPS
is to bring all the Respondent's facilities subject to the CPS into
final compliance with the applicable TSCA regulation no later than
the date specified in the CPS for final compliance. The meaning
of final compliance should be set forth in this section, e.g., "all
of the Respondent's transformers shall contain PCBs in concentrations
less than 50 ppm no later than January 1 , 1.984 ." 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 unattainable in light of immediately available tech-
nology or present knowledge of the noncompliance problem; or (2)
cost, or safety risks which immediate imposition of the final
standard would require outweigh the continued environmental
risk presented by the ongoing violation. For example, necessary
equipment may not be available at the execution of the CPS. The
CPS can specify an interim standard (e.g., concentration of PCBs
in PC3 items such as transformers) which the Respondent must meet
prior to the final compliance date.
Timetables
Tho r Pe ,.h0lJid specify timetables for performing tasks necessary
The CPS p nuickly as is reasonable under the circum-
to achieve complia periods for accomplishing relevant milestones
effect i ve date of the consent agreement and consent order, or as
dly!; fillowfng the performance of some con Ingent 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
-------
- 8 -
be considered. Reporting should be required at least quarterly;
more frequent reporting should be considered where a CPS is parti-
cularly complex; however, reporting should not be so burdensome
that it distracts the Respondent's energies from the remedial task.
This section will also address issues such as site entry and document
review by the Agency both as authorized by Section 11 and to monitor
compliance with the CPS.
Notification of Technical or Operational Difficulty
The CPS should provide for prompt notification to EPA by the
Respondent of unexpected technical or operational difficulties
which compromise the Respondent's ability to meet a deadline.
Technical Assistance
There may be a provision requiring EPA to provide reasonable
technical assistance concerning such matters as sampling, analytical
procedures, and acceptable disposal options for the purpose of
complying with the agreement. This requirement is only appropriate
where innovative technology or procedures which are new or not
well established are part of the performance requirements.
Amendments to CPS
The remittance agreement should contain an amendment procedure
upon nutual consent of EPA and the Respondent. This provision
should clarify that the CPS may be amended at any time to modify
or add technical and operational requirements (such as, but not
limited to, deadline modifications necessitated by technical or
operational difficulties) if needed to achieve compliance by the
Respondent. Other specific circumstances for amendment may be
discussed (i.e., the occurrence of events beyond control of the
Respondent, but not including an increase in cost of compliance).
Any changes and/or amendment to the agreement will be deemed to be
incorporated into the agreement when it is signed by authorized
representatives of EPA and the Respondent.
Standing alone, the mere fact that the Respondent is going to
miss a deadline should not lead to an amendment. Simple failure to
comply, without more, calls for an enforcement response. Where,
however, the Respondent has made a good faith effort to comply with
a requirement, and (1) that requirement was arrived at by mutual
mistake, or (2)' a condition precedent to the requirement was not
fulfilled (through no fault of the Respondent) such that compliance
is impossible, the CPS should be amended.
In general the following are guidelines for granting extensions
or amendments:
o Extensions or amendments will be considered only in
circumstances which are entirely beyond the control of
the Respondent. Respondent may not claim economic
hardship or increased costs as circumstances beyond
its control.
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- 9 -
o The burden is on the Respondent to prove that events
requiring the extension or amendment are beyond its
control.
o The Respondent must notify the Agency immediately of
any need for extension or amendment of the CPS.
o The Respondent should take measures to prevent or
minimize the need for amendment or extension of the CPS.
o The events which trigger the extension or amendment
do not excuse the Respondent from ultimate compliance
with the CPS. Compliance should occur as quickly as
possible.
o Disputes concerning the need for extension or amendment
of the CPS may be resolved according to the procedures
described in the "Dispute Resolution" section.
Specificity and Clarity
To avoid controversy over whether the Respondent met any
requirement of the CPS, the performance requirements must be stated
in a manner which is capable of only one interpretation. For
example, rather than simply requiring the Respondent to prepare
a sampling plan, the CPS should set forth the component parts of
the plan such as sample volume, method of collection, and sample
handling procedures, and location of each sampling point.
Requirements should not be so detailed as to be unnecessarily
burdensome or to eliminate the Respondent's needed flexibility.
For example, it would normally not be necessary to specify the
type or brand of equipment necessary to perform certain construction-
related tasks. On the other hand, such specifications might be
necessary in the case of equipment to detect PCBs.
A CPS with many technical or potentially ambiguous or misleading
terms, or terms defined according to agreement reached between the
parties, should contain a separate section listing definitions of
those terms. Definitions contained in the CPS must conform with
definitions given in TSCA and its regulations. Redefinition of
terms that have specific statutory or regulatory definitions should
not be attempted; however, examples or illustrations of these terms
nay be appropriate.
Quality Assuranee
Depending on the nature of the compliance program, the quality
assurance measures to be taken by the Respondent should be discussed.
It may be appropriate to require the Respondent to participate in
an independent or government quality assurance program or to split
some samples with an EPA or State laboratory.
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- 10 -
Enforcement
The remittance agreement should include a statement that EPA
shall not initiate additional enforcement action against the Respon-
dent concerning the violations which are the subject of the agreement
as long as he complies with the CPS. EPA's promise is part of the
quid pro quo of the agreement. The clause should state clearly that
the insulation from enforcement does not extend to violations of
other TSCA provisions or to violations of other laws administered by
EPA, nor does this agreement affect the defendant's liability with
regard to other State, Federal or local statutes or regulations.
In addition, this agreement does not limit or affect the
rights of the United States or of the Respondent against any
third pa rt i es.
Dispute Resolution
Disputes may arise between EPA and the Respondent after
signature of the remittance agreement. The agreement (in the CPS)
can provide its own mechanism for resolving some or all of the
potential disputes. The parties could agree to submit the matter
to arbitration. This approach is useful where technical disputes
can be submitted to an expert respected by both parties. If
possible, this expert should be selected in advance and named in
the decree.
Confidentiality of Documents
The Respondent has the right under TSCA to claim that infor-
mation submitted to the Agency is Confidential Business Information.
This section should cover the procedures the company must follow to
exert a confidentiality claim. If the company waives its right
to exert a confidentiality claim, that should be stated in this
section.
Remittance Order
If the Respondent performs the actions described in the CPS,
the Agency will remit all or part of the penalty. The Agency will
issue a Remittance Order which formally states that the Administrator
"is satisfied that the conditions for remittance have been satisfied
and that the penalty (or part of the penalty) is remitted.
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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!/ are a critical part of the SWC process. The
adequacy of the remedial measures to be incorporated into the SWC
wi11 often depend on information in the Respondent's possession.
Negotiations that take place prior to the filing of a complaint
are the primary responsibility of the Regional Program Office!./. If
Respondent is represented by counsel, however, Regional Counsel
cr headquarters OLEC must attend.
At the start of negotiations, EPA 1 s representatives should
inform the Respondent's representatives of the scope of their
authority to speak for the Agency and of Agency policy, regulations
and concurrence practices which may affect the terms of the SWC and
the time necessary for EPA to execute the SWC. Similarly, Agency
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
1/ Preliminary discussions which may bear on the decision to
Proceed with an SWC are not included under "Negotiations" but
rather are instrumental in determining good faith under "Criteria".
y Once litigation commences, negotiating sessions must be led
the Regional Counsel or Headqarter's OLEC Attorney of Record, with
attendance by technical personnel. These sessions should be conducted
s Part of an overall 1 itfgation/settlement strategy.
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initiation of negotiations should be established by which all
documents required for an SWC must be signed by EPA and the Respon-
se nt.
reparation and Issuance of Documents
The Program Office should prepare the documents necessary for
an SWC, with review for legal sufficiency by Regional Counsel.
Drafts of these documents, including tentative performance
requirements and schedules, should be prepared for discussion
purposes for the first negotiating session. (Although the complaint
should be prepared, it should not be subject to negotiation.) These
drafts serve to focus the discussion and will provide an early
indication of the Respondent's willingness to agree to reasonable
proposals. EPA Counsel should be consulted regarding any disputes
over findings and admissions.
As set forth in the Delegations Manual and the Consolidated
Rules of Practice, the Regional Program Division Director will
issue the complaint. The Regional Counsel will sign and execute
the consent agreement with concurrence from the Division Direrctor,
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
°f 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.
Foni tori
It is the responsibi1ity of the Program Office to monitor
comp1iance 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.
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0 Column #1 lists the task to be completed or the standard
to be achi eved.
0 Column #2 lists the due dates for the items in column #1.
° Co1umn #3 lists the dates that the items in column #1 were
completed.
° Column #4 contains a brief evaluation of the quality and
timeliness of the completion of the items in column #1.
If there is need for additional space, an attached sheet
may be referenced.
If any compliance steps require EPA review or approval, the
requirements in column #1 should indicate this, and column #4 should
indicate the results of the evaluation or approval/disapproval by
the Agency. See Appendix 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:
0 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
secti on);
0 Timely ultimate compliance is greatly compromised by
the missed milestone; and
0 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.
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Responses to Noncompliance with the SWC
Penalty Payment
If the Respondent fails to adhere to the conditions of the SWC,
the Agency will issue a nonremittance order notifying the Respondent
that because the Respondent did not meet the conditions for remittance,
the uncollected penalty is due and payable within 60 days. The non-
remittance order will specify the ways in which the conditions were
not met. If the Respondent refuses to pay, the Agency may refer
the action to the Department of Justice which may bring a recovery
action under Section 16(a)(4) to collect the penalty that was
assessed.
Reinspection and Additional Enforcement Action
Inspections conducted by the Region or HQ's during the course
of the SWC and/or reports submitted by the Respondent may indicate
violations of the statutory/regu1atory provisions which are .the
subject of the SWC. Indeed, this is likely to be the case,
given the continuing or recurring nature of the violations that
a SWC is intended to remedy. As long as the Respondent complies
with the terms of the SWC, however, the Respondent is shielded
from additional enforcement action involving the subject matter
of the Agreement. Once, however, the Region determines that the
SWC has been violated and so notifies the Respondent, EPA should
reinspect the facility to document additional violations. However,
EPA may not attempt to establish violations during the term of the
SWC and prior to a notice to the Respondent. The Respondent remains
liable, of course, for violations of regulatory and statutory
provisions not covered by the SWC.
When considering additional enforcement actions in response
to violations discovered upon reinspection, the Region may give
consideration to pursuing Injunctive action under Section 17.
Clearly, in cases of serious violations where administrative
enforcement action cannot be expected to achieve compliance, an
injunction may be a desirable enforcement response.
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APPENDIX A:
APPLICATION OF SWC CRITERIA TO PCB RULE
This Appendix illustrates the application of the criteria
set forth in the SWC guidance document to some typical violations
of the PCB rule (40 CFR Part 761; all references herein are to the
recodification of the rule at 47 FR 19527, May 6, 1982). The
illustrations are not meant to be an exhaustive catalog of all
situations in which a SWC should be considered. Each will high-
light the consideration of one or more criteria.
I . Marking - §761.40
An SWC should not be considered for Marking violations, since
two of the criteria are not met. These violations are easily
correctable.
II. Recordkeeping of Use and Disposal - §761.45
An SWC should not be considered for Recordkeeping violations,
since these violations are easily correctable.
III. Storage for Disposal - §§761.60 & 761.65
Generally
A storage violation could satisfy several criteria. However,
given the relative ease with which a violative storage facility
can be upgraded to meet the requirements of §761 . 65(b) (1 ) , the
fourth criterion will not be satisfied in the usual case. Likewise,
violations of the conditions for temporary storage of PCBs set
forth in §761.65(c) can be easily corrected and should not continue
for more than thirty days if adequate corrective action is taken.
Disposal Deadline Violations
Pursuant to §761.65, certain PCB items taken out of use before
January 1, 1983 may only be stored until the deadlines set forth in
the Rule. The strong Agency policy of encouraging advance planning
for proper disposal means that even in instances where a facility
alerts EPA that all authorized disposal sites are overcrowded, an
SWC is not appropriate.
In the case of the Electrical Equipment Rule (47 FR 37342),
failure to. remove electrical equipment from zones of exposure in
food and feed establishments by the deadlines set forth in this
Rule amendment is not a violation qualifying for an SWC. There is
ample flexibility in the Rule amendment to allow advance planning
to solve storage problems.
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IV. Manufacturing - §761.20
Intentional
Intentional manufacture of PCBs without obtaining an exemp-
tion, even where an exemption might have been granted, will never
satisfy the second criterion.
Incidental (greater than 50 ppm)
Incidental generation of PCBs as a byproduct of the manufac-
turing process may qualify for an SWC. The first four criteria
may be satisfied, and the fifth criterion could be satisfied if
the violator (1) voluntarily reports the facts to EPA as soon as
it could reasonably be expected to discover them, and (2) will
agree to a remedial plan including testing and monitoring beyond
the regulatory requirements, i.e., actual testing rather than
theoretical analysis. The last criterion will be satisfied
where EPA needs the cooperation of the company to investigate the
problem and determine solutions and where the shut down of the
facility is imminent. The goal of such an SWC would be to encourage
the company to both reduce the concentration of PCBs to less than
50 ppm and develop a closed and controlled system.
Incidental (less than 50 ppm) (Closed and Controlled Rule;
47 F . ft . 46980"] ~~
The factors determining whether to use an SWC here are the same as
set forth above in the case of concent rations greater than 50 ppm.
The goal of the SWC, however, is to develop a closed and controlled
system to contain the PCBs, rather than to reduce their concentration.
Import/E xport
Import or export of PCBs after May 1, 1980, even if done
without knowledge that the material contained PCBs, will not
qualify for an SWC because at least two criteria are not satisfied.
Waste oil
A violation of the prohibition of the use of waste oil con-
taining any detect able PCBs as a sealant, coating, or dust control
agent might in some circumstances qualify for an SWC. Although
the third criterion would not be met since the use could be stopped
at once, if the fourth criterion were met due to widespread con-
tamination, and the second criterion were met because the violator
had no reason to know that the oil contained PCBs, an SWC should be
considered.
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V . Use - $761.30
General 1y
The PCB rule calls for the phase out of use of PCBs in a non-
enclosed manner in several categories, such as natural gas pipeline
compressors and large capacitors in non-restricted access electrical
substations. If a facility tells EPA of problems at the earliest
date at which it could have reasonably anticipated problems with
Meeting a deadline, EPA may devise a program to bring the facility
into compliance as expeditiously as possible after the deadlines
and incorporate that program into an SWC.
New Methods
A use authorization permits the use of PCBs in Heat Transfer
Systems and Hydraulic Systems until July 1, 1984, subject to cer-
tain testing, draining, and retrofilling requirements. If the
Respondent can demonstrate that an alternative to retrofilling
will permanently reduce the PCB concentration in the hydraulic
or heat transfer system, an SWC could be devised to allow the
use of such new method. The Respondent should agree to supply EPA
with testing data in addition to the data required by §7 61 .-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 - §761.60
PCB Articles
Unauthorized disposal of certain PCB articles, such as Large
High or Low Voltage PCB capacitors or PCB hydraulic machines, does
not satisfy the second criteria since it is well known in the
industry that all such articles may contain PCBs. Therefore an SWC
should not be used even if all other criteria are satisfied. On
the other hand, disposal of small transformers might not constitute
a knowing violation of the rule if the person did not have reason
to know the articles contained PCBs.
Landfills and Lagoons
While PCBs and PCB items landfilled prior to February 17, 1978,
do not have to 'be removed for disposal, where the Respondent has
disturbed a landfill, this constitutes ongoing disposal. If (1)
the clean up of the landfill constitutes a major undertaking
requiring many steps over time and/or (2) long-term monitoring to
protect groundwater is required, use of an SWC may be in order.
Given the seriousness of a disposal violation with threatened
groundwater contamination, the full penalty in such a case should
not be remitted.
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Iacineration
Where PCBs must be incinerated (i.e., fluids with PC8 concen-
trations greater than 500 ppm), landfilling evidences a knowing
violation and thus an SWC is not appropriate.
Spills - §761.60(d)
Many spills do not normally qualify for an SWC because they
are not continuing violations and do not require a major clean-up
operation. If, however, the spill is of such proportion as to
require clean up of such magnitude, an SWC may be used. Such a
major spill calls for only the partial remission of a penalty.
Minor spills and leaks are examples of the kind of routine
violations for which an SWC may be negotiated which calls, not for
the clean-up of the spill, which should already be accomplished,
but for other performance beyond that required by statute or
regulation. For example, where Respondent has committed a spill
of pipeline condensate from its gas distribution system, and EPA
needs that company to perform testing of levels of PCB in the
ambient air of homes connected to the system, EPA may remit the
penalty for the spill on condition of performing the testing. If
EPA could perform the testing itself with minor expenditure-of
resources, an SWC would not be warranted.
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APPENDIX B: SAMPLE DOCUMENTS
Consent Order Agreement and Final Order
Remittance Agreement
Compliance Program and Schedule
Remittance Order
Non remi tta nee Order
Persons and institutions are fictitious.
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UNITED STATES
ENVIRONMENTAL PROTECTION AGENCY
In re :
LOUISIANA WESTERN TRANSMISSION
CORPORATION
719 S. Carrollton Avenue
New Orleans, Louisiana 71301
Re sponde nt
Docket No. TSCA -
CONSENT AGREEMENT
AND
FINAL ORDER
Preliminary Statement
1. This administrative proceeding for the assessment of a civil
penalty was initiated pursuant to Section 16(a) of the Toxic
Substances Control Act, 15 U.S.C. §2601 et seq. (TSCA). The
action was instituted by a complaint and notice of opportunity
for hearing, filed upon Louisiana Western Transmission Corpora-
tion (respondent), on July 23, 1982. The complaint charges that
respondent used polychlorinated biphenyls (PCBs) in violation
of 40 C.F.R. §761.20(a), thereby violating Section 15(1)(C) of
TSCA, 15 U.S.C. §2614(1 )(C).
2. For purposes of this proceeding, respondent (1) admits the
jurisdictional allegations of the complaint; (2) neither admits
nor denies the findings of facts contained in this agreement;
and (3) neither concedes no contests the conclusions of law
contained in this agreement.
3. Respondent explicitly waives the right to request a hearing
on any issue contained in this agreement.
4. Respondent consents to the issuance of the final order herein-
after recited.
Findings of Fact
1. Respondent is a domestic corporation incorporated under the laws
of the State of Delaware.
2. Bet wee n- Fe brua ry 12, 1981, and June 12, 1981, respondent was
conducting its business of natural gas transmission at Armagh,
Bechtelsvi1le , Bernville, Delmont, Entriken, Grantville, and Lilly,
Pennsylvania; Barton, Alabama; Danville, Kentucky; Gladeville,
Tennessee; Hanover, New Jersey; Kosciusko, Mississippi; and White
Castle, Louisiana, and other locations.
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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 1nformationa1
request from EPA, sent a letter to A. E. Conroy II, Director of
the Compliance Monitoring Staff, of EPA's Office of Pesticides
and Toxic Substances.
5. Information from the EPA inspections and Repondent's letter
evidence that on sixteen (16) occasions, PCB levels in Respon-
dent's compressors exceeded the 50 ppm limit after May 1, 1980.
respondent's June 12, 1981, letter indicates that only one exceed-
ance of the 50 ppm limit remained when a subsequent sampling
("9th Analysis") was conducted by respondent between February 3
and March 9, 1981.
6. Respondent has made good faith efforts to comply with the
prohibition against use of PCBs in natural gas pipeline compres-
sors. Even prior to enactment of TSCA, respondent, in 1972, had
commenced a program to phase out PCBs in its compressors." This
program was accelerated in early 1976. Respondent conducted
decontamination procedures which included draining PCB liquids
and refilling with non-PCB liquid. Respondent participated in
the EPA/natural gas industry sampling program to determine the
extent and magnitude of its contamination problem.
Although the information respondent submitted to EPA -- and
upon which EPA relied in establishing its deadline -- indicated
the requisite PCB removal from compressors could be achieved by
May 1, 1980, subsequent findings indicated that additional drain-
ing and refilling not contemplated by the regulation was required.
These findings were comparable to those relied upon by EPA in
initially establishing a July 1, 1984, deadline for eliminating
PCBs from heat transfer and hydraulic systems. See 40 C.F.R.
§761.31(d) and (e); May 31, 1979, Preamble, 44 Fed. Reg. 31,534;
and Support Document, p. 100. Although EPA believed the total
cost for PCB removal for all pipeline compressors would be appro-
ximately $200,000 Louisiana Western alone has expended to date
over $3,000,000 in clean-up costs.
7. Respondent ha's at all relevant times acted in good faith and
cooperated with EPA in attempts to gauge the extent of pipeline
compressor contamination, and 1n implementing remedial measures.
8. Respondent has voluntarily Instituted remedial measures including
testing, draining, and other decontamination measures to remove
PCBs from its gas pipeline compressors.
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- 3 -
Conclusions of Law
By reason of the facts set forth in the "Findings of Fact,"
it is concluded that repondent has violated Section 15(1 )(C)
of TSCA, 15 U.S.C. §2614(1 )(C), by failing to comply with a
rule issued under Section 6 of TSCA, 15 U.S.C. §2605: 40 C.F.R.
Part 761, which prohibits the use of PCBs in an other than
totally enclosed manner.
Respondent hereby consents to the issuance of the following
order, and complainant hereby recommends that the Headquarters
Judicial Officer issue the following order:
Orde r
Pursuant to the authority of Section 16(a) of TSCA, 15 U.S.C.
§2615(a), and upon consideration of: the "Findings of Fact"
and "Conclusions of Law" contained in the consent agreement;
the factors expressed in Section 16(a)(2)(B) of TSCA; PCB
Penalty Policy" [45 Fed. Reg. 59,770 (1980)] it is hereby
ORDERED that:
Respondent is assessed a civil penalty in the amount of $158,800,
payable to the Treasurer, United States of America. Such payment
shall be made by forwarding to the Hearing Clerk (A-101), Environ-
mental Protection Agency, Washington, D.C. 20460, a cashier's or
certified check in the amount of the penalty assessed in this
order. Payment shall be made within sixty (60) days of receipt of
this consent agreement and final order. However, if agreed to by
the parties, payment of the civil penalty may be deferred until
sixty (60) days after the receipt of an order of remittance or order
of nonremittance.
(Signature of respondent)
(Signature of complainant)
Date :
At:
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- 4 -
It is so ordered. This order shall become effective immediately.
(Signature of Headquarters Judicial Officer)
Judicial Officer*
Date: At:
*or Regional Administrator
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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
New Orleans, Loui siana
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.
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- 6 -
COMPLIANCE PROGRAM AND SCHEDULE
Final Compliance
It is the goal of this Compliance Schedule to bring all natural
gas pipeline compressors operated by Louisiana Western into final
compliance within eighteen (18) months of the effective date of
this Agreement. A compressor will be deemed to be in compliance
when the PCB level in the compressor is less than 50 ppm. This
determination shall be based on analytical tests of the compressor
lubricating oil sampled after the compressor has been in operation
a minimum of six (6) months after the last decontamination of the
compressor.
Respondent will achieve final compliance with this compliance
Program and Schedule by the agreed date. When EPA has determined
that compliance is satisfactory, the Agency will write a letter
to Louisiana Western remitting the unpaid portion of the penalty.
If compliance is not satisfactory, EPA will notify the Respondent
that the penalty is due and payable within sixty days.
Interim Milestones
1. Initial Testi ng: In order to determine which compressors
must be decontaminated, Respondent shall test each natural gas
pipeline compressor operated by Respondent which ever contained
PCBs as indicated by the June 12, 1981 letter. The initial testing
shall be conducted by Respondent within thirty (30) days of the
effective date of this Agreement. For purposes of this initial
testing, tests conducted on these compressors within six (6)
months prior to the effective date of this Agreement shall meet the
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- 7 -
requirements of this Part. Any compressor(s) which have been
decontaminated within the six (6) months prior to the effective
date of this Agreement will automatically be included in this
program until it is shown that these compressor(s) meet the
requirement for final compliance in Part 1.
2. Sampling and Analysis: Sampling shall be conducted by
Respondent using EPA-approved sampling procedures. Information
on sampling developed by EPA and provided to Louisiana Western
as part of the EPA/natural gas industry cooperative sampling
program shall serve as guidance for this sampling.*
To allow for comparison of analytical results, Respondent
shall prepare a Sampling Plan which specifies sample volume, method
of collection, and sample handling procedures. The Sampling Plan
shall set forth (a) the location of each compressor covered by
this agreement and (b) the specific sampling point(s) on each
compressor to be sampled during each sampling required under this
agreement. All samples collected under this agreement shall be
collected from the same sampling point(s) chosen by Respondent
in its Sampling Plan. Louisiana Western shall prepare this Sampling
Plan within thirty (30) days of the effective date of this Agreement
and supply a copy of this Sampling Plan to EPA within sixty (60) days
of the effective date of this Agreement.
Samples shall be analyzed by Louisiana Western using the EPA
methodology set forth in the EPA document entitled "Analysis of
PCBs in Transformer Fluid and Waste Oil" which EPA supplied to
* Each sample shall be collected using a separate sampling device,
such as a glass tube, pipette, or metal dipper, to avoid cross-
contamination of samples. Sample containers shall consist of clean
glass bottles with teflon lined lids, metal containers or equivalent.
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- 8 -
Louisiana Western during the EPA/natural gas industry cooperative
sampling program. On-going quality control including analysis
of blank sample containers, duplicates, and spiked samples shall
be conducted as outlined in the laboratory quality assurance
guidance provided to Respondent by EPA during the EPA/natural
gas industry cooperative sampling program, and in the method of
analysis specified-above.
EPA shall supply Respondent with reasonable technical
assistance on sampling and analytical techniques when requested by
Respondent for the purpose of complying with this Agreement.
3. Decontami nati on: 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
PCB contaminated oil from the compressor and refilling the compressor
with non-PCB lubricating oil.
After the initial decontamination, each compressor still found
to contain 50 ppm or greater PCBs, as determined in accordance
with Part 7, shall be decontaminated within one hundred and twenty
(120) days of the date of Respondent's receipt of the laboratory
report indicating such PCB levels in the subject compressor. All
PCBs removed during decontamination operations shall be handled,
stored, and disposed of in accordance with the PCB Rule.
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4. Assessment of Decontamination: Respondent shall
sample and test oil from each compressor decontaminated in accor-
dance with Part 4 above after the unit has been in operation for
a minimum of sixty (60) days after decontamination.
5. Determination of Compliance: If after a minimum of sixty
(60) days of operation PCB levels remain below 50 ppm, each
compressor shall be tested again after six (6) months of operation.
If after six (6) months of operation since the last decontamination,
PCB levels remain below 50 ppm, units shall be considered to be in
compliance as stated in Part 1.
6. Additional Decontamination: If results of testing after
decontamination 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
comp1i ance.
Timetable
Louisiana Western agrees to comply with this Agreement
within the time frames summarized below. Times in the following
schedule are times from the effective date of this Agreement
and all days r'eferred to in this Agreement are calendar days.
1. Complete Sampling Plan: Thirty (30) days
2. Initial Testing: Thirty (30) days or on
the basis of tests conducted
within the six (6) months
prior to the effective date
of this Agreement
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- 10 -
3. Decontaminate Compressors
4. Assess Decontamination:
5. Additional Decontamination:
6. Reports:
o Initial Report
o Status reports
o Final compliance report
7. Final Compliance Target Date:
One hundred and twenty (120)
days
After a minimum of sixty (60)
days of operation, and after
six (6) months of operation
when sixty (60) day result is
less than 50 ppm
Implemented within one
hundred and twenty (120)
days of test result showing
PCB concentrations of 50 ppm
or greater
Sixty (60) days
Every one hundred and twenty
(120) days after previous
report.
Thirty (30) days after
final compliance is achieved
for all units.
Ei ghteen (18) months
Monitoring
Louisiana Western shall prepare an initial report including the
Sampling Plan developed under Part 3, initial compressor PCB levels
as determined through testing conducted in accordance with Part 2,
and a tentative compressor decontamination schedule. The initial
report shall be submitted to EPA within sixty (60) days of the date
of this Agreement.
Louisiana Western shall also provide EPA with periodic status
reports on the progress of this decontamination program as set
forth below. Each status report shall contain: (a) a list of
testing results; (b) the date each compressor subject to this
program was decontaminated; (c) the amount of PCB liquid resulting
from decontamination procedures which was stored and/or disposed of;
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- 11 -
(d) the location of the storage arid/or disposal facility or facilities;
(e) the amount of non-PCB liquids added to each compressor, and (f)
other pertinent information which will allow the Agency to evaluate
the progress of decontami nation activities.
These status reports shall be sent to EPA every one hundred
and twenty (120) days until final compliance is achieved. The
final report should indicate that all compressors subject to this
agreement contain PCB concentrations of less than 50 ppm after
being in operation for a minimum of six (6) months subsequent to
the last decontamination. Reports shall be sent to:
A. E. Conroy II, Director
Compliance Monitoring Staff
Office of Pesticides and Toxic Substances
U. S. EPA EN-342
401 M Street, S.W.
Washington, D.C. 20460
Inspectors from EPA may visit Louisiana Western facilities
at any time to exercise the Agency's rights under section 11 of
TSCA and to inspect facilities and records to determine compliance
with this consent agreement.
Notification of Technical or Operational Difficulties:
If technical or operational difficulties will make it impos-
sible for Louisiana Western to meet any of the deadlines in the
Compliance Schedule, Louisana Western will immediately notify EPA.
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.
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- 12 -
Amendment s
Upon mutual consent of EPA and Louisiana Western, this Agreement
may be amended at any time to modify or add technical and operational
requirements (such as, but not limited to, deadline modifications
necessitated by technical or operational difficulties) for the purpose
of achieving compliance by Louisiana Western with the PCB rule. Any
changes and/or amendments to this Agreement shall be incorporated into
this Agreement when the amendment(s) have been signed by authorized
representatives of EPA and Respondent.
If after complying with the schedule set forth on pp. 5 and
6 (or any subsequently agreed to schedules) of this Agreement,
Louisiana Western finds that gas pipeline compressors still
contain concentrations of 50 ppm or greater PCBs on the final
compliance target date, EPA and Louisiana Western will evaluate
options and select one for resolving this problem. That approach,
including an agreed upon revised Compliance Schedule, will be
incorporated into this Agreement which shall remain in effect
until final compliance is achieved.
E nforcement
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 may issue a Notice of Reinstatement of Penalty nullifying this
Agreement and reinstating the penalty proposed in the Complaint and
Assessed by the Final Order.
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- 13 -
This agreement does not insulate Louisiana Western from com-
pliance monitoring and enforcement actions for TSCA violations not
addressed by this Agreement nor from enforcement actions under other
laws administered by EPA, nor under laws administered by state or
local environmental authorities.
This agreement does not limit or affect the rights of the
Louisiana Western or the United States as against any third parties.
Pi spute Resoluti on
Should disputes arise between Louisiana Western and EPA
concerning compliance with the agreement, the parties may resolve
the dispute by arbitration. EPA and the Respondent may submjt
disputes of technical issues to Dr. Alpha Romeo of the Tulane
University Electric Engineering Department for arbitration^
Quality Assurance
The laboratory performing analysis of the samples will
participate in the Southeastern Regional PCB Quality Assurance
Program administered by the Southeastern Chemists Society.
Confidentiality of Documents
The Louisiana Western may claim that any reports submitted
to EPA are confidential business information. The Louisiana
Western waives this right.
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- 14 -
Louisiana Western Corporation
719 S. Carrollton Avenue
New Orleans, Louisiana 71301
RE: Remittance Order
Dear Mr.
This remittance order is issued pursuant to section 15(a)(2)(C)
of the Toxic Substances Control (TSCA), which permits the Adminis-
trator to "compromise, modify, or remit, with or without conditions,
any civil penalty."
On July 6, 1983, Louisiana Western was assessed by final
order a penalty of $158,800. On July 6, 1983, Louisiana Western
and EPA entered into a remittance agreement under which EPA
agreed to remit $158,800 of the penalty on condition that
Louisiana Western performs the activities described in the
a greement.
On May 2, 1984, EPA determined that Louisiana Western met
all the conditions for remittance. By completion of these
conditions, LWC has fully satisfied its obligations pursuant
to the Consent Agreement and Final Order dated July 6, 1983. The
Agency therefore remits $158,800 the penalty.
William D. Ruckelshaus*
Admi ni strator
*or delegate
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- 15 -
Louisiana Western
719 S. Carrollton 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, 1983, Louisiana Western
and EPA entered into a remittance agreement under which EPA agreed
to remit $1 58,800 of the penalty on condition that Louisi an "Western
performed the activities referenced in the agreement.
On May 2, 1983, EPA determined that Louisiana Western has not
met all the conditions for remittance. Specifically, Louisiana
Western has fallen six weeks behind its interim deadlines in the
Compliance Program and Schedule and has not notified the Agency
of any technical or operational difficulties.
The Agency, therefore, will not remit any portion of the penalty.
The deferred amount of the penalty, $158,800 is due in sixty days.
Payment may be made by certified check payable to the United States
of America to the Hearing Clerk (A-101), Environmental Protection
Agency, Washington, D.C. 20460.
William D. Ruckelshaus, Administrator
Environmental Protection Agency
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APPENDIX D
CPS Monitoring Sheet
Performance Requirement
Date
Due
Date
Completed
Performance Evaluation
Submit Sampling Plan
to the Agency for
9/3/82
9/3/82
Plan was satisfactory;
it 1i ste d te n faci 1 i -
ties in four states
and a rea1i sti c plan
for sampling.
Initial Testing
9/3/82
9/9/82
Testing reports were
si x days late but
otherwise satisfactory.
The si x day s 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
faci1i ty i n Kentucky
causing the delay. Per-
formance was satisfac-
tory. Other deadlines
will not slip as a
re suit of this delay.
Assess Decontamination
2/3/83
addi ti ona1
dates may be
be scheduled
Interim Reports Schedule
10/3/82
2/3/83
6/3/83
10/3/83
Work progressing.
Pinal Compliance Target
Date
6/30/83
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APPENDIX C
Penalty Remittance Worksheet
Supplement to Penalty Calculation
Assessed penalty [justification]
Amount due immediately
Amount deferred
Cost of compliance
Cost of additional conditions
Total Cost of Performance under CPS
Amount remitted at the end of the deferral period
Total amount paid to the Agency
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D C. 20460
A/OV 7 1979
OFFICE OF ENFORCEMENT
MEMORANDUM
TC:
Richard J. Denney,
Associate Genoral Counsel
Toxic Substances Division
SUBJECT: Neutral Administrative Inspection Schemes for TSCA Enforcement
Attached for your review are neutral administrative inspection
schemes for three TSCA enforcement programs - premanufacture notification
(section 5), inventory (Section S) and chlorofluorocarbons (Section 6).
We request your opinion, pursuant to Joan Bernstein's memorandum of
June 28, 1978, 3s to whether these three schemes meet the requirements
for a neutral administrative inspection scheme as described in the
Marshal 1 v. Barlow's, Inc. decision of May 1978.
The principal persons who developed these schemes are Jonathan Libber
^Section 5), Sahara Paul (Section 8) and Judy Kosovich-(CFC). All may
be reached at /bo-5404. -
Pesticides ana mxic instances
LflXIC
EnforcementJlivtsion
cc: Richard D. Wilson
Attachment
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HfiUTRA!^ AHIirMSTRATIVE INSPECTION FOR SECTION 5
Introduction 'c the Neutral Administrative Inspection Scheme
The following sr-2 two neutral administrative inspect ion schemes for use
in targeting §L> inspections. This section o£ TSCA deals v/ith Pre-
irarufacture Notification (P!£?). The PMM program is in its initial
stages an3 many of the program eleirehts will not become fully operational
until £o:re time in the middle of FY 80. Thus the Office of Enforcement.
(OE) is proposing both an initial scheme to cower this interim period
and a final one to become effective when the S5 program is fully
operational.
There are seven violation categories in Section 5: I) noncompliance
v;ith a Section 5(e) or Section 5(f) order, rule or injunction, 2) failure
to notify EPA of the production of a new substance, 3) manufacture of
a new substance prior to the expiration of the premanufacture notice
period, 4) using a substance produced in violation of S5 for
-------
ccnirrxercial purposes, 5) noncompliance with the terns of a test marketing
exemption, C) noncompliance with the terms of a research arrl development
cxanption and 7) violation of Significant I Jew Use Rules (SNURS). During
the first several months of operation, OE anticipates that the only
active violation categories will be: 1) failure to notify, 2) production
prior to notice expiration and 3) commercial use of an improperly produced
substance. Thus OE's initial efforts will focus on these three categories.
VTnen the other categories become active, OE will shift to the £inal - neutral
administrative inspection scheme which includes the other violation categories.
0£ recognises that the schemes will change" as tine Agency develops expertise
in handling the enforcement of §5.
The schemes presented belcv; list the violation categories and the criterion-
defined subcategories. In those categories where less than 100^ of the
members of a particular category will be inspected, the scheme presents
neutral criteria upon which inspection targeting will be based. Thus in
all categories but the §5(e) and §5(f) orders, rules and injunctions
category, only a percentage of the rubers of a category will be inspected
on the basis of targeting criteria. Each criterion defines a subcategory.
For example, there are eight subcategories in the Failure to Notify
violation: 1) all members who are the subject "of failure to notify tips
and/or complaints, 2) all firms that have that have applied unsuccessfully
for P:-i$ exemptions, 3) all firms that have initiated but never completed
Pt-W submission, 4) all firms with a history of now chemical development,
5) firms whose PMN submission in3icnted significant levels of projected
production, 6) firms with a history of toxic substance production (Standard
Industrial Classification (GIC) c.odes 2321 Plastics. Materials, Synthetic
-------
Resins and Non Vulcanoblo i; las toners, 2365 - Cyclic Crudes and Cyclic
Intermediates, Dyes and Organic Pig rants, and 23 69 - Industrial Chemicals
Not Elsev.here Classified, 7) firms wIto have violated certain Federal
environmental and/or safety statutes (FIFRA, RCRA, CAAr FVJPCA ard OGIIA)
and 8) a random selection of the chemical firms.
It should be noted that if any of these triggering criteria produce a
subcategory that is too large, the selections in that subcategory can
be rardemized. For example, if there are only enough resources to ispect
50% of the rnembors of a subcategory, OS will select half of the merrbers
on a random basis.
OE.intends to review the efficacy of these targeting criteria by
statistically evaluating the violation rates of each criterion-defined
subcategory in comparison with the randan subcategory of the sanie
violation category. In this way, OE will determine if there are significant
differences between the rate of violation of a particular criterion-defined
subcategory and the random selection of the members in that entire
violation category. If there is no significant difference, then OE will
realize that the criterion in question is useless.
The order of the violation category and of the subcategories indicates
the priority among the categories and subcategories.
Interim Scheme
A, Failure to Notify
1. all members who.are the subject of improper production tips and/or
complaints
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-4-
2. nil firms that applied urvjMCcessfully for PrM exemptions
3. all C irms that have mitLot.cO but never completed a PM:>i submission
A. all finns with a history of nc-.w chemical production
5. firms whose Pr7:3 submission indi.cnLed significant: levels of projected
production (forfal.se ara r'isleading variety)
6. firms with a history of highly toxic substance production (by SIC
codes 2C 21, 23 6 5 arc! 2369)
7. previous violators of certain federal environmental protection
and/or safely statutes
8. random selection of all chemical producers
B. Production Prior to p:-£1 Kotic.e Expiration
1. all category' Berbers who are the subject of prior production
complaints and/or tips
2. all firms that have been the subject of notice extensions
3. random selection of firms that have not had their notices
extended
4. all category Fibers who are violators of federal environmental
and/or safety statutes
5. randan selection of all firms undergoing PMN
C. Cararercial Use Violations
1. fill firms listed as recipients of improperly produced chemicals
2. firms listed on SIC codes 2321, 2355 and 2369
3. rardem selection of all chemical firms
Final Scheme
A. Violations of Section 5(e) or 5(f) Orders, Ru.les cr Injunctions
1. inspect all firms subject to such orders, rules or injunctions
B. Failure to Notify
3U all members who are the subject of improper production tips
and/or complaints
2« all firms that applied unsuccessfully for P?2I exemptions
3. all finns that have initiated but never ccrpieted a PMN submission
4. all firms with a history of new chemical production
5. firms whose P?vl submission indicated signif icant levels of projected
production (for false and misleading variety)
6. firms with a history of highly toxic substance production (bv SIC
codes 23 21, 23 6 5 and 2369)
7. previous violators of certain federal environmental protection
and/or safety statutues
8. randan selection c£ all chemical producers
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C. Production Prior to PnN Notice; Expiration
1. all category mcirbor-; who arc the subject of prior production
complaint;; and/or tips
2. all firms that have been the? subject o£ notice extensions
3. random selection o£ firms that have not had their notices
extended
4. all category members who are violators of federal environmental
and/or safety statutues
5. random selection of all firms undergoing PM:J
D. Commercial Use Violations
1. all firms listed as recipients of improperly produced chemicals
2. firms listed on SIC codes 2321, 2365 and 2369
3. randan selection of all chemical producers
E. Violations of Test Marketing Restrictions
1. all category members that have been the subject of tips or
complaints suggesting test marketing violations.
2. all firms producting highly toxic test marketed items
3.-all firms producing test marketed items in high demand
4. all category members who have violated certain federal
environmental selection of category members
5. randan selection of category mambers
F. Violations of Research and Development Restrictions
1. all firms that are the subject of tips and/or complaints
indicating violation of this exemption
2. rarricm selection of those firms holding themselves cut as
specialty chemical firms
3. rardom selection of all chemical producers
G. SNURS - criteria to be later determines
-------
Inventory Reporting Regulations Neutral Administrative
Inspection Schemes:
OE will select persons for inspection to monitor compliance with
inventory reporting requirements in the following manner:
Violation: Reporting a Substance Excluded Because for Research and
Development
Inspection Scheme
OE will select persons for inspection to ensure that they have not
reported substances manufactured or imported for research and development
based on a combination of the following methods:
o OE will obtain from the inventory a l.vst of substances
manufactured or imported in quantities of'less than 1000
lbs/year, reported by known manufacturers of R & D sub
stances, and not reported in larger quantities by other
persons.
o OE will compare the inventory with public lists of substances
manufactured prior to 1977 to isolate substances appearing
on the inventory but not listed elsewhere as having been
manufactured prior to 1977.
OE resources may be inadequate to inspect all firms identified. In
this case GE will alphabetize firms identified and inspect every nth
firm, where n = the number of firms identified divided by the number of
inspections which can be performed with the resources available.
-------
Violation: Late Reporting/Failure to Report
Inspection Scheme
EPA will search for manufacturers and importers who failed to
report by Hay 1, 1978 as required and whose substances are being reported
by processors during the revised inventory reporting period in the
following manner:
o OE will obtain from OTS names of processors reporting for the
revised inventory.
o OE will request from each processor a certification that
he is not also a manufacturer of the substance.
o If the processor is not a manufacturer of the substance, OE
will request a list of the processor's suppliers.
o OE will contact each supplier and ask for certification that
he was not required to report for the initial inventory (i.e.,
substance was not manufactured/imported after January 1, 1975).
If OE resources are inadequate to inspect all firms identified,
OE will alphabetize suppliers and inspect every nth firm,
(n = the number of suppliers identified divided by the number
of inspections which can be performed with the available
resources.)
-------
Violation: Reporting a Substance Excluded Because Not Manufactured,
Processed, or Imported Since January 1, 1975.
Inspection Scheme
EPA will select persons for inspection to ensure that they have not
reported substances not manufactured, processed or imported since January 1,
1975 in the following manner:
o OE will compare substances reported for the inventory with the
commercial lists of substances manufactured in 1975, 1976 and
1977 .
OE will alphabetize the manufacturers and importers of substances
identified by the above comparison and inspect every nth one. (n = the
number of manufacturers and importers identified divided by the number
of inspections which can be perform with the available resources.
In FY79 and FY80 during the revised inventory reporting period OE
will commit its resurces to inspections under these schemes as follows:
Compliance Monitoring to Detect 40%
Reported R&D Substances
Compliance Monitoring to Detect 302
Substances not Manufactured or imported
after 1975.
The remaining 302 of total OE resources will be used to
respond to reports of other violations.
Each Region will not necessarily conduct an equal number of inspections.
Inspections will be assigned Regions based on the location of the potential
violators as indicated by each inspection scheme.
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CFC Rule — Neutral Inspection Scheme
The rule published by EPA on torch 17, 1978 (43 PR 11318) bans processing
of fully haloqenatal chlcrofluoralkanes (CFCs) for aerosol propellant uses
after Djccrrbor 15, 1973, except for certain essential uses. Such processing
would be dene by businesses kr.o.vTi as aerosol fillers.
1. The records of CFC ranufacturers will be inspected once a year to determine
which aercuol fillers are currently purchasing CFCs.
2. Cnly aerosol fillers v:ho have purchased CFCs in the year preceding the
proposed inspection or who are otherwise known to be in a position to fill
aerosols with CFCs will be candidates for inspection. Such fillers will be
identifier! by inspections of the records of CFC manufacturers, by information
from the Con-sunver Products Safety Ca~rdssion (CFSC), or by other means,
3. Such candidates for inspection will be ranked' according to the relative
quantity of CFCs estirated to have been received. This ranging v;ill ceterrrine
the inspection priority. If the amount purchased in unknown, the filler will
be assigned a ranking in the r.ucdle of the ranked list.
4. a ranked list of cardidates for inspection will be sent to each Regional
Office. Such lists may later be amended. The total nurber of aerosol fillers
to be inspected in a civen fiscal yeac will be determined. The ranked list
will be useri to iaentir.' the particular fillers to be inspected. The total
r.urrber to be inspected in eacn Reg ion'will be approximately proportional to
the fraction cf fillers in that Region subject to this scherre.
5. The sequence shall be ran-; order of the list, except that this sequence rr.a
be adjusted to conserve Agency resources.
6. Inspections of fillers who have never been inspected previously have highe
priority, ranked according to quantities purchased, than inspection of fillers
who have been inspected previously (not including routine follow-up inspection
7. if all fillers have been inspected at least once, fillers should be ranked
according to their estimated iikelyhood of recidivism.
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Use of TSCA Section 11(c) Subpoenas
Prepared by:
Pesticides and Toxic. Substances
Enforcement; Division
December 4, 197 9
-------
TABLE OF CONTENTS
page
I. Introduction 1
II. When Subpoenas Should Be Used 1
III. Defenses To Subpoenas 4
A. Generally 4
B. The requirement that the subpoena be 5
within the authority of the agency
C. The requirement of relevancy -7
D. Vague or unduly burdensome subpoenas 8
E. Privilege 9
IV. Form And Service Of Subpoenas 10
V. Enforcement Of Subpoenas 13
Append ices
A.
TSCA Section 11(c)
B-l .
Subpoena Duces Tecum
B-2.
Subpoena Ac Testificandum
B-3 .
Return Of Service
B-4 .
Receipt of Subpoena Response
c.
TSCA Delegation 12-1, Inspections
And Subpoenas
-------
I • Introduction
Section 11(c) of the Toxic Substances Control Act (see
Appendix A) autnorizes the Administrator to issue subpoenas
requiring the testimony of witnesses, the production of documents,
and answers to questions that he deems necessary to carry out
the Act. This paper provides guidance to the Regions on the
use of TSCA administrative subpoenas.
The first part of the paper will describe the various
situations which warrant the use of section 11 subpoenas as
enforcement tools. The document next sets forth the major
defenses to subpoenas which may be encountered by regional
personnel, and discusses ways to overcome such defenses.
Enforcement of subpoenas and their proper form are addressed
in the final sections.
II. When Subpoenas Should Be Used
As £ general rule, subpoenas can be used whenever the
information sought will assist the Administrator in implementing
tr.e Act. There are factors, however, which reduce the number of
instances where subpoenas are appropriate.
1) Subpoenas must be not be overly broad, vague, or burden-
some, and they must be germane to a lawful subject of inquiry.
These and other limitations on Agency information requests are
discussed below as part of the section on defenses to subpoenas.
-------
2) The Conference Report for TSCA contains the following
language:
The conferees recognize that the Administrator
will have access to much information under
section 5 and section 3 of the Act. Therefore,
the conferees expect that the Administrator will
use the subpoena authority only when information
otherwise available through voluntary means or
other provisions of this Act is inadequate to
meet the Administrator's needs under this Act.
(page 87)
This language was apparently an attempt to mollify those
House members who disagreed with the Senate's view that
inclusion of subpoena authority was a prerequisite to the
successful implementation of TSCA.
This "last resort" view of TSCA's subpoena authority
probably imoacts rulemaking procedures more than enforcement
activities. The broad-based information gathering which
often precedes a choice between regulatory alternatives is
oest addressed by rulemaking under sections 4, 5, and 3 of
TSCA. For the program offices, data gathering through rule-
making is not only an available alternative to subpoenas, it
is preferable to situation-by-situation information requests.
OS, on the other hand, conducts more focused investigations,
usually directed toward a single violation, and when informa-
tion is needed which has not already been assembled under a
rule, subpoenas are generally appropriate.
-------
- 3 -
The section of the Conference Report quoted above expresses
a preference for voluntary means of data gathering over more formal
information requests. Thus, enforcement personnel should always
consider simply asking for the information before drawing up a
subpoena. An informal request, however, will be inadequate in
many instances. For example, when there is a reasonable suspicion
that the evidence sought may be destroyed once it is informally
requested, a subpoena should be issued before any other step is
taken. Enforcement personnel should also use subpoenas as a first
step when they are unsure of the precise nature of the evidence
they are seeking, (e.g., internal memoranda relating to a parti-
cular corporate decision as opposed to financial information.}.
In situations where EPA is not sure of what information is avail-
able or how reliable requested data will be, respondents should
be placed under the Durden of a formal, judicially enforceable
responsibility through the use of TSCA subpoenas. In addition,
testimony of witnesses should of course be compelled through the
issuance of a subpoena.
Subpoenas will also be particularly useful in two other
situations. First, data may often be sought from persons who
are not subject to the Act. Although such persons cannot be
compelled to keep records or submit information under sections
4, 5, 6, 8, 12, or 13 of the Act, data can be obtained through
the issuance of a section 11 subpoena if such data is relevant
to a lawful purpose of TSCA (see parts III B and C below).
-------
Second, subpoenas may be used in place of inspections.
'Where the Agency is interested in reviewing a large volume of
material at the Agency rather than on-site, a subpoena may be
the more appropriate investigative tool. In addition, subpoenas
may be utilized to force respondents to collect and organize
relevant material, so that an inspector is not faced with this
task at the office or facility itself.
While it is not possible to give an exhaustive list of
all situations which warrant the issuance of a subpoena, the
above information should aid enforcement personnel in deciding
whether to invoke this authority. This decision will primarily
be influenced by how crucial the data sought is to the success-
ful prosecution of an alleged violator.
I . Defenses To Subpoenas
A. Generally
The past one hundred years have seen the courts become
increasingly receptive to the use of administrative subpoenas.
Ir. the late nineteenth century, the federal judiciary took the
position that the authority to issue subpoenas was reserved to
the courts. It was not until 1894 that the Supreme Court finally
confirmed the right of administrative agencies to issue subpoenas
1
ir. support of agency ad jud ications. In 1908 , the Court extended
the permissable scope of subpoenas to include those issued for
2
investigatory purposes. As a prerequisite to the enforcement
ICC v Br im son, 154 U.S. 447 (1894).
2. Harriman v. FCC, 211 U.S. 407 (,1908).
-------
of such subpoenas, however, the Court demanded that the agencies
first allege specific breaches of their authorizing statutes.
This restrictive approach towards the use of administrative
subpoenas prevailed for the next forty years despite repeated
Congressional efforts to authorize agencies to utilize investi-
gatory subpoenas even when no specific statutory violation was
alleaed. The dispute was resolved by the Supreme Court's decision
3
in Oklahoma Press Publishing Co. v. Walling in 1946 and United
5
States v. Morton Salt in 1950. These two cases obviated the
need for agencies to show probable cause that a specific violation
had occurred. The Oklahoma Court stated that since there is no
actual search and seizure, probable cause is deemed satisfied by
a "determination that the investigation is authorized by Congress,
is for a purpose Congress can order, and the documents sought are
5
relevant tc the inquiry". In Morton Salt, the Court refined this
concept and set forth the still operative test of a subpoena's
c. 1 id i t v:
... it is sufficient .if the inquiry is
within the authority of the agency, the
demand is not too indefinite, and the 6
information sought is reasonably relevant.
The following three subsections will explore the three
criteria set forth in this test.
3. The requirement that the subpoena be within the authority
o~r the ag ency
The reauirement that the inquiry be within the authority
of the agency is actually composed of two basic elements.
^ TT7~Tr73T~nnr (194 6).
4 333 U.S. 632 (1950 ) .
5 327 U.S. 186 at 209.
6 338 U.S. 632 at 652.
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- 6 -
The first is the need for the investigaton to be based on
adequate statutory au trior i ty . Since the au thor iz ing language
in section 11 of TSCA is so broad, it would require the presence
of a most wayward investigation to induce a court to declare a
subpoena ultra vires. In addition, it should be noted that the
scope of a TSCA subpoena is not limited to those persons over
whom the Agency has jurisdiction, such as chemical manufacturers,
processors, distributors, and users. Nonregulated third parties
may also be reached by subpoena if they possess information
7
relevant to the inquiry. For example, in Link v. NLR3, the
Court held that the Board could require a private detective
agency to reveal who had hired it to observe a union organiser.
The second element is the need for the inquiry to serve
=• lawful ouroose. While the motive of the investigation mav
8
be- nothing more than official curiosity, the purpose of the
subpoena must be to further the administration of the Act.
9
The subpoena cannot oe used to harass the respondent. A
subooena also cannot be used solely to aid a prooosed or
' 10
pending criminal prosecution, although the evidence obtained
from a subpoena issued in good faith for civil enforcement pur-
poses can subsequently be used in a criminal action. The burden
Q- show1' nc that an ostensibly valid subpoena was issued for unlaw-
11
fui purposes is on the person alleging abuse of process.
1 JJU F.2a 4 _>/ (4 th cir. 1964).
£ United States v . Morton Salt, 338 U.S. 63 2 , 652 ( 1950 ).
S Snasta Minerals and Chemicals Co. v. SEC, 328 F.2d 285
(10th Cir . 19 6 4 ) .
Donaldson v. United States, 4C0 U.S. 517 (1971).
11 Un i tea S ta tes v . Powell, !i7 9 U.S. 4 8 ( 1964 ).
-------
_ 7 -
Thus each subooena must contain a brief statement of purpose,
12
clearly setting forth the objective of the inquiry. Courts have
seen reluctant to halt an administrative investigation on the
basis of unlawful purpose, striking down subpoenas "only where
the futility of the process to uncover anything legitimate is
13
inevitable or obvious."
C. The requirement of relevancy
Once the purpose of the subpoena has been established,
a court will require a showing that the evidence sought is
germane to the subject of the inquiry. For many years, evidence
was aermane if it was "not plainly incompetent or irrelevant to
14
to any lawful purpose" of the investigation. More recently,
however, most courts have adopted the standard of "reasonable
15
re 1evance . "
To avoid 3 successful motion to quash on the grounds of
-"rlevancv, the connection between the demands of the subpoena
and the pumose of the investigation must be made apparent in
the ouroocc- clause of the document. Conclusory alleaations
16
-f relevance will not be sufficient. While EPA is not
required to soecify the precise use to which each piece of
ri MontshitTTTnes Limited v. Federal Maritime Board, 29 5 F. 2d
14 7 (D.C. Cir. 19 61) ; Hellenic Lines Limiced v.
Federal Maritime Board (companion), 2^5 F. 2d 123
CO.C- Cir. i96i"j:
13 Matter of Edge Ho Holdinq Corp., 256 N.Y. 374, 381-2,
17 5 "N£ "537, si?
14 Endicott Johnson Corn. v. Perkins, 317 U.S. 501, 509
r_r_
15 FTC v. Texaco, Inc., 555 F.2d 862, 373-4, n. 23 (D.C.
Cir. 1577).
16 United States v. Security Bank and Trust, 473 F.2d 638
—(5th Cir. 19-73J.
-------
evidence will be put, the subpoena must establish a nexus
between the evidence sought and the general purpose of the
inquiry:
. . . in the pre-corr.plaint stage, an investigating
agency is under no obligation to propound a narrowly
focused theory of a possible future case. Accord-
ingly, the revelance of the agency's subpoena
requests may be measured only against the general
purposes of its investigation. The district court
is not free to speculate about the possible charges
that might be included in a- future complaint, and
then to determine the relevance of the subpoena 17
requests by reference to those hypothetical charges.
u. Vague or unduly burdensome subpoenas
Administrative subpoenas which are vague or demand a
tremendous amount of information run the risk of being struck
down as undulv burdensome. Enforcement personnel must draft
their subpoenas as specifically as possible so that significant
amounts of irrelevant information are not included within the
scope of the requests. While answering a subpoena should not
ur.dulv cisruct the normal course of business operations, some
18
burden will be permitted. The courts will generally be
Reluctant to cuash a subpoena since the Agency cannot always
know in advance the precise information it is seeking.
The burden of oroving that a subpoena is oppressive rests
19
with the objecting party. Even if a subpoena is found to be
overly burdensome, courts will often be receptive to proposals
T7 FTC v. Texaco, Inc. 555 F.2d 862, 874 (D.C. Cir.), rehearing
aen ied, 4 3 4 U.S. 8 83 (1977 ).
18 iblaHI
19 united States v. Tivian Laboratories, Inc., 589 F.2d 49
(Is t~ Cir.) , cert, denied, 99 S. Ct~. 2884 (1973), citing
United States v. Powell, supra, n. 11.
-------
- 9 -
which lighten the burden on a subpoenaed party by insuring that
compliance will not unduly disrupt his business. For example,
a court may allow the subpoenaed party to comply with the request
at his actual place of business. A court may also require a file
search to be made by Agency attorneys.
E. ?r iv ileq e
Federal administrative law,, like the common law, recognizes
instances where an individual is entitled to withhold self-
incriminating or privileged information.
Just which of the common law orivileaes are available to
* 20
respondents is not entirely clear, since courts have accepted
some and rejected other testimonial privileges. The attorney-
client privilege, however, stands alone as the one relationship
which has consistently been protected by the courts.
In order for information to be exempt from the reach of
a', administrative subpoena, 1) there must be an attorney-client
relationship in place at the time of the communication, 2)
any communication must be made in confidence to an attorney
in his professional caoacity, and 3) the communication must be
21
made for the ourpose of obtaining legal advice or assistance.
22
Corporations are entitled to this privilege as well as individuals.
Tj !7ote chat the third circuit has said that state-created
privileges are not recognized as a matter of federal
common law. U.S. v. Cortese, 410 F. Supp. 1380 (E.D.
?a . ) , aff'd 54 ,1c o4U ur d Cir. 197 6).
21 United States v. Ponder, 475 F.2d 37 (5th Cir. 1973)
22 Bell ~ Maryland, 37 6' U.S. 226 (1964).
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- 10 -
The burden of showing the applicability of the attorney-client
privilege is on the claimant.
The courts have not looked as favorably upon most other
testimonial privileges. While some courts have accepted the
privileged status of the doctor-patient relationship, they
have tended to reject all other privileges, such as accountant-
client and priest-penitent.
Individual respondents to administrative subpoenas may
also avail themselves of the fifth amendment's privilege
against self-incrimination. Corporations ana associations
22
dc not have the right to invoke this privilege. In addition,
a custodian of corporate records cannot invoke the fifth amend-
24
ment, even if the records would incriminate him. An individual
also is barred from claiming this privilege on behalf of someone
25
who may have documents incriminating the claimant.
An individual cannot, however, be compelled to disclose
the contents of his own mind, if doing so would be self-incri-
minatory. Thus a witness cannot be called upon to explain the
contents of corporate records in his possession which incriminate
26 27
h im.
22" united States v. White, 3 22 U.S. 694 ( 1944 ).
24 Oklahoma Press Publishing Co. v. Walling, 3 27 U.S. 186 (1946).
2 5 Couch ' vUnited States, n OS D .5 . Ill ( 19 7 3 ) .
2 5 Cureio v. United S tates, 344 U.S. 118 (1957).
2" Mote that a corporation cannot purposely select an individual
to answer a subpoena who can call upon the fifth amendment
privilege in order to shield the corporation from the inquiry
The corporation has an affirmative obligation to find someone
who does not fear that he will incriminate himself by his
answers. United States v. Kordel, 397 U.S. 1, (1970).
-------
- 11 -
Furthermore, an individual cannot be compelled to relinquish
ar. incr irninatir.c document in his possession which is testi-
25
monial in nature.
An offer of immunity, of course, will remove the possi-
bility of a respondent incriminating himself, and thus he
may be compelled to testify. Offers of immunity must be
cleared by the Department of Justice.
Form And Service Of Subpoenas
Attached as Appendix 3 are sample subpoenas and other
auxilliary forms. There are separate forms for compelling
testimony and for requiring the production of documents.
The separate forms should do away with the need to state
in a cover letter to a subpoena duces tecum that the named
individual does not have to personally appear before the
Agency, '••'here both testimony and documents are desired,
the two forms can be combined. Since firms delivering
documents demanded tv a subpoena, will often as'c for a
rec-;iot, a Receiot of Subpoena Response form has also
been included. Service should be made, where possible
by registered mail or by handing the subpoena to the
person named therein. However, since the precise manner
by which administrative subpoenas should be served is not
defined in TSCA and has never been defined by the courts,
most traditional forms of service are probably acceptable.
isner v. "United States, 4 25 U.S. 391 ( 1976 ).
-------
- 12 -
Thus the return of service form provides an opportunity to
specify the type of service made other than those listed
:r. the form.
When serving a corporation, the phrase "in his (or her)
capacity as" should be inserted after the name of the person
served on oenalf of the company. This practice will prevent
the corporation from using the named individual tc invoke
the privilege against self-incrimination. The subpoena
served or. any party should be a copy, and the original
should be retained by the issuing office. The return of
service form, when completed, should be attached to the
original subpoena. The person making service should
attempt to serve the custodian of the records sought.
If more than one person possesses the records, or the
custodian is not known, a registered agent or a corporate
of f icer sncul "5 oe served. Reference books are available
wh :cr. i;;t corporate officers. Note that the corporate
ger.-iral counsel is usually not an officer, unless his
title reflects a dual role, such as "vice president and
general counsel".
The Office of Enforcement will recommend to the
Office of General Counsel that the two offices cooperate
in crafting Agency-wide rules governing procedural matters
relating to subpoenas, such as service, motions to quash,
and pavment of witness fees. Development of an Agency-
system for hearing motions to quash may be particularly
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- 13 -
important. When EP« has such rules in place, respondents
obj »ct inc to a subooena ma1/ be required to 1 i tiga te their
motions to ouash before che Aaencv prior to domq so in
29
federal district court. SPA would then have an early
opportunity to correct any problems with the subpoena,
especially these arising from objections based on
vagueness or burdensomeness .
Enforcement of Subpoenas
In order to enforce a subpoena against an individual
who fails to coir.plv with its demands, enforcement personnel
must first contact the Deoartment ot Justice. DCJ will
represent the Agencv in federal district court. The
enforcement action mav be broucht in any district where
3 C
venue is proper.
Tne action should _al;e the form of an application for
i". order r ecu - r i r.~ co~ciiar.ee wi th the subpoena. The filing
of a ccmol a i n t. , oceninc ohe door" to d i scove rv a r.c the other
traooir.es of normal civil suits, is net necessary or desirabi
The application should briefly set forth the nature of the
investigation, a summary of the subpoena, and a statement
of the subpoenaed oartv's failure to comply with the suoooena
In an accomcanving memorandum in support of the application,
oer.u me
'arts
bee
Go
J— O ^ . >
dvear
. id.) an.
Tire & Rubber
3 (¦
Co
445 ?.2d 1382 (5th Cir. 1571).
' ) •
v. National Labor Relations
boarc
1//
J.O
4 5U, Vol ibtn Cir. -5TT7T
Quick Shop Markets, Inc. , 5 26 F.2d SO 2 (8 th Cir. 197 5 ).
-------
the DOJ and EPA attorneys should provide a more detailed
description of the facts, state the basis of the court's
jurisdiction, explain how the Morton Salt test of a subpoena'
validity is met, and emphasize that the enforcement of
administrative compulsory process is a summary proceeding.
-------
APPENDIX A
TSCA Section 11(c)
(c) SUBPOENAS.—In carrying out this Act, the
Administrator may by subpoena require the attendance and
testimony of witnesses and the production of reports,
papers, documents, answers to questions, and other infor-
mation that the Administrator deems necessary. Witnesses
shall be paid the same fees and mileage that are paid wit-
nesses in the courts of the United States. In the event
of contumacy, failure, or refusal of any person to obey -
any such subpoena, any district court of the United States
in which venue is proper shall have jurisdiction to order
any such person to comply with such subpoena. Any failure
to obey such an order of the court is punishable by the
court as a contempt thereof.
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APPENDIX 8-1
SUBPOENA DUCES TECUM
UNITED STATES OF AMERICA
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
TO: (name)
(address)
To further the Environmental Protection Agency's
investigation of (e.g., compliance with a statutory
provision or reguTaticn, risk posed oy a chemical, etc.)
you are hareov required to appear before
tne ' (RA or AA) i n room , 4 01 M St. S.W.,
Wash ing con , D . C. , orT (month, 'a ay, and year) , at
(time of cay) , and to "bring with you the reports,
papers, documents,'answers to questions, and other infor-
mation requested in the attached Specifications.
If you so desire, you may have your representative
produce, at the time and place aforesaid, the items or
information requested in the Specifications.
If you consider any of the documents or other infor-
mation which you submit in response to this subpoena to be
confidential business information, please mark each page
containing such confidential business information. The
nark may be the word "confidential", or the phrase "pro-
prietary information", or other similar marking. If you
wish to make a claim of confidentiality for this informa-
tion, 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 CFR Part 2).
Issued under the authority of 15 U.S.C. Section 2610(c),
this day of , 19 .
United States Environmental
Protection Agency, by
(signature)
RA or AA
-------
APPENDIX B-2
SUBPOENA AD -TESTIFICANDUM
UNITED STATES OF AMERICA
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
TO: (name)
(address)
To further the Environmental Protection Agency's
investigation of
,'you are hereby "requirea to appear
oerore in room , 401 M
St., S." , Washington, dTC., on the" day or ,
19 , at o'clock, to testify in the aforementioned
matter .
Issued under the authority of 15 U.S.C. Section 2610
(c), this day of , 19
United States Environmental
Protection Agency, by
(signature)
RA or AA
-------
APPENDIX B-3
RETURN 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 subpoena
( ) in person
( ) by registered mail, return receipt requested
( ) by leaving the copy at principal place of
(check business, which is
one)
( ) (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)
Iriame of person making service;
~ (title Tir*a n yl
-------
APPENDIX B-4
RECEIPT 0? SUBPOENA RESPONSE
UNITED STATES OF AMERICA
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
t (tvve name , certify that I received, on
behalf of the U.S. Environmental Protection Agency (EPA),
the followina documents from (subpoenaed party) on .
(month, day, and yearj in response to the EPA subpoena
or ~~(month, day, and year')'" ~
(describe submittal)
(s ignature)
(title)
-------
HAPTJTR 2 2
APPENDIX C
TOXIC SUBSTANCES CONTROL ACT
M A H UAL
DELEGATIONS
12-1. Inspections.and Subpoenas
1. AjJTHQP-ITV. To designate representaLives o£ the Administrator:
a. To inspect: any establishcent, facility, or other precises in
which cherr.ical substances, fixtures, or articles containing chemical
substances or fixtures, are manufactured, processed, stored, or held
before or after their distribution in commerce; and any conveyance
being used to transport chemical substances, mixtures, or such
articles in connection with distribution in com-nercc. Any such
inspection shall be conducted in accordance v.'ith the provisions of
the Toxic Substances Control Act Section 11(a) and Section 11(b).
b. To require by subpoena the attendance and testimony of •
witnesses and the production of reports, papers, documents, ansv.'ers
to questions, and other information in accordance with the Toxic
Substances Control Act Section 11(c).
2. TO V.'HOM DELEGATED.
Ac s 3. s t a o w /idi'j11; jls t r a t o i
Adninisr.ra tors.
Enforcement and the
notify the appro-
action under this
P.l'DELECATlON AuTb'OP.lTI'. The inspection authority in (a) above
may be redele^aced; Lhe subpoena authority in (b) above icay not be
rcdelegated.
Assistant
for Toxic
Aair.xnis t
Subs tanc
tor i:or Enforcement,
avi';
nai
3. LIMITATIONS. Tiic Assistant Administrator for
Assistant Adminis t ra tc r for Toxic Substances mur. t
pristc Regional Administrator prior tc taking any
delegation.
V\
7-2ri-7V>
i>.
-------
I 3 UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
June 24, 1982
office of
fCSTiCJOCS AND TOXIC SUBSTANCES
M E M 0 R A N D U M
S :J EJECT: Compliance Strategy for the Asbestos in Schools Rule
TO: Air and Hazardous Materials Division Directors
Environmental Services Division Di rectors
Toxic Substances Branch Chiefs
The final version of the Asbestos in Schools Rule was
puolisned in the Federal Register on May 2 7, 1982 (47 Federal
Register 23261). Attached is tne Compliance Strategy tor TnTs
rlTi e . A proposed strategy was circulated in April, 1981, for
comment. This document reflects comments on the proposed
strategy and the discussion of compliance issues at the Regional
Asoestos Update Conference on May 6, 1932, as well as, changes
to the proposed rule.
3lease note that "Criteria for Satisfactory Participation
in tne Tec.nnical Assistance Program (TAP)", which is mentioned
in this strategy and was discussed at the conference is under
development. State Programs are briefly discussed in this
document. A guidance document specifically for State programs
associated with this rule is also under development. Finally,
in response to requests made at the conference, training
materials will be sent to the Regions for compliance assistance
and compliance monitoring.
If you have any questions please contact Pamela Harris
(FTS 755-9 404) of my staff.
fr-O.
A. Z. Conroy II, Director
Pesticides and Toxic Substances
Enforcement Division
Vw/
Attachment
-c: Regional Asbestos Coordinators
-------
COMPLIANCE STRATEGY FOR
THE FRIABLE ASBESTOS-CONTAINING MATERIALS IN SCHOOLS:
IDENTIFICATION AND NOTIFICATION REGULATION
THE PESTICIDES
AND TOXIC SUBSTANCES ENFORCEMENT DIVISION,
THE U.S. ENVIRONMENTAL PROTECTION AGENCY
-------
Asbestos in Schools Rule
Compliance Strategy
Overview 1
Requirements of the Regulation 2
Inspection
S a m p 1 i n g
Analysis
Warnings and Notification
Recordkeeping
£ x e m p t i o r. s
Regulated Community 5
Organization of Schools
Locati on of Asbestos
Enforcement 6
0 b j e c t i v e s
Types of Violations
'/ o i u r. t a ry Compliance
Compliance Monitoring Strategy 9
Compliance .Monitoring P r i o r i t i e s
Compliance Monitoring Activities
Inspection Scheme
Neutral Administrative Inspection
Scheme
State Programs for Compliance Monitoring
Administrative Responsibilities 13
Program Management
Program Integrati on
Appendix: ICO Most Populous School Districts . . 15
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Overview
The data available on the health effects of inhaled asbestos
show that even limited exposure can increase the occurrence
of asbestos related illness and cancer in exposed individuals. J_/
In response to the health effects of asbestos the Environmental
Protection Agency's Office of Toxic Substances launched in early
1973 a voluntary Technical Assistance Program (TAP) to aid schools
in the detection of asbestos in school buildings. As of September,
1980, as many as 40% of the schools in the United States had not
been properly inspected and a larger percentage of schools had not
followed the recommended surveillance and analysis tecnniques. In
some states no attempt had been made to inspect the schools.
Because of the serious health effects of asbestos and trie limited
success of the TAP, the Environmental Protection Agency published
a rule under Section 5 of tne Toxic Substances Control Act (45
Federal Regi ster 23360, May 2 7, 1982). The rule is intended to
icentify scnools containing asoestos and reduce the risk of
exposure to the estimated 3,000,0 00 students and 250,000 teachers
and other staff who use the schools whicn contain asbestos. All
primary and secondary schools in the United States will be affected
by the rule.
The rule which applies to Local Education Agencies (LEA's) nas
five requirements:
1. Inspection
2. Sampling
3. Analysis
4. Warnings and Notification
5. Recordkeeping
Scnocls ouilt after December 31, 1973, are exempt from tne
requirements of tne rule. A school is exempt from the re g u1 a t i o n
if it properly performed inspections, sampling and analysis under
the voluntary program and found no friable asbestos-containing
material or if it can document that no friable asbestos-containing
materials were used in building or renovating the school.
]_/ See Technical Support Document for the Asbestos in Schools
Rule for a detailed discussion of the health risks of
exposure to asbestos.
-------
School Type
Number of Non-Public
Schools
Catholic
9640
Lutheran
1039
Other church affiliated (e.g.,
Hebrew, Quaker, Episcopalian,
Seventh Day Adventists)
3049
Non-church (e.g., military,
handicapped children,
Montessori, exceptional
children)
2772
The largest number of children attending non-public schools
attend the 9,640 Catholic schools. Of these 8,100 are elementary
schools and 1,54 0 are secondary schools. The educational organi-
zation consists of 165 dioceses overseeing approximately 10,000
parishes. The diocese, which is headed by a bishop, may or may
not have a Board of Education responsible for tne financial
management of the school system. There are three types of Catholic
Schools. Private or independent schools are owned and ooerateci
Dy a religious community (e.g., Jesuits). Parish schools are
sponsored by one or several churches an a are usually elementary
schools. Diocesan schools are subsidized by tuition and central
funds and are, for the most part, high schools.
Other non-public schools are generally autonomous private elementary
and secondary scnools.
State Board of Education
The State Board of Education acts in an accreditation capacity,
maintaining certain minimum standards for instruction, curriculum
and physical plant specifications of school buildings for
both public and private facilities.
C omp1i a nee
Objectives
The objective of the compliance program is to encourage compliance
with the rule. Activities should be seen in this light rather
than as attempts simply to detect violations. In cases where
means other than enforcement actions will achieve compliance,
these actions should be pursued to conclusion before resorting to
enforcement actions.
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- 7 -
Types of Violations
Violations are failures to comply with any requirement of the
Rule. For each requirement there may be several violations.
o Recordkeeping Requirement. [Records should be accurate,
complete and up to date.j Violations are:
- Falsified records
- Failure to keep records
- Missing elements (incomplete records)
- Records which are not made available to the
public or EPA inspectors.
o Inspection of 3uiIdings. [All buildings should be inspected
"to 1 ocate friable materi a 1 s. ] Violations are:
- Failure to inspect all buildings.
- Failure to follow proper inspection procedures
as detailed in the Guidance Documents.
0 Sampling. [Samples should be taken of all friable
materials.] Violations are:
- Failure to sample all areas of friable materials.
- Failure to sample according to procedures in the
Guidance Documents.
0 Analysis. [Samples should be analyzed using polarized
1i gnt nn c rocopy with X-ray diffraction as a confirmatory
technique.] Violations are:
- Failure to have samples analyzed.
- Failure to ensure use of the proper analytical
technique.
o Warnings and Notices. [Notices should be posted in schools
as required Dy the Rule. Personnel using the building and
the PTA (or parents of the children) should be notified if
the school contains friable asbestos materials.] Violations
are:
- Failure to post notices.
- Failure to send warnings to the proper persons.
o Use of Exemptions. [TAP activities or building documents
indicate that there are not friable asbestos-containing
materials in the school building.] Violations are:
- TAP activities do not support the conclusion that
there is no friable asbestos-containing material in
the school because those activities were inadequate (see
OTS criteria for satisfactory TAP participation).
- Records which support the exemption claim are Inadequate.
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- 8 -
Voluntary Compliance
One of the goals of this stategy, as well as of the Asbestos
in Schools Rule, is to achieve voluntary compliance.
Since the presence of asbestos in schools is a potential health
hazard, particularly for children, it is a problem which causes
public concern. This public concern provides a strong motivation
for voluntary compliance. To tap this potential the Regions will
offer public education programs which include speakers and courses
for public and professional organizations. A major source of the
speakers and course coordinators is the American Association of
Retired Persons through a contract with EPA.
The Regions should encourage public participation in monitoring
compliance with the rule. Good rapport between the Regional
compliance monitoring staff and interested local groups can
greatly increase the effectiveness of the rule.
Since the records are public information, members of the public can
inspect them for completeness. Records which are suspected of being
incomplete or unreliable (see "triggers" in Compliance Monitoring
Section) should be reported to the Regional Office. The Regional
Office should encourage such inspection and publicize the following
i n fo rmation:
o The name of Regional enforcement Contact person;
o What sort of information should be reported to this
person; and
o How to contact the person.
Several citizens groups which have expressed an interest in this
progam could assist the implementation of this rule at the local
level. For instance, the League of Women Voters in Illinois
participated in the TAP by inspecting all schools in the state
outside of Chicago. Similar assistance by public groups could be
helpful to LEA's as well as to EPA. Interested groups are:
o Parent Teachers Association
o League of Women Voters
o Education Associations
- National Education Association
- American Federation of Teachers
o American Association of Retired Persons.
The training programs can prepare members of these groups to support
compliance with the Rule 1n the following ways:
o Enhance public awareness by publicizing the purpose
and goals of the program.
o Perform routine screening of school records.
o Assist the LEA's in complying with the Rule.
-------
All of these activities should increase the level of voluntary
compliance. Requests for training should be directed to the
Regional Office which will determine how best to respond to
the requests. The contractors from the American Association
for Retired Persons would be the best choice for providing
this training.
PTSED and OTS will develop a Compliance Assistance Guidance Document.
This document will provide step-by-step instructions for complying
with each requirement of the rule. Regional personnel should use
this document as the basis of the training programs which they provide.
Compliance Monitoring Strategy
Compliance Monitoring Priorities
In areas where the lack of public participation or State programs
necessitate a Federal presence to monitor compliance with the
rule, the primary method of compliance monitoring will be inspec-
tion of LEA and school records. Inspection of records will detect
recordkeeping violations as well as other types of violations. So
that the LEA can be sure that all of its compliance activites are
reflected in its records, the inspector should notifiy the governing
official of the LEA at least one week before any planned inspection.
Sampling and analysis may be performed to confirm the results obtained
by the LEA.
Compliance Monitoring Activities
Compliance monitoring shall be both affirmative and responsive.
Responsive actions will be triggered by complaints from the
community. Affirmative compliance will consist of visiting
Local Education Agencies to determine the actual level of
compii a nee.
The limited resources available for compliance monitoring must be
utilized so that two criteria are met:
o LEA's used by the largest number of children are inspected
for verification of compliance.
o The maximum degree of response to suspected violations is
possible.
The 100 largest public school districts in the United State educate
approximately 25?; of the country's children. In the two years
following the publication of this Rule the level of compliance for
all of these districts will be determined (these districts are listed
in the Appendix).
Other resources will be allocated so that evidence of noncompliance
i s i nvest i gated.
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- 10 -
Inspection Scheme
Inspections by EPA personnel are necessary to the successful
enforcement of the Rule. Such inspections put the regulated
community on notice that compliance is considered an important
issue by the Agency and that violations will be detected and
pursued. Even if surveillance cannot be total, it can
serve as a spur to compliance. Inspection visits are also a
means of responding to public complaints of noncompliance by
an LEA.
Two criteria will be used to select the LEA's for inspection visits:
o LEA's for which complaints have been received or
which the Asbestos Coordinator has reason to believe
are not i n compli ance.
o LEA's which have been chosen using a neutral scheme.
The allocation of resources between thes two types of inspections
will depend on the number of complaints received by the Region and
the level of compliance for the LEAs. The success of Regional
personnel at resolving complaints without the necessity of inspec-
tion visits is also a factor. However, at least 25 percent of
available resources should be reserved for the neutral inspections.
Neutral Administrative Inspection Scheme (NAIS)
The following criteria will be applied to select LEA's to be
inspected under the NAIS:
0 LEA's which are in the top 100 in student population
(see Appendix) in the United States, but did not satis-
factorily comply with the TAP.
° Checks of other LEA's - remaining NAIS resources.
To target NAIS inspection of LEA's which are not in the top 100
and did not participate in the technical assistance program use
the following procedure.
1. Consider all LEA's with buildings constructed or removated
between 1940 and 1978 which have not already been targeted
for inspection.
2. Divide resources between public and private LEA's. Allot
to the private schools a percentage of the resources equal
to the percent of the school ppopulatlon in private schools
plus ten to fifteen percent. The rest of the resources will
be used to inspect the public schools.
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- 11 -
3. Rank the public and private LEA's separately by size.
Determine the number of schools on each list. This number
is "A".
4. Determine the number of inspections available for each type
of LEA. This number is MB".
5. Divide A by B. A/B » C. Choose every Cth school on each
list for Inspection. Determine A, B, and C separately for
public and private LEA's.
For example if there are 100 private LEA's in a Region and resources
are available to inspect 5 private schools.
A * 100 there are 100 LEA's
B = 5 there are resources for five inspections
C = 100/5 = 20 inspect every 20th school in the list ranked by
populat i on .
If population figures are not available, list the schools in
alphabetical order.
These LEA's have now been targeted without any consideration of
their compliance or voluntary activities or whether or not they
claim to be exempt from the requirements of the rule for any
Reason other than the date of construction.
The inspector will visit these schools and determine if the
inspection, analysis and sampling - whether performed under the
TAP or after the effective date of the rule - is satisfactory.
He will also determine if the LEA has complied with the record-
keeping and notification requirements of the rule. If an LEA
claims that it is exempt from the rule, the inspector will inspect
the documents which support that claim. The inspector should
inspect the buildings and take samples for analysis in cases where
the inspector question the documents supporting the exemption
claim.
inspection Procedures
The inspector will go to the central office of the LEA selected and
review the files. Depending on the time available, he will choose
1-5 schools to visit for a records review and possible inspection
and sample analysis. Triggers for choosing a school are listed
below.
o Records are too consistent, especially where a large
school system has schools built or renovated during
the relevant period.
-------
- 12 -
o Records Indicate a lack of friable materi al.
o Lack of cooperation on part of school officials.
o Significant gaps or uneven detail in required records.
o Lack of response to local weather events such as severe
storms or floods that may have led to water damage.
o Other suspicious conditions, including information available
to the Asbestos Coordinator that indicates possible non-com-
pii ance.
If none of the above triggers is relevant, the largest school, the
oldest school and the school used for the most nonschool activities
s hal 1 be vi s i ted ,
Records in the schools will be inspected. If the records indicate
that inspection sampling and analysis were performed but that no
asbestos was discovered, the inspector may wish to inspect and take
samples for analysis to confirm the records.
State Programs for Compliance Monitoring
There are many reasons why State programs could perform compliance
assistance and monitoring functons for this Rule more effectively
than the Federal government. A State-run program could be inte-
grated into an existing program such as a building safety program.
Also State organizations, such as public health departments usually
have a State wide network with offices in counties and major cities.
This means that State organizations are in a better position to
establish rapport with the community on this issue. The States
may also have options available to encourage compliance througn
the use of State regulations which would be more effective than
the use of Federal authority.
Some States have done an excellent job of implementing the voluntary
Technical Assistant Program described in the Introduction of this
document. The EPA will review the status of TAP in the States
which participated and determine if a federal presence in the
State is desirable. Detailed criteria for evaluation of successful
participation in the TAP are available from headquarters. Utner
States which did not participate fully in the TAP will establish
comprehensive programs during the twelve month compliance period
following the effective date of the rule. EPA will evaluate these
programs also, to determine if a federal presence is necessary.
Evaluation criteria include technical expertise of the personnel,
proposed scheme for monitoring compliance, the goals of the
State Agency, implementing the program (since ensuring public health
is the principal concern of the rule, a State health or environmental
agency would be the preferred agency) and the quality assurance
program.
-------
- 13 -
The EPA will make technical training materials available to states
which wish to run their own program. These materials should provide
adequate technical background for personnel involved in the program.
At the end of the first year of implementation, personnel from EPA
will evaluate the effectiveness of the state program.
States which choose to implement their own program can still refer
cases to Regional EPA offices for enforcement response, if the state
agency deems this action advisable.
States may wish to participate only partially in the program.
For instance, a State may collect information from LEA's concerning
the activities in response to the rule or State universities
may be willing to analyse samples for asbestos. State programs
may vary widely. The compliance monitoring activities which
are not performed by the State must be performed by the Federal
government.
The Federal government would continue to play a role in States
unwilling to implement their own programs.
In general the Regions should encourage the States to implement
their own programs under cooperative agreements with EPA. Head-
quarters will provide further guidance for the management of-State
cooperative agreements for this program.
Administrative Responsipi1ities
Program Management
PTSED will coordinate responses to problems which affect more
than one Region or which may require special expertise (for
example, a problem dealing with laboratory analysis). Problems
that require coordination with OTS will also be handled tnrough
PTSED.
Any policy issues will be handled by Headquarters. If any policy
issues arise which are not covered by this document, the Region
should contact PTSED. The Issue and its resolution will then be
shared with all the Regions.
The Responsibilities of Headquarters are outlined below:
o Provide technical information.
o Liaison with OTS.
o Policy and program guidance.
o Advisory role in case development.
o Liaison with Department of Justice should an
injunction be requested.
-------
- 14 -
The responsibilities of the Regional offices are as follows:
o Target inspections based on criteria and information
provided by headquarters.
o Liaison with State Programs.
o Inspect schools.
o Gather information.
o Case development.
o Notices of Noncompliance and initial selection of
cases to be referred to Department of Justice
through Headquarters.
Program Integration
Some States may have their own plans for asbestos in schools, (for
example, updating building codes). Liaison with state asbestos
programs will be handled by Regional Offices.
OTS will develop crieria for evaluating the effectiveness of -
LEAs' activities under the TAP. PTSED and OTS will develop
Compliance Assistance Guidance for training persons in how to
comply with the rule. PTSED will develop State Program Guidance
tophich will include Compliance Monitoring Guidance for State
^personnel performing compliance monitoring activities.
This Rule triggers the export notice provisions of Section 12 of
TSCA. This section states that chemicals regulated by a proposed
or final Rule under Section 6 of TSCA may be exported only after
the exporter has notified the Administrator of EPA. For further
information concerning Section 12 and this rule see "Export
Notification Clarification Statement" 45 PR 3 7608t July 21, 1981.
-------
[ank
1
2
3
4
5
5
7
3
9
0,
I
1-
2
3
4
5
6
7
3
9
10
i
L
- 15 -
TOO MOST POPULOUS LOCAL EDUCATION AGENCIES'
MEMBERSHIP NAME OF UNIT
962,963
New York City Sch Dist
721 ,41 9
Puerto Rico Sch Dist
550,606
Los Angeles Unif Sch Dist
477,339
City of Chicago Sch Dist
232,328
Philadelphia City Sch Dist
223,740
Dade County Sch Dist
220,046
Detroit City Sch D1st
193,907
Houston ISD
187,764
Archdiocese of Chicago
172,152
Archdiocese of Philadelphia
168,660
Hawaii Dept of Education
136,634
Archdiocese of New York
136,187
Baltimore City Sch Dist
135,313
Broward County Sch Dist
130,357
Dallas ISD
128,411
Fairfax Co Sch Dist
127,529
Prince Georges Co Sch Dist
118,722
Diocese of Brooklyn
1 13,606
Memphis City Sch Dist
111 ,922
San Diego City Unif Sch Dist
LOCATION
Brooklyn, NY
Hato Rey, PR
Los Angeles, CA
Chicago, IL
Phi 1adelohi a, PA
Miami, FL
Detroit, MI
Houston, MI_
Chicago, IL
Philadelphia, PA
Honolulu , HI
New York, MY
Baltimore, MD
Ft. Lauderdale, FL
Dallas, TX
Fairfax, VA
Upper Marlboro, MD
~
Brooklyn, NY
Memphis, TN
San Diego, CA
-------
- 16 -
MEMBERSHIP NAME OF UNIT LOCATION
111 ,889
Hillsborough County Sch D1st
Tampa, FL
110,601
Archdiocese of Los Angeles
Los Angeles, CA
106,156
D.C. Public Schools
Washington, DC
104,867
Jefferson County Sch D1st
Louisville, KY
102,633
Montgomery County Sch Dist
Rockvi11e , MD
102,329
Baltimore County Sch Dist
Towson, MD
102,163
Duval County Sch Dist
Jacksonville, FL
92,558
Cleveland Sch Dist
Cleveland, OH
91,944
Milwaukee Sch Dist
Milwaukee, WI
38,388
Pinellas County Sch Dist
Clearwater, FL
87,425
Clark County Sch Dist
Las Vegas, NV
86 ,783
Orleans Parish Sch Dist
New Orleans, LA
83,533
Archdiocese of Detroit
Detroit, MI
83,487
Diocese of Cleveland
Cleveland, OH
83,090
Archdiocese of Newark
Newark, NJ
82,235
Orange County Sch Dist
Orlando, FL
82,086
Dekalb County Sch Dist
Decatur, GA
80,982
Albuquerque Sch Dist
Albuquerque, NM
79,190
Jefferson County Sch Dist
Lakewood, CO
77,799
Columbus Sch Dist
Columbus, OH
-------
41
42
43
44
45
46
47
48
49
50
51
52
n
N
54
55
56
57
58
59
60
61
62
- 17 -
MEMBERSHIP NAME OF UNIT
76,121
Mecklenburg Charlotte Sch
Di st
74,560
Atlanta City Sch Dist
71,989
Anne Arundel Sch D1st
71,504
Nashville-Davidson Co Sch
Dist
70,963
Palm Beach County Sch D1 st
70,738
Archdiocese of Boston
69,735
Indianapolis Pub Schs
68,964
Saint Louis City Sch Dist
68,951
Boston Sch Dist
67,698
Archdiocese of St. Louis
66,821
Fort Worth ISD
65,908
E 3aton Rouge Parish Sch Dist
65,128
Denver Sch Dist
61 ,816
San Antonio ISO
61,707
El Paso ISD
61 ,534
Jefferson Parish Sch Dist
61,438
Newark Sch Dist
61,099
Archdiocese of New Orleans
60,966
Mobile County Sch Dist
60,311
Archdiocese of Cincinnati
59,878
Granite Sch D1st
58,912
Polk County Sch Dist
LOCATION
Charlotte, NC
Atlanta, OA
Annapolis, MD
Nashville, TN
W Palm Beach, FL
8oston, MA
Indianapolis, IN
St. Louis, MO
Boston, MA
St. Louis, MO
Fort Worth , TX
Baton Rouqe, LA
Denver, CO
San Antonio, TX
El Paso, TX
Gretna, LA
Newark , NJ
New Orleans, LA
Mobile, AL
Cincinnati, OH
Salt Lake City, UT
Bartow, FL
-------
V &
64
65
66
67
68
69
70
71
72
73
74
7b
77
73
79
80
81
82
83
84
MEMBERSHIP
- 18 -
NAME OF UNIT
LOCATION
58,459
New Castle Co Sch D1 st
Wilmington, DE
57,265
San Francisco Un1f Sch Dist
San Francisco, CA
57,082
Austin ISO
Austin, TX
56,561
Tucson Unified Sch D1st 001
Tucson, AZ
56,199
Archdiocese of Milwaukee
Milwaukee, WI
56,1 18
Diocese of Trenton
Trenton, NJ
55,979
Cincinnati Sch Dist
Cincinnati, OH
55,830
Virginia Beach City Sch Dist
Virginia Bch, VA
55,323
Long Beach Unif Sch Dist
Long Beach, CA
55,081
Cobb County Sch Dist
Marietta GA
54,709
Wake County Sch Dist
Raleiqh, I'C
53,856
Portl and Sch Dist 01J
Portland, OR
53,540
Greenville County Sch Dist
Greenvi11e , SC
52,592
Tulsa C1 ty Sch Dist
Tulsa, OK
50,577
Diocese of Rockville Centre
Rockville Centre, NY
50,371
Seattle Sch Dist
Seattle, WA
50,080
Diocese of Pittsburgh
Pittsburgh, PA
49,328
Jefferson County Sch Dist
Birmingham, AL
48,729
Buffalo City Sch D1 st
Buffalo, NY
48,632
Pittsburgh City Sch Dist
Pittsburgh, PA
48,612
Brevard County Sch D1st
Rockledge, FL
48,466
Oakland Un1f Sch D1st
Oakland, CA
-------
,^° sr">,
? A ^
c>"
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
SEP 21 7992
OFFICE OF
PESTICIDES ANO TOXIC SUBSTANCES
MEMORANDUM
SUBJECT: Model Asbestos in Schools; Cooperative Compliance Program
Int roduct i on
As you know, on May 28, 1982, the Agency issued a final rule,
"Friable Asbestos-Containing Materials in Schools; Identification
and Notification," under Section 6 of the Toxic Substances Control
Act (TSCA). This rule requires local education agencies (LEAs)
to comply with its requirements by June 28, 1983. In FY83 only
limited Federal resources will be available to monitor compliance
with this rule. We anticipate, however, that the States will also
nave a major interest in determining the level of asbestos con-
tamination in the schools under their jurisdiction. In fact, we
are aware that the Regions have worked with the States to varying
degrees in the Technical Assistance Program (TAP) for voluntary
inspection of schools for asbestos. In many States, this coopera-
tion resulted in the inspection of most public and some private
school buildings for friable asbestos containing materials, nowever,
not all buildings in all States were inspected. Therefore, we
encourage the Regions to continue or expand their cooperative
programs with the States for monitoring compliance with this rule
and to develop such programs where they do not exist.
Program Substance
In seeking cooperation from the States, the Regions should try
to establish the most comprehensive complementary program possible.
No matter what the degree of State participation, the Regions will
want to establish a comprehensive tracking and implementation system
for the compliance monitoring program which identifies the following
for each State:
1) pub 1ic schools
2) private schools
3) number with friable material
4) number with asbestos
5) number where corrective action has been taken
States can participate to varying degrees in the planning and
implementation phases of a cooperative program.
TO:
Regional Asbestos Coordinators
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- 2 -
Information Sharing
A State may agree to supply the information regarding its
schools to help the Region better target planned inspections.
This information could include information about the age and
population of schools and, if available, the status of any
activities involving asbestos in schools in that State.
Partial Compliance Monitoring Responsibility
The State may agree to divide compliance monitoring
responsibility for the asbestos in school rule. For instance,
a Stats may decide to undertake compliance monitoring activities
in public schools, while EPA would monitor compliance in private
schools. Other possible divisions of responsibi1ity could be
according to geographic areas in a state, or rural vs. urban
areas.
Under such a program the State and the Region would pool
information resulting from the inspections for inclusion in the
Federal program tracking system.
Laboratory Support
A State may also offer laboratory analytical support for
analysis of Federal samples collected during compliance inspec-
tions for the asbestos in schools rule.
Total Compliance Monitoring Responsibility
The Region and the State could pool their data from the
Technical Assistance Program. Based on this data, each State
could develop its own program of targetting, and conducting
inspections and supply EPA with quarterly reports on accomplish-
ments.
Program Form
A cooperative compliance monitoring program can be implemented
by means of either formal or informal agreements.
Formal Agreements
For those Regions and States interested in the formal approach,
we have attached a model Memorandum of Agreement which describes the
most comprehensive cooperative program which EPA and the States
could undertake. This model, however, is only suggested as a guide.
Regions may use the model or modify it as deemed appropriate for
any formal agreement reached with the State.
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- 3 -
There are two major advantages of entering into a formal
written agreement with a State. First a written agreement would
embody a comprehensive plan for the compliance monitoring program
with a clear indication to both parties of their specific commit-
ments to one another. Secondly", a formal agreement would allow
EPA to designate participating State inspectors as representatives
of EPA, thus allowing them access to private schoo-ls which they
might otherwise have no authority to enter.
Informal Agreements
We realize, that some States, although willing to participate
in a cooperative program, may be reluctant to enter into a formal
written agreement with EPA. In this case, Regions should pursue
informal agreements with States. However, in such circumstances
each Region should develop its own written plan indicating what
activities will be performed by the State. However, under such an
informal arrangement, EPA will not be able to designate the State
officials as Agency representatives, which may limit State activities.
All programs, formal and informal, should be reviewed at
least annually by the Regional Asbestos Coordinator. '
If there are any comments or questions regarding the model
Memorandum of Agreement for asbestos in schools compliance moni-
toring, contact David Hannemann at 755-9152. Other questions
regarding the Asbestos in Schools Program should be addressed to
Pamela Harris at 382-5567.
A. :tor
Pe Substances
Attachment
-------
DRAFT
!~MODEL NON-FUNDED COOPERATIVE AGREEMENT"! 8 JUL IbSk
! ASBESTOS IN SCHOOLS |
MEMORANDUM OF AGREEMENT
BETWEEN
THE U.S. ENVIRONMENTAL PROTECTION AGENCY
AND
STATE OF ADMINISTRATIVE AGENCY
(Public Health Department or Board of Education)
I. PREAMBLE
This memorandum of agreement supports a comprehensive program
for monitoring compliance with the laws enacted by the United
States of America and the State of to protect
human health and the environment from the hazards of exposure
to asbestos-containing materials in schools. Both agencies
agree that cooperating to obtain compliance with State and
Federal rules governing friable asbestos-containing materials
in schools is necessary and desirable to minimize duplication
of efforts and to respond to mutual concerns for human safety.
AUTHORITY
The U.S. Environmental Protection Agency (EPA) is responsible
for administering and enforcing the Toxic Substances Control Act
(TSCA) [15 USC 2601 et seq.] Under TSCA, EPA has the authority
to protect man and the environment from any unreasonable risks
to health from toxic substances. As part of this mandate, EPA
has promulgated regulations requiring public and private schools
through the secondary level to identify friable asbestos-containing
building materials and notify the employees and Parent Teacher
Associations if friable asbestos-containing materials are
found (40 CFR Part 763, 47 Federal Regi ster 23360, May 27 , 1982).
Under the authority of TSCA sections 10 and 28 EPA may enter
into cooperative agreements with States to monitor compliance
with the requirements of TSCA.
The State of is responsible for administering and
enforcing the Law.[Statutory citation] Under
that law, the Director/Administrator of the
is empowered to (Brief summery of State Law).
The above listed statute(s) provide the State of
Administrative Agency authority for the following activities:
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-2-
(Entry into a Memorandum of Agreement)
Identification of Friable Materials
Inspection of Public School Buildings
Inspection of Private School Buildings
Other (response to complaints)
Sample Col 1ection
Sample Analysis
Inspection of Records (recordkeeping & notification)
III. RESPONSIBILITIES
The State of Administrative Agency and EPA propose
to provide a 1evel of compliance monitoring within the State of
to assure that all school are inspected for friable
asbestos-containing materials and are in compliance with applicable
Federal and State laws. The State of Administrative
Agency and EPA will exchange i n f ormati on, coordi nate activit-ies
and assist each other to eliminate duplication of efforts. The
State of _ Administrative Agency and EPA will
meet at a minimum of twice a year to coordinate mutual•pianning
and implementation elements of their respective Asbestos in
Schools programs. To accomplish this goal, the State of
Administrative Agency and EPA agree to undertake the
responsibilities set forth in this agreement.
A. STATE RESPONSIBILITIES
The State of Administrative Agency agrees to
develop an inspection program consisting of one or more of
the following elememts for identifying friable asbestos-
containing materials and reviewing LEA's recordkeeping and
notification files.
Program Planning Elements
1. Designate an individual to serve as a contact person
with EPA Region on all matters relating to this memorandum
of agreement.
2. Identify to EPA Region all schools in the State, by
Local Educational Agency (LEA).
3. Notify EPA Region of all schools that have been
inspected for friable asbestos-containing materials under the
technical assistance program (TAP).
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-3-
4. Develop an inspection profile identifying friable
asbestos-containing materials for schools in the State:
a. not inspected under the TAP or;
b. inspected but meeting the standards for
satisfactory participation in the (TAP).
5. Identify all LEA central record offices for EPA.
6. Develop a neutral inspection scheme for conducting
recordkeeping and notification inspections at the State LEA's.
Program Implementation Elements
1. Continue current State program identifying and sampling
all friable materials in schools for asbestos fibers until
all school buildings are in compliance with 40 CFR Part 763
and State asbestos in schools laws.
2. Conduct recordkeeping and reporting inspections
based on a neutral inspection scheme to:
a. Identify school buildings with friable asbestos-
containing materials and the locations of the
asbestos.
b. Determine if the required records are being
maintained and,
c. Determine if the proper individuals or groups
were notified regarding the findings of the
i nspecti on.
3. Encourage compliance with the State/Federal Asbestos
in Schools law/rule and take appropriate enforcement actions
when there is no other alternative.
4. Report violations of the Federal asbestos in schools
identification and notification rule to EPA Region .
B. EPA RESPONSIBILITIES
The U.S. Environmental Protection Agency (EPA) agrees to
develop an inspection program for friable asbestos-containing
materials and reviewing LEA's recordkeeping and notification
files that will compliment the State asbestos in schools
program. The EPA will also provide technical assistance,
training and analytical support as well as perform other
activities that will compliment the State program. .
Program Planning Elements
1. Designate an individual to serve as the contact person
with the State of Administrative Agency on
matters relating to this memorandum of agreement.
2. Assist the State of Administrative
Agency in developing its inspection profiles.
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-4-
3. Evaluate the status of the TAP and develop standards
for satisfactory participation. LEA's which have satisfied
the standards will be given a low priority for compliance
monitoring inspections.
4. Develop a neutral inspection scheme for the 100 largest
LEA's in the country for recordkeeping and notification
inspections.
Program Implementation Elements
1. Provide compliance assistance and training for State
inspectors or other interested groups involved in inspecting
school buildings for friable asbestos containing materials.
This training will occur in the State of and/or
at the EPA Region office or elsewhere as determi ned by the
parties.
2. Issue Federal inspector credentials to all trained
and qualified State personnel.
3. Provide sample analysis assistance, as needed, to the
State for friable materials. EPA will also provide a list of
laboratories which participate in its quality assurance program.
4. Conduct Federal inspections for identification of
friable asbestos-containing materials in schools referred to
EPA by the State.
5. Conduct Federal recordkeeping and notification inspections
at LEA's using EPA's neutral inspection scheme and data on
LEA's the State will inspect.
6. Conduct follow-up inspections for violations and
complaints regarding friable asbestos-containing materials in
schools.
Iv- STATEMENT OF WORK
A. The State of Administrative Agency agrees to:
L. Enumerate State employees involved in the Asbestos in
Schools compliance monitoring program as follows:
Number Work years
in Program in Program
Di rector/Admini strator
Program Manager
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-5-
Number Work years
in Program in P r o g ra m
Inspector
Chemists/Lab Technicians
Clerical
Consul tants
Legal
1. Identification Inspections.
The State or local orgainzation will
inspect (number) school buildings for friable materials.
Friable materials are those which can be crumbled using
hand pressure.
2. Collection of friable material samples.
The State agrees to collect samples of all
friable materials in school buildings (3 samples from each
homogeneous area of friable material). Sample locations"
must be plotted on a diagram of the school building.
3. Analysis of Samples.
The State agrees to analyze all samples of friable materials
collected under the friable asbestos-containing materials
in schools program. Sample analysis must employ polarized
light microscopy (PLM) with X-ray diffraction (XRD) used
only as a confirmation technique.
4. Recordkeeping and Notification Inspections.
The S tate agrees to perform (number) record-
keeping and notification Inspections at LEA's central record
offices and will conduct follow-up inspections at a minimum
of (3) three schools to verify records.
Sample collection and analysis conducted in connection with
recordkeeping and notification inspections will follow the
procedures outlined in items 2 and 3 above.
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-6-
SUMMARY - Projected Outputs Under the Agreement
Activity Quarter Total
1st 2nd Trd 4th
I d e n t i f i c a t i o n
Inspections
Samples ZZZH
Analyzes
Recordkeeping
& notification
Inspections
Samples
Analy zes
3. The Environmental Protection Agency agrees to:
1. Identification Inspections.
The EPA will inspect (number) school buildings for friable
materials. Friable materia!s are those which can be
crumbled using hand pressure.
2. Collection of friable material samples.
The EPA agrees to collect samples of all friable materials
in school buildings (3 samples from each homogeneous area
of friable material). Sample locations must be plotted
on a diagram of the school building.
3. Analysis of Samples.
The EPA agrees to analyze all samples of friable materials
collected under the friable asbestos-containing materials
in schools program. Sample analysis must employ polarized
light microscopy (PLM) with X-ray diffraction (XRD) used
only as a confirmation technique.
4. Recordkeeping and Notification Inspections.
The EPA agrees to perform (number) record-keeping and
notification inspections at lfc.A's central record offices
and will conduct follow-up inspections
at a minimum of three (3) schools to verify records.
Sample collection and analysis conducted in connection with
recordkeeping and notification inspections will follow the
procedures outlined in items 2 and 3 above.
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-7-
5UMMARY - Projected Outputs Under the Agreement
A c 1i v 1 ty
Identi fication
Inspections
Samp 1e s
Analyzes
Recordkeepi ng
& notification
Inspections
S a m p 1 e s
Analyzes
MODIFICATION, SUSPENSION OR TERMINATION OF THIS AGREEMENT
This Memorandum of Agreement, when accepted by both parties,
shall continue in effect unless modifed by the mutual
written consent of both parties or be terminated by either
party upon a thirty (30) day advance written notice to the
other. The specific output commitments set forth in this
original agreement shall be for the period of
to . Mutual agency outputs shall 5"e neg o ti a ted
annually.
"OR THE U.S. ENVIRONMENTAL PROTECTION AGENCY
Oate Approved
Regional Adminfstrator , Region
U.S. Environmental Protection Agency
F0R THE STATE OF ADMINSTRATIVE AGENCY
Date Approved
Title
Quarter T otal
1st 2nd Ifird 4th
State Administrative Agency
-------
ASBESTOS IN SCHOOLS - MEMORANDUM OF AGREEMENT
The TSCA rule "Asbestos: Friable Asbestos-Containing Materials in Schools:
Identification and Notification," which became effective on June 28, 1982
will be enforceable on June 28, 1983. Only limited Federal resources
will be available to monitor compliance with this rule. Therefore, in
FY 83, EPA wishes to enter into non-funded cooperative agreements with the
States to supplement Federal resources for monitoring compliance with the
requirements of the asbestos in schools rule.
Attached is a model memorandum of agreement which describes the most compre-
hensive cooperative program which EPA and the States could undertake. We
hope that the States will be willing to assume as many of the outlined
responsibilities as are appropriate and feasible based on their own level
of resources and prior compliance monitoring activities in this area.
Since these agreements will be non-funded, we recognize that the level of
each Regional program will be based on the level of responsibility which
each State voluntarily assumes. Any level of responsibility which the
State is willing to assume is welcome and should be accepted by the Regions.
Please review this draft memorandum of agreement and be prepared to
di:.'iss implementation of the program at the National Meeting.
-------
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
DEC I 5 1982
OFFICE Of
PESTICIDES AND TOXIC ;.')«•>» ANCCS
MEMORANDUM
TO:
John A. Todhunter, Ph.D.
Assistant Administrator
for Pesticides and Toxic Substances (TS-788)
SUBJECT: Compliance Assistance Guidelines for the Asbestos-In-
Attached for your approval is a document entitled
"Compliance Assistance Guidelines: Friable Asbestos-Containing
Materials in Schools; Identification and Notification Rule." The
document was developed by the Chemical Control Division in
conjunction with the Pesticides and Toxic Substances Enforcement
Division in order to provide clear, concise guidance to State's
and local education agencies (LEAs) on how to comply with the
rule. The guidance will be applicable to LEAs in all stages of
rule compliance. It provides information to assist both LEAs
that have participated to some degree in the Agency's voluntary
program, but question whether their activities were sufficient to
satisfy the rule's requirements, as well as LEAs that did not
participate in the voluntary program and ate now beginning their
asbestos program by complying with the rule.
The document has been reviewed by the Regional Asbestos
Coordinators and their comments have been incorporated. I
recommend that you approve this document so that we may begin to
circulate it to the LEAs.
Schools Rule
Dc
Office of Toxic Substances
Approve
Attachmen
Di sapprove
Da te
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Compliance Assistance Guidelines:
triable Asbestos-Containing Materials in Schools;
Identification and Notification Rule
Who must comply
A. Local education agencies (LEA) must inspect each school
building built prior to December 31, 1978, which they
lease, own, or otherwise use as a school building, to
locate all friable material.
B. School means any public or private day or residential
school which provides elementary or secondary education
for grade 12 or under as determined under State law, or
any school of any Agency of the United States (20 U.S.C.
2854 ) .
Note: State law will determine whether
kindergartens, nursery schools, or day-care centers
are considered elementary schools for purposes of
this rule.
Inspections
A. LEAs must inspect all areas within the school building
including:
Ceilings ana walls in hallways, classrooms, gymnasiums,
swimming pools, auditoriums, cafeterias, machinery and
storage rooms, steel support beams and columns, and
pipes and boiler areas.
B. Inspection shall include looking for and touching all
suspect friable materials, including surfaces behind
suspended ceilings and non-permanent concealed areas
which may be entered during normal maintenance and
repairs. (e.g., access panel for utilities).
C. Friable material means any material applied onto
ceilings, walls, structural,members, piping, ductwork,
or any other part of the building structure, which when
diy may be crumbled, pulverized or reduced to a powder
by hand pressure.
:iote: A key phrase is "applied onto". This does
not include ceiling tile.
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D. The key point to be noted is that material must be
friable. An example to note is pipe insulation. If
upon inspection one finds pipe insulation to be exposed
or pipe lagging to be deteriorating and the insulation
material is friable, adequate steps should be taken to
sample and analyze the material to determine if it is
asbestos. Undamaged pipe lagging and boiler wrapping
should not be disturbed.
E. Local education authorities that have not inspected
schools for possible friable materials on pipe, duct-
woik, or boilers, must do so according to this rule.
III. Sampling
A. If friable materials are found in a school building, at
least 3 samples from locations distributed throughout
the sampling area must be taken for each distinct type
of material found. Each sample must be identified with
an identification (ID) number unique to the sampling
location and building. The location of each sample
should be documented and added to the school's
records. (For additional information on how to take
samples, see Appendix A.)
Note: Additions to buildings should be inspected
carefully for similarities to older parts of the
buildings. Often building materials may appear to
be the same when they ate actually of different
composition. It is important to inspect all areas
of the building, rather than considering an entire
building to be one sampling area.
B. Sampling area means any area, whether contiguous or not,
within a school building which contains friable material
that is homogenous in texture ar.d appearance. If two
areas differ in appearance, the rule requires that 3
samples be taken from each area.
C. The requirement that 3 samples be taken in each area
supersedes the recommendation made in Asbestos-
Cor.tair.in.g Materials in School Buildings: A Guidance
Document Pait I to take one sample per 5000 square feet
of tillable material.
D. in schools where only 1 or 2 samples were originally
obtained, additional samples must be taken to meet the
rule requirement of 3 samples for each distinct type of
friable material found.
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Note: Schools which determine that asbestos was
present based or. analysis of less than 3 samples
may certify that all friable materials will be
treated as asbestos containing. In this case,
additional samples will not need to be taken;
however, recordkeeping and notification
requirements will still apply. If schools wish to
make the case that no asbestos is present, then 3
samples are required.
E. Friable materials on piping and boilers are a unique
situation. Often only a portion of piping and boiler
lagging is friable. When friable materials are present,
schools may choose from one of the following approaches?"
1. Take 3 samples of the material for analysis.
2. Certify that the materials contain asbestos
(5763.117(c)) and comply with the rest of the Rule.
3. Take one sample of the friable material and have it
analyzed. If asbestos is present, then treat the
pipe and boiler lagging as if it contains
asbestos. If one sample shows no asbestos "is
present, take 2 more samples to comply with the
Rule.
F. Sampling locations should be randomly distributed within
the sampling areas. Locations should not be selected
foi convenience or ease of teaching the sample or
because the sampler judges the location to be
representative (e.g., all samples in a single area).
G. Friable materials on pipes and boilers should be
considered as distinct areas.
IV. Analysis
A. LEAs shall have all samples of friable material analyzed
for asbestos using Polarized Light Microscopy (PLM),
supplemented where necessary by X-Ray Diffraction in
accordance with "Interim Method for the Determination of
AsbestifoLm Mir.ej.als in Bulk Insulation Samples."
Note: Use of electron microscopy will not qualify
the school for compliance after June 28, 1982.
B. A list of laboratories which participate in EPA's
quality assurance program for analysis of bulk asbestos
samples may be obtained by calling Research Triangle
Institute. (1-800-334-8571)
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C. Schools should keep records of all written
correspondence with laboratories (laboratory reports and
interpretations of these reports).
Note: The following information should be included
in a laboratory report: (schools should ask the
lab to include this information).
1. The sample ID number.
2. A statement that the sample was analyzed using PLM
supplemented by X-ray diffraction where necessary.
3. Percent of each type of asbestos present.
4. Comments or. any other materials present.
Warnings and Notifications (only when asbestos is present)
In schools where friable asbestos-contair.ir.g materials are
oteser.t, the following notification requirements shall be
met:
A. Notice to School Employees (Posting Requirement).
1. Notice to School Employees (EPA form 7730-3") shall
be posted in the primary administrative and
custodial offices and in the faculty common rooms
of each school.
2. Content must be identical to EPA Form 7730-3.
Copies may be obtained through the Industry
Assistance Office (IAO) EPA Headquarters 800-424-
9065 or from Regional Offices.
3. Notice shall remain posted indefinitely in any
school which has friable asbestos-containing
material.
B. Guide for Reducing Asbestos Exposure.
A copy of the "Guide for Reducing Asbestos
Exposure", (EPA Form 7730-2), shall be distributed
to all custodial or maintenance employees. Copies
may be obtained from IAO, EPA Headquarters, or from
Regional Offices.
C. written r.otice ot location o£ fiiable asbestos materials
to all building employees.
Local education authorities must provide all
persons employed in the school a written notice of
the location, by room or building area, of all
friable asbestos-containing material in the school.
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D. Notice to Parent-Teacher Associations (PTA).
Local education authorities shall provide notice of
the results of inspections and analyses to the PTA
of that school. If there is no PTA for the school,
the local education authority must directly notify
the parents of its pupils. EPA recommends that the
notification include the following statement: "It
is important to note that not all friable asbestos-
cor.tair.ir.g material need be removed from schools.
Or.ce such material has been identified, a program6
car. be implemented to ensure that the material is
maintained in good condition and that appropriate
precautions are followed wher. the material is
disturbed for any reason."
E. Tne format of the notices in items C and D are at the
discretion of the local education authority. A copy of
the notifications, a list of addressees, and the date of
notifications should be kept in the school's records.
VI. Recordkeeping
No forms are to be submitted to EPA. These are recordkeeping
Lequiremer.ts which must be made publicly available upon
request.
A. Records in Each School: LEAs shall compile and maintain
in the administrative offices of each school under their
authority a record which includes:
1. Name and address of the school.
2. List of all school buildings associated with the
school, an indication the inspection has been
completed, and which buildings contain friable
materials. This should include space that is
leased, owned or otherwise used as a school
building.
3. Documentation for schools which contain friable
materials:
a. A blueprint, diagram, ol written description
of the building which indicates the location
and area in square feet of each sampling area
of such material(s), the location samples were
taken, and the identification number of each
sample, and which describes whether each
sampling area of friable material contains
asbestos, including an estimate of its
asbestos content.
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b. Copies of all laboratory reports. (See III(C)
for content of reports).
c. Copies of the Notice to school employees.
d. Copies of the "Guide for Reducing Asbestos
Exposure," and one copy of Parts 1 and 2 of
the Guidance Document "Asbestos-Containing
Materials in School Buildings." These
documents car. be obtained either through the
IAO, EPA Headquarters or from Regional
Offices.
4. A statement that the requirements of the rule have
been satisfied, signed by the person responsible
for compliance with the rule. The person
responsible for compliance should be an official of
the LEA.
B. Records at the LEA.
1. A list of all schools under its authority,
indicating whether schools were inspected and which
schools contain friable asbestos.
2. A record of the friable materials in schools which
weie sampled and analyzed, indicating which
materials contain asbestos.
3. For each school which contains friable asbestos
materials, the total area of such materials in
square feet and the number of school employees who
regularly work in the school.
4. EPA Form 7730-1, "Inspections for Friable
Asbestos-Cor.tair.ing Materials."
a. Each LEA shall complete and retain ir. the
administrative office of the LEA EPA Form
7730-1, "Inspections for Friable Asbestos-
Containing Materials."
b. Copies of this form may be obtained through
the IAO, EPA Headquarters, or from Regional
Offices.
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VII. Exemptions
A. Exempt from all Provisions of the Rule.
1. Schools built after December 31, 1978.
2. Schools in which all friable asbestos-containing
materials have been eliminated by removal.
NOTE: For the purpose of this exemption the use of
air-tight enclosures which are constructed betweep
the asbestos material ar.d the building environment
will be considered a step equal to removal. To be
considered satisfactory, an enclosure must
completely restrict access to the friable asbestos
material, be completely air-tight, and contain no
air plenum. Suspended ceilings with removable
ceiling tiles are not adequate to meet this
exemption.
3. Schools ir. which ar. abatement program has resulted
ir. the elimination of all friable asbestos-
containing material by satisfactory encapsulation.
a. Satisfactory encapsulation means that ttie
material is completely encapsulated, no longer
exposed, no longer capable of releasing
fibers, and not friable.
Note: Encapsulated material should be visually
inspected to be sure there are no holes or voids in
the membrane. The membrane should not be cracked
(if membrane is flexible it will not crack under
normal building settling or impact).
b. In many cases sprayed on friable asbestos-
containing material cannot be satisfactorily
encapsulated, especially material which
appears fluffy or similar to cotton candy.
B. Exempt from Inspection, Sampling, and Analysis. Schools
are exempt from §§ 763.105, 763.107, and 763.109 if
they:
L. Visually inspected all areas of the school for
material prior to the effective date of the
rule.
2. Sampled each distinct type of friable material
according to the rule requirement of taking 3
samples per distinct area are exempt from sampling
requirements. (See item III (D))•
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3. Had the samples analyzed using PLM supplemented by
X-Ray Diffraction where necessary, or by Electron
Microscopy.
If a school building was found to contain friable
asbestos-cor.tair.ing materials, then the
recordkeeping and notification requirements of the
Rule shall apply to the LEA.
The inspection, sampling, and analysis requirements
of this rule shall not apply to schools certifying c
that all friable materials shall be treated as
asbestos-containing. The record shall also include
information on the location of these materials.
C. Certification Requirement
1. If a school inspected, sampled, and analyzed for
friable asbestos-containing materials prior to the
effective date of the Rule and found none, the
school is exempt from the recordkeeping and
notification requirements of the Rule. However,
schools which have friable material present shall
retain a copy of all laboratory reports and all
correspondence with laboratories concerning the
analyses of samples taken and maintain in the
record a certifying statement that the building
contains no friable asbestos materials. The
required certifying statement can be found in
§763. 117(a)(3 ) of the Rule.
2. Schools which can document that no friable
asbestos-contair.in.g building materials were used in
construction, modification, or renovation are
exempt from the Rule. Documentation must clearly
show that ar.y friable material used did not contain
asbestos. A certifying statement to this effect
must be maintained in the school's record. The
required certifying statement can be found in
§763.117(b)(2) of the Rule.
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Appendix A - How to take a sample
Use a small container such as a plastic 35mm film
canister, a small, wide-mouthed glass jar with a screw-
or. lid or a prescription medicine bottle. The container
should be dry and clean.
Gently twist the open end of the container into the
material. A core of the material should fall into the
container. A sample can also be taken by using a knife
to cut out or scrape off a small piece of material and
then placing it into the container. c
Note: Be sure to penetrate any paint or protective
coating and all the layers of the material. If tlve.
sample container cannot penetrate the material,
consider whether the material is really friable or
not.
Tightly close the sample container. Wipe the exterior
of the container with a damp cloth to remove any
material which may have adhered to it during sampling.
Tape the container lid to prevent the accidental opening
of the container during shipment or handling.
Label the sample container. This label should identify
the school date the sample was taken, sample (ID) number
and the collector's name.
Make a tecotd of each sample by noting the date the
sample was taken, location of material sampled, the area
of room sampled, and the sample ID numberr-
Send the sample to an analytical laboratory for
analysis. (For names of laboratories which participated
in the Agency's Quality Assurance (QA) Program,
call (800) 334-8571).
To avoid causing unnecessary exposure to asbestos
fibeis, the following precautions should be taker, during
sampling.
The material should be sampled when the area is not
in use.
Only those pet sons needed tor the sampling should
be present.
The sample container should be held away from the
face during actual sampling.
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Do not disturb the material any more than
necessary.
The material can be sprayed with a light mist of
water to prevent fiber release during sampling.
If a large number of samples are taken, NIOSH
recommends that the sampler wear an approved
respirator. Contact the NIOSH Regional Offices
listed in Appendix E of Guidance Document 1 for
information on approved respirators.
If pieces of material break off during sampling,
wet mop the floors and areas where they have
fallen.
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'JMTED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
8 JUL 1983
OFFICE OF
PESTICIDES AND TOXIC SUBSTANCES
MEMORANDUM
TO :
Regional Toxic Branch Chiefs
Air and Hazardous Materials Division Directors
Environmental Services Division Directors
SUBJECT: Asbestos in Schools Enforcement Response Policy
Attached is a final copy of the Enforcement Response Policy
for the Asbestos in Schools Rule. The compliance date for this
rule is June 28, 1983. Evidence of noncompliance after this
date is a violation of the rule and as such is subject to enforce
ment actions as discribed in this policy.
If you have any questions, call Pamela Harris of my staff
(FTS 382-5567).
Di rector
C ing Staff
Office o . Toxic Substances
Attachment
cc: Marcia Williams, OTS
Edward Klein, CCD
Ted Firetog, OLEC
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July 6, 1983
ENFORCEMENT RESPONSE POLICY FOR
THE FRIABLE AS BESTOS-C0 NTA IN I NG MATERIALS IN SCHOOLS:
IDENTIFICATION AND NOTIFICATION REGULATION
COMPLIANCE MONITORING STAFF
OFFICE OF PESTICIDES AND TOXIC SUBSTANCES
THE U.S. ENVIRONMENTAL PROTECTION AGENCY
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Asbestos in Schools Enforcement Response Policy
CONTENTS
Part I Introduction
Tne Requ i rements 1
Tne Violations 2
Liability ' . . 3
PART II Determining the Level of Action
Notice of Noncompliance ...... 3
Final Response 4
Civil Penal ty 4
InjunctiveAction 5
Criminal Act ion 5
PART III Assessing an Administrative Penalty
Gravity Based Penalty 5
Nature of Violations 6
Extent Category 6
Circumstances Category 7
Independent Assessment 8
Adjustment Factors 9
Ability to Pay/Ability to Continue in Business . . 10
PART IV Application of the Policy
Appendix A: Sample Notice of Noncompliance ll
Appendix B: Model Compliance Program Schedule 12
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PART I INTRODUCTION
The Enviromental Protection Agency (EPA) has published the
"Friable Asbestos-Containing Materials in Schools: Identification
a n c Notification Rule" (Asbestos in Schools Rule) (47 Federal
Re 5 is t e r 23 3 61 , May 27, 1982 ) under Section 6(a) of the Toxic
SuDstances Control Act (TSCA). The purpose of the rule is to
identify the location of friable asbestos in school buildings and
to notify persons who risk unwitting exposure to asbestos. The 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 the ten Regions through the Regional
Asbestos Coordinator and state and local contacts. The inspection
and notification requirements of the rule are now mandatory. Cer-
tain other activities associated with asbestos in schools, such as
abatement and control procedures, are not requirements of the rule.
However, since these activities are often logical consequences of
complying with the rule, the EPA will continue to offer advice to
school personnel on how to control hazards from friable asbestos-
containing material through the Regional Asbestos Coordinators.
This Enforcement Response Policy provides guidance to the
Regions in enforcing the provisions of the Asbestos in Schools
Rule. The remedies under Sections 16 and 17 of TSCA are available
for violations of this rule. Part II of this document provides
guidance in the use of notices of noncompliance, civil administrative
penalty actions, injunctions and criminal actions for violations
of this rule. Part III of this document explains how to use the
General TSCA Civil Penalty System (45 Federal Register 59770,
September 10, 1980) to arrive at an appropriate civil administrative
penalty, where that penalty is utilized.
1 ne requirements
The requirements of the regulation are directed at Local Education
Agencies (LEA's). As discussed in the rule, this term includes:
o Any local education agency as defined in Section
198(a)(10) of the Elementary and Secondary
Education Act of 1965.
o The governing authority of any nonprofit elementary or
seconda ry school.
This rule imposes requirements which may be divided into the
following five basic action areas:
o Identification: Inspection of all school buildings for
friable materi a 1s;
o Sampling: Collection of samples of the friable
materi als;
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Analysis of the samples to determine if
they contain asbestos;
Informing the Parent Teachers Association
(or parents), faculty and other building users
of the presence of asbestos, posting the notice
to school employees form and distributing
of "A Guide for Reducing Asbestos Exposure"
to custodial and maintenance personnel; and
Maintaining records which describe the
actions taken to comply with the rule.
This includes a statement signed by the
person responsible for compliance with
the rule that the requirements of the
rule have been satisfied.
The first four areas are sequential steps in achieving compliance
with the rule. In the fifth area, the rule requires the LEA to keep
records in each school and in the LEA administrative office. These
records, available to the public as well as to EPA, document the
compliance efforts of the LEA and of each school.
E xempt i on s
o Schools which were built after December 31, 1978, are'exempt
from all requirements of the rule.
o Schools which can document that no friable asbestos-
containing materials were used in building or renovating
the school buildings are exempt from all requirements of
the rule. Certification, as required by the rule, must
be in the school's records.
o Schools which completed specific requirements of the rule as
part of the voluntary Technical Assistance program (see "Com-
pliance Assistance Guidelines") need not repeat these activities.
If no asbestos was discovered by the TAP, the 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 that all friable
materials will be treated as asbestos-containing materials for
purposes of this rule are exempt only from the inspection,
sampling and analysis requirements of this rule. This certi-
fication must be in the school's records.
I^e Violations ~
Failure to perform any requirement of the rule constitutes a
Eolation of TSCA. Thus, possible violations of the rule include:
o Fai1ure to i nspect;
o Failure to sample;
o Fai1ure to analyze;
o Failure to notify; and
o Failure to keep records.
o Analysis:
o Notification:
o Recordkeeping:
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The improper use of an exemption would result in at least one,
and possibly all of the above violations. If records or certi-
fication were falsified to support an exemption claim, the
falsi fi cation woulc be a separate violation. TSCA §16 provides
for civil ana criminal penalties for any person who violates a
provision of § 15 if the violation is knowing or willful.
L i a d i 1 i ty '
In taking enforcement action to redress violations of this rule
EPA has the option of proceeding against the entity alleged to be in
violation and,/or against the responsible official who signs the
certification.
Generally, EPA will hold only the LEA liable for the actions
of its officers and employees. The Agency, however, reserves its
right to impose individual liability under appropriate circumstances
Appropriate circumstances for the purposes of this rule are cases
where an individual nas knowingly or willfully signed a certifi-
cation statement which is false.
fire the foilowi ng:
o Notice of Noncompliance
o Civil Complaint
o Injunctive Action
o Criminal Act i on
Notice p _ .
PART II DETERMINING THE LEVEL OF ACTION
However, situations co
ment response. The various
Asbestos in School
a notice of noncoms
noti ce of noncompl
with the Rule.
When a Region
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Since the LEA is the responsible party, the notice of noncom-
pliance should be sent to the LEA, but a copy should also be sent to
any specific school involved. The notice of noncompliance should
state that the LEA must demonstrate compliance with the rule and
describe the actions it has taken to come into compliance with
the rule within thirty days of the receipt of the notice. If the
LEA cannot achieve compliance within 30 days of the receipt of the
notice of noncompliance, the Regional office should seek a final
response.
Final Responses
LEA's which have received a notice of noncompliance and do not
comply with the rule within 30 days of the receipt of the 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
i nstances.
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 Conditions (SWC) if the LEA abides by a Compliance Program and
Schedule (CPS). (The Settlement with Conditions is a separate docu -
ment prepared at the same time as the Civil Compliant.)
To determine if an LEA is a good candidate for negotiating an
SWC apply the following criteria:
1. Violations have been documented and have not been corrected
within 30 days after a notice of noncompliance.
2. The violations will require more than 30 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 in Schools Rule is the subject of
Appendi x B .)
More detailed 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 negotiation is the dead-
line for completion. An LEA may not, at this time, offer to
abate asbestos in the school if it does not have to notify
parents. Any LEA which has allowed school children and staff
to be exposed to an friable asbestos containing material after June
28, 1983, must inform the PTA or the parents directly and the staff
of the school .
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If the LEA fails to demonstrate good faith in abiding by its
compliance program and schedule, the penalty will not be remitted
and the LEA will be required to pay the total penalty.
Injunctive Action
In certain cases where the EPA's efforts to obtain voluntary
compliance by a notice of noncompliance or a civil penalty
assessment fail to achieve cooperation on the part of the LEA,
injunctive action may be the appropriate response. In such
cases, the Regional enforcement attorneys should consider seeking
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
(OLEC), or the AA's designee. Requests for injunctive action should
be forwarded to OLEC with a copy to the Compliance Monitoring Staff.
For futher guidance see following OLEC memoranda "General Operating
Procedures for the Civil Enforcement Program" (July 6, 1982) and "Case
Referrals for Civil Litigation" (September 7, 1982).
Cri mi nal Acti on
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 the TSCA Civil Penalty System, (45 FR 59770,
September 10, 1980,) to arrive at an appropriate penalty where an
administrative penalty is the appropriate enforcement response.
The Gravity Based Penalty
The gravity based penalty (GBP), as defined by the TSCA Civil
Penalty System, is a function of three factors:
0 The "nature" of the violation committed.
0 The "extent" of the violation, or the amount of potential
risk to human health from the inability of the Agency
and the public to assess the health hazard involved.
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The "circumstances" of the violation, or the probability
that the violation has impaired the ability of the Agency
and the public to assess the health hazard involved.
When all three of these factors are specified for a particular
violation, it is possible to determine the gravity based penalty
from the GBP matrix. That matrix, which was established in the
TSCA Civil Penalty System, appears below.
jEXTENT:
MAJOR
SIGNIFICANT
MINOR
CIRCUMSTANCES:
LEVEL
HIGH
1
52 5,000
$17,000
$5,000
RANGE
2
$20,000
$13,000
$3,000
MID
3
SI 5,000
$10,000
$1 ,500
RANGE
4
$10,000
$6,000
$1,000
LOW
5
$5,000
$3,000
$500
RANGE
6
$2,000
$1,300
$200
Nature of Vi olati ons
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.
Extent Category
In this case the potential risk arises from the inability
of the Agency and the public to assess whether exposure is
occurring to a material which is known to result in risk to
human health. Thus, failure to comply with the rule prevents
people from knowing if they are exposed to asbestos and pre-
cludes any adequate response to the problem.
Since the presence of friable asbestos-containing material
is unknown in the absence of specific information about the
building, the possibility of risk can be considered to be evenly
distributed among schools subject to the rule which have not
complied with the rule. Therefore, all violations are placed in
the same extent category. The extent category is the significant
category. In this case the information is not reported to EPA
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- 7 -
ana will not make a major impact on its overall policy, nor does
tie rule require any action on the part of the LEA in response
to the rule. Thus the major category is not appropriate. The
information would, however, have an important impact on local
programs and policies concerning asbestos in schools, so the
Elinor category is also inappropriate.
C7rcumstances Category
The circumstances axis measures the probabi1i ty that the
violation has impaired the ability of the Agency and the public
to assess whether a health hazard may be involved. The ability
of the public and the Agency to assess the health hazard from
asbestos is directly proportional to the amount of good quality
information available to them. Thus, the violations have been
categorizea based on the amount of information available to the
public and the Agency.
The Agency's goal is to bring about compliance with the
rule. Schools, as non-profit public service institutions, will
feel the impact of even small fines. Thus, in each Range the
Lower Level circumstance is applied.
Level 2 Violations
o Falsification of notices to staff and PTA's or parents
o Falsification of records or certification for exemptions
The Agency considers falsification of information about the
performance of the rule requirements to constitute a separate
violation in that complete and accurate records and notifications
are not available. Falsification of records can lead to a sense
of false security for school personnel, persons who use the
school and children's parents. Additional exposure to asbestos
could occur as a result of falsification because employees did
not take ordinary precautions to limit asbestos exposure. This
result may be worse than failure to keep those records in the first
place. Falsification of records or certification which support an
exemption claim are violations in this category. In this case the
LEA will be assessed a penalty for falsification of records.
Level 4 Vi olati ons
o Failure to create and keep accurate records (including
certification statement for exempt i ons )
o Failure to inspect
o Failure to samp 1e
o Failure to analyze samples
o Failure to post warnings and notify (1nc1uding failure to
distribute "A Guide for Reducing Asbestos Exposure")
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- 8 -
The intent of the Rule is to identify the location of friable
asnestos-containing material in the school and to communicate that
: n - o r m a t i o n to the school personnel and parents of the children.
The requirements of the rule are relatively simple and the Agency
has provided guidance documents and other forms of training and
assistance for LEA's to comply with the rule. Failure to perform
any requirement destroys the integrity of the program. For example,
records a re* me aning1ess if no inspection was performed. Also, if
an inspection located friable materials but no samples were taken
or analyzed, then there is still no knowledge about whether there
is a hazard from asbestos. If the warning and notification require-
ments are not followed, then the persons who need to know about
the asbestos hazard do not know.
Level 6 Violations
o Failure to keep adequate records in the right place
o Failure to inspect properly
c Failure to sample properly
o Failure to analyze properly
o Failure to notify properly
These violations are activities that the LEA performed techni-
cally improperly. Good faith efforts to comply with the rule
constitute a lesser violation than outright failures to comply.
Nevertheless, improper performance results in unreliable infor-
mation and unreliable records.
Note that Level 6 violations are instances in which the LEA made
a good faith effort to comply. Incomplete compliance which is in
bad faith would be Level 4 or Level 2 violations depending on
the circumstances.
"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 violation (see "Circumstances", page 7), but
cite al1 others.
The violation for failure to keep records in the district office,
which occurs at the LEA level, should be treated as a single
violation equal to the failure of one school to maintain records.
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Adjustment Factors
TSCA requires the Agency to consider certain factors in
assessing the violator's conduct: Culpability, histo'ry of such
violations, anility to pay and ability to continue in business,
"he Act also authorizes the Agency some discretion to consider
''otner factors as justice may require". In the General TSCA Penalty
Policy, two factors are con'sidered in this category: cost of the
violation to government and benefits received by the violator due
to noncompliance. Since this is an identification and notification
rule, which does not require any action in response to identification
of a hazard other than notification, it is difficult to calculate
the benefit from noncompliance. The government does not have to
launch expensive clean up activities or investigations so the cost
to the government is also not high. Therefore, it is not appro-
priate to apply cost and benefit factors to adjust the penalty.
Also, the rL41 e 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
Cu 1 pabi 1 i ty
The two principal criteria for assessing cu1pabi1ity^are the
violator's knowledge of a TSCA requirement and the violator s
control over the violative condition. Other criteria are the
wi 11 fu'i ness of the violator to commit the violation and th&.
attitude of the violator.
Lack of knowledge of this particular rule would reduce culpa-
bility only whe?e 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-
"lent / u 1on and has supported a vigorous outreach program.
The Aopncv anticiDates that situations m which a reasonably
Prudent and re possible person would not know of the rule would
S. If »«•> • situation does exist, the penalt,
could be adjusted downward as much as
There may be situations where the violator is less than fully
resoons ble 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. ^
PropeMy documented, such situations would warrant some reduction
in penalty. The appropriate reduction is up to 25».
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- 10 -
Attitude of the violator is an important factor, particularly
witn respect to this rule. "Good faith" efforts to comply with
tne rule can result in a reduction of the penalty by up to 15%.
Deliberate recalcitrance can result in an upward adjustment of
up to 15%.
Apjlity to Pay/Ability to Continue in Business
For purposes of this rule the gravity based* penalty will be
cetermined based on the parameters and culpability factors already
discussed. This amount will be the penalty in the complaint.
The LEA may raise ability to pay as an issue. In this case the
Regional Office will have to determine what the LEA can be expected
to pay .
Many LEA's will have limited funds. Some may argue that they
cannot afford the penalty because they have used funds to abate
or control the friable asbestos-containing material in the school.
The cost of abatement and control activities, even though these
activities are not required by the rule, may be deducted from
the penalty. To qualify for the deduction, these activities
should either be completed, in progress, or under contract, and
the costs must be clearly documented. The cost of vaguely "planned
actions" will not be deducted. Regional personnel should revfew
the contract and any results reports before determining the
amount of reduction. The deduction should not exceed 80% of the
penalty, if the LEA has not notified the PTA (or parents) and
school staff of any asbestos hazard remaining in the school
after June 28, 1983. (An RWC could allow remission of the
remaining 20% when the proper persons are notified.)
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Appenoix A: Sample - Notice of Noncompliance;
Local Education Agency
Street
City, State
Zip Code
Dear
The United States Environmental. Protection Agency (EPA) finds
(Name of LEA)
(Name of School, if applicable)
in violation of the Friable Asbestos-Containing Materials in
Schools: Identification and Notification Regulation, 40 CFR Part
763, Subpart F, promulgated under Section 6 of the Toxic Substances
Control Act. The regulation requires Local Education Agencies to
identify, sample, and analyze possible friable asbestos-containing
materials in schools, to notify the school personnel and the PTA's
(or parents) of the results of those efforts if asbestos is
discovered 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 concerning this violation at this time.
Please 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
Title
Regional Offi ce
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-12-
Appendix B: Model Compliance Program Schedule
INTRODUCTION
It is the goal of this Compliance Program Schedule to bring
all schools operated by the Local Education Agency (LEA) into
compliance with the Asbestos in Schools Rule within a specified
time after the effective date of this document. The effective
date of this document is the date it is signed by both the
Environmenta1 Protection Agency (EPA) and the LEA. A school will
be deemed to be in compliance when ail five activities required by
the rule have been completed. These activities are:
o Identification: Inspection of all school buildings for
friable materi als;
Collection of samples of the friable
materials;
Analysis of the samples to determine if
they contain asbestos;
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
Maintaining records which describe the
actions taken to comply with the rule.
This includes a statement signed by the
person responsible for compliance with
the rule that the requirements of the
rule have been satisfied.
Determination of compliance will be based on the submission
by the LEA to the Regional Asbestos Coordinator (RAC) of copies of
the records required by the rule to be kept at the LEA's central
office and certification that all other requirements have been
met. EPA may verify the certification .
If an LEA completes all the compliance program tasks outlined
in this document by the dates agreed upon by both EPA and the LEA,
the % of the penalty assessed the LEA for violation of the rule
will be remitted by letter.
COMPLIANCE PROGRAM TASKS
^ * Determination of the Extent of Noncompliance
All schools in the LEA which have not documented compliance with
the rule or qualified for an exemption, must be brought into
compliance with this rule. EPA has assessed penalties for the'
following violations in the following schools:
o Sampling:
o Analysis:
o Notification:
o Recordkeeping:
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Appendi x B cont .
1 3
(List specific schools, violations and penalties as they
appear in the civil complaint and cite the complaint.)
Since EPA did not inspect all schools in the LEA, the possibility
exists that other schools are in violation. The LEA should examine
its records and develop a list of all schools and their status
with respect to the rule (exempt, in compliance with all require-
ments, not in compliance with one or more requirements) and submit
the list to the Regional Asbestos Coordinator. The final compliance
program schedule will address all schools which are not in compliance
with the rule. If both parties to the CPS agree, the final date
tor compliance may be renegotiated at the time this list is submitted.
2. Compliance with the Rule
The LEA shall follow the Compliance Assistance Guidelines for the
Asbestos in Schools Rule developed by the Environmental Protection
Agency (EPA), approved by the Assistant Administrator for the
Office of Pesticides and Toxic Substance on December 29, 1982.
EPA will provide assistance such as lists of laboratories which
participated in EPA's quality assurance program and development
of wording for notification of school staff, PTA and parents.
3. Determination of Compliance
The LEA must submit to the RAC a copy of the records that it must
keep according to the Asbestos in Schools Rule and a certification
signed by the superintendent or other responsible party stating
that the LEA has complied with all requirements of the rule. 1/
An EPA compliance monitoring, inspector may visit the LEA to confirm
compliance with the rule.
COMPLIANCE SCHEDULE
Tasks
Schedule
1. Determination of the extent of
noncompl1ance
30 days after effective
date of CPS
2. Bring schools into compliance
with the rule
days after effective
date of CPS
3. Records and certification submitted Within two weeks of the
to Regional Asbestos Coordinator final compliance date
y At the discretion of the Regional counsel other proofs of com-
pliance may be required, such as the a certified receipt from
the PTA official who received notification.
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Appendix B cont.
- 14 -
OTHER PROVISIONS
1 . Enforcement
While this Agreement is in effect, and as long as the LEA has not
failed to comply with the terms of the agreement, EPA shall not
initiate additional enforcement action against Respondent for
violations of the Asbestos in Schools Rule in schools on the list
submitted to EPA.
This Agreement does not insulate Respondent from compliance morv-j,-
toring and enforcement actions for TSCA violations not addressed
by this Agreement nor from enforcement actions under other laws
administered by EPA, nor under laws administered by state or local
environmental authorities, except where the TSCA rule would preempt
such 1aws .
2. Notification of Technical or Operational Difficulties
Respondent shall notify EPA immediately in all cases where technical
or operational difficulties will make it impossible for Respondent
to meet any of the deadlines in the Compliance Schedule.
3. Techni cal Assi stance
EPA shall provide reasonable technical assistance to Respondent
on questions concerning such matters as sampling and analytical
procedures, and wording of notifications, for the purpose of
complying with this Agreement.
4. Amendments
Upon mutual consent of EPA and Respondent, this Agreement may be
amended at any time to modify or add technical and operational
requirements (such as, but not limited to, deadline modifications
necessitated by technical or operational difficulties) for the
purpose of achieving compliance by Respondent with the Asbestos
in Schools Rule. Any changes and/or amendments to this Agreement
shall be incorporated into this Agreement when the amendment (s)
have been signed by authorized representatives of EPA and Respondent.
5. Evaluation
EPA will assist the LEA in the evaluation of the results of its
Asbestos Identification and Notification Program.
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DIOXIN CONTAMINATED WASTE
COMPLIANCE STRATEGY
THE PESTICIDES AND TOXIC SUBSTANCES
ENFORCEMENT DIVISION,
THE U.S. ENVIRONMENTAL PROTECTION AGENCY
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STRATEGY FOR THE ENFORCEMENT OF THE TSCA-SECTI ON 6 RULE ON
fer.RACHLQftjQidgNZj.^ftioxfN (g.3,/
'J V £ R ¦/1 £ W
The Agency published an i mined i a ta 1 y effective proposed ^6 rule
undsr the Toxic Substances Control Act (TSCA) on the disposal of
wastes contaminated with 2, 3,7,8-Tetrach1orodibenzo-p-dioxin
(TCDD) on March 11, 1980. The Agency issued the final §6 rule on
May 19, 1 930. The rul-e:
Poses restrictions on Vertac, Inc., Jacksonville,
Arkansas, regarding the removal for disposal of
wastes containing TCDD.
Requires Vertac to post notices at its facility
at the principal access point to the storage area
stating that dioxin wastes are stored on site and
that removal for disposal is prohibited.
Requires Vertac to test certain wastes.
Requires Vertac to notify the agency one week prior
to shipment of waste material
Requires*that any person disposing of wastes contain-
ing TCDO notify EPA at least fiO days prior to
d i sposal.
The dioxin 1n question is an Impurity formed in the process of
manufacturing 2,4,5-Trichlorophenol (2,4,5-TCP). The 2,4,5.TCP is
processed into a pesticide by the same name and 1s also used as a
starting material for other pesticides such as 2,4,5-Trichloro-
phenoxy acetic acid (2,4,5-T), 2-(2,4,S)-Tr1chl orophenoxy propionic
acid (3,4,5-TP Sllvex), Erbon, Ronnel and Hexachlorophene. All of
these are contaminated to some degree with TCDD. In some cases
pesticide producers manufacture 2,4-0 Immediately after making
2,4,5-TCP. Thus the residues of 2,4,5-TCP which were contaminated
with TCOD could also contaminate to some degree, the 2,4-0. The
level of contamlnat1 on should, of course, be lower than would be
found in 2,4,5-TCP, and over the course of production, the concen-
tration of TCDO should decrease.
This §6 rule focuses on wastes because the dioxin contami-
nation 1s more highly concentrated 1n the wastes associated
with the production of these substances than 1n the final
product. In fact the disposal of these substances.themselves,
I.e., the pesticides, is not covered by the §6 rule.
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-2-
requirememts of the rule
The rule:
. Pronibits Vertac, Inc. or any person who disposes
of chemicals for commercial purposes from removing
for disposal any of the wastas containing TCHn
produced before May 12,\I980, located at its
Jacksonville, Arkansas,' sits .
. Requires Vertac to post the Jacksonville facility
at the principal access point to the storage area(s)
stating that dioxin wastes are stored on site and
that removal for disposal 1s p-ohibit2d.
. Requires Vertac to dispose of all was*:e material
containing TCDD produced at the Jacksonville facility
after May 12, 1980, at facilities which comply with
751.41(b) (PC8 Regulations) until 775.190(a)(3) is
completed.
. Requires Vertac to notify the Assistant Administrator
for Pesticides and Toxic Substances at least one week
prior to shipment of dioxin waste material .
. Requires Vertac to test wastes produced after May 12-,
1980, at the Jacksonville facility and provide the
Assistant Administrator (OPTS) with results within
two weeks of analyses. If the wastes contain no
detectable TCDD, the disposal notification require-
ment is withdrawn.
. Requires any person who disposes of chemicals for
commercial purposes to notify the Assistant Adminii
strator by certified letter with a copy to the appro-
priate EPA Regional Administrator at least SO days
before the firm intends to dispose of any wastes
containing TCDO.
Note: Waste material or wastes containing TCDD means any waste
material or waste(s) resulting from the manufacture or
processing of 2,4,5-Trichlorophenol (TCP) or its
pesticide derivatives or any waste(s) resulting from
manufacturing processes using equipment that was at
some time used in the manufacture of 2,1,5-TCP or
its pesticide derivatives.
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« iGU LAIEO INDUSTRY
The regulated community is composed or" those persons who
dispose of -he wastes addressed by this regulation. This would
include potentially al.l those firms who have been anH/or are
still producing 2,4,5-TCP, 2,4,5-T, S i 1 v e x , Ronnel, Erbon,
Hexach1orophene or those substances produced on equipment
used to manufacture the above six substances (e.g., 2 , d _ n) .
The regulation focuses on the disposal of wastes. Thus even
2 firm that has not produced any of the above substances in
several years would still fall within the ambit of this regulation
if they now disposed of any of the regulated wastes.
The firms that produce(d) wastes subject to this regulation
are divided into two classes: producers of manufacturing-use
products and formulatad/end-use products. In the process of
making these substances, the manufacturing-use grade manufacturers
remove much of the TCDO contaminant. As a result, the wastes
of these firms may contain significant amounts of the contaminant
TCDD. The formulators use the refined manufacturing-usa
grade to manufacture pesticides. This difference is taken,
into account in establishing inspection priorities. The following
chart is a preliminary breakdown of plant sites associated
with the generation of wastes which may be contaminated with'
TCDO. The chart only includes those firms who were producing
'-^.ese pesticides in the years 1 977-1 979. The Agency is also
concerned about the location of wastes generated in the production
of Agent Orange, a 50-50 mixture of 2,4,5-T and 2,4-D. (Information
about the number and location of these sites is beinq developed.)
It should be noted that the actual number of inspections
will be less than the "Total" listed as many plant sites
produce more than one of these seven substances. Thus about
200 plant sites produce 290 formulations and 7 plant sites
produce 14 manufacturing-use grade products. (One of these 7
is Vertac and would be Inspected anyway.)
Pesticide No. Manufacturing-Use No. Formulations
Products
2,4,5-TCP 1 19
2,4,5-T 3 fiO
Si 1 vex 4 60
Erban 0 4
Ronnel 2 79
Hexach!orophene 0 38
2,4-0 _4 30
Total ~ fl W.5
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-4-
* Manufacturing-use grade was referred to.as technical grade in
previous years. The term manufacturing-use refers to the grade
which is used to manufacture pesticide formulations. It is the
term us ad in the current Pesticide Registration Guidelines.
*" III-"! ' II II « i
U i< u i i't c ,J I
03JSCTIVES
The major objective of this strategy is to insure that no
wastes regulated under this §6 rule are disposed of in violation
of the rule. The ultimate goal- of the rule is to prevent the
improper disposal of dioxin, one of the most toxic synthetic
s ub stance., known.
A secondary objective unrelated to enforcing the rule is
to identify any sites where the wastes were disposed prior
to the effective date of the rule. Since the inspectors will
be involved in determining what a company has done with its
waste in order to assure that the firm has not violated the
regulations, information on such sites may be available during
the inspection. These sites will be added to the Office of.
Waste Programs Enforcement's (OWPE) tracking system. The
Task Force might consider an enforcement action under RCRA or
another relevant statute should the wastes pose a threat to
health or the environment. It will be helpful to the Agency to
locate these sites for monitoring purposes.
OUTREACH
Due to Agency concern over the degree to which the regulated
industry is aware of the regulation, an outreach program to
remind industry of the rule's requirements should be implemented.
OPTSE will send a letter describing the requirements of the rule
to companies which have produced or are currently producing 2,4,5-
TCP, 2,4,5-T, Silvex, Ronnel , Erbon, or Hexachlorophene. The
letter will be sent by certified mail return receipt requested.
The OPTSE will be able to obtain a 11st of these pesticide regis-
trants from the Establishment Registration Support System.
Failure to Include all the Information required by the rule
1s a violation of the rule. However, the Agency recognizes that
not all such delations are deliberate. When a notice arrives
with obviously missing Information, OPTSE will telephone the
company and request the information. If the Information 1s
Supplied by the company in writing within ten business days of
the telephone call, the notice will be considered complete.
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- 0 -
There is only one possible specific violation of tin's rule
(as it applies to Vertac), and there are four possible general
violations of this regulation.
° failure by Vertac to Comply with the Terms of the Tule
Vert ac violates the rule Tr it e T t h e r : :
a) Moves any of its pre-May 12, 1930, TCOH wastes
without EPA approval.
b) Disposes of its TCDD contaminated 2,4-0 wastes
in an inappropriate landfill.
c) Fails to notify EPA prior to disposal of any
wastes generated in the resumption of the
production of 2,4,5-TCP or its pesticide
derivatives. (Note: In such a case, Vertac
would be treated like any other dioxin waste
holder subject to the rule. The other four
general violations would apply.)
d) Fails to test wastes generated after May 12, 198H,
and/or fails to provide the AA of OPTS with
res-ults within two weeks -of analysis.
e) Falls to post the Jacksonville facility at the
principal access point as required.
° ,t0 Notify SPA Prior to Moving Dioxin Wastes
Thi s §6(d) rule requi res a firm to suomit a notice
to the Assistant Admin1strator for Pesticides and
Toxic Substances prior to moving dioxin wastes.
Should a firm move these wastes without notice or
if they are moved prior to the expiration of the fin
day notice period, the firm has violated both TSCA
§1 5(1)(C) and §15(3)(B)•
° Withholding Material Information from a Oloxln
No11ce If a firm witnnoids information essentia 1
to an Agency decision concerning the movement of
dioxin wastes, the firm has violated §15(1)(C)
and §15(3) (3) of TSCA. The notice would be invalid
at the time of submission. If the firm then moves
the dioxin contaminated wastes, it also commits a
failure to notify violation.
° Submission of False or Misleading Information on a
Dioxin Notice A" firm submittin§raise or mlsleadlng
information violates §15(1 )(C) and §15(3) (8) of
TSCA. The notice 1s therefore invafld at the time
it is submitted. If the firm then moves the dioxin
conta-mlnated waste, It also commits a failure to
not1fy violation.
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° raise Claim of No Detectable Levels of TCDO A fi rm
Ts exc 1 uded from tne §6(d) rule Tr it can s"how
that its wastes contain no detsctabls levels of
TCOD. Should the Agency determine that a firm's
claim of non-dstactability is false, then the
firm has violated TSCA §15(1)(C).
INSPECTION SCHEME
The basis of the compliance monitoring for this rule will
be a neutral administretive inspection scheme that wi ¦ 1 both
comport with the Supreme Court's holding in Marshal 1 v. Rarlow' s
Inc. and establish priorities for targeting inspection?. ine
rirst priority will be monitoring the Vertac site. This will
be handled directly by OWPE. The rest of the firms can be
Droken down into three categories:
1) producers of the manufacturing-use grade 2,4,5-TCP,
2,4,5-T, Silvex, Ronnel , Erbon and Hexach1orophene,
2) formulators of any of these six substances,
3) producers of other products (e.g., 2,4-0) produced nn
the same equipment that was used to make any of the
six substances mentioned in category 1.
While categories 1 and 3 will be small (10 to 20 sites),
category 2 will contain about 200 sites. In addition, the
wastes from category 1 firms probably contain significantly
more TCDO than the other categories. After Vertac, the
firms in category 1 should receive the highest priority
in targeting inspections. Formulators are of less concern
as their wastes will probably contain substantially less
TCDO. The same holds for the substances produced on "contami-
nated equipment." Those firms in categories 2 and 3 would
be inspected only after those in category 1.
The Agency should inspect all the manufacturlng-use grade
producers but does not have enough resources to Inspect all
the formulators. Therefore, it should select firms to inspect
based on a Neutral Administrative Inspection Scheme from the
sites in the Agency's records.
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NEUTRAL ADMINISTRATIVE INSPECTION SCHEME
In order to select facilities to inspect without prejudice,
the Agency will consider several factors. The population from
which the selection will be made is composed of the approximately
200 plant sites that produce(d) pesticide formulations which
could result in dioxin contaminated waste.
The seven plant sites which produce(d) the manufacturing
use grade products are not included in the population. They
will be inspected once every year and at least twice per year
if violations are found.
To determine which formulation plant sites are to be inspected,
the following criteria should be applied by each region:
Amount of Subject Pesticide Total n-joxin Waste
If a plant has been Inspected once, it can be removed from
the selection population for two years unless violations are
found. Violations will trigger follow-up inspections and will
keep the site in the selection population.
In addition, other sites at which violations are found in
response to complaints or from Information obtained during
production site inspections (e.g.. waste disposal sites) may
be added to the population for future inspection.
*Does not include Inspections of technical producers.
ADMINISTRATIVE CONSIDERATIONS
PROGRAM MANAGEMENT AND ALLOCATION OF RESPONSIBILITIES
OPTSE will:
0 Coordinate with other offices 1n OPTS in reviewing Notices
of Disposal and any resulting restrictions and keep the
regions Informed on these.
0 Telephone companies submitting Incomplete notifications
to obtain omitted information.
Prod uced
Inspections*
Top third
Middle third
Lower third
5 or.
30%
20%
0 Target inspections and provide the regions Information
needed to conduct the Inspections.
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-a-
° Coordinate*betwesn the regions and the National Enforcement
Investigations Center (NEIC) in Denver for inspections
requiring sampling, physical inspection of a disposal
site, or other areas of NEIC expertise.
0 Coordinate with the QWPE regarding inspections of
chemical waste disposal sites involving dioxin, and
casework where action may be taken under either TSCA
or RCRA or both.
3 Review Concurrence Requests from the regions to issue a
Civil Complaint under TSCA for violations of the §6
dioxin disposal rule.
0 Participate in any criminal cases arising from violations
of uhe §6 rule.
The regions will:
0 Perform inspections and gather evidence for the case file.
0 Prepares and issue Civil Complaints under TSCA (requires
concurrence from headquarters) and handle any resulting
1i ti gati on .
0 Participate in filing criminal actions under TSCA-.
NEIC's role:
0 Inspections: Participates 1n inspections when sampling
may be required. Sampling dioxin contaminated waste 1s
dangerous and highly complex and requires special equip-
ment and training.
0 Analysis: NEIC will analyze dioxin waste samples. The
rule requires that in order for a waste to be considered
excluded from the regulatory requirements, there can
be no detectable level of TCDO using capillary column
gas chromatography interfaced with high resolution
mass spectrometry (GC/HRMS). The GC/HRMS methodology
detects dioxin down to about 3 parts per trillion.
Consequent!y, accurate, sample analysis 1s of the utmost
importance. (Due to the complex nature of dioxin sample
analysis, the samples will probably be split, allowing
more than one laboratory to analyze each sample. Other
laboratories may be specified later.
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* dfli
-¦"t0 Sr«V
S2E
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
R J If! 1CQ?
OFFICE OF
PESTICIDES AND TOXIC SUBSTANCES
MEMORANDUM
TO:
Regional Toxic Branch Chiefs
Air and Hazardous Materials Division Directors
Environmental Services Division Directors
SUBJECT: 2,3,7,8-TCDD (Dioxin) Disposal Rule
Attached is a final copy of the Enforcement Response Policy
for the 2,3,7,8-TCDD (Dioxin) Disposal Rule. This is a refine-
ment of the document that was used to process the recent round
of cases and incorporates the experience from those cases. If
you have any questions, feel free to call Pamela Harris of my
staff (FTS 382-5567). .
A. E. Conroy/II, Director
Compliance Monitoring Staff
Office of Pesticides and Toxic Substances
Attachment
cc: Marcia Williams, OTS
Edward Klein, CCD
Ted Fi retog , OLEC
-------
July 6, 1983
DIOXIN CONTAMINATED WASTE
ENFORCEMENT RESPONSE POLICY
OFFICE
THE U
COMPLIANCE MONITORING STAFF
OF PESTICIDES AND TOXIC SUBSTANCES
.S. ENVIRONMENTAL PROTECTION AGENCY
-------
ENFORCEMENT RESPONSE POLICY FOR
THE DIOXIN CONTAMINATED WASTE RULE
PART I INTRODUCTION
Definitions
The Vi ol at i on 1
Substances Regulated 3
Persons Regu 1 ated 4
Exemptions 5
PART II DETERMINING THE LEVEL OF ACTION
Final Actions
Notice of Noncompliance 6
Civil Penal ty 6
In junct i ve Act ion 7
Criminal Sanctions 8
Multiple Remedies
Criminal Sanctions 8
Notices of Noncompliance 9
Civil Administrative Penalties and
Specific Enforcement . 9
PART III ASSESSING AN ADMINISTRATIVE PENALTY
Summary of the Penalty Policy
Calculation of the Gravity Based Penalty ... 10
Extent 11
Circumstances: Ranges 11
Circumstances: Levels 12
Multiple Penalties 13
Adjustment Factors 13
Detailed Explanation of the Policy
Nature 14
Extent ' 14
Circumstances 15
Multiple Penalties 17
Definition as One Day Violations 18
PART IV APPENDICES
Appendix 1: Hypothetical Cases 19
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PART I - INTRODUCTION
On March 11, 1980, the U.S. Environmental Protection Agency
(EPA) published an immediately effective proposed regulation
governing storage and disposal of waste material containing
2, 3,7,8-Tetrachlorodibenzo-p-dioxin (TCOD) (44 Federal Register
15592, 1980). The 1980 rule was effective as a final rule on
May 12, 1980 (45 Federal Register 32676, May 19, 1980). The
rule prohibits Vertac Chemical Company (Vertac) from disposing
of specified wastes containing TCDD. Additionally, the
regulation requires all companies intending to dispose of 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 of the risks involved in the
proposed form of disposal. The Agency then decides what action
to take under TSCA or another Agency statute. Other parts of
the rule provide an exemption for companies that do not detect
TCDD using a specified technique to test their wastes. Actual
disposal of the waste may be regulated by promulgation of a rule
under TSCA or application of the Resource Conservation and
Recovery Act (RCRA).
This enforcement response policy provides guidance to the Regi'ons
in enforcing the requirements of the regulation entitled "Storage
and Disposal of Waste Material; Prohibition of Disposal of Tetra-
ch1orodibenzo-P-Dioxin" (hereinafter, Dioxin Rule). This regulation
was promulgated pursuant to Section 6 of the Toxic Substances
Control Act (TSCA). Accordingly, the remedi es 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 Penalty
System, 45 Federal Register 59770 (September 10, 1980) to arrive
at an appropriate civil admi n istrati ve penalty, where that remedy
is uti1i zed.
Defi ni ti ons
The Violations
Violations of the regulation may be divided into the following
categori es :
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- 2 -
0 Noncompliance with Prohibitions
- Violation, by Vertac or other parties, of the prohibition
against removal for disposal of Vertac's pre-May 12,
1980, TCDD-contaminated wastes; and
- Vertac's failure to place its post-May 12, 1980, TCDO
contaminated waste in PCB-approved landfills._L/
0 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 60 days prior to removing TCDD wastes for disposal;
- Submitting inaccurate information in a TCDD-contaminated
waste disposal notification;
- Falsifying information in a TCDD-contaminated waste
disposal notification;
- Failing to provide all required information in a notice
or failing to provide the information to the Agency when
requested to do so. (When EPA receives an incomplete
notice its first response is to call the company to obtain
the missing information. If the information is promptly
provided, no violation has occurred.); and
-Late notification.
o Marking Violation
- Vertac's failure to post its Jacksonville facility as
requi red by the ru1e.
o Testing Violation
- Failure by Vertac to test its post-May 1 2, 1980 wastes. 1/
i./ The disposal requi rement 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.
1/ Vertac has complied with the testing requirement.
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3
Substances Regulated
waste material containing TCDD is defined by the rule as:
o Waste material resulting from the manufacture or processing
of 2,4,5-Trichlorophenol (2,4,5-TCP) or its pesticide
derivatives; or
o Wastes resulting from manufacturing processes using
equipment that was at some time used in the manufacture
of 2,4,5-TCP or its pesticide derivatives. For example,
2,4-D is often manufactured on equipment previously
used to manufacture 2,4,5-TCP or its pesticide derivatives:
Wastes from this 2,4-D manufacture may also contain
2,3,7,8-TCDD 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 RCRA covering TCDD contaminated wastes
become final, the TSCA regulation will be repealed.
For further guidance concerning substances regulated by the rule,
consult the chart below.
Regulation of Dioxin Containing Substances
Substance
Law Regulating
Waste from manufacturing of
2,4,5-TCP or its pesticide
deri vati ves
TSCA
Spills of bulk manufacturing
intermediates of 2,4,5 -TCP
or its pesticide deriviatives
TSCA
Residue on equipment used to
manufacture 2,4,5-TCP or Its
pesticide derivatives
TSCA
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- 4 -
Packaged, labeled, technical
grade or final use pesticide
ready for distribution
Residue in pesticide container
and the container
Residue in bulk storage container
with no pesticide label
Technical grade pesticide in the
process of repackaging or repro-
cessi ng
Residue on repackaging or
reprocessing equipment
Repackaged, reprocessed labeled
pesticide ready for distribution
Wastes from pesticides manufactured
on equipment previously used to
manufacture 2,4,5-TCP or its
pesticide derivatives
Manufacturing wastes that have
been disposed of after final
RCRA rule becomes effective
FIFRA, RCRA
FIFRA, RCRA (rare
instances TSCA)
TSCA
TSCA
TSCA
FIFRA
TSCA
RCRA
Persons Regulated
As defined in the /egu1ation, the persons regulated are
those whose disposal of TCDD-contaminated wastes for commercial
purposes. Such persons include manufacturers, processors,
waste haulers, waste disposers, persons who operate storage
for disposal facilities!/ and others for whom disposal is
either for commercial advantage or incidental to their business
acti vi ti es .
2/ Additionally, the rule names Vertac Chemical Company
(Vertac) specifically, requiring special treatment of that
company's wastes. As a result, a 11st of potential
violations of the rule includes violations naming Vertac,
although this does not indicate any greater likelihood
of noncompliance on the part of Vertac than on the part
of any other company subject to requirements of the
rule.
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- 5 -
The Agency considers the waste generator to have primary
responsibility for complying with the rule's notification
requirement. For example, where both a waste generator and
a waste hauler did not notify the Agency prior to disposal of
TCDD-contaminated wastes, the waste generator should be
charged with a notification violation.
Exempt i ons
Persons holding wastes defined under this regulation
as TCDD-contaminated wastes may test their wastes for TCDD
using the TCDD detection methodology established by the EPA
Dioxin Monitoring Program (capillary column gas chromatography
interfaced with high resolution mass spectrometry ). If this
testing shows that the wastes contain no detectable TCDD,
the waste holder is not subject to the regulation. (See 45
Federal Register 32683, May 19, 1980, "The Analytical Methodology
for Testi ng TCDD ." )
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- 6 -
PART II - DETERMINING THE APPROPRIATE LEVEL OF ACTION
Final Actions
The first step in planning an enforcement response to a
violation of this regulation is to determine the appropriate
level of enforcement action. If, after a full review of the
investigation file, Regional enforcement personnel determine
that a violation of the rule has occurred, enforcement alter-
natives include notice of noncompliance, civil penalty,
injunctive relief or criminal action.
Notice of Noncompliance
Due to the toxicity of TCDD and subsequent seriousness of any
noncompliance with the requirements of this regulation,
few violations of this regulation warrant only a notice of
noncompliance. Notices of noncompliance are appropriate
for violations constituting only minor or technical infractions
of this rule and then only if there is no pattern of more serious
violations or if no previous notice of 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
requesti ng ..the information. The Agency recognizes
that not all such omissions are deliberate and its
initial response to an incomplete notice will be to
telephone the submitter and attempt to obtain the
missing information. Only if the submitter continues
to fail to provide the required information will the
notification be considered incomplete.
- Failure by Vertac to provide results of analysis
of its post-May 12, 1980, wastes within two weeks
of the date the analyses are completed.
Civil Penalty
The Agency anticipates that an administrative civil penalty
will be an appropriate response for most violations of this
regulation which do not meet the criteria for a notice of
noncompliance, or the criteria for Imposing criminal sanctions.
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
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- 7 -
should be assessed according to the guidelines in Part III
of this policy. Regional enforcement personnel must consult
with the Compliance Monitoring Staff of the Office of Pesticides
and Toxic Substances and with the Office of Legal and Enforcement
Counsel prior to instituting a civil or criminal action. For
additional guidance, see "General Operating Procedures for the Civil
Enforcement Program" (July 6, 1982) and "Case Referrals for.Civil
Litigation" (September 7, 1982).
Injunctive Action
Injunctive action, under TSCA or RCRA, may be appropriate as an
additional safeguard in protecting the environment from the hazard
presented by violation of this regulation.
Although Section 17 of TSCA can be a very effective tool in obtaining
compliance, it is also more resource intensive than a civil penalty
action. In addition, it has been the Agency's experience that a
civil penalty action is usually sufficient to obtain compliance.
For these reasons, the Agency believes that the use of Section 17
remedies should be limited to those instances where, in the
judgment of the Region, a civil penalty action will not result in
swift enough compliance to protect human health or the environment
or where there are good reasons why penalties are not appropriate.
Injunctive action is appropriate in the following cases:
o To prevent a company or person from violating the
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 ordex a clean-up of improperly disposed TCDD-
contaminated waste under the authority of RCRA
§7003.
The most probable subject of an injunction under Section 17
of TSCA would be a person with a significant amount of 2,3,7,8-
TC00-contaminated waste who had disposed of some of it without
notifying EPA and still had some of the waste which EPA had
reason to believe might be disposed of without notification.
The object of the injunction would be to prevent further disposal
without notification.
Injunctive actions must be initiated in Federal District court by
the Department of Justice (DQJ) and may be referred to DOJ only
by the Associate Administrator (AA), Office of Legal and Enforcement
Councel (OLEC), or the AA's designee. (If necessary, however, the
Region is delegated the authority to obtain an emergency temporary
restraining order from the U.S. Attorney to prevent Imminent disposal
of the waste without notification.) Requests for Injunctive actions
should be sent to OLEC with a copy to the Compliance Monitoring
Staff which will review the technical evidence and Inspection pro-
cedures used to support the case.
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- 8 -
For additional guidance see the following OLEC memoranda, "General
Operating Procedures for the Civil Enforcement Program" (July 6,
1982) and "Case Referrals for Civil Litigation" (September 7, 1982).
Criminal Sanctions
Criminal sanctions pursuant to Section 16(b) of TSCA are the most
serious sanctions available for violations of the Dioxin ruJe.
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
mi sconduct.
Several factors distinguish criminal cases from administrative
or civil actions. First, criminal sanctions will ordinarily
be limited to cases in which the prohibited conduct is accom-
panied by evidence of "guilty knowledge" or intent on the part
of the prospective defendant(s). TSCA imposes criminal penalties
only for violations of the Act which are done "knowingly or will-
fully".
A second factor to consider is the nature and seriousness of the
offense. As a matter of resource allocation, EPA wi11^investigate
and refer only the most serious forms of environmental*misconduct.
Of primary importance to this assessment is the extent of environ-
mental contamination or human health hazard that resulted from, or
was threatened by, the prohibited conduct. Also of 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 mo re
appropriate as incidents of noncompliance increase. While not
a prerequisite, a history of environmental noncompliance will
often indicate the need for criminal sanctions to achieve
effective individual deterrence.
The Criminal Enforcement Division of the Office of Legal and
Enforcement Counsel, maintains the primary role in the investi-
gation and referral to the Justice Department of allegations
of criminal misconduct. (See "General Operating Procedures for
the Criminal Enforcement Program" memorandum from , October
12, 1982.)
Multiple Remedies
There may be instances where a particular situation will present
facts that suggest that more than one final action should be taken.
The purpose of this Section is to outline when multiple remedies
are appropriate.
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- 9 -
Criminal Sanctions
Simultaneous civil and criminal enforcement proceedings are legally
permissible, United States v. Kordel, 397 U.S. 1, 11 (1970), and on
occasion are clearly warranted. However, separate staffs will be
appointed with the initiation of a grand jury investigation, if not
before. Further, the pursuit of simultaneous proceedings pcovides
fertile grounds for legal challenges to one or both proceedings
that, even if unsuccessful, will consume additional time and
resources. Thus, parallel proceedings should be avoided except
where clearly justified.
While simultaneous administrative/civil and criminal enforcement
actions are legally permissible, they will be the exception,
rather than the rule. As a general rule, an administrative or
civil proceeding will be held in abeyance pending the resolution
of the criminal investigation. One exception to this general
rule will be those situations in which emergency remedial
response is mandated.
If the Region is considering the option of simultaneous civil and
criminal sactions, the Region must consult with Headquarters CMS
and OLEC.
Notice of Noncompliance
In general, a notice of noncompliance should not be used in con-
junction with any other final remedy. Where a particular situation
presents several violations, some of which would merit a notice
of noncompliance, while others would merit civil penalties, no
notice of noncompliance should be sent. Instead, an administrative
penalty action shoyld be initiated, pleading all violations. The
Region may, however, choose not to assess a penalty for minor
i n fract i ons .
Civil Administrative Penalties and Specific Enforcement
The criteria outlined above already anticipate that civil penalties
and specific enforcement will be used sequentially. There may,
however, be instances where the concurrent use of these penalties
is appropriate. If the Region deems this to be appropriate 1n
any case, it should consult with CMS and the Department of Justice
before bringing either action.
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- 10 -
PART III - ASSESSING AN ADMINISTRATIVE PENALTY
Summary of the Penalty Policy
Calculation of the Gravity Based Penalty (GBP)
The GBP, a function of the nature, extent, and circumstances
of each violation, is based on the following matrix:
Extent of Potential Damage
Circumstances (Probability
of Damages)
A
MAJOR
SIGNIFICANT
C
MINOR
High Range:
1
2
$25,000
20,000
$17,000
13,000
$5,000
3, 000
Mid Range :
3
15,000
10,000
1 ,500
4
10,000
6,000
1 ,000
Low Range :
5
6
5,000
2,000
3,000
1 , 300
500
200
As a first step in locating a specific violation on the
matrix, the nature of the violation must be classified. A
violation may be either chemical control, control-associated
data gathering, or"hazard assessment in nature. No violations
of this regulation are hazard assessment violations.
Chemical control violations of this regulation include:
o Noncompliance with prohibitions violations:
- Violation, by Vertac or other parties, of the
prohibition against removal for disposal of Vertac's
pre-May 12, 1980 TCDD-contaminated wastes;
o Marking violation:
Vertac's failure to post its Jacksonville facility as
requi red by the ru1e.
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- 11 -
Control associated data gathering violations include:
0 Notification violations:
- Failure of persons subject to the regulation to
notify EPA 60 days prior to removing TCDD-contaminated
wastes for di sposal ;
- Submitting inaccurate information in a TCDD-
contaminated waste disposal notification; and
- Falsifying information in a TCDD-contaminated waste
disposal notification.
- Failing to provide all required information in a notice
or failing to provide the information to the Agency
when requested to do so by a follow-up telephone call or
later.
- Late notification.
Extent
Regional enforcement personnel should determine the extent of the
violation based on the amount of TCDD-contami nated wastes invo.lved
in the violation, as follows:
55-gal1 on drums
Major: 500 or greater, or
amount unknown
Significant: Greater than 1
but less than 500
Minor: 1 or less
Circumstances: Ranges
The range of chemical control violations should be classified as
fol1ows :
High Range: Noncompliance with prohibitions
(Levels 1 & 2)
Medium Range: Marking violations
(Levels 3 & 4)
£/ A 55-gal1 on drum is filled to a 50-gallon capacity.
1/ The amount of dry powder that will fill a 55 gallon drum
is approximately 100-600 pounds.
Ga11 on si/
25,000 or greater,
or amount unknown
Greater than 50 but
less than 25,000
50 or less
Pounds!./
100,000 lbs or
greater or amount
unknown.
600-100,000 lbs
200-600 lbs
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- 12 -
Tne range of control associated data gathering violations
should be classified on the circumstances axis as follows:
High Range: Notification violations such as falsification,
(Levels 1 & 2) nonreporting or omission of important
information.
Medium Range: Testing violations and notification violations
(Levels 3 & 4) such as reports more than 30 days late but
before actual disposal.
Low Range: Minor notification violations.
(Levels 5 & 6)
Circumstances: Levels
Regional enforcement personnel should determine the level of
circumstances of the violation based on the following criteria:
Waste from production
of 2,4,5,-TCP and its
pesticide derivatives
or mixture of both
types of wastes in un-
known proportions.
Waste from production
on equipment previously
used in the production
of 2,4,5-TCP or its
pesticide derivatives.
^ Non-compli ance
f with prohibitions
Level 1
Level 2
Marking
Vi olations
Level 3
Level 4
Notification
Vi olati ons
Falsification or
over 60 days late
or nonreporting
30-60 days late
Mi nor Omi ssi ons
Level 1
Level 3
Level 5
Level 2
Level 4
Level 6
See page 16 - 17 for a more detailed discussion of the information
in the ch art.
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- 13 -
Multiple Penalties
Multiple penalties may be charged to the same person or business
entity in the following situations:
o One person or business entity commits several
separate violations.
o One person or business entity repeats the same violation.
All violations of this regulation are considered to be
one-day violations.
For the purposes of this penalty policy, a violation is repeated
if it 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.
Adjustment Factors
The adjustment factors discussed in the TSCA Penalty Policy
pages 9-17 should be applied as appropriate to violations of
this regu1ati on.
Detailed Explanation of the Policy
This portion of the policy explains the reasons for the specific
structure of the TCDD-contaminated waste civil penalty policy
and provides detailed instructions on its use.
As noted previously, the gravity based penalty (GBP) is a
function of three factors: nature, extent, and circumstances.
The basis for classifying each of these factors appears below.
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- 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 TCDD-contaminated waste in the following
manner:
o Waste holders must comply with the Agency's
restrictions concerning disposal; and
o Vertac must comply with the specific requirements
set out in this rule (See p. 2-3 for complete
description)
Violations of these requirements are thus chemical control
violations by nature.
Contro1-Associated Data Gathering Violations. The notification
and testing r eCfu i reme n t s 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 axis of the GBP matrix measures the degree, range
or scope of the harm or potential harm caused by the violation
to human health or the environment. Since larger amounts of
TCOO-contaminated wastes have more potential to cause harm to
human health and the environment, the quantity of waste involved
determines the extent of harm or potential harm.
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- 15 -
Three weight/volume classes have been chosen to correspond to
the three extent categories of the 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-D production to be a reasonable
basis for the Major category because equivalent amounts of
other types of wastes regulated by this rule, such as 2,4,5-TCP
waste for example, will contain a higher concentration of
TCDO and thus a larger amount of TCDD. The Agency considers
this amount extremely serious, as indicated by the promulgation
of this rule, which is partially aimed at placing constraints
on this particular waste.
The Minor category is placed at 1 drum, which is currently the
minimum quantity of storage and transfer.
The Si gni fi cant 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.
Ci rcumstances
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 TCDD in the waste based on the
type of pesticide production involved.
Circumstances: Ranges. The purpose of the chemical control
requi rements of this regulation is to avoid the harm caused by
exposure of the environment to TCDD-contaminated wastes. Vio-
lations of the chemical control requirements are described in
this policy as "Noncompliance with prohibitions" and "Marking".
These Categories are classified as follows:
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- 16 -
o Violations involving noncompliance with prohibitions
are placed in the high range of the circumstances axis.
The Agency has placed restrictions or prohibitions
on disposal for the purpose of preventing health or
environmental harm from TCDD-contami nated wastes."
Noncompliance with prohibitions is very likely to result
in direct or indirect environmental contamination and
potential harm to human health and the environment.
o Marking violations are placed in the medium range.
There is a significant chance that the failure to
post the Vertac facility would result in harmful
exposure to dioxin because there would be no indication
to persons unfamiliar with the situation that TCDD-
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 "Notification."
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 seri ously
impaired 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 30 days late are placed in
the low range.
Circumstances: Levels. The level assigned to a violation
in each range for both chemical control and control-associated
data gathering violations 1s 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 derivatives.
o Wastes from the production of other pesticides
(such as 2,4-D) if they are produced on equipment
previously used to produce 2,4,5-TCP and Its pesticide
deri vati ves.
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- 17 -
Wastes generated in the production of pesticides on contaminated
equipment are less contaminated than wastes from production
of 2,4,5-TCP or its pesticide derivatives. Therefore, a
lower level on the circumstances axis is assigned to violations
involving wastes produced on contaminated equipment. The
following background regarding the formation of TCDD in the
production of TCP and its pesticide derivatives will exp.lain
the basis for this distinction.
TCDD forms during the process of manufacturing 2,4,5-TCP. TCDD,
because of its toxicity, is an undesirable contaminant, and most
manufacturers attempt to remove the substance from their product.
As a result, wastes from the production of 2,4,5-TCP contain
greater amounts of TCDD than the final product, depending on
the success of the process used to remove the contaminant.
The 2,4,5-TCP is processed into a pesticide by the same name
and is also used as a starting material for other pesticides.
These pesticide derivatives of 2,4,5-TCP are contaminated with
TCDD because the original starting material was contaminated.
However, their degree of contamination depends on how much
TCDD was removed from the original TCP.
In some cases, pesticide producers manufacture 2,4-D immediately
after making 2,4,5-TCP. Residues of TCOD-contaminated 2,4,5-TCP
left on the equipment cause the contamination of the 2,4-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 TCDD contamination decreases.
Thus, if the waste is directly contaminated by production of
TCP or its pesticide derivatives, the concentration is higher,
so a higher level is assigned. 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.)
Mu11 i p1e Penal ties
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.
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Assessing penalties only for violations named in citation
charges ensures that penalties are issued only for discrete
and independent violations.
If a person or a business entity repeats an act of violation,
he should be assessed a multiple penalty, so that he is
penalized more than a one-time violator.
Definition as One-Day Violations
The Agency has decided as a matter of policy that each category
of violations of this regulation should be treated as one-day
violations for the following reasons:
o Noncompliance with Prohibitions on Disposal
This policy defines this violation as a one-day violation to set
limits to the act of violation. Shipments or batches on the
same day are not considered separate violations, but contribute
to the total amount of material disposed which determines the
extent of the violation.
o Notification Violations
The regulation requires any person who wishes to dispose
of TCDD-contaminated wastes to notify the Agency 60 days prior
to disposal. This policy defines the violation as occurring on
the one day, 60 days prior to a disposal, on which a notification
violation may occur. However, this violation is repeated if
disposal occurs again.
Two disposals^that occur in one day constitute one violation.
Two disposals'that occur on two days constitute separate
violations, whether they take place on consecutive days or
whether they are separated by weeks or months. The extent of
the violations is determined by the amount disposed of on a
given day. If two types of waste are disposed of on the same
day, the penalty is calculated as though the entire disposal
was of the type of waste that merits the higher level penalty
(see discussion of the types of waste pages 16-17).
o Marki ng Vi olat1on
Under established Agency policy all marking violations
are considered one-day violations. Therefore posting the
Vertac facility will be considered a one-day violation.
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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-D
wastes produced on equipment used previously to manufacture
the pesticide 2,4,5-TCP. The shipments, each consisting of
250 drums, took place over 7 days.
Acti on
Region Z investigated anonymous tip and found that disposal
of wastes subject to the regulation had taken place without
notification of the Agency as required. Region Z assessed a
penalty of $91,000.
Explanation
Using the one day equals one violation criterion, Region Z.
determined that 7 violations had occurred. Regional enforcement
personnel used the following factors in finding the total
pen a 1ty:
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
violatioif in the high range of the circumstances axis.
3. The type of waste, equipment contaminated waste,
placed the violation in the level 2 of the circum-
stances range.
The penalty at the intersection of the significant extent
axis and the high circumstances range, level 2, is $13,000.
Seven violations, multiplied by $13,000 produced the total
penalty, $91,000.
HYPOTHETICAL 2
Case
A company did not notify the Agency before disposing of 600 drums
of 2,4,5-T waste and 300 drums of 2,4-D waste.
Acti on
Regional enforcement personnel charged the company with failing
to notify the Agency, assessing a total penalty of $38,000.
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Exp1anati on
Since a mixture of waste was involved, Regional enforcement
personnel assessed two violations, as follows:
2,4,5-T waste :
Major category, extent axis
High range, circumstances axis
Level 1, circumstances axis
2,4-D waste:
Significant category, extent axis
High range, circumstances axis
Level 2, circumstances axis
Total Penalty: $25,000
13,000
38,000
Hypothetical 3
Case
A company which manufactures 2,4,5-T decides to manufacture 2,4-D
on the same equipment. Before beginning 2,4-D manufacture the
comany attempts to clean the equipment by rinsing it with fcater
into the city sewer. The company did not notify the Agency of the
disposal because it argued that the level of TCDD 1n the rinsate
was not detectable, even though the company did not test either
the rinsate or the residue on the equipment.
Act i on
CMS targetted *he company as part of its routine compliance
monitoring program. The inspection uncovered the violation
and a civil penalty of $17,000 was assessed.
Exp!anati on
The company is in violation of the rule because it did not notify
the Assistant Admi n i st rator of the disposal, or quaiHfy for the
exemption by testing the waste. Based on production records and
cleaning practices, the volume of rinsate was estimated to be
approximately 20,000 gallons. Therefore, extent of the violation
is "significant". The waste in question resulted from the manufac-
ture of 2,4,5-T, so the circumstance of the violation 1s Level 1.
According to the matrix the appropriate civil penalty $17,000.
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Unitec States
Environmental Protection
Agencv
Pesticides ana
Toxic SuDstancss
enforcement Division
Enforcement Facts
and
Chlorofluorocarbons
(CFCs)
Overview
Chlorofluorocarbons (CFCs) have been found to produce a risk to human
health and the environment by causing depletion of the ozone layer which
shields the Earth's surface from ultraviolet radiation. Although the
effects of ozone depletion are difficult to quantify, increased exposure to
ultraviolet radiation leads to a statistically significant increase in
skin cancer. Seme negative effects on plants and animals are also
likely. There are some predictions of adverse effects because of an
increase in the Earth's temperature ("greenhouse effect") and changes
in climate.
On March 17, 1973, the Environmental Protection Agency published a rule
which prohibits almost all of the manufacture, processing, and distribution
in commerce of fully halogenated cnlorofluoroalkanes (also known as
chlorofluorocarbons or CFCs) foe aerosol propellant uses subject to the
Toxic Substances Control Act. In a related action, the Food and Drag
Administration banned CFC aerosol propellants in most food, drug,
and cosmetic products.
The intent of these rules is to reduce emissions of chlorofluorocarbons
to the atmosphere, and thereby reducing the environmental risks caused
by depletion of the ozone layer.
In 1975, approximately one-half of the CFCs produced in the United States
were used as aerosol propellants. since that time, this figure has
dropped considerably. Alternative propellants or nonaerosol alternatives
for most uses are available. When no alternative exists for an es3enti.il
use, an exemption from the regulation may be granted.
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Reaulatea Industries
Any inanufacturer, bulk distributor, bulk importer, or processor (filler)
of chlorofluorocarbons is subject to the rule, as are inraorters and
exporters of aerosol products.
There are five CFC manufacturers and approximately 300 aerosol fillers
in the United States. Together, they are responsible for nearly all
of the CFC activity requlated by the ban? the other industry categories
perform only a snail percentage of regulated activity.
Retirements under the CFC Rule
Ban of Aerosol Prooellant Uses*
The following activities are banned by EPA in connection with
aerosol propellant uses of CFCs as of the dates indicated:
October 15, 1978 Manufacturing (except for export)
December 15, 1978 Processing, importing in bulk,
importing finished aerosol articles,
and distributing in bulk (exceprt
for export
The following activities are banned by the related FDA rule:
December 15, 1978 Manufacturing and filling
April 15, 1979 Introducting finished products into
Interstate commerce
"The terra "aerosol propellant" includes the substance which expels
the active ingredients in a product and any other substance used to
modify the expelling force or to achieve deliver/ of the active
ingredients. In general, anything which is not an active ingredient
is a propellant.
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Sssential Use Exemptions
The following uses have been found to be essential, and therefore
are not banned:
EPA-regulated products: • mercaptan stench mine warning devices
• release agents for molds in plastic
and elastomeric production
• flying insect pesticides for use in
non-residential food-handling areas
and for space-spraying of aircraft
• diamond grit spray
• nonconsumer articles used as cleaner-
solvents, lubricants, or coatings
for electrical or electronics
equipment
• articles necessary for the safe
maintenance and operation of aircraft
• uses essential for military preparedness
as determined by the Administrator and
Secretary of Defense, and
• inkless fingerprinting systems (until
August 1, 1981)
FDA-regulated products: • metered-dose steroid hu-nan drugs for
nasal inhalation
• metered-dose steroid human drugs for
oral inhalation
• metered-dose adrenergic bronchodialator
human drugs for oral inhalation
• contraceptic vaginal foams for human
use
• metered-dose^ergotamine tartrate drug
products administered by oral inhalation
for use in humans
• foamed or sprayed food products which
contain chloropentafluroethane (F-115)
as an aerating agent
When an exemption is granted for an essential use, it must only be used
for that essential use. If a product can reasonably be expected to be
used for nonessential uses, the filler may not represent the product as
having other uses. If the product has an established market which includes
many nonessential uses, the filler must make it clear, in labeling or
advertising, the use is limited to the essential use exemption.
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Certification
Purchasers of CFCs for any use must submit a certification to the manufacturer
specifying whether the CFCs will be used for aerosol or other uses prior to
shipment of the substance. This requirement applies to all CFCs manufactured
after October 15, 1978.
Reoortina
Manufacturers and processors of CFCs are required to file annual reports
with EPA. The reports are mailed to the Pesticides and Toxic Substances
Enforcement Division by March 31 of 1980, 1931, and 1982.
The 1980 manufacturers' reports will cover the period from October 16, 1973,
through December 31, 1979; the 1980 processors' reports will cover
the period December 16, 1978 through December 31, 1979. For the first
report, each group has been asked to provide 1978 and 1979 data separately.
Subsequent reports will cover the oreceeding calendar year.
Record-keeping is not required by the rule, but will be necessary for
compiling the annual report.
• The manufacturer's annual report Includes a list of all purchasers
of CFCs and the total quantities shipped, as well as a breakdown
of quantities shipped for aerosol and other uses.
• Processors must submit a report showing from whom they purchased
CFCs and the quantities purchased. They must also submit an
itemized list of auantitices processed for the various EPA essential
uses, total FDA essential uses, and non-propellant uses.
• Importers are subject to the same reporting requirements as
manufacturers but do not need to file an annual reoort if none
of their customers buy for EPA-regulated aerosol propellant uses.
Enforcement
Objective
The objective of the CFC enforcement program will be to ensure that activities
banned by the regulation have not taken place and that required reports
are properly prepared and filed.
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Tvces of Violations
o Processing of CFCs for banned aerosol uses after December 31, 1973
Reference: 40 CFR 762.12(a)
o Manufacturing CFCs for nonexemot aerosol oropellant uses after
Decanter 15, 1973'
Reference: 40 CFR 762.11(a)
o Recordkeeping and reporting violations, including submission
of a false annual report, failure to submit an annual report,
failure to obtain certification from a CFC purchaser, and
submission of a late annnual report
Reference: Certification 40 CFR 762.11(c); manufacturer
annual report 40 CFR 712.3 (a) submission, (b) format? orocessor
annual report 40 CFR 712.3 (a) submission, (b) format; willful
falsification 13 USC 1001.
o Collusion between the manufacturer and processor in submitting
false annual reports
Reference: 40 CFR 712.3 and 712.4
o Abuse of an essential use exemption
Reference: 40 Gtt 752.12(a)
o Distributing CFCs in bulk for banned aerosol prooellant uses
after December 15, 1973
Reference: 40 &?R 752.13
o importing bulk CFCs for nonexemot aerosol procellant uses after
December 15, 1978
Reference: 40 CFR 762.11(b)
o Importing nonexemot CFC-orooelled aerosol articles after
December 13, I47S ~
Reference: 40 CFR 762.11(b)
Violation Detection
A program of aerosol filler inspections will be conducted based on
information obtained from a combination of the following sources:
o Analysis of annual reports of processors and manufacturers
o Marketplace sampling
o Referrals from tfte Pesticides Registration and Pesticides
Inspection programs
o Cooperation with the Food and Drug Administration and the
Consumer Product Safety Commission
o Tips from competitors and the general public
o Cooperation with U.S. Customs Service
o Inspections of manufacturers' records
In addition, non-targeted inspections wil be conducted based on a
neutral administrative scheme.
Outreach
As part of its effort to achieve voluntary compliance with the CFC rule,
EPA* will continue its program to inform the regulated community about
the requirements and any interpretations or clarifications developed
by the Agency.
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Remedies
Under the Toxic Substances Control Act, the following enforcement actions
may be taken against violators of its crovisions or rules oromulgated
under the Act:
o Notice of noncompliance
o Administrative penalty of up to $25,000 per violation per day
o Civil action including injunctive relief and seizure
o Criminal penalties of up to $25,000 and/or one year of
imprisonment per violation
Summary of Enforcement Strategy
Enforcement efforts will focus on accounting for CFCs purchased by
fillers. The Agency will try to make sure that all CPCs purchased
for aerosol propellant uses are being employed in exempt products, and
that the exemptions given are not being abused.
Inspections v/ill be limited to those fillers currently buying CFCs.
Violations by manufacturers and distributors can only occur if there
are associated filling (processing) violations. Therefore, these*
activities will be investigated only where there has been a filling
violation.
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C F C ENFORCEMENT FACTS AMD STRATEGY
past n
CFC Enforcement Prironties
Potential violations of the CFC ban rule have been ranked for enforcement
priority based on the estimated likelihood of the violation occurring,
toe degree of harm to the environment, and the ease of detection. The
categories of possible violations appear below in order of decreasing
priority along with the considerations leading to the ranking decisions.
Each of the violations below would be a violation of §15(1) of TSCA. In
addition, a commercial distributor or user of a banned finished product wculd
be violating §15(2) if they knew or had reason to know that the product
was manufactured illegally (and distributed or used it). Distributors
or users of CFCs will not be pursued except in conjunction with a filling
violation. Section 15(3) would be violated if an exporter failed to
five the Administrator notice under §12.
(1) Processing of CFCs for banned aerosol uses after December 15, 1978
This category is the most important for a number of reasons:
• jteny of the other catgories of violations cannot be committed
if there is no related filling violation.
• It is the filling violation that makes toe increment of
environmental harm possible.
• This type of violation is the easiest to detect and often
is the only reasonable way to find other types of violations.
Economic incentives to violate arise from:
• The cost of R & D necessary for reformulation of the
product
• The cost of changing the labels, advertising, or pesticide
registration, as necessary
• The oost of changing the filling line and the associated
facilities (especially great if the filler installs equipment
which allows filling with hydrocarbons which require costly
changes to prevent explosions and fire.
Since CFCs are more expensive than hydrocarbons, where hydrocarbon
filling capability already exists, the economic incentive to
violate is relatively small.
II-1
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(2) Abuse of an essential use exemotion
Violations in this category have environmental effects and
economic incentives very similar to those of category (1),
but these violations are much more difficult to detect.
(3) Collusion between the manufacturer and processor in submitting
false annual reports ~~~~
This type of violation is serious because it frustrates the
purpose of the annual reports as a ccmplinace monitoring tool.
Such a violation makes cross-checking of manufacturers' and
processors' reports meaningless, and makes it much less likely
that violations will be discovered. Because of these considerations,
a collusion violation increases the amount of environmental harm
likely to occur before other violations are detected.
(4) Manufacturing CFCs for nonexemot aerosol orocellant uses after
Qctocer 15, 1373
This act is a physically necessary complement to a filling
violation, but unless there is an associated certification violation
or aollusion between the manufacturer and filler, a violation does
not exist.
{5) Importing bulk CFCs for nonexemot aerosol orooellant uses after
December 15, 1973
This violation is analogous to category (4), but the quantities
potentially involved are much less.
(6) Distributing CFCs in bulk for banned aerosol prooellant uses after
Decemcer 15^ 1973
This act, like categories (4) and (5), is physically necessary for
a filling violation to occur. However, it is even more difficult to
prove than the manufacturing violations because the CFC rule does
not require distributors to obtain certifications from their
customers.
(7) Importing nonexemot CFC-Propelled aerosol articles after December 15, 1973
This violation is analogous to category (1), but the quantities involved
are expected to be much less, and detection is much .tore difficult.
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(3-11) Recordkeeping and resorting violations.
These violations include: (8) submission of a false annual reoort;
(9) failure to submit an annual report;
(10) failure to obtain certification from
a CFC purchaser; and
(11) submission of a late annual report.
Violations in these categories have a low priority in the absence
of associated filing violations. Mo environmental harm results;
their only harm is that they may trigger an unnecessary inspection.
The economic incentive to violate is small because the cost of
compliance is low.
When these violations are used to cover up violations which result
in environmental harm, they are important because they may cause
a delay in the detection of serious violations, and therefore
result in an increment of environmental harm.
Administrative Considerations for CFG Enforcement
Compliance Monitoring Tools
Several tools will be employed to target inspections of CFC fillers.
These tools and the way in which they will indicate facilities warranting
inspection are described below.
1. Analysis of Annual Reports
The annual reportw which manufacturers and processors must submit to
EPA in March of 1980, 1981, and 1982 will have two functions in the
enforcement program:
• They will enable EPA to discover likely violations through
discrepancies between manufacturers' reports and processors'
reports.
• They will also easy comparison between the quantities reported for
essential uses and the quantities projected for essential uses
in the hearings and economic reports. This use will be important
as a clue to possible abuses of limited exemptions (i.e., pesticides
for nonresidential food handling areas).
Manufacturers must report the total quantity manufactured and the quantities
sold within a given year to aerosol prooellant customers for aerosol
propellant and other"uses. Processors must report the quantities purchased
from the various manufacturers as well as the quantities processed in a
given year, broken down into (l)the specific EPA essential use categories;
(2) total FDA essential uses; and (3) "other," defined In a letter to
processors as any nonpropellant uses.
II-3
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Reports will be analyzed by outside contractors through EPA
Headquarters. Suspicious results will be sent to the Regions for
evaluation and foliow-up (i.e., inspection or an informal request
for an explanation). The contractor will be hired under TSCA
contracts set up by the TSCA Policy and Strategy Management
Unit of the Toxic Substances Branch, PTSED.
• Processors* reports cn be checked for internal consistency.
The total quantity purchased can be compared to the total
quantity processed. If the difference between the two totals
is greater than their estimated storage capacity plus expected
losses, an inspection of the processor is indicated. Cn the
other hand, agreement that i3 too good could reflect manipulation
of data or a misunderstanding of >toat is required.
• Manufacturers' and processors' reports can be cross-checked
to see that the totals bought and sold agree. If there is a
discrepancy, inspection of the processor is indicated.
• Totals for each essential use can be compared with their
anticipated use (to be determined from the hearings, essential
use determinations, economic impact reports, and letters to
EPA) in the hope of discovering a cover-up of an illicit use,,
abuse of a limited exemction, or a use for which the exemption
should be reconsidered because the use is greater than expected.
2. Marketplace Sampling
A marketplace sampling program will be used to detect oossible filling
violations and abuses of essential use exemptions. Marketplace
sampling will be used to help set filler inspection priorities, and
will not be used to trace a product to its source to prove every
step of the distribution process.
The program will be small to avoid duplication, with one or two cities
sampled per year. Less than 300 samples will be collected and of these,
less than 100 will be analyzed. Total contractor hours to aid in
the program is estimated at less than 300 hours.
3. Referrals from the Pesticide Program
The pesticides program is the EPA program which overlaps most with the
CFC rule. GFCs were the prooellant for well over 1,000 registered
products at one time (registrations by more than 400 companies). Three
of the essential use exemption categories cover CFC-propelled pesticides
(nonresidential food handling areas, space spraying of aircraft, and
products necessary for military preparedness").
II-4
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Despite the overlap between FIFPA and TSCA in this area, the
ability of the pesticides program to enhance CFC compliance
will be limited by the following factors:
• Pesticide inspections are currently done by state governments;
therefore, it is impractical for Headquarters to set ud a
referral program. Regions and states who are able to set ud
a referral program themselves are encouraged to do so (keeping
in mind the limitations on information which ay be exchanged
between States and the Federal government).
• Although registrations of products containing CPCs would be
useful for targeting inspections, it was found during the
mailing to processors that many registrations are for companies
which have either gone out of business, moved and left no
forwarding address, or stopped filling the registered product
without cancelling their registration. In addition, many
registrations are in the names of the marketers of the products
in addition to or instead of the fillers.
4. Tips and Outreach
Tips from outside sources are an important part of any enforcement
program. Any companies turned in through unsolicited tips will be
given very high priority for inspection.
Competitors will be in the best position to provide information about
possible violations. Members of the general cublic will be unable
to detect most violations of the EPA rule.
5. Cooperation with FDA and CPSC
Since the CFC rule was developed and promulgated in cooperation with
the Food and Drug Administration (FDA) and the Consumer Product
Safety Ccon»i3sion (CPSC) and the programs overlap to a considerable
extent, it seems reasonable to coordinate the enforcement efforts. In
order for EPA to be able to share all TSCA information with FDA and
CPSC, the agencies must set up procedures to protect TSCA Confidential
Business Information which are acceptable to EPA.
• FDA has chosen not to set up TSCA confidentiality procedures.
—If any FDA vilations are discovered during the course of
an EPA inspection and it would not be a violation of TSCA
Confidential 3usiness Information procedures to do so,
the violation should be reported to the FDA area office.
—FDA is ret likely to discover any EPA violations because
their enforcement program in this area is very small;
FDA's CFC inspections will be done as part of their
routine inspections.
II-5
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• CPSC is currently setting up confidentiality procedures which
are designed to meet TSCA Confidential 3usiness Information
requirements and a Memorandum of Understanding will eventually
be written. Some cooperation has already taken place:
—CPSC gave EPA a list of all fillers who had been filling
with CPCs shortly before the ban went into effect (infor-
mation obtained through reports required by CPSC).
—EPA's CFC Filler Inspection Manual will include a section
cn referrals to CPSC for possible labeling violations.
—There are a few products which are covered by CPSC's
labeling requirement and not by the EPA ban: products for
unclogging drains using vapor pressure, glass chillers,
boat horns, and the essential use exemption diamond grit
spray. In addition, some EPA filling violations may involve
CPSC*labeling violations. Marketplace sampling results
will also be referred to CPSC.
6. Cooperation with U.S. Customs Service
Under the CFC rule, CFC-propelled aerosol articles may not be imoorted
(commercially) after December 15, 1979. Since §13 of TSCA is
designed to cover imports banned under §6 of TSCA, and since §13
will be implemented soon by the U.S. Customs Service, an indeoendent
program for CFCs will not be set up unless imports prove to be a
problem.
The mntoer of products affected by the ban is believed to be extremely
small, with oniy one product known thus far.
7. Manufacturers Records Inspection
Manufacturers certification and sales records will be inspected by
Headquarters with contractor assistance. A list of processors will
be compiled from the information which is obtained.
Although anyone with CFCs in stock after the ban takes effect is a
potential violator, chronic violators would have to purchase their
CFCs on a continuing basis. Those capable of chronic violations will
have a much higher priority for inspections than those who may simply
use us their remaining stocks.
It will be relatively simple to find all of the aerosol fillers who
are purchasing CFCs, and not just those who are claiming essential
aerosol propellant uses, but examining manufacturers records.
• CFC purchasers will eventually need to have a letter(s) of
certification cn file with the manufacturer(s).
• Manufacturers have indicated that they organize their customer
files (all) and certifications (all except for Allied) according
to the type of business.
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^application of Canoliance Monitoring Tools to Violations
The table below lists the priiuary targeting and
category of CFC violation.
Violation
(1) Filling for a
banned use
Targeting
marketplace sampling
analysis of annual reports
manufacturer inspection
referrals
outreach
marketplace sampling
analysis of annual reports
manufacturer inspection
referrals
outreach
(3) collusion in falsi- analysis of annual reports
fying annual reports filler inspection
filling violation
detection methods for each
Detection Methods
filler inspection
(2) abuse of essential
use exemption
(4) manufacturing CFCs
for banned uses
(5) importing bulk CFCs
(5) distributing bulk
C?Cs
(7) importing banned
articles
(3) submission of a
false annual report
(9) failure to submit
an annual report
(10) failure to obtain
a certification
(11) late submission of
annual reoort
filling violation
analysis of annual reports
referrals from Customs
outreach
filling violation
referral from Custans
marketplace sampling
analysis of annual reports
filling violation
analysis of annual reports
manufacturer inspection
filler inspection
(product labels, adver-
tising, distribution)
filler's and manufacturer's
records inspections
manufacturer inspection
and filler inspection
iatporter's records inspec-
tion
filler inspection (shipping
records)
distributor's records
inspection
importer's records inspec-
tion
filler inspection
filler insoection
manufacturer insoection
late submission of annual
reoort
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Neutral AcSninistrative Inscection of Fillers
A portion of the filler inspections will be based on neutral
administrative criteria; not all filler inspections will be targeted.
» Routine inspections during the first year of the ban will be
based on the relative quantity of CFCs purchased in a three
month period. This information is obtained through the
manufacturers records inspection.
—Fillers are ranked according to the quantity purchased.
—If there are no targeted inspections pending, this ranked
list will be used to set inspection priorities, with
highest priority given to those ajrachsing the largest
quantities.
—See Acpendijc for a detailed descriotion of the selection
process.
• After the first year of the ban, new CFC purchasers will be
given a higher inspection priority, ranked_according to the
quantity purchased. Fillers who were not _ inspected previously
but have been on the filler list before will also be inspected
when, because of their location, it if efficient to do so.
Any additional inspections will be based on a random selection.
• CFCs are more expensive than hydrocarbons. Cnce a oroduct
has been reformulated with hydrocarbons as the propellant,
there is little economic incentive to change back to CFCs.
Consequently, once a filler has been inspected and found to
have made changes to hydrocarbons, no further^inspections
will be done unless it is a follow-up inspection or a
targeted inspection.
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L
Allocation of Renonsibilities
The following table summarizes the responsibilities of Headquarters, the
Regions, and contractors as described in this strategy.
Activity
Outreach/voluntary compliance
Analyzing annual recorts
Marketplace sampling
Setting op referral systems
Manufacturer inspections
Targeting filler inspections
Targeting based on filler inspections
Filler inspections
Case orecaration
Headquarters
X
X
x
X
X
X
X
Regions Contractor
X
X
X
x
x
X
X
X
X denotes major responsibility for carrying out the activity
x denotes participation in planning, execution, or analysis
Il-9
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AFPEJDIX I
bharactsnziation of the Reflated Industry
Manufacturers
There are five CFC nanufacturers in the U.S. They are: Du Pont? Allied
Chemical Corp.? Pennwalt Corp.? Kaiser Aluminum? and Racon, Inc.
Bulk Distributors
The number of bulk distirbutors is unknown. According to CTC ^u^c^®r5^stri.
a small fraction of C?Cs made for aerosol propeUant uses is Sold to bulk distri
tutors. Distributors who purchase CFCs, as intended*use
under contract, are required to procvide a rectification (as totheintendeduse
of the CTCs) to toe j£lers *o "
not required to provide certifications and tne ais«i«u T?
obtain one. However, if a bulk distributor has obtained ™ hls
customers, he will not be considered in violation of the ban on distribution
unless there is evidence of a conspiracy.
Bulk Importers
ICI toth America is the only known bulk importer. They have claimed that
none of their customers are fillers.
processors (Fillers)
There are approximately 8°° .^S^L^ilS'in^^rule and^in TsS.T^ut one
m the trade? "processors isthe b8 ^ r orovided manufacturers
quarter of them have wrchased CrCs since the ban or ^
*ith a certification. .About half of aU fill ^ businesses,
they fill for other under contract. dany tillers are
jiTTQortsrs
The tm.-.-..-t-nra larae and ooorly defined# but the nuirber of
number of importers is large ana aw i small, very few aerosol
tapcctets affected by the!Mn :Is *"!?!?" * £» Sily enforce under 513 of
reticles are imported. The ban on tnoorting
TSCA.
Exporters
Eraocts ate controlled * osntrolling processing. Thus, extorters need not
^ characterized separately fran fillers.
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APPENDIX II
General inscecticn Procsdures for Fillers
Filler inspections will be based on an accounting of CFC use. This will be
accomplished by either of two methods: a mass balance or a scan of formulation
records. The choice will depend on a number of factors, such as: which can
be done more quicicly; which would be more reliable; which one the plant manager
is willing to consent to (unless a warrant has been obtained); and which is
possible given the method of recordkeeping. (Recordkeeping methods and inventory
practices vary widely among fillers.)
The mass balance method will focus on CFCs received during a certain time
interval, e.g., three months. Once the quantity received has been established
from shipping or inventory records, an accounting will be done for all CFC uses
during that time period (from filling or "batching" records). If all CFCs can
be accounted for in essential or non-propellant uses (allowing for losses), the
CFCs can be considered to be accounted for.
The scan of formulation records focuses on the ingredient records for all
aerosol products filled at the plant. If the only products formulated with CFCs
fall in essential use exemptionss, the CFCs used can be considered to be accounted
for. If any non-exempt products are found, then the inspector must determine
whether the product was filled after December 15, 1978 (from "batching." or filling
record).
The labels of all products which are exempt from the ban should be examined
to make ssure that the instructions do not encourage uses outside of the exemption.
The inspector should also ask to see the advertising_for the product, e.g.,
catalogs, brochures, etc. If the labeling or advertising is ambiguous, the
existence of a violation will turn on whether the product can reasonably be ex-
pected to be applied to a non-essential use.
Very little information can be derived from inspecting equipment. The
filling equipment and plant facilities must be modified in order to be able to
fill with hydrocarbons, but the modifications involve fire prevention; the equip-
ment can be used to fill with CFCs once it has been modified.
A records inspection, rather than in inspection that emphasizes product
sampling, is preferable because potential violations can be detected imnediately
(rather than waiting for an anlysis of the samples) and because products filled
in violation may no longer be on the premises.
If the inspection has been targeted for a particular product (for instance,
as a result of the marketplace sampling), the targeted product should be emphasised,
but a general inspection should be done as well.
Many custom and in-ho use fillers will be handling FDA—regulated items. EPA
does not have the authority to inspect for FDA violations. However, if an FDA
violation is in plain view during an inspection for EPA violations, it should be
noted and referred to FDA.
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APPENDIX III
Sceciiic Elements of Annual Recorts
Recortinc Requirements for Manufacturers
Every person ••r.o manufactures fully halogenated chlorofluoroalkanes after
October 15/ 1978 for aerosol propellant uses subject to TSCA must submit an
annual report to Headquarters.
Page one of the report must contain:
(i) name of the business,
(ii) business address,
(iii) chief executive officer/
(iv) addresses of all facilities at which fully halogenated chloro-
fluorocarbons are manufactured/
(v) name, business address, and telephone number of the indivi-
dual most knowledgeable of the contents of the report. The following
The following statement must also be included:
"This report covers manufacture of fully halogenated chlorofluoro-
alkanes for aerosol propellant uses from (date to date).
Page two and subsequent pages (if necessary) will contain a list of the pur-
chasers for aerosol propellant uses, their shipping addresses/ the total quantity
purchased, the quantity for aerosol propellant uses, and the quantity for other
uses. The total quantity manufactured for all uses during this time period must
also be stated.
The following statement and certification (by the chief executive officer)
must appear at the bottom of the last page:
"I understand that I may assert a claim of business confidentiality by
marking any part or all of this information as "TSCA Confidential Business
Information" and that information so marked will not be disclosed except in
accordance with the procedures set forth in 40 CFR Part 2. I further understand
that if I do not mark this information as confidential, EPA may disclose it
publicly without providing me notice or an opportunity to object.
I certify that to the best of my knowledge the contents of this report are
accurate and ccmplete."
Date
Signed
Position Title
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Reporting Requirements for Processors
Every person who processes fully halogenated chlorofluoroalkanes for aerosol
crocellant uses subject to TSCA after Decanter 15, 1978 must submit an annual
report. A separate report must be submitted for each processing facility.
Page one and the statement and certification at the end are identical to the manufac-
turers' reports except that processors' reports contain "the facility address"
(iv) and the statement:
"This report covers purchases and processing of fully halogenated chloro-
fluoroalkanes for aerosol propellant uses from (date to date).
Cn page 2 and subsequent pages# the processors must list who they purchased
frcm, their business address, and the quantity purchased. They must also list the
quantities processed for the various exempted EPA uses (itemized), total FDA
uses, and non-propellant uses during that time period. The report ends with the
statement concerning business confidentiality (quota supra) and certification
by the highest official of the processing facility.
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SEPA Enforcement Facts
and Strategy
Polychlorinated
Biphenyls
(PCBs)
-------
Enforcement Facts and Strategy
PolyctTorfnated B1 phenyls
Contents
Page
Summary of Enforcement Strategy 1
Background of the PCB Regulation 2
Regulated Industries.. ¦. 2
Summary of Regulatory Requirements 4
Violation Categories.. 5
Enforcement Object 1 ves • 6
Inspections 7
Inspection Scheduling.. 8
Inspection Procedures 9
Summary of PC8 Penalty Policy
Voluntary Compliance/Awareness Effort 12
Special Programs..... 13
Allocation of Responsibilities 14
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Summary of Enforcement Strategy
The Pesticides and Toxic Substances Enforcement 01vision (PTSED) of
the Office of Enforcement, U.S. Environmental Protection Agency,
has developed a strategy to enforce the rule governing manufacture,
processing; distribution in commerce, and use of polychlorinated
biphenyls (PCBs) contained at 40 CFR 761. The rule includes
marking, storage, and disposal requirements.
The objective of the encforcement strategy is to ensure, through
an effective enforcement presence, that PCBs are properly disposed
of and that the risk of spills 1s reduced so that release of PCBs
to the environment will be limited to the greatest extent possible.
There are two main components of the strategy—Inspections and
awareness.
The greatest enforcement effort will be spent. 1n inspections. While
some effort will be devoted to Inspections 1n response to complaints,
crises, or special situations, major efforts will be devoted to
inspections of facilities In target groups which have been identified
as having significant numbers of PCB equipment. Scheduling of
inspections will be based on a neutral selection strategy which places
Inspectors 1n the facilities In those target groups where the greatest
response to Inspection efforts can be expected.
Ourlng the Inspections, facility records on PCS equipment, especially
transformers and large, capacitors, will be examined and verified. In
addition, compliance with storage and marking requirements will be
monitored. Because of the potential release of PCBs from uncontrolled
discharges, special attention will be given during the inspections to
examination of PC8 equipment and the areas where they are located
for evidence of leaks or. spills.
Facility records will be used both to establish a working inventory
of PC3 equipment and to provide a check on any discrepancies 1n
storage and disposal accounts of such equipment. Evidence of dis-
crepancies in the year-to-year inventories, between the user's and
disposer's records, or between a physical Inventory and the records
will be gathered through examination of records combined with a
physical verification of randomly-selected equipment.
The enforcement strategy also includes an awareness component designed
to encourage good stewardship practices by the regulated community and
voluntary compliance with the PC8 rule. The awareness effort will consist
of ensuring that members of all Industries with high numbers of PCB
equipment are aware of the regulations and compliance requirements.
The serious view which EPA places on PCB violations, giving particular
emphasis to the Agency's vigilance and sanctions against violators,
will be publicized. EPA's willingness to help companies solve their
disposal problems will also be communicated.
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background of the PCB Regulation
Polychlorinated biphenyls (PCBs) have been used 1n the United States
since 1929. One of the most stable organic compounds known, their
properties make them useful as dielectric and heat transfer fluids.
They are widely used in transformers, capacitors, hydraulic systems,
and heat transfer systems.
Although PCBs have long been known to be extremely toxic, only 1n
recent years have they been acknowledged to be a general threat to
the environment. They have been found in significant concentrations
in waterways and sediments throughout the world. They are widely
spread contaminants of fish and wildlife resources. Recently, they
have been identified 1n the milk of hursing mothers throughout the
United States.
Extensive research has shown a link between PCBs and various health
effects Including the formation of malignant and benign tumors, fetal
deaths, reproductive abnormal 1 ties, and mutations. In addition,
experiments have shown that PC8s attack the immunological system
and cause unwanted effects on the body's production of enzymes.
In recognition of the risks associated with PCBs and their spread
throughout the environment, Congress mandated 1n the Toxic,Substances
Control Act that the processing, distribution 1n commerce* user and
disposal of PC8s be regulated and that PCBs be marked with clear
and adequate warnings.
A rule governing the disposal and marking of PCBs became effective
April 17, 1978. A second rule, which Incorporates the first,
Imposes a ban on PCB manufacturing, processing, distribution 1n
commerce, and use; 1t became effective July 23, 197.9. The
regulation can be found at 40 CFR 761.
Regulated industries
At the present time, there are over 500 million pounds of PCBs 1n
regulated uses throughout the economy- Almost all of these PC8s
are 1n use In equipment which contains the chemical 1n an enclosed
manner, with the vast majority of PCBs contained in transformers and
large capacitors Installed 1n the years between 1945 and 1975.
The primary manufacturer of PCBs ceased production of the chemical
1rt 1975.
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3-
Over the next several decades, virtually all of this equipment win
be removed from service as it wears out or fails. At this pofnt,
the PCSs and PC3-contaminated equipment will require disposal 1n
a way that prevents contamination of the environment.
Although improper final disposal of PCS transformers and capacitors
poses the greatest threat of extensive environmental exposure, PCBs
from in-service equipment and drums and tanks of PCS liquid now in
storage for disposal may present an immediate risk since the PCBs
could be released to the environment through leaks and spills.
Such uncontrolled dlschrages constitute improper disposal also and
require containment and proper cleanup.
As stated earlier, the vast majority of PCBs are contained In
transformers and capacitors. Four major'economic sectors control
approximately 90 percent of the 140,000 PCB transformers and 2.9
million capacitors now In service. Estimates for each kind of
PCS equipment by economic sector follow.
Industrial:
Utilities:
Commercial Buildings:
Railroads:
51,000 transformers
.8 million large capacitors
(PC8 equipment 1s divided among industry
categories 1n the-foilowing order of estimated
numbers: metals; chemical; paper and lumber;
raining; automobile; food; textile; and stone,
clay, and glass.)
38,000 transformers
1.3 million large capacitors
34,000 transformers
1.3 million large capacitors
1,000 transformers
no capacitors
Since PCB transformers and large capacitors, which contain the vast
majority of PCBs now In service, are so concentrated among these
sectors, they are the logical focus for enforcement activities
designed to encourage proper disposal of PCBs.
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Summary of Regulatory Requirements
Following fs a summary of the major requirements of the PCS regulation.
The full text of the regulation 1s found at 40 CFR 761.
PC3 Ban Provisions (Reference: Section 761.30)
The following activities are prohibited:
o Distribution in commerce of PCBs and PCB items above 50 ppm
without an authorization or exemption.
o Processing of PCBs or PCB items without an authorization or
--exemption.
o Manufacture of PCBs without an exemption.
o Use of PCBs or PCB items without an authorization.
o Servicing of PCB transformers which requires removal of
the transformer coll.
Recordkeeping Requirements (Reference: Section 761.45)
Use of PCBs. Facilities that keep PCB transformers or capacitors
must maintain annual records which show the following items:
o Weights of PCBs in containers and transformers.
__o Number of transformers and capacitors,
o Dates PCBs transferred.
o Quantities of certain PCBs and PCB items remaining 1n service.
Disposal of PCBs. PCB disposal and storage facilities must keep
annual records of:
o PCBs and PCB items (number and type) received, Including
address received from,
o PCBs and PCB Items (by type) stored, transferred, or disposed of
showing dates and weights,
o Operations of the disposal facility.
Marking Requirements (Reference: Section 761.20)
The following Items must be marked as containing PCBs:
o PCBs and PCB Items containing greater than 50 ppm PCBs, except
PCB-contam1nated transformers.
o Transport vehicles carrying more than 45 kg. of PCB liquids over
50 ppm or with one or more PCB transformer.
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-5-
Storage Requirements (Reference: Section 761.20)
Stored for Disposal. PCB articles and PC8 containers stored for
disposal must be stored in accordance with Annex III of 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 specifications
and time periods for temporary storage.
Qlsposal Requirements (Reference; Section 761.10)
Above 500 ppm PCBs. PCB liquids and-PCB Items containing liquids
above 500 ppm PCBs must be disposed fn:
o An EPA approved Incinerator, or by
o Other disposal methods approved by the EPA Regional Administrator.
Between 50 and 500 ppm PCBs. PCB liquids and PCB Items containing between
50 and 500 ppm PCBs must be disposed in:
o An EPA approved landfill,
o An EPA approved high-efficiency boiler,
o An EPA approved Incinerator, or by
o Other methods approved by the EPA Regional Administrator.
Uncontrolled Discharges. Any spill, leak, or other uncontrolled discharge
of PCBs constitutes improper disposal.
Violation Categories
Ban Provisions. This violation category includes any manufacturing,
processing, or use of PCBs of PCB Items without an appropriate
exemption or authorization. Also Included are manufacturing, processing,
distribution, or use of PCBs not complying with the terms of an
authorization or exemption.
Recordkeeping. Violations of recordkeeping requirements Include
failure to keep required records at all, keeping records on only some
of the PCB items subject to the requirements, keeping records that
contain incomplete Information, keeping Inaccurate records, fall'ure
to Initiate and maintain records 1n the required timeframes, and
falsification of records.
Markinq. Violations of marking requirements Include failure to mark
all or some of the PCB Items subject to the requirement and marking
PCB items with a mark not meeting the required specifications.
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-6-
Storage. Violations in this category include storing the subject PCB
items m areas meeting none or only some of the specifications for
storage areas, storing Items in containers not meeting specifications,
failure to date Items placed in storage* and maintaining items in
temporary storage beyond the allowed time period.
Disposal. This category Includes any disposal of PCBs not done 1n
accordance with the disposal requirements. Also included in this
category is Improper disposal caused by uncontrolled discharges
from PCB items, such as from leaks or spills from in-service or
stored PCB items.
Enforcement Objectives
Priorities 1n the PCB enforcement strategy are the logical outgrowth
of the overall objective, which 1s to minimize the release of PCBs
Into the environment, and thus the risk to human health and the
environment. In the strategy, inspections are scheduled among the
Industry categories which control the vast majority of PCBs and 1n
response to crisis or emergency situations. The penalties assessed
against.fad 11 ties found 1n vitiation will be 1n direct relation
to the degree of environmental/hazard posed by the condition*
Together, the inspection strategy and enforcement policy will establish
the "enforcement presence" necessary to foster compliance throughout
the regulated community.
PCBs can be released to the environment in two ways: (1) by improper
disposal of PCB Items and liquids when they are no longer 1n use;
and (2) by uncontrolled discharge caused by leaks and'spills from
in-service, stored, or transported Items. Both kinds of improper
disposal have the highest priority in the enforcement strategy.
Related, but of lesser priority, are those violations which increase
the likelihood of Improper disposal, such as recordkeeping, marking,
and storage violations.
The potential for release of the largest quantities of PCB occurs when
a PCB transformer or large capacitor falls or 1s otherwise taken out
of service. When this happens, the plant or facility operator must
decide whether to repair (transformers onTy) or to dispose of the
equipment. In either case,, the PCB materials must be disposed of.
When this disposal decision arises, one possible solution 1s Illegal
disposal, which would allow a significant quantity of PC8s to enter
the environment. It 1s at this point, then, that the most critical
violation may occur. An "enforcement presence" must exist at this
point to prevent such a violation from occurring.
It is difficult, however, to schedule enforcement activities so that
such disposal violations can be caught at the moment of occurrence.
To solve this difficulty, the enforcement strategy emphasizes records
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of PCB use* storage, and disposal as: an Indicator of compliance.
The requirement to establish and maintain records, and the possibility
of their inspection and verification, will establish the enforcement
presence necessary to achieve proper ultimate disposal of the PCBs.
PCBs may also be released to the environment as a result of leaks and
spills from in-service, stored, or transported PC8 items. Such
uncontrolled discharges constitute Improper disposal and can pose a
significant risJc to the environment if not contained and properly
cleaned up. Consequently, during the Inspections, the condition of
PCB items and the areas where they are located will be examined for
evidence of uncontrolled discharge. If violations are found, the
company may be subject to civil penalty assessment, and will be
required to undertake cleanup measures which could be very costly,
particularly 1f water or large surface areas have been contaminated
with PC8s.
Since civil penalties and cleanup costs are directly related to
the potential for environmental damage, the inspection strategy
and enforcement policy should encourage companies to contain and
properly clean up spills at the time they occur and to take
preventive steps to minimize their liability 1n the event of an
uncontrolled discharge. Such preventive measures could Include
instituting regular equipment condition Inspections; training
personnel 1n careful handling PCBs to reduce the risk of
accidents; and installing dikes or barriers around PCB Items,
where appropriate, to contain possible PCB spills.
PCB storage areas will receive an additional check to ensure
that they meet the specifications 1n Annex III of the
regulations which were designed to minimize the potential for
environmental hazard from such areas. Also during the inspection,
compliance with PCB marking requlrements will be monitored.
Unmarked PCB Items pose a risk to the environment because the
potential for improper ultimate disposal is significantly
Increased 1n the absence of a PC8 warning label. Further, a
spill from an unmarked PCB Item 1s more likely to be cleaned
up 1n a manner which actually spreads the contamination or
exposes workers unnecessarily to the hazards of PC8s.
Inspections
The principal goal of the PCB enforcement strategy 1s to Influence
the regulated community Into making proper decisions regarding the
disposal of PCB Items and liquids no longer in use and to take steps
to minimize the potential for uncontrolled discharge from In-service,
stored, or transported PCB Items and to contain and properly clean
up spills 1f they occur. The chief meains for accomplishing this
goal 1s the scheduling of compliance inspections among the Industry
categories which control the vast majority of PCBs so that an
enforcement presence 1s established.
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During the Inspections, compliance with requirements for marking,
storage, and use of PCBs will be examined while ensuring the
accuracy of PCB records by verifying the existence of and proper
disposal of PCS equipment and liquids. Inspectors will also examine
the condition of PCB items and the areas where they are located for
evidence of uncontrolled discharge.
The inspection scheduling technique described in the next section
1s the neutral administrative inspection scheme for PCB enforcement.
A summary of PCB inspection-procedures follows.
Inspection Scheduling
The general scheduling technique, which selects facilities that should
be Inspected, relies on both the forecasted occurrence of upcoming
disposal decisions and measures of enforcement effectiveness. These
two elements determine where inspections will be scheduled.
The steps 1n the scheduling technique are described below:
o Population
The base population of PCB equipment currently 1n service, by
industry, 1s defined. Such equipment includes transformers^
and large capacitors.
o Disposal Decisions
•The timing and location, by industry, of rebuild/retrofit and
disposal decisions concerning the PCB equipment are forecasted.
This step 1s based on projections of the equipment installation.
Over time, equipment age, and the average length of service. The
result identifies possible target groups, and where and when an
enforcement presence is needed*
o Resource Allocation
Inspection resources are allocated among target groups 1n various
industries. The allocation assigns inspection resources to target
groups where they will be most effective in ensuring compliance
with the PCB regulations. Relative effectiveness measures are
based on a number of considerations Including Industry structure
characteristics, such as concentration and compliance likelihood;
costs of compliance; and level of awareness of the PCB 'requirements
by each sector.
The final product of the scheduling technique 1s a distribution of
inspections throughout target groups within the economic sectors and
industries which use the vast majority of PCB equipment. The technique
ensures that Inspections are allocated In the most efficient possible
manner; that 1s, it maximizes the pounds of PCBs properly disposed of.
Within each target group, Individual Inspections will be performed at
plants and facilities that have been randomly, selected.
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The Industries op sectors identified through the application o* this technique,
and the percentage of Inspection resources allocated to each, are as follows:
o Railroads 20%
o Complaints, Crises, and
Special Situations*......16%
o Metals 14%
o Chemicals .. 13%
o Utilities 12%
o Food and Feed... 10%
o Paper and Lumber .....10%
o Commercial Buildings 8%
o Stone, Clay and Glass.. 5%
o Textiles... 5%
o Mining 3%
o Automobile 1%
* Approximately 16 percent of available Inspections are reserved for reiponse
to complaints, crises, or special situations which may Involve conducting
Inspections or spot checks outside of the target groups. The determination
that a special Inspection effort 1s needed will be based on the potential
for human health or environmental hazard posed by the situation. If
required, appropriate downward or upward adjustments will be made to the
overall allocations to cover unanticipated greater or lesser numbers of
special situations.
Inspection Procedures
Inspections are intended to detect narking, storage, and use violations
while ensuring.'the accuracy of PCB records by verifying the existence
of and proper disposal of PC8 equipment and liquids.
o General Inspection Activities
Inspectors will be alert for violations such as improper marking
and storage and for evidence of uncontrolled discharges from
leaks or spills. Possible violations will be documented by
taking physical samples, photographs, and/or other means as
necessary.
Inspectors will also collect data on the PC8 equipment population,
Including total number and type of equipment at the facility, the
stated quantities of PC8S in each, and other data as needed.
o Record Audits
In all inspections, the inspector will examine the facility's PCS
records. Records of total PCB quantities on site and their
disposition will be of primary interest. The Inspector will
evaluate the records for compliance, for accuracy, and for
completeness. Any suspicious entries, or any missing entries,
will be explored further.
The Inspector will also make a comparative evaluation. When
historical records are available, they will be used 1n conjunction
with the present records to determine that a complete audit trail
exists for all PCB equipment.
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In addition, the Inspector win compare the facility record state-
ments on number and size of equipment against estimates that state
what is expected. These estimates are based on analysis which,
given any specific industry and plant configuration, can indicate
the number of PCB transformers and capacitors that can be expected
to be present. The inspector will match the recorded equipment
inventory to the estimate; any significant deviation will be cause
for further inquiry.
o Physical Inventory Audits
A certain proportion of the records will be verified by a physical
check. Using the .inventory of PCS equipment shown in the records,
the inspector will select and then physically Inspect a certain
number of transformers and large capacitors.
Summary of pcb Penalty PofTcy
TSCA Civil Penalty System
Section 16 of the Toxic Substances Control Act authorizes the assessment
of administrative civil penalties, against violators of the law and Its
regulations. The law requires that 1n the determination of the penalty
amount, the Agency take into account the nature, circumstances, extent,
and gravity of the violation or violations. Other factors with regard
to the violator, such as ability to pay, history of prior such violations,
degree of culpability, are also to be considered. To Implement this
statutory requirement, the Agency has adopted a TSCA Civil Penalty
System which establishes standardizad definitions and applications
of these factors. Specific penalty policies are developed under the
system for each TSCA regulation.
Under the system, penalties are determined 1n two stages: (1) Deter-
mination of a "gravity based penalty" (GBP), and (2) adjustments
to the gravity based penalty. In determining the gravity based penalty,
the following factors affecting a violation's gravity are considered:
o The "nature" of the violation.
o The "extent" of environmental harm that could result from a
given violation* and
a The "circumstances" of the violation.
Following 1s a summary of the penalty policy developd for the PCB
regulation. The full text of the TSCA Civil Penalty System and
the PCB penalty policy was published 1n the Federal Register
on September 10, 1980.
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PC3 Penalty Policy
The gravity based penalty, based on the nature, extent, and circumstances
of the violation, 1s found on the following matrix:
Extent of Potential Damaqe
—k P 2—r-
Major Significant Minor
High range...
$25,000
$17,000
$5,000
Circumstances
2
20,000
13,000
3,000
Mid range....
15,0110
IU,000
I ,300
(Probability
4
10,000
6,000
1.000
of damages)
Low range••••
5,000
3,000
5QQ
6
2,000
1,300
200
Following 1s a brief discussion of how the extent and circumstances
categories are defined; the full text of the PCB penalty policy
should be consulted for a complete explanation.
o Extent
The extent is determined by the amount and concentration of the
PCB material Involved. Weight 1s determined after concentration
reductions defined 1n the policy.
Major..... 5000 kg. op more
Significant.... 1000 kg. or more, but less than 5000 kg.
Minor .. less than 1000 kg.
If weight is not available, alternative measures are used as
defined in the policy. They are based on numbers of gallons,
numbers of items, or size of area contaminated.
Any PCB disposal which results 1n contamination of surface or
ground water or food or feeds 1s always major 1n extent.
o Circumstances
Circumstances are determined by the category of the violation;
the ranges are based on the probability of environmental harm
occurring from the violation.
Higft Range
Level 1 improper disposal
Manufacturing
Level 2 processing .
Distribution
Improper use
Medium Range
Level i Major storage violations
Major recordkeeping violations,
disposal facilities
Maior marking violations
Level 4 Major.recordkeeping violations,
use and storage facilities
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Low Range
Le >1 5
Failure to date PCB Items placed
1n storage
Minor storage violations
Minor marking violations
Level 6
Minor recordkeeping violations
Failure to use "No PCBs" label as
requi red
To determine the gravity based penalty for a violation, the extent
and circumstances are defined using the criteria described above,
and the appropriate amount found on the penalty matrix- After
the gravity based penalty has been determined, the adjustment factors
(culpability, history of such violations, ability to pay, ability
to continue In business, and such other matters as justice may
require) are considered and appropriate upward or downward adjustments
made.
voluntary Compliance/Awareness fc^fort ""
A key objective of the PC8 enforcement strategy is to maximize voluntary
compliance; that 1s, to encourage that compliance be undertaken at a
plant or facility in the absence of any active enforcement effort there.
To accomplish this goal, 1t 1s necessary for the regulated community
to be both aware of the PC8 requirements and of the possible enforcement
consequences, of noncompliance.
An awareness effort will be undertaken aimed at encouraging compliance
1n two kinds of circumstances:
o When noncompliance 1s due to Ignorance of the regulations
.themselves or their requirements, or
o When noncompliance 1s due to a low perceived risk of violation
discovery, and subsequent punishment.
In addition, the awareness effort will encourage the adoption of good
stewardship, practices to reduce the risk of uncontrolled discharge of PCBs.
The first part of the awareness effort will consist of ensuring that the
members of all Industries which have high numbers of PCB equipment are
aware of the regulations and compliance requirements. These efforts will
include communication with company headquarters and plants, emphasizing
the following points:
o The health hazards of exposure to PCBs.
o The disposal, marking, and recordkeeping regulations,
o An interpretation of the actions required by the regulations,
o A discussion of the sanctions available to the Agency.
-------
The second part of the awareness effort directly supports the Inspection
program and 1s aimed toward the target groups for which Inspections have
been randomly scheduled. The serious view which EPA places on PCB
violations will be publicized, with special emphasis on the Agency's
vigilance and sanctions. Through this effort, members of a priority
target group will be given increased Incentive to comply voluntarily
as they become aware that the risk of inspection is significant.
In addition to the two primary awareness activities, facilities will be
Instructed in how to contact EPA when questions arise about the PC8
program, and they will be Informed of EPA's willingness to help
companies solve their disposal problems. PCB users will also be kept
informed of their legal disposal options. Some options, such as the
opening of new approved incinerators or storage facilities, may lower
the costs of compliance and thus further voluntary compliance.
Particular attention 1 it the awareness efforts will be given to those
Industries whose private Industry communication channels are not
extensive enough to spread Information to all Industry members and
to those whose current knowledge of PCSs as a hazardous substances
and of the PCB regulations 1s poor. The priority Industries for
the first part of the continuing awareness effort include: textiles;
stone, clay, and glass; railroads; non-ferrous metals; food; and
commercial buildings.
special programs
In addition to regularly scheduled inspections, specialized programs
will be required for two sectors—railroads and commercial buildings.
o Railroads
PCB equipment used by railroads 1s coming out of service far
more quickly than in the other industries. As a result of
the immediacy of the problem, all railroads with PCB equipment
will be Inspected to ensure that the equipment is being
disposed of properly.
o Commercial Buildings
A significant proportion of PCB transformers are located 1n.
commercial buildings. However, the transformer population 1s
so dispersed through a multitude of buildings that building
Inspections are not an effective tool. A public awareness
program will be directed at building owners and maintenance
services, as well as to associations of such enterprises as
hospitals and schools, to Inform them about the PCB requirements.
Other inspections will be scheduled 1n response to complaints, crises,
and special situations. The determination that a special Inspection
effort is needed will be based on the potential for environmental
harm posed by the situation. Special Inspection efforts may involve
performing inspections outside the target groups identified in the
strategy.
-------
Allocation of Responsibilities
Following is a summary of the allocation of responsibilities between
the Pesticides and Toxic Substances Enforcement Division (PTSED) and
EPA Regional Offices.
Regions
PTSED
1. Inspection Scheduling
1, Inspection Scheduling
o The enforcement strategy identi-
fies the economic sectors and
industries to be inspected and:
al1ocates the percentage of
Inspection resources to be spent
on each on a national basis.
This will be further refined
to allocate the percentage of
Inspections in each category by
Region, based on how the
number of industry facilities are
distributed geographically*
2. Inspections
Regions will develop a neutral
administrative inspection scheme
for random selection of facilities
1n each category in accordance
with the percentages assigned by
PTSED.
2. Inspections
PTSED will issue a final PCB
Inspection Manual detailing
procedures for conducting PCB
inspections.
3. Case Development
o Regional personnel wiVI conduct
PCB inspections 1n accordance with
the manual and the neutral administra-
tive Inspection scheme.
o Regions will respond to complaints,
emergencies, and special situations
as needed.
3. Case Development
o PTSED will have lead responsibility
only in PCB cases "of national
significance."
o PTSED has Issued a PCB penalty
policy and concurrence procedures
to be followed by Regions in
PCB cases.
o PTSED will provide policy
guidance and rule Interpretations
as needed.
4. Evaluation
o Regions will have lead responsibility
for all PCB cases except those "of
national significance."
o Regions will seek concurrence for
PC8 actions 1n accordance with
concurrence procedures.
4. Evaluation
o PTSED will review compliance rates
and other Information to determine
the appropriateness of Inspection
allocations and make adjustments
as needed.
o Regions will provide Information on
violations found 1n each of the
target groups.
-------
®EPA Enforcement Facts
and Strategy
Polvchlorinated
Bipnenyls
(PCBs)
Supporting Documents
-------
Enforcement Strategy
Polychlorinated B1phenyls
Supporting Documents
Contents
Page
Note on Supporting Documents.. . ..... 1
I Allocation of Inspection Resources 2
TabTe I: Allocated Inspections by Sector or Industry z
Table Z: Estimated Number of Facilities by Company Size 3
Inspection Scheduling ...» .~ 4
¦TSCA/PCB Enforcement Strategy"—Putnam, Hayes, & Bartlett.... 5
II Development of Target Groups* 6
Exhibit 1: Target Groups for PCB Enforcement Strategy 12
Exhibit. 2: Transformers 1n Service by Target Group 13
Exhibit 3: Capacitors 1n Service by Target Group 14
Exhibit 4: Average Number of Transformers/Plant............. 15
Exhibit 5: Average Number of Capacitors/Plant............... 16
Exhibit 6: PCB Equipment Removed from Service by Sector,..,; 17
III The Awareness Component 18
Table 1: Industry Awareness of PC3s. 20
Table 2: Industry Communication Channels. 22
IV The Inspection Component 24
Exhibit 1: Theoretical vs. Real World Behavior 40
Exhibit 2: Adjusted Required Probabilities of Inspection.... 42
Exhibit 3: Inspection Efficiencies, Chemical Industry 43
Exhibit 4: Adjusted Required Inspections, Proper Disposal... 44
Exhibit 5: Recommended Inspection Schedule 46
V Updating Procedures *9
Exhibit 1: Information for Updating Enforcement Strategy.... 63
-------
Note on Supporting Docunents
The materials 1n Sections II-V are extracted from a report prepared
by Putnam, Hayes, and Bartlett under a contract with the Pesticides
and Toxic Substances Enforcement Division. They discuss the
methodology used In developing the statistical and analytical
foundation for directing the inspection and awareness efforts 1n
the PCS enforcement strategy*
The final strategy reflects the findings of the contractor study,
with adjustments made to reflect the practical experience already
gained by the Agency 1n Implementing a PC8 enforcement program.
The materials are offered here only to demonstrate the theoretical
foundation of the strategy. Some of the report's conclusions
have been rejected In the final strategy, and some matters
addressed 1n the strategy were outside the scope of the contractor
study.
-------
I Allocation of Inspection Resources
Inspections of target groups have been scheduled based on both the
estimated quantities of PC8s coming up for a disposal decision and
the effectiveness of inspection activities 1n .that target group.
Inspections were allocated to target groups 1n such a way as to
maximize the total pounds of PCBs that receive proper disposal.
The method for determining the optimal inspection allocation is complex
and 1s explained 1n detail in the supporting documents. The Inspection
allocation is shown below in percentage of total inspections for a
given year on a national basis. The number of actual Inspections will
be determined through the annual budgeting process. Because the
geographic distribution of facilities 1n the Industry categories
varies, a further refinement of the percentages may be needed on a
Reg1on-by-Region basis* This refinement will also take place during
the budget process«
"Table II-l
Allocated Inspections by Sector or Industry
(prr year, shown in percentage of total number of Inspections)
Percentage of
Sector/Industry Inspections
Railroads 20 %
Complaints, Crises, Special Situations...... 16 %
Metals U %
Chemicals.. 13 %
Utilities 12 %
Food and Feed 10 %
Paper and Lumber 10 %
Commercial Buildings 8 %
Stone, Clay, and Glass......... 5 t
Textiles 5 %
Mining 3 %
Automobile ~ 1 %
Approximately 16 percent of the inspection resources has been reserved
for response to complaints, crises, and special situations. If there
ts an unexpected higher or lower number of such sftuat1o/is, the
Percentages may be adjusted evenly across categories.
In addition, the Inspections 1n each category should be performed
at facilities owned by companies of varying sizes. When possible,
approximately 50 percent of the Inspections should be performed at
facilities owned by companies 1n the top 20 1n size; 25 percent 1n
the next 30 in size; and 25 percent 1n the remaining companies. The
following table shows estimates of the numbers of facilities nationally,
arranged by size of company.
•2-
-------
Estimated Number of Facilities
Arranged by Size of Company
Sector/Industry Facilities
UTILITIES
Top 4 Companies 360
Next 4 Companies 216
Next 12 Companies 446
Next 30 Companies 571
Remaining Companies 943
TOTAL "27535"
AUTOMOBILE
Top 4 Companies 58
Next 4 Companies 11
Remaining Companies 163
TOTAL USZ
CHEMICALS
Top 4 Companies 495
Next 4 Companies 258
Next 12 Companies 311
Next 30 Companies 466
Remaining Companies 1,401
TOTAL 77*37
FOOD
Top 4 Companies 787
Next 4 Companies 393
Next 12 Companies 548
Next 30 Companies 759
Remaining Companies 11,562
TOTAL 14,049
METALS
Top 4 Companies 398
Next 4 Companies 137
Next 12 Companies 277
Next 30 Companies 327
Remaining Companies 2,201
TOTAL "3T2W
MINING
Top 4 Companies 1,620
Next 4 Companies 660
Next 12 Companies 720
Next 30 Companies 3,000
Remaining Companies —
TOTAL • S'iflOO
Sector/Industry Facilities
PAPER ANO LUMBER
Top 4 Companies 452
Next 4 Companies 316
Next 12 Companies 509
Next 30 Companies 588
Remaining Companies 9,436
TOTAL TT735T
STONE, CLAY, ANO GLASS
Top 4 Companies 366
Next 4 Companies 169
Next 12 Companies 237
Next 30 Companies 31ff
Remaining Companies 1,404
TOTAL Tjm
TEXTILES
Top 4 Companies 236
Next 4 Companies 149
Next 12 Companies 249
Next 30 Companies 419
Remaining Companies 2,054
TOTAL 17W
•3'
-------
Inspection Scheduling
The neutral administrative Inspection scheme Identifies the individual
sectors to be inspected, and targets a proportion of Inspections 1n
each sector to companies of varying sizes. Although facilities selected
for routine inspection should be part of a targeted segment, the Regions
may apply other neutral criteria, such as geographic considerations,
before making the random selections.
From time to time, a special, more intensive Inspection effort may
needed 1n a target or non-target group, such as 1n response to
new Information regarding potentially widespread contamination from
a particular source. In such cases, PTSED vril provide sufficient
information to the Regions about the target group and any special
Instructions required so that the special Inspection program can be
Implemented.
The Agency also receives numerous tips and complaints regarding
possible PCB violations. The priority given to responding to
these situations is to be based on the severity of the environmental
hazard posed by the condition, to the extent that 1t can be determined
without on-site Investigation. In some cases, an Immediate Inspection
win be indicated. The response to less severe problems may range
from contacting the facility by telephone or correspondence to scheduling
of a compliance monitoring Inspection as part of the Region's routine
Inspection plan.
When required, the percentages of resources allocated may be adjusted
evenly across the target groups to meet unanticipated increases or
decreases 1n the number of inspections needed for special situations.
-------
The materials on the following pages are extracted from:
TSCA/PC8 ENFORCEMENT STRATEGY
Prepared by
Putnam* Hayes and Bartlett, Inc.
Boston, Massachusetts
December, 1979
Under a contract with
Pesticides and Toxic Substances Enforcement Division
Office of Enforcement
U.S. Environmental Protection Agency
-5-
-------
II Development of Target Groups
The majority of the PCB's currently in service are
contained in transformers and large capacitors installed between
the years 1945 and 1975.1 While small quantities of PCB's ^re in
service in other uses, the disposal of these PCB's is not regu-
*
lated due to their small quantities and/or low concentrations.
The enforcement strategy must, therefore,* concentrate on the
proper disposal of PCB's in transformers and large capacitors.2
In order to develop an enforcement strategy that insures
the proper disposal of PCB's contained in transformers and capaci-
tors, 13FA must know where the transformers and capacitors are
located and when PCB's contained iir the equipment will require a
disposal decision. Since EPA does not have detailed information
in these areas, it was necessary to estimate where this equipment
is likely to be located and when it will be removed from service.
PHB has developed such projections for 47 target groups.
For the purposes of this analysis,. a target.group is
defined as a subsegment of industrial firms, utilities, railroads
or commercial buildings. Exhibit II-l illustrates the target
groups used by PHB. As shown, in Exhibit II—1, each industry in
<;he industrial sector and the utility sector is divided into five
target groups based on size of firm. The commercial and railroad
sectors are each treated as a single target group.
"After 1975, Monsanto, the primary manufacturer of PCB's, ceased
production of fchese compounds.
2Small capacitors may be disposed of as municipal solid waste and
hence, are not considered in the enforcement strategy. All
further reference to capacitors in this report refers to large
high and low voltage capacitors.
-------
The remainder of this chapter presents?
• phb estimates of the number of PCB trans-
formers and capacitors by target group in
service in 1979,
•• PHB estimates of the pounds of PCB's re-
quiring disposal decisions each year by
sector, and
the methodology used by PHB to derive these
estimates.
TRANSFORMERS AND CAPACITORS
BY TARGET GEOOP
For each target group, -the number of PCB transformers
and capacitors in service in 1979 is presented in Exhibits II-2
and II-3, respectively. A» be in toese exhibi"' 31
percent of all PCB transformers and. 4S percent of all capacitors
in service in 1979 are owned by utilities. Other major users of
PCB equipment include the entire industrial sector and commercial
buildings. Within the industrial sector, the majority of PCB
equipment is owned by the metals, chemicals, and paper and lumber
industries.
For some industries, the ownership of PCB equipment is
highly concentrated. For example, it ia e.timated bhat 93 percent
of all of the PCB transformers and capacitors in the automobile
industry are owned by the four largest firms in the industry.
However, for some industries, such as food, a much smaller portion
of the industry's PCS "equiiaent is concentrated in the four
largest firms~
Since EPA's enforcement strategy must impact decisions
made at the plant level, it is also useful to project the number
of transformers and capacitors per plant in each target group.
-------
These estimates are presented in Exhibits II—4 and XX—5. As is
illustrated in these figures, the number of transformers per plant
ranges from 0.1 to 39.9 for the different target groups.l The
number of capacitors per plant ranges from 1.6 to 673.5.
REQUIRED DISPOSAL
DECISIONS BT SEAR
Exhibit II-6 presents estimates of the number of pounds
of PCB's requiring disposal decisions each yeac each sector*
These projections were developed to determine if significant
differences in timing existed among sectors which might allow
enforcement activities to be concentrated in certain areas at
specific times. .With the exception of railroads, however, signifi-
cant quantities* of PCB's are coming up for disposal decisions each
year for the next two decades. Thus, enforcement activities must
begin immediately and must continue over the long term.
The PCB regulations essentially prohibit the use of
PCB's in railroads after 1 January 1982, As illustrated in.
Exhibit II-6, 3.6 million pounds of PCB's will be removed from
service over the- 1979 to 1981 period. It is, therefore, necessary
to quickly implement enforcement activities in the railroad
sector. Resources so allocated, however, will be available for
other uses after 1981.
Ih. pounds of KB's requiring disposal duels ions in
utilities and comm.roial buildings rise, steadily from 1979 to a
peak of 8 Billion pounds in 1991 and S.S million pounds in 1990,
respectively. This suggests that the EPA should plan a long tern
enforcement program for the utility and commercial sectors.
l^g discussed below, the railroad and commercial building sectors
present: unique enforcement problems. For this reason, these
sectors are excluded from this plant-specific analysis.
-------
However, there are still significant amounts of PCB's being
released prior to the peak, and hence, the start of the enforce-
ment program- should not be delayed.
The industrial sector poses the most immediate threat of
improper disposal of PCB's. It is, therefore, crucial to promptly
implement the enforcement strategy for the industrial target.
groups.
METHODOLOGY FOR DERIVING
ESTIMATES BY TARGET GROUPS
There currently exist no. records o£ PCB transformer and
capacitor installations by target group. It was therefore neces-
sary to estimate for each target group the number of transformers
and capacitors installed each year, the number of transformers and
capacitors which were still in service at the end of 1979 and,
finally, when each of these- transformers and capacitors would be
removed fro* service. The methodology for doing this is described
briefly below.l
Transformers are used to step up or step down the
voltage level of 4 current of electricity. Capacitors are used to
regulate the flow of electric current. Since both transformers
and capacitors are used to conduct or regulate the flow of
electricity, it wa« assumed that the installation of transformers
and capacitors within each ""or and industry would be propor-
tional to that sector or industry's use of electricity, thus,
estimates of total existing PCS transformers and capacitors from
previous work by Versar, Inc., were allocated to sectors and
industries based on electricity use.
^•A more detailed discussion is presented in Appendix A.
-------
Once the total existing PCB capacitor and transformer
installations were determined for each industry, the number of
installations each year over the period from 1945 to 1975 was
determined. These years were selected since they represent the
period in which PCB-containing equipment was manufactured and
sold. The number of installations in each year of this period was
estimated using, the pattern of the sector or industry's capital
expenditures- A computer simulation program then was used to
project the year in which the equipment would be removed from
service given the initial installation date^an average failure
rate and an average lifetime.! Note that no specific adjustment
was made for possible early removal motivated by EPA regulations
or other factors.
Due to the large number of firms within each industry
and the diversity of firm sizes, PHB next allocated the "number of
PCB transformers and capacitors existing in 1979 to target groups
within each industry. To define the target groups of interest
within each industry, two steps were taken:2
1. Subsegments of the industry which represent
the ten largest users^ of electricity within
each industry were selected.
lln the case of transformers, the metime rwy be "tended by
several years by rebuilding the transformer at to end of its
initial service life. If the f ?£.r. Jo
1975, it was assumed that the PCB fluid was replaced in kind.
TQ-7* 4> art&umed that the replacement fluid did not
"nlllnKB'a If th. t»'»£«aVr is rebuilt, the PCB'a initially
la thi t^fona" are* r^Sfed from service at that time.
2s«« Appendix & for a more detailed explanation of this procedure.
3uaer» are defined here by feur-digit Standard Industrial CI awl-
fication code (SIC).
-------
2. The plants within these ten largest elec-
tricity users were divided into the five
target groups defined in Exhibit II-1.
It was assumed that the subsegments selected within the industry-
would have all of the PCB transformers and capacitors within that
industry. Further, across the five target groups the number of
PCB transformers and capacitors was assumed to be proportional to
output#1 For example, if the four largest firms (the first target
group) accounted for twenty percent of the output of all five
target groups, twenty percent of the PCB transformers and capaci-
tors are assumed to be in plants owned by these four firms*
The. utility sector was also divided into five target
groups in the manner described above, while the commercial and
railroad sectors were each defined as a single target group* The
time pattern of PCB disposal decisions was assumed to be the same
for each target group within an industry or sector.
-'•Dollar value of shipments is a widely accepted measure of output
and was used for each target group.
-------
TARGET GROUPS FOR TSCA/PCB ENFORCEMENT STRATEGY
SECTOR
INDUSTRY
TARGET GROUP
UTILITIES
Stonef Clay and Glass ^
Food
(fining
Textiles
Paper and Lumber
totals
Chemicals
Automobiles
¦>
Four largest companies within an industry.
Next four companies within an industry.
Next twelve companies within an industry.
Next thirty companies within an industry.
Remaining companies within an industry.
Four largest utilities within an industry.
Next four utilities within an industry,
Next twelve utilities within an industry.
Next thirty utilities within an industry.
Remaining utilities within an industry.
COMMERCIAL
BUILDINGS
V
COMMERCIAL
BUILDINGS;
V
>
RAILROADS
v
RAILROADS
-------
TRANSFORMERS CJ SEWIC2 fflf TRfCEX Span - 1379.
SECTOR
nnxs-rRg
JLS2L
5,512
3,300
«,334
8,738
14,444
TUHLLT (SCOP
Top 4 rlSBS
tt«xt 4 Finns
Nsxe 12 Picas
Naxt 30 firms
All Mnaining Firas
Top 4 Picas
K«xe 4 flans
Next 12 Firms
Nftxe 30 flow
All BMHLi&iiy? PlCEBB
top 4 Fisas
N«xtt 4 Finns
N«xr 12 Finns
Nmxt 30 Flsnts
All flwMlnirg Finns
Top 4 Fisas
Mutt 4 Finns
mxe 12 Finns
Next 30 Fins
»i i Bmiulo? final
Top 4 Firms
Vtoxt 4 Finns
ttwfi 12 fissi
Ntxe 30 Finns
All Remaining Flea
top 4'Flans
Mtxt 4 Finns
ismet 12 Flans
WutC 30 Flans
All Pmainiag Ficss
TOp 4 Fleas
M«xt 4 Flea
HtxC 12 Fisas
Nsxt 30 Tinas
All ftaniaing Firas
•Wp 4 Flans
NSSt 4 FlOSS
- Naxt 12 Fleas
Hut 30 Flans
All W—Firas
Top 4 Flans
(text 4 Fisas
(Mate 12 Fiaas
tttxfe 30 Flass
All Raosiaing Fleas
B02ZDXNG3
34.013
34,315 All auildlnss
JULKASAA"
328 All Hailcoads with
ICS apiipnne
-------
AAilxOXC 11—j
cAacnoss in sewics se target gbco? - 1979
(thousands o£ units)
TOOT.
smcn
rauustsy
nftHtf"
1,339
m
nS3SRBtl
gjZLOBBS
rri
-TXZEBaTI
fl
tmcet cacgp
Ttop 4 Fizns
Hue 4 Finns
Hare 12 Firsts
Next: 30 Picas
All Rsmining Finas
TBp + Finas
Nue 4 rim
Naxe 22 Finos
Baxfc 30 fin
ALL Ruining Firms
Top 4 riam
Naxe 4 rims
mtx 12 rinas
Kta& 30 rinas
ALL Rmeiain? Fiats
TOp 4 Firm
Ha*fc 4 Finns
Msxe 12 Finas
(text 30 Finns
All Xsniaing Fitas
Top 4 Flras
Naxt 4 Firss
Naxt 12 rinos
Naxfc 30 rina
All awntlniag Fleas
top 4 Finas
Naxt 4 Finns
Hue 12 Tina
Naxe 30 Haas
All Raoaining Flras
TOp 4 Finas
ttase 4 Finas
Note 12 Finns
nus 30 ritas
All ItaKlnia^ Finns
Top 4 Firms
Hasfc 4- Fiaas
Naxe. 12 Finas
Hue 30 nam
ALL itoKiniag lias
top 4 near
Naxe 4 Fiiaisr
Naxe 12 fleas
(text 30 Ficas
All Ktaaining Firms
779 All Suildirqs
All Railroads with
ICS B^uipnnt
-------
AVEBPGE NIMBER OP TSANSPOSMEFS/TUNT^
Bar TMGZX GeCBP - 1979
TOTO
SECTOR
Ofljus'ncf
-ararorr
*
OMS
m-
U
m
m
¦»
w
^ amc «ita for eossssrcial building
iTransfocsMt* I** ^yLSTh^fii!29y^>»g""»"c ot *
dividing ti»
-------
fSlZSPGS MOWER OF CAPAOTORS/PUWrl
S£ TAEGSr GfJOIP - 1579
TOiar.
SECTOR
naxaxwr
.j.v-vkIW
"35322 I
¦Haasrsarr
9.5
9.5
9.3
9.S
0
p
-U
1
42.5
29.0
27.0
15.3
2.7
SS.S
37.1
29.9
U.8
]~a
929.2
328.2
523.2
928.2
528.2
Hotai TtuttMtaames per aita for ecnmreial ttiildin?*
and railroads tiava not bam astlaaesd.
^Capacitors par plane tty target group is eamutad by
dividing tha data in Exhibit XI-3 by tha nuabar ofi
planes in aaeS) targat group. saa Apawdlx a for a
datailad discussion. * ior •
PUBST caoop
Tep 4 Picas
(text 4 Tinas
Naxt 12 Finns
Saxt 30 Flos
All Baaaifling Finns
lop 4 Finns
Mast 4 Finns
Naxt 12 Flos
Kaxt 30 Finns
ALL Remaining Eiras
top 4 Finns
Hast 4 Finn
Saxt 12 Firas
Naxt 30 Finn*
All Hanaining Firas
Top 4 Fins
Mare 4 Firsts
Hast 12 Firm
Naxt 30 Fleas
All Remaining Fiats
Ttop 4 Flos
Hmxs. 4 tics*
Naxt 12 Fines
Naxt 30 Fines
All Ranaioing Finns
Top 4 Fires
Naxt 4 Finns
Saxt 12 Fines'
Hast 30 Finns
All' Remaining Finns
Ttep 4 Fi nas
Naxt, 4 Finns
Maxt 12 Finns
Naxt 30 Fines
All ftnaining Firsts
Ttep 4 Fit
Next 4 Fiats.
Next. 12 rim
Urnxt. 30 Fines
AH Raoaining Ficas
Top 4 Finns
Naxt 4 Firms
N'axe 12 Flsas
N'axt 30 Flats
All Remaining Firss
-------
PCB'S REMOVEl? PROM SERVICE
1979 - 2005
TRANSFORMERS AND CAPACITORS BY SECTOR
J + "J r (•—— +—f—4—#-•
15000000 +
p
n
U
\«
D
S
0
P
*
C
Sf
&
5
I
ft
o j j 3 a j
N%7 FOR PLOTT'WO SYMBOLS
'I' — r.UPt I37RT A<\ PHF'S
'U' — UTILITY PCP'S
'c — rwwF.pcTAi prn'j5
•'&' --* rfATLR^n Pr.ft's
-------
Ill The Awareness Component
The objective of the awareness component of the PCB
enforcement strategy is to maximize voluntary compliance; that is,
to encourage compliance at a plant or facility in the absence of
any direct enforcement effort there.
Awareness efforts aimed at individuals who will make PCB
disposal decisions are one of the major enforcement tools avail"
able to EPA. Although such efforts can be very inexpensive on a
per plant or per firm basis, their effectiveness is likely to be
limited unless the suspected cause of noncompliance is lack of
knowledge about the TSCA/PCB regulations, the sanctions available
to EPA, or the Agency's enforcement efforts. Thus, to maximize
the overall effectiveness of EPA's PCB enforcement efforts, re-
sources should be spent on awareness efforts which ar$ aimed at
target groups, industries or sectors where these problems arise.
There are two parts to the recommended awareness com-
ponent —. the distribution of. PCB information and inspection
support. Each of these parts is described below. These awareness
activities should be considered as continuing efforts by the
Agency.
DISTRIBUTION OP PCB INFORMATION
The first part of the awareness component attempts to
increase knowledge of the PCB regulations, disposal options, and
enforcement efforts among those industries, that have a large
amount, of PCB equipment. There are two levels to this effort.
The initial level of the effort will be directed toward
industries where current levels of awareness are low. These
industries must be informed, through communication with company
headquarters and/or plants, of the following issues:
-------
• The health hazards of exposure to PCB's,
• The disposal, marking and recordkeeping
regulations,
• An interpretation of what actions are
required by the regulations, and
A discussion- of the sanctions available to
the Agency in the event of noncompliance.
Facilities should also be instructed on how to contact EPA when
questions arise about the PCB program.
Selection of the industries which will be the principal
beneficiaries of this part of the awareness component is based on
several measures of current knowledge. The information needed to
rank the industries was provided in most cases by interviews with
industry representatives.
The interview responses show that certain industries
have far better information about PCB's than do others, as indi-
cated in the table below. There are three basic levels of aware*-
ness upon which industries were ranked. First is a basic
knowledge of PCB's as a hazardous chemical substance; second is
knowledge of the PCB regulations and the compliance requirements?
and third is awareness of the possible costs of compliance on the
industry.
-------
TABLE III-l
INDUSTRY AWARENESS OF PCS*S
AWARENESS
PCB'S A
NO HAZARDOUS PC3 COST OF
INDUSTRY AWARENESS CHEMICAL REGULATIONS COMPLIANCE
Utilities •
Textiles »
Paper •
Stone, Clay & Glass *
Steel •
Non-Ferrous- Metals •
Railroads •
Food •
Automobiles •
Commercial Buildings* •
Chemicals •
Mining •"
Those industries that already know about the nature of
PCB's and about the regulations are as aware as the first level of.
the PCB awareness program could make them. The resources dedi-
cated to this level should therefore concentrate on the industries
or sectors which appear to be relatively ignorant of their com-
pliance requirements. These industries, based on the table above,
are:
2
-------
• Textiles
• Stone, Clay and Glass
• Non-Petrous Metals
• Railroads
• Food
• Commercial Buildings
The second level, of effort is the provision of updated
information about PCB's and PCB issues. Such information should
be distributedr possibly through large audience publicity tech*"
niques, to all PCB user industries. PCB users should also be kept
informed of their legal disposal options. Some- options, such as
the opening of new approved incinerators or storage facilities,
may lower the costs of compliance and thus further. encourage
voluntary compliance.
IHSPECTIOH SUPPORT
The second part of the' overall awareness component
directs information specifically toward the target groups re-
ceiving inspection activity. The success- of the inspection
component'relies strongly on the assumption that decision-makers
in target groups will make the choice for proper disposal only if
they are aware of their likelihood of inspection, their costs of
complianca and the likely fine should a violation be detected.
Providing and updating this information is therefore an important
part of the awareness effort*
The Agency can rely on private cnannels of communication
to distribute important information (such as PCB compliance costs)
to target group members of more organized industries. However,
-------
special efforts should be undertaken for the target groups within
those, industries when communication among members is limited.
The information used, to determine which industries are
likely to have poor communication, and where, therefore, special
effort is required, was taken from, interviews with, industry
representatives. Industry associations were questioned about the
existence .of regular and frequent channels of communication (for
example, industry newsletter) and whether environmental committees
existed and distributed environmental information. The results
are shown below.
TABLE IXI-2
INDUSTRY COMMUNICATION CHANNELS
INDUSTRY
Utilities
Textiles
Paper
Stone, Cla^ & Glass
Non-Ferrous Metals
Railroads
Food*
Automobiles
Commercial Buildings*
Chemicals
Mining
Steel
LITTLE ENVIRON—
COMMUNI- NEWS- OTHER MENTAL
CATION LETTERS CHANNELS COMMITTEES
*Estimated.
-------
Target groups in industries which have at least one form
of regular and/or frequent communication and in addition have a
formal committee which keeps members alert to environmental issues
are likely to learn of PCB developments on. their own. However,
target groups in industries without such organization may not*
.These industries, whose target groups will need extra awareness
efforts, are:
• Textiles
• Stone, Clay and Glass
• Non-Ferrous Metals
• Railroads
Food
• Commercial Buildings
Z 3 -
-------
IV The Inspection Component
The objective of . the inspection component of the
TSCA/PCB enforcement strategy is to provide a direct physical
presence at a sufficient number of plants and facilities where PCB
disposal decisions are made to insure compliance with the regula-
tions. The impact of a single inspection is not limited to the
site inspected. Rather, it combines with all other inspections to
¦build a perceived risk of discovery and resulting sanction that is
sufficient to encourage decision makers faced with PCB disposal
decisions to favor compliance over noncompliance.
Inspections are one of a variety of enforcement tools
available to EPA. Research by PHB indicated that inspection
activities have been found to be effective by a number of regula-
tory agencies. In particular, the U.S. Food and Drug Administra-
tion (PDA) has carried out research concerning the relative
effectiveness of a variety of inspection programs.i This research,
indicated several important considerations for the development of
the TSCA/PCB inspection component:
1. Inspections based solely on complaints were
found to be a poor use of the FDA's re-
sources.
2, Inspections which were followed up by a
letter to the company's headquarters (not the
site inspected) summarizing the results of
the inspection, the required action, and the
possible sanctions for continued noncompli-
ance were particularly effective.
*See Appendix B for further information on the FDA results.
. ¦ 24*
-------
3. Inspections which-concluded with the issue of
a formal citation actually hindered quick
remedy of the violation.
As described in Chapter I, the overall goal of the.
TSCA/PCB enforcement strategy is to minimize the amount of PCS's
released to the environment through minimizing disposal viola-
tions - Other technical violations of. the regulations, although
important, are not as critical as illegal disposal. Jt is diffi-
cult, however, to implement inspection activities so as to detect,
disposal violations directly. To ^ solve t±is difficulty^ the
inspection component as well as the entire enforcement strategy
depends upon PCB records as an acceptable indicator and motivator
of compliance. Maintenance of accurate records by a plant or
facility provides a measure of overall compliance as well as ain
indicator and' audit trail for specific violations. The practical
intent of the inspection component, therefore, is to foster and
verify the creation and maintenance of complete and accurate PCB
records.
The inspection component will focus on three categories
of sectors and industries which, require different approaches to
inspection. Each of these approaches, however, seeks to maximize
inspection effectiveness by allocating inspections to target
groups where the inspection will be most effective in causing
PCB's to be disposed of properly. The first category includes
all utility and industrial users of PCB transformers and
capacitors- The second is made up of commercial buildings that
use PCB equipment. Railroads that use PCB transformer "equipped
locomotives comprise the third category. In addition, some
inspection resources will be allocated to complaint response and
emergency situations. The remainder of this chapter presents the
recommended inspection activity in each of these areas.
-2 5.
-------
UTILITY AND INDUSTRIAL USERS
Utility and industrial users contain the largest numbers
of PCB transformers and capacitors, and inspection activity in
target groups in these two -sectors is found to be relatively
effective* The material below describes the activities carried
out on an inspection and the scheduling of inspections to specific
target groups.
Inspection Activities
Most, inspections will be audit inspections in which
records of PCB equipnent are sampled and verified. There are two
types of the basic audit inspection, which are distinguished from
each other by the kind of PCB equipment of primary interest. In
the first type, the inspector will audit all records but will
verify transformer records only. In the second, the inspection
will verify both transformer and capacitor records. This type is
termed a "joint" inspection. In both types of inspections air
records will be examined by the inspector. The fundamental
difference in inspection types lies in. which records will be
physically verified*
A distinction was made between these two types due to
their cost differential, which becomes, important when inspection
resources are distributed to achieve maximum effectiveness.
Although the exact costs of the two types is not currently known,
it is clear that a joint inspection, which requires more time-,
must be more expensive. Thus, it was assumed that a joint
inspection costs 50 percent more than a transformer inspection.
-26
-------
In both types of inspection, similar activities must be
performed. An audit of the records kept for each piece of PCB
equipment must be performed, and in addition, a certain proportion
of the entries will be verified by a physical check. Both of
these procedures are described in more detail below.
Secord Audita
In all inspections the inspector is required to examine
the plant's PCB¦ records* The inspector shall''evaluate the records
for compliance, for accuracy# and for completeness. Any suspi-
cious entries, or any missing entries, will be investigated.
The inspector will also make a comparative evaluation,
when historical records are available, they must be used in con-
junction with the present records to determine that a complete
audit trail exists for all PCB equipnent.
In addition, the inspector should compare the plant
records of the number and size of PCB equipment owned against
standards for a representative plant. These standards should be
developed by EPA based on analysis which, given any specific
industry and plant configuration, can indicate the number of PCB
transformers and large capacitors that should be present. The
inspector will match the recorded equipment inventory to the
expected; significant deviations from the standards will be
investigated.
Physical Inventory Audits
A certain proportion of the records will be verified by
a physical check for PCB equipment. Using the inventory of PCB
» 2 7 «•
-------
equipment shown in the records, the inspector shall physically
inspect a representative sample of transformers and/or large
capacitors. The inspector should verify the presence of the equip-
ment and, in some casesr the FCB content of the equipment (through
chemical analysis). The proportions to be so checked should be
statistically determined to achieve a minimum level of confidence
regarding the overall accuracy ot the records.
Inspection Scheduling
The goal of the inspection scheduling method is to
allocate limited inspection resources to specific target groups so
as to cause the proper disposal of the largest possible quantity
of PCB's. This requires that inspections be allocated to the
target groups in which they will be most effective. Estimating
the effectiveness of an inspection requires an analysis of the
compliance decision and the factors that influence it. The
compliance decision is made by FCB equipment owners based on a
variety of economic and nonecononric factors. PHB has considered
both of these types of factors in calculating an inspection
efficiency for each target group. The inspection efficiencies are
used to develop a schedule of recommended inspections per year by
target group. The steps in the determination of the inspection
efficiencies and the scheduling of inspections, and a brief
description of each, are presented below.
Step 1: Consideration of
Economic Factors
The compliance decision based on economic factors is
considered as a choice between the cost of compliance and the
economic risk of noncompliance. The economic risk of noncom-
pliance is a function of the perceived probability of inspection.
- 2 C
-------
the duration of the inspection effort, and the magnitude of the
likely penalty if a violation is detected.! The perceived proba-
bility of inspection must be large enough, given the duration of
the effort and the likely fine, to induce decision makers to
select compliance based on .economic factors. The probability of
inspectionf given estimates of duration and penalty, required to
insure the proper disposal of a target group's PCB's can be
calculated. The number of inspections required to achieve this
probability is the required number of inspections to achieve full
compliance based on economic factors.
Step 2: Consideration of
Noneconomic Factors
Noneconomic factors affect the decision maker's likeli-
hood of compliance irrespective of economic considerations. Such
noneconomic factors include the decision • maker' s level of aware-
ness of the regulations and of the. PCB problem as a whole, the
quality of communications channels available to the decision maker
which effect the availability of information required to make
informed decisions and .the decision maker's attitudes toward com-
pliance as reflected in his. historical behavior when confronted
with environmental regulations. These factors are assessed and
combined to determine a relative likelihood of compliance for each
sector and industry based on noneconomic factors. This relative
likelihood is then used to adjust the required numbers of inspec-
tions for each target group to aerive at inspection requirements
that reflect.both economic and noneconomic factors.
lpor the purposes of this analysis, PHB has assumed that viola-
tions are always detected if an inspection if performed at a
noncomplying facility.
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Step 3: Scheduling Inspections
Dividing the target group's quantity of PCB's by the
adjusted number of inspections requited yields an "inspection
efficiency" for that target group. The inspection efficiencies
axe used in a computer model which allocates a fixed quantity of
inspection resources to target groups in a manner which maximizes
the quantity of PCB's properly disposed.
These steps in the inspection scheduling method for
utilities and other ¦ industrial users are described in more detail
below.
STEP 1: CONSIDERATION OP
ECONOMIC FACTORS
The compliance decision is made after the consideration
by the decision m^ker of the economic and noneconomic ramifica-
tions of all options involving compliance and noncompliance~ The
economic factors cause the decision maker to view the compliance
decision as an economic choice between the cost of compliance and
the economic risk of noncompliance. The economically rational
decision maker will comply with the law only- when his cost of
compliance is less than the economic risk of noncompliance.
The cost of compliance is the sum of the various costs
associated with the proper disposal of PCB equipment. These costs
may include the cost of retrofilling a transformer to lower its
PCB content, the cost of incinerating or otherwise disposing of,
or storing PCB fluids, the implicit cost of prematurely disposing
PCB equipment, and other related costs. > The cost of compliance
may also vary among several compliance options, all of which are
within the law.
-------
The economic risk of noncompliance depends upon the ris
of being inspected in any given year, and the dollar value of thi
fine imposed if caught. For example, if there is a one—yea.
inspection program in which there is a 10 percent chance of bcmi
inspected and the fine if caught is §50/000/ the economic risk (o>
the expected cost of noncompliance) is $5,000. EPA's inspectiot
effort will continue/ however/ into the foreseeable future ii
order to insure the proper disposal of PCB s that, will be- removec
from service in the next ten to twenty years. In a multi—year
inspection effort there is a risk of inspection and discovery ir
each year of inspection activity. This makes the total economic
risk of noncompliance considerably greater and allows the proba-
bility of inspection in each year of the program- to be lower than;
would have been required to create the same perceived risk in a
single year.
In carrying out this step, PHB has assumed that
inspection activity aimed at enforcing the TSCA/PCB regulations
will continue for at least ten years. If inspection activity is
reduced or ended earlier than this, the required probabilities of
inspection calculated by PHB are too low to insure compliance. In
addition, PHB has assumed an average penalty of $50,000 for each
transformer or capacitor disposal violation discovered.!
Although the calculations required to compute the proba—
bility of inspection needed to equalize compliance and noncom-
pliance costs are essentially the same for transformers and capaci-
lAnalysis of the likely disposal violations indicate that if 2000
pounds of PCB's are disposed of illegally (equivalent to one PCB
transformer or 43 capacitors), a $25,000 disposal fine and a
$20,000 marking violation fine are likely to be imposed. It is
further assumed that a $10,000 recordkeeping violation fine will
be imposed in half of the cases. This results in a $45,000 to
$55,000 average fine with a median value of $50,000.
-------
required to insure that the decision to comply with be economic-
ally preferable for each target group calculated. In reality#
however, the decision is also influenced by noneconomic factors
which are unaffected by the economic circumstances. Uie derivation
of the required probability of inspection assumes that the com-
pliance decision is made on the basis of economic factors anc
perfect information. This means that no decision maker in e
target group will comply until the probability of inspection makes
the expected cost of noncompliance higher than the cost of com-
pliance. As soon as the cost of noncompliance is higher, however,
all decision makers in a target group will immediately choose tc
comply. This behavior is. represented graphically in Figure A of
Exhibit IV-1.
In reality, of course, the costs of compliance and
noncompliance are uncertain. The quality of the information and
the ability to interpret it will vary between individuals. Some
owners will be better able to judge the •true" economic and regula-
tory situation than others. These considerations lead one to ex-
pect a somewhat smooth shift toward compliance as the probability
of inspection increases. This behavior is represented in Figure E
of Exhibit IV-1. In Figure C of Exhibit IV-1, a straight-line
approximation of -this shift is diagrammed. Such an approximation
was assumed to simplify later computations.
In order to adjust the required probability of inspec-
tion to approximate t£e smooth shift behavior explained above, the
probabilities were increased by a percentage proportional to the
ambiguity of the compliance decision and the likelihood of a
decision error. The adjusted probability represents the proba-
bility of inspection at which all decision makers in a target
group choose to comply given the smooth linear shift described
above. This is illustrated in Figure C of Exhibit IV-1. The ad-
-------
justed required probabilities, of inspection by target group are
presented in Exhibit IV-2.
The number of inspections required to achieve the
required probability of inspection can be calculated using the
nunber of plants and pieces of PCB equipment in each target group.
The method of computation differs slightly for transformers and
capacitors due to the assumption that a separate compliance
decision is made for each transformer while capacitors are the
subject, of a single, plant-wide compliance decision. An example
computation for the chemical industry appears in Exhibit IV-3»
For a full, discussion of the methodology for calculating the
required numbers of inspections, see Appendix C.
There are, however, other noneconomic factors which
affect the compliance decision. These noneconomic factors combine
to determine a relative likelihood of compliance for each sector
and industry which is used to adjust the required number of
inspections determined on an economic basis.
These noneconomic factors and their effect on the
likelihood of compliance are listed belows
• Quality o£ Information Flow. Inasmuch as
rapid and accurate information flow is
crucial to the accurate perception of the
options and risks facing the decision maker,
industries with well-developed communication
channels (such as those created by industry
associations) are more likely to understand
their choices and make economically rational
decisions*
• Degree of Industry Concentration. concen-
trated industries are able to communicate
information more effectively. Decisions in
concentrated industries also effect greater
quantities of PCS's, thus .making widespread
compliance easier to achieve.
-------
• Level of Awareness of PCB Regulations. In-
dustries already aware of the PCB regulations
are more likely to comply inasmuch as non-
compliance due to ignorance is less likely.
• Compliance History. Industries with a his-
tory of noncompliance and resistance to
environmental regulations can be expected to
resist complying with PCB regulations.
Each of these factors is considered in. a comparative
ranking technique used to quantify each sector and industry's
resistance to compliance based on noneconomic factors. The
results of the comparative ranking are used, to adjust the required
number of inspections to achieve full compliance for each target
group by as much as a twenty percent increase or decrease. If the
likelihood of compliance is high for an industry, the requirec
number of inspections for the industry's target group is reducec
by as much as twenty percent to allow for a higher expectec
effectiveness for an inspection in that industry. The adjusted
number of inspections required to insure that all of a target
group's PCB's are properly disposed is presented in Exhibit iv—
for each target group. Appendix D contains a complete discussior
of the calculation of the adjusted required number of inspections.
STEP 3: SCHEDULING INSPECTIONS
The adjusted number of inspections required for ful.'
compliance are used to calculate inspection efficiencies which cai
then be used to schedule inspection resources in the most: effec-
tive manner.
Inspection efficiencies are computed by dividing th-
pounds of PCB's properly disposed (assumed to be 100 percent o
the target group's transformer and capacitor PCB's) by the numbe
of inspections needed to raise the probability of inspection t<
-------
the required level for a given target group. This computation
assumes that the increase in PCB* s properly disposed for each
additional inspection is constant.1 Although inspection
efficiency may be expected to diminish as the amount of properly
disposed PCB's approaches 100 percent, this approximation .is
considered to be sufficiently accurate for the purpose of
allocating inspections comparatively among target groups. Exhibit
IV-3 provides an example of these, calculations for. target groups
in the chemicals industry.
After computing the inspection efficiencies as described
above, the efficiencies can be used to allocate inspection
resources to target groups in the most efficient manner in. order
to maximize the pounds of properly disposed PCB's. To accomplish
this task, a computer model was prepared that allocates a limited
number of inspection resources to specific target groups. The
model finds the allocation of inspections that results in the
maximum quantity of properly disposed PCB's through use of linear
programming, an analytic technique useful for calculating the
optimal use of limited resources. The program allocates inspec-
tions to target groups with the highest inspection efficiencies
until available inspection resources are exhausted. Some target
groups with low inspection efficiencies thus are not inspected. A
complete discussion of the model and its operation is included in
Appendix E.
The output of the model is a schedule of the number of
inspections that should be allocated to each target group each
year. As described previously, inspections have been divided into
two types. The first concerns itself with transformer records
^•This could be described graphically by a straight line drawn from
the origin to the point on the smoothed curve above the adjusted
risk of inspection as in Figure C, Exhibit IV-1.
-------
only at a given site, and the second examines both transformer anc
capacitor records. The model stipulates the use of a joint inspec-
tion only when the added cost of the inspection of capacitors as
well as transformers at a given site results .in a larger quantity
of properly disposed PCB's than if the additional resources were
expended elsewhere.!
The results of the computer model are shown in Exhibit
IV-5. Four hundred of the five hundred available inspections were
allocated to utility and industrial target--groups.2 one hundred
inspections were reserved for commercial building and railroad
target groups and emergencies.
COMMERCIAL BUILDINGS
Commercial buildings, generally offices or public
buildings, can "contain PCB transformers and capacitors used for
general electricity requirements. These buildings are scattered
throughout the C.S. and the concentration of PCB equipment in any
target group of users is expected to. be low. Further,, it is also
anticipated that building owner/operators are unaware of the PCB
problem and the extent to which their equipment may contain PCB's.
These considerations suggest that the inspection efficiency for
commercial buildings will be so low as to require many hundreds of
inspections to achieve a significant level of, compliance.
^Al though the cost of a joint transformer and capacitor inspection
is known to be greater than the cost of a transformer inspection
alone the exact cost is currently unknown. Thus it was assumed
that a joint inspection required 50 percent more resources than a
transformer inspection.
2The 500 available inspections were assumed to be joint inspec-
tions.
-------
It is reasonable to assume that when disposal of PCB
equipment is required, many commercial buildings will contract for
disposal services from transformer and capacitor service . com-
panies. Thus, it is recommended that fifty inspections be
directed to-the organizations! in the U.S. who offer such disposal-
and replacement services to commercial buildings. As discussed in
Ofapter II, it is estimated that PCB equipment in commercial
buildings will be removed from service in greater quantities in
later years. Thus, this inspection level should be increased as
the peak decision period approaches. Such an increase will
strengthen the integrity of proper disposal methods in service
organizations, thus maximizing the amount of PCB- equipment present-
ly in commercial buildings that is disposed of properly. Activi-
ties on these inspections shoul
-------
transformers in locomotives are inspected at least once each year
until the last of the PCB equipment is removed from service in
1982. Activities on these inspections should include both
examination and verification of locomotive transformer records and
review of procedures being utilized for removal, storage and
disposal of PCB* s.
EMERGENCY AND CRISIS RESPONSE
The remaining thirty inspections available should be
reserved for emergency situations that arise due to reports of
improper PCB disposal or handling. Inspections should be ordered
upon an evaluation of the emergerfcy situation by appropriate EPA
enforcement personnel.
-------
Exhibit IV-
THEORETICAL VS. REAL WORLD COMPLIANCE BEHAVIOR
100%
;CB'g
^°Pecly
disposed
7\
Required
100%
Probability
of Inspection
FIGURE As THEORETICAL BEHAVIOR
100%
£?'s
f^operly
Qisposed
-v-
Required
Before
Adjustment
FIGURE B: ACTUAL BEHAVIOR
100%
Probability
of Inspection
-------
wiaunuea
THEORETICAL VS. REAL WORLD COMPLIANCE BEHAVIOR
(continued)
100%
PCB« s
Properly
Disposed
Required Required
Before After
Adjustment Adjustment
100%
Probability
of Inspection
FIGURE C: LINEAR APPROXIMATION
-------
ADJUSTED REQUIRED PROBABILITIES OF INSPECTION*
UTILITIES AND INDUSTRIAL TARGET GROUPS
(Annual)
INDUSTRY
TARGET GROUP
REQUIRED PROBABILITY OP
INSPECTION FOR:
TRANSFORMERS CAPACITORS
INDUSTRY
TARGET GROUP
REQUIRED PROBABILITY OF
INSPECTION FOR:
TRANSFORMERS CAPACITORS
UTILITIES 3.0%
Top 4 Companies
Next 4 Companies
Next 12 Companies
Next 30 Companies
Remaining Companies
AUTOMOBILE 3.0%
Tbp 4 Companies
Next 4 Companies
Next 12 Companies
Next 30 Conpanies
Remaining Companies
FOOD 3.01
Top 4 Companies
Next 4 Companies
Next 12 Conpanie3
Next 30 Companies
Remaining Companies
METAL 3.0%
Top 4 Conpanies
Next 4 Companies
Next 12 Conpanies
Next 30 Companies
Remaining Conpanies
TEXTILES 3.0%
Ibp 4 Companies
Next 4 Companies
Next 12 Conpanies
Next 30 Conpanies
Remaining Conpanies
7.9%
7.9%
7.9%
7.9%
7.9%
19.3%
5.5%
0.4%
0.2%
0.1%
0.5%
0.5%
0.4%
0.3%
0.05%
9.0%
7.5%
3.9%
2.0%
0.3%
1.2%
0.8%
0.8%
0.4%
0.08%
STONE, CLAY S. GLASS 3.0%
Tbp 4 Conpanies
Next 4 Conpanies
Next 12 Companies
Next 30 Companies
Remaining Conpanies
PAPER & LUMBER 3.0%
Top 4 Companies
Next 4 Companies
Next 12 Conpanies
Next 30 Companies
Remaining Companies
MINING 3.0%
Top 4 Companies
Next 4 Companies
Next 12 Conpanies
Next 30 Companies
Remaining Conpanies
CHEMICALS 3.0%
Otop 4 Companies
Next 4 Conpanies
Next 12 Conpanies
Next 30 Conpanies
Remaining Conpanies
1.7%
1.1%
0.8%
0.3%
0.1%
2.1%
1.5%
1.4%
1.0%
Q.1%
0.3%
0.3%
0.3%
0.3%
0.3%
5.3%
4.2%
4.7%
2.3%
0.3%
^-Probabilities are those required to insure the proper disposal
of all of a target group's PCB* s. Probabilities have been adjust'
for behavioral factors. Probabilities are expressed a3 a percent
target group transformers for PCB transformers and a3 a percent
of target group plants for capacitors reflecting differences in
the compliance decision for each. See Appendix C for a detailed
discussion of the derivation of these probabilities.
-------
COMPUTATION OP INSPECTION REQUIREMENTS AND INSPECTION EFFICIENCIES FOR THE CHEMICAL INDUSTRY
TRANSFORMERS
REQUIRED*
REQUIRED* NUMBER OF PCB'S IN5
PROBABILITY OP NIMBER OF2 TRANSFORMERS3 PLANT TARGET GROUP INSPECTION EFFICIENCY
TARGET GROUP INSPECTION TRANSFORMERS PER PLANT INSPECTIONS (m lbs.) (ma lbs. PCB/Inspectlo
•top 4 Companies 3% 5755 11.6 15 11.34 0.756
Next 4 Conpaniea 3% 2395 9.3 8 4.72 0.590
Next 12 Companies 3% 3199 10.3 9 6.30 0.700
Next 30 Companies 3% 2308 5.0 14 4.55 0.325
Remaining Companies 3% 949 0.7 42 1.89 0.045
CAPACITORS
TARGET GROUP
Ttop 4 Companies
Next 4 Companies
Next 12 Companies
Next 30 Conpanies
Remaining Companies
. REQUIRED^
PROBABILITY OP
INSPECTION
5.3%
4,2%
4.7%
2.3%
0.3%
NUMBER OP?
PLANTS
495
258
311
466
14Q1
REQUIRED®
NUMBER OP
PLANT
INSPECTIONS
26
11
15
11
4
PCB'S lip
TARGET GROUP
(mm lbs.)
6.86
2.86
3.81
2.75
1.13
INSPECTION EFFICIENCY1
(win lbs. PCB/Inspectioi
0.264
0.260
0.254
0.250
0.283
^Sources Exhibit IV^l.
^Source: Exhibit 11-2 •
^Source: Exhibit II-4.
^Required Number of Plant Inspections =
(Required Probability of Inspection x
Number of Transformers) + Transformers per Plant.
See appendix C for further discussion of this
calculation.
5PCB's in Target Group a Number of Transformers
x 1,969 Pounds per Transformer,
^Inspection Efficiency *» ECB's in Target Group
Required Number of Inspections.
^Source: Appendix A,
^Required Number of Plant Inspections »
Required Probability of Inspection x
Number of Plants.
^Source: Appendix A.
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ADJUSTED REQUIRED NUMBER OF INSPECTION
TO INSURE THE PROPER DISPOSAL
OP ALL OP EACH TARGET GROUP'S PCB'S
INDUSTRY
OTTT.ITy
TARGET GROUP
Top 4 Companies
Next. 4 Conpani.es
Next 12 Companies
Next 30 Companies
Remaining Coropani.es
ADJUSTED REQUIRED
NPMBER OP INSPECTIONS
TRANSFORMERS
11
7
13
18
29
CAPACITORS
29
18
36
47
77
ADTCMOBILES
Top 4 Conpanies
Next* 4 Conpanies
Next 12 Conpanies
Next 30 Companies
Remaining Conpanies
2
1
1
1
3
11
I
1
1
1
food
Top 4 Conpanies
Next 4 Conpanies
Next 12 Companies
Next 30 Conpanies
Remaining Conpanies
21
U
14
20
299
4
2
2
2
5
METALS
Top 4 Conpanies
Next 4 Conpanies
Next 12 Conpanies
Next 30 Conpanies
Remaining Conpanies
12
4
8
10
66
36
10
11
7
7
CHEMICALS
Top 4 Conpanies
Next 4 Conpanies
Next 12 Conpanies
Next 30 Conpanies
Remaining Conpanies
14
7
8
13
39
24
10
14
10
4
-------
ADJUSTED REQUIRED NUMBER OF INSPECTION
TO INSURE THE PROPER DISPOSAL
OP ALL OP EACH TARGET GROUP'S PCB'S
ADJUSTED REQUIRED
NUMBER OF INSPECTIONS
INDUSTRY TARGET GROUP TRANSFORMERS CAPACITORS
TEXTILES Top 4 Companies 8 ,
Next 4 Companies 5 ^
Next 12 Companies 9 2
Next 30 Companies 14 f
Remaining Conpanies 65 2
STCNE, CLAY Top 4 Companies 10 »
& GLASS Next 4 Companies 5 |
Next 12 Companies 7 2
Next 30 Coirpanies 9* f
Daoaining Companies 38 2
PAPER & Hap 4 companies 13
LOMeer Next 4 Conpanies 8 |
Next 12 Companies 14. r
Next 30 Companies lg 2
Remaining Companies 264 |
MINING Top 4 Coinpanies 51 -
Next 4 Companies 21 |
Next 12 Companies. 23 9
Next 30 Companies 93 f
Remaining Companies —
-------
RECOMMENDED INSPECTION SCHEDULE
UTILITIES AND INDUSTRIAL TARGET GROUPS
SECTOR OR
INDUSTRY
TARGET GROUP
NUMBER OF
JOINT
INSPECTIONS
NUMBER OF
TRANSFORMER
INSPECTIONS
UTILITIES
Top 4 Companies (360)3-
Next 4 Companies (216)
Next 12 Companies (446)
Next 30 Companies (571)
Remaining Companies (943)
11
7
'13
13
29
TOTAL
78
AUTOMOBILE
Top 4 Companies (58)-
Next 4 Companies (11)
Next 12 Companies (17)
Next 30 Companies (30)
Remaining Companies (116)
2
1
TOTAL
FOOD
Top 4 Companies (737) 4
Next 4 Companies (393) 2
Next 12 Companies (548) 2-
Next 30 Companies (759) 2
Remaining Companies (11,562) s
TOTAL ig
23
11
16
50
METALS
Top 4 Companies (3"98) ^2
Next 4 Companies (137) 4
Next 12 Companies- (277) 8
Next 30 Companies (327) 8
Remaining Companies (2,201) g
TOTAL 40
2
44
46
^Numbers in parentheses indicate numbec of plants in target
group.
-------
4
3
7
12
26
4
3
5
7
19
3
2
6
10
21
RECOMMENDED INSPECTION SCHEDULE
UTILITIES AND INDUSTRIAL TARGET GROUPS
(continued)
NUMBER OF
JOINT
TARGET GROUP INSPECTIONS
Top 4 Companies (236) 4
Next 4 Companies (149) 2
Next 12 Companies (249) 2
Next 30 Companies (419) 2
Remaining Companies (2,054) 2
TOTAL 12
Top 4 Companies (366) $
Next 4 Companies .(169) 2
Next 12 Companies" (237) 2
Next 30 Companies (316} 2
Remaining Companies (1,404) 2
TOTAL 24
Top 4 Companies (452) 20
Next 4 Companies (316) $
Next 12 Companies (509) 3
Next 30 Companies (588) g
Remaining Companies (9,436) iq
TOTAL 40
Top 4 Companies (1,620) 6
Next 4 Companies (660) 2
Next 12 Companies (720) 2
Next 30 Companies (3,000) 10
Remaining Companies —
TOTAL 20
-------
RECOMMENDED INSPECTION SCHEDOLE
UTILITIES AND INDUSTRIAL TARGET GROUPS
(continued}
SECTOR OR
INDUSTRY
TARGET GROUP
NUMBER OF
JOINT
INSPECTIONS.
NUMBER OF
TRANSFORMER
INSPECTIONS
CHEMICALS
Top 4 Companies (495} 14
Next 4 Companies (258) 7
Next 12 Companies (311) 8
Next 30 Companies (466) 12
Remaining Companies (1,401) 4
TOTAL 45
1
35
36
TOTAL NUMBER OF
JOINT INSPECTIONS
265
TOTAL NUMBER OF
TRANSFORMER INSPECTIONS
202
EQUIVALENT NUMBER OF
JOINT INSPECTIONS
IN PROGRAM
398
—4;
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V Updating Procedures
This chapter outlines procedures for measuring the
overall effectiveness of the PCB enforcement strategy, for
interpreting these results in the light of the changed conditions
05. new information and, finally, for altering the enforcement
strategy in response to these new conditions or information.
These updating procedures rely on data collected by EPA inspectors
during the inpection process and on new economic data which may
become available to the EPA staff in the Office of Enforcement, as
well as on changes in. the PCB regulations which may arise. The
sources and types of data likely to become available are discussed
in .the last section of this chapter.
MEASURING OVERALL EFFECTIVENESS
As -discussed above, the objective, of .the enforcement
strategy is to maximize the quantity of PCB's that are disposed of
properly. Given, this objective, and based on a number of assump-
tions, PHB has recommended an enforcement strategy. As a first
step in the updating procedure, it is important to assess whether
or not the strategy implemented by the Office of Enforcement has
met the objective. 1
^The updating procedure assumes that the objective of maximizing
the amount of PCB's disposed of properly, is an appropriate objec-
tive. After the initial implementation of the enforcement strat-
egy, EPA should assess the soundness of this objective. To assess
the soundness of the underlying objective, EPA should review the
number and type of violations detected by inspectors. This
review, together with discussions with EPA inspectors, should
enable the Office of Enforcement to judge the appropriateness of
the objective of the enforcement program. For example, if review
of this information revealed that more PCB's entered the environ-
ment through spills rather than improper disposal, the EPA should
restate the aim of its enforcement strategy and. redirect its
efforts to ensure proper maintenance, of PCB equipment while in
service.
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Two measures o£ effectiveness are recommended. The
first is a measure of overall effectiveness of the enforcement
strategy for each industry and sector. The second is measure of
the specific level of effectiveness observed within each target
group. The methodology for calculating each of these measures is
given below.
Measure of Overall
Effectiveness
The overall effectiveness of the enforcement strategy
within each industry and sector can be measured by computing the
percentage of the PCB's removed from service which were disposec
of properly over the past year.^- To measure this percentaget the
quantity of PCB's disposed of properly should be divided by ar.
estimate of the total amount of PCB's removed from service. The
following methodology can be used to measure the overall
effectiveness of the enforcement strategy for each industry or
sector:
STEP 1: Recompute the PCB's removed from
service in each industry and sector over the
past year using the inspection results on the
number of transformers and capacitors in
service, the age distribution of the
remaining transformers and capacitors, and
the computer model discussed in Chapter II
which projects the PCB's removed from service
each year.
STBP 2: Calculate the PCB's disposed of in
CWLP's and incinerators by each industry and
sector over the past year using data from the
JRCHA manifest reporting system.3
.h. purposes of discussing the updating procedure, it i.
J-For the purpos enforeement strategy is updated annually
assumed that should actually be upJated when new inform*
tioranece=sitlteS fibstantial changes in the underlying assumo
tions.
2prior to the startup of the RCSA system, record inspections wil:
be the source of this information.
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STEP 3: Divide the PCB's disposed of in
CWLF's or incinerators by the projected
amount of PCB's renoved from service for a
measure of overall effectiveness for each
industry and sector.
These three steps yield the percent of. PCB's removed from service
which were disposed of properly over the past year as a measure of
the overall effectiveness of the enforcement program.l
Measures of Effectiveness
by Target Group
The effectiveness of the enforcement program within each
target group can also be measured from the inspection results. To
measure this effectiveness the number of transformer violations of
all types detected should be divided by the number of transformers
inspected. For capacitors, the number of capacitor violations of
all types detected should be divided by the number of plants
inspected.2 Subtracting these effectiveness measures from 1.0
will yield the portion of the transformers inspected which are in
compliance and the portion of the plants inspected, which are in
compliance with the PCB capacitor regulations.3
lsince the amount of PCB's disposed of in landfills and
incinerators is an actual reported figure and the PCB's removed
from service is a projection, the overall effectiveness measure
mav indicate that more than loa percent of the- PCB's removed from
service were disposed of properly. Should this occur the
assumptions underlying the removal from service projections should
be reexamined. For example, a measure which exceed^ 100 percent
aav indicate premature disposal of PCB equipment? that is,
equipment disposed of before it fails or reaches the and of its
service life.
^Recall that the compliance decision is assumed to be made at the
individual transformer level for transformers but at the plant
level for capacitors.
3care must be taken to insure that multiple violations related to
one transformer or one plant in the case of capacitors are treated
as one transformer or plant not in compliance. This will prevent-
double counting of instances of noncompliance.
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The recommended number of inspections to be performed in
some target groups is very small. The estimates of effectiveness
may, therefore, be inaccurate due to small sample size. Appendix
P explains how confidence intervals can be established for these
effectiveness measures.
Interpreting the Measures
o£ Effectiveness
After calculating the measures of effectiveness for each
sector or industry and for each target group and before revising
the enforcement strategy, the difference between the actual
effectiveness and the expected effectiveness should be explained.l
For example, if a target group was inspected up to its required
rate of inspection, the EPA would expect to find 100 percent of
the plants in compliance. If the measure of effectiveness based
on the number of violations detected revealed only a 65 percent
compliance level, the source of this difference should be
identified.
The difference between the expected and actual effective-
ness can be divided into two variances:
1. The variance due to changing economic
conditions, and
2» The variance due to the noneconomic factors
considered in the decision to comply.
of actual effectiveness ——¦ the overall or target
group — can be used when interpreting the difference between
actual and expected effectiveness. The measure selected should be
based on the perceived quality of the data and on " data
availab ility.
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Each of these variances between the expected and actual is dis-
cussed below.
VARIANCE 1: Economics
o£ Compliance Decision
The economics o£ the compliance decision may have
changed due to revised estimates of the distribution and average
age of PCB equipment, new estimates of the cost of compliance and
actual amounts of the assessed penalties. Changes in these three
factors will alter the economic tradeoff of compliance versus
noncompliance. This, in turn, will alter the required probability
of inspection.
The distribution, and average age of PCB equipment
developed for this initial strategy are based on extremely limited
data. Therefore, as additional information become^ available
through- inspections, these data should bQ used to modify the
initial distribution by replacing the original estimate of the
number of transformers per plant' and the number of capacitors per
plant with the average number found in the inspected plants. The
original estimate of the average age of this PCB equipment should
be replaced with the average age observed in the inspected
plants.1
The cost of compliance will also change as incinerators
are granted permits and as CWLP's are permitted to store these
hazardous materials. In addition, EPA may have actual data on the
^-For some target groups, these new estimates may be based on only
one or two plants. Even though the sample si2es are small, these
data are still preferable to estimates based on no empirical data.
Appendix P discusses the calculation of confidence intervals foe
these estimates.
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average amount of the assessed penalty per violation. This
information will alter the economic tradeoff of compliance versus
noncompliance. Therefore, the inspection effectiveness level for
a given target group may be • lower or higher than anticipated due
to the altered economic conditions.
To calculate the difference between predicted and actual
effectiveness due to the change in economic factors, the required
probability of inspection should be recalculated for each target,
group for both transformers and capacitors- This calculation
should use the new data on cost of compliance and penalty amounts,
as well as the new distribution of transformers and capacitors per
plant. The ratio of the actual inspection probability to the new
required probability of inspectionl is the expected level of
compliance based on the new economic information. For example,
assume 3 percent of the plants were inspected. If using- the new
economic data, the required probability of inspection should have
been 4 percent, the level of compliance expected would be 75
percent (3 percent divided by 4 percent). The change in economic
factors, therefore, accounts for 25 percentage points of the
difference between, the actual and expected levels of coraoliance
within a target group.
VARIANCE 2s Accounting
for Noneconooic Factors
After calculating the first variance, any residual
variance is assumed to be the result of estimation error in the
noneconomic factors which influence decision .makers. The
difference between the expected level of compliance calculated
with revised economic data and the actual level of compliance is
the second variance — the variance between actual and expected
^¦To insure the proper disposal of all of a target group's PCB's.
5
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levels of compliance not accounted for by economic factors. For
example, if the new required risk of inspection was 4 percent, a
75 percent level of compliance would be expected at an actual
inspection rate of 3 percent (3 percent divided by 4 percent). If
the actual compliance level was 65 percent, the remaining 10
percentage point variance (75-65 percent) is assumed to result
from inappropriately accounting for the noneconoraic factors which
influence the decision to comply.
This variance could arise if the target group's
communication network or their awareness of the PCB problem was
overestimated or underestimated. Also this variance could result
from over or underestimating the importance of these noneconoraic
factors^
UPDATING THE
ENFORCEMENT STRATEGY
The procedures described below are designed to enable
the EPA to update the enforcement strategy to account for new
information and changing economic conditions. The information
gathered by the inspectors and available to EPA from other sources
should be used to modify both the awareness and the inspection
component of the enforcement strategy. Again, the objective of
the enforcement strategy is to maximize the amount of PCB's
disposed of properly.
Updating the
Awareness Component
The awareness component has two parts. The first part
is aimed at achieving "a baseline level of awareness in all
industries and sectors regarding the PCB regulations, the actions
-------
IgCB equipment user must take to comply with the regulation and
Sanctions available to the EPA in the case of. noncompliance.
e aim of the second part is to support the enforcement effort.
®odify the awareness component of the enforcement program, EPA
°uld review the measures of effectiveness for each target group,
;3ustry and sector. The variances discussed above should also be
slewed. New awareness efforts should be concentrated on those
*£get groups where the noneconomic variance accounts for a large
of the difference, in actual versus expected effectiveness.1
In addition, the EPA should review the number and type
" detected violations in each industry or sector and draw out the
lsPec tors' judgement concerning the level of awareness which
{ists within the different industries and sectors. Based on this
formation, EPA should redirect some. of the awareness resources
^ard industries and sectors where a large number of violations
,7k:red, particularly -where it appears that these violations were
^result of ignorance. Some resources should also be directed
industries or sectors whe£® awareness is judged to be poor
'en though few violations have been detected.
Updating the
Inspection Component
The inspection component o£ the enforcement strategy is
Signed to create a perceived risk of inspection which will
"fralize the economic cost of compliance and the economic cost of
awareness efforts should concentrate on informing firms
bout the economic factors which should impact their decision to
^Ply including the cost of compliance and the possible penalties
noncompliance.
• £.
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noncompliance. Due to EPA's limited inspection resources, it is
not possible to inspect each target group at the required rate of
inspection. Thus the inspection resources were allocated to
maximize the number of pounds of. PCB's properly disposed. To do
this, the inspection resources were allocated to target groups
based on the average number of PCB transformers and capacitors per
plant, the required rate of inspection to insure compliance in the
target group, and the cost of an inspection. 1 As new data become
available, each of these inputs should be updated to reflect the
current data, and the inspection resources should be reallocated.
To update the inspection procedure, the required risk of
inspection must be recalculated based on the new estimates of the
distribution of PCB equipment, new estimates on the cost of
compliance and actual data on the penalty amounts assessed. This
required risk of inspection is, then adjusted as before for
noneconomic factors. Finally, this adjusted required risk of
inspection is readjusted again to account for the second variance
(the variance between expected and actual levels of compliance due
to estimation error in the noneconomic factors). Using these
final adjusted required risks of inspection, new inspection
efficiencies are calculated and the computer model is rerun to
reallocate inspection resources to target groups.
*As discussed in Chapter IV, two types of inspections were con-
sidered — a transformer inspection and a joint inspection. It
was estimated that the cost of a joint inspection would be 150
percent of the cost of a transformer inspection.
-------
The following procedure can be used to update the inspec-
tion component of the enforcement strategy.
STEP Is Recompute the average number of
transformers and capacitors per plant in each
target group using the data gathered in the
inspections.
STEP 2s Using the new estimates of cost of
compliance and the average amount, of the
penalties actually assessed, recompute the
required risk of inspection necessary to make
the target group members economically prefer
compliance with the PCB disposal regula-
tions.l
STEP 3s Adjust the required risk of inspec-
tion for each target group for the non-
economic factors as was done in the initial
strategy.2
STEP 4s Compute the variance between ex-
pected versus actual effectiveness due to
estimation.error in the noneconomic factors.3
ls_e aonendix C for a datailad explanation of the calculation of
this required, risk of inspection.
2See Appendix D.
Ha explained previously, to compute this variances
compare this new adjusted required risk of -inspection to
the actual inspection rate. Project the expected
SUoctiveness of inspections for each target group by
dividing the actual rate of inspection by the adjusted
required risk calculated in Step 3*
. Subtract the actual measure of effectiveness from the
expected effectiveness of inspections. This difference
represents the variance due to improper adjustment for
noneconomic factors.
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STEP 5r If the variance due to noneconomic
factors is relatively small, adjust the
required risk of inspection by multiplying
this risk by one plus the variance.1
STEP 6s Recompute inspection efficiencies
using the new adjusted required risks of
inspection and the revised estimates of the
number of transformers and capacitors per
plant for each target group.2
STEP 7: Run the computer model to reallocate
the available inspection resources given the
new inspection efficiencies and the relative
costs of joint and transformer inspections.3
Steps 1 through 3, 6, and 7 involve updating calculations already
performed to arrive at the recommended inspection component and
are described in the previous chapters and the Appendices. Steps
4 and 5, however, are unique to the updating procedure and an
•example will help clarify theSe steps.
Assume that recomputing the adjusted required risk of
inspection given the new cost of compliance and assessed penalties
yields an adjusted required risk of inspection of 4 percent. If
the target group's actual rate of inspection was 3 percent, EPA
would expect their inspections to be 75 percent effective (3
percent divided by 4 percent); that is, 75 percent of the PCB's
lif the exoected effectiveness of the inspections is not rela-
fetveiv close to the industry or sector's measure of overall
effectiveness, the assumptions concerning the economic and/or
noneconomic factors affecting the decision ^ to comply may be
inaccurate Discussions with inspectors and industry representa-
tives should be held to determine the accuracy of these assump-
tions .
2See Appendix D.
3See Appendix E fo* a description of this computer model.
-------
removed from service in this target group were disposed of
Properly. If the measure of actual effectiveness discussed above
Vas $5 percent for this target group, they did not perform as well
expected. The variance due to improperly accounting for
noneconomic factors isr therefore, 10 percent.
To alter the adjusted required risk of inspection the
risk is multiplied by one plus the variance. Thus, the new
required risk of inspection is 4.4 percent (4 percent multiplied
bY 1.10). This rate is then used to recalculate inspection
ef£iciencies as discussed in Chapter IV and. Appendix D,
While this adjustment is reasonable if the variance due
to noneconomic factors' is small, it should not be used if the
expected and actual effectiveness measures are very different, if
the measures differ significantly, the assumptions underlying the
computation of required inspection rates should be investigated.
INFORMATION for updating
THE ENFORCEMENT STRATEGY
Updating the enforcement strategy requries that new
information be gathered from inspections and other sources. The
new information likely to be available to EPA can be categorized
as follows:
X* Updated economic inxornation on the cost of
compliance, the amount of the penalties
assessed for noncompliance and the available
EPA resources. This information is gathered
by EPA and based on' changes in current
conditions such as the permitting of an
incinerator, - alterations in the penaltv
policy, and changes in the Office of
Enforcement's budget for PCB enforcement.
-------
2. PCS quantity data gathered in the field.
This information comes from the EPA inspec-
tion program and the RCRA manifest reporting
system which requires all chemical waste
landfills (CWLF's), incinerators and waste
handlers to report on the hazardous wastes
transported, treated or disposed each year.
The first category of information will enable EPA to
reassess the economic tradeoffs of compliance versus noncompli-
ance. The second category of information will allow EPA to set up
a tracking system for PCB transformers and capacitors and to
better estimate the amount of PCB equipment in each sector and
industry, as well as when this equipment is likely to be retired
Together this information can be used fco measure the overall effec-
tiveness of the enforcement strategy and to modify the strategy.
The data, which, should be gathered during an inspection
and the data available from the manifest reporting system are
described below. Exhibit V-l details the data required to update
the enforcement strategy, the source of the data and the Office or
personnel who should be responsible for .collecting this data.
Inspection Data
The EPA inspector . is in the unique position of being
able to physically verify the existing equipment in. the plant.
Since the allocation of inspection resources relies heavily on an
estimate of the number of transformers and capacitors in each
target group's plants, it would be desirable to update these
estimates. The inspector also may be able to infer from the
plant's records or from physical inspection of a sample of the PCB
equipment, the age of the-PCB eguiFment and hence, the likely date
of the equipment's removal from service. The inspector will also
- « i
-------
keep a record of the number and type of violations detected at
each plant. Therefore, at a minimum, the inspector should gather
the following information:
». the number of FCB -transformers ana capacitors
in service in each plant,
•- the age of each transformer and capacitor in
the plant,1 and
• the number and type of violations detected.
As discussed above, the inspectors* views of the plant manager's
awareness of the PCB regulations and other qualitative data are
also useful when updating the enforcement strategy.
Manifest Reporting System
The manifest reporting system will require all
generators, transporters and disposers of hazardous waste to
report on the amount, type and source of hazardous waste handled
each year. This system is designed.to ttack all hazardous wastes
and hence, to detect violations by checking for discrepancies in
the data. This system will allow EPA to keep a record of all
PCB's disposed of properly in CWLF's or incinerators by each
target group.
2The law does not require that age be reported, .if these data are
unavailable, the inspector should estimate the age distribution of
the transformers and capacitors in the plant or, at a minimum, the
average age of all PCB transformers and the average age of all pes
capacitors in the plant.
-6
-------
INFORMATION FOR UPDATING
THE ENFORCEMENT STRATEGY
INFORMATION
SOURCE
OFFICE/PERSONNEL
RESPONSIBLE FOR
COLLECTING INFORMATION
Average number of
PCB transformers
and capacitors per
plant
Inspections
EPjJ Inspectors
Age distribution
of PCB equipment
Inspections
EPA Inspectors
Number and type
of violations
Inspections
EPA Inspectors
PCS's disposed of-
properly
RCRA Manifest
Reporting. Systeml
Office of Hazardous
Wastes
Cost of compliance
Estimates by EPA
or EPA Contractors
Office of .
Enforcement
Cost of inspections Office of
Enforcement
Office of
Enforcement
Amount of
penalties assessed
EPA resources
Office of
Enforcement;
Office of
Enforcement
Office of
Enforcement
Office of
Enforcement
Inspections will be the source of this information prior
startup of the RCRA system.
to the
-------
> \ UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
1 2 WASHINGTON. D.C. 20460
NCV I I B60
OFFICE OF ENFORCEMENT
MEMORANDUM
SUBJECT: PCB Enforcement Policy Subsequent to Appellate Court Opinion
Remanding Portions of the PCB Regulation
TO: Regional Enforcement Directors and Branch Chiefs
On October 30 1°80, the United States Court of Appeals for the
District of Columbia Circuit issued the attached opinion in the appellate
cnfbrouSht by the Environmental Defense Fund (EOF) against EPA. EDF had
challenged major portions of the PCB rale (44 FR 31514) ssued on May 31.
1979 under the Toxic Substances Control Act. The Court struck down that
portion of the regulation which limited Its application to SO parts per .
KlllS! £ 2V8S! The Court also set aside those portions of th«, rule
which define intact, non-leaking transformers, capacitors and electro-
magnets as totally enclosed uses of PCBs. For a discussion of the 50 ppm
cutoff see Daqes 25-35 of the attached opinion. Enclosed uses are
considered at Lqes 35-40 of the opinion. Those portions of the regulation
relating to totafly enclosed PCB uses and the 50 ppm cutoff were returned
to the Agency by the Court for "further proceedings consistent with this
opinion."
4+ tha or greater should be halted. Civil
penalty complaints already issued are unaffected by the decision. Inspections
-------
-2-
should continue, and additional enforcement cases should be referred to
headquarters for concurrence. In addition, all inspection samples which
show any detectable amounts of PCBs, Including amounts below 50 ppm, should
be retained until further PCB enforcement policy is issued by headquarters.
Enforcement should also continue against the use of PCBs in any detectable
amounts used as a sealant, coating, or dust control agent.
If you have any questions concerning this memorandum, please call
John Lvcn, Chief of the Case Development and Legal-Branch (telephone
755-8317), for additional information.
Attachment
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A \ UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
o WASHINGTON. D.C. 20460
090^
OFFICE OF ENFORCEMENT
MEMORANDUM
SUBJECT: New Requirements for PCB Transformers Pursuant to
Appellate Court Order
TO: Regional Enforcement Directors and Branch Chiefs
, . „ „„„ Ar recent developments 1n the PCB
I want to advise yo Env1ronmental Defense Fund against
appellate case filed by Impose new Inspection and maintenance
EPA. These devel °P"^s wll J pCB transformers beginning
requirements for owners and users
1n approximately two months.
, * u t sent you a memorandum on the October 31),
Last November, I se y s Court 0f Appeals for the District
1980 opinion of the same pee case. That opinion set aside
of Columbia Circuit In 'this latfon (44 FR 31514) wh1ch catego-
those parts of the 19/9 ku .?ops ar)(j electromagnets as totally
rlzed PCB transformers, c p struck down that portion of
enclosed PCB uses. application to 50 parts per
the regulation which limited its aV[>
million or more PCB.
* months, the Office of Enforcement has
During the past about the case with representatlves
participated 1n dlscussl»s office of General Counsel and
of EDF, Industry and the Age j Substances. The discussions
the Office of Pest1c1des a appropriate 1n view of the Court's
have focused on what action ^om these discussions that new
1980 opinion, ^^"^hafnre further rulemaking could begin on
Information was needed oero tranformers, capacitors and electro-
(1) whether uses of PCBs in d ap.proPr1ate regulation
magnets were totally encJ?s®° us
of PCBs at levels below 50 ppm.
J(lH6S asked the Court to allow the 1979
Therefore, the P?r^ffect (categorizing PCB transformers,
regulation to remain in ® as totally enclosed) for eighteen
capacitors and electromagnet ^^ Qn transformer, capacitor
months while 1nform*t'l:"+I!
-------
2
On February 12, 1981, the Court accepted the Inspection and
maintenance program proposed by EPA, EDF and industry. The Court
issued the attached order allowing use of intact, nonleaking PCB
transformers, capacitors and electromagnets to continue for eighteen
months so long as owners and users follow the court-ordered InsDectinn
program. The program is to become mandatory and enforceable sixty
days after publication of the Court's order in the Federal Reaictev.
Publication is now scheduled for early March 1981. —*-—
In the meantime, you may wish to study the Court's order to
become familiar with its terms. The inspection and maintenance
requirements (or interim measures program) Is contained in Appendix
8 to the order. The requirements are in addition to those contained
in the 1979 PCB regulation. Owners of PCB transformers (500 DDm ptr
or greater) and PCB contaminated transformers (between 50 and 500
Ppm PCB) which pose an exposure risk to food and feed products must
inspect such transformers weekly. All leaks must be recorded and
moderate leaks (as defined on page 1 of Appendix B to the order)
must be reported to the appropriate EPA regional office within five
business days. Servicing of the transformer must begin within two
business days. Records must be kept (with required information as
described 1n Appendix B), and these records must be made available
to EPA upon request.
Similarly, all other PCB transformers (500 ppm PCB or greater)
must be inspected every three months. All leaks must be recorded
and servicing as a result of moderate leaks must begin within two*
business days. Records must be kept and are to be made available
for inspection by EPA.
As stated earlier, these new requirements will not b«mn«
effective until sixty days after publication in'the federal
i wtii send you a runner memorandum outlining our enforcement Iftm*
as soon as the Court order is published. enforcement poncy
If you have any questions concerning this memorandum olease
call John W. Lyon, Chief of the Case Development and Legal Branch
(FTS 755-8317), for additional information. " Branch
A. E. Conroy 11/iJTrector
Pesticides and Toxic Substances
Enforcement Division
Attachment
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Otfj £>
IN THE UNITED STATES COURT. OF APPEALS
No. 79-1530 ...
y United States Court ot
FOR THE DISTRICT OF COLUMBIA CIRCUIT
fAL
fw If* Ootrtrt of Cclumbti clit"
ENVIRONMENTAL DEFENSE FUND, INC., FILED FEB 1 2 198J
Petitioner
GEORGE A. FiSHEF
v. cutmc
ENVIRONMENTAL PROTECTION AGENCY",
Respondent
AD HOC COMMITTEE ON LIQUID DIELECTRICS OF THE
ELECTRONIC INDUSTRIES ASSOCIATION,
NATIONAL ELECTRICAL MANUFACTURERS ASSOCIATION,
JOY MANUFACTURING COMPANY,
EDISON ELECTRIC INSTITUTE, et al«, and
ALUMINUM COMPANY OF AMERICA,
Interveners
BEFORE: Edwards and Robinson, Circuit Judges, and Corcoran,
United States District Judge for the District of
Columbia
ORDER
Upon consideration of the joint motion filed by respondent,
petitioner, and certain intervenors on January 21, 1981, to
stay further the issuance of the mandate in this case, it is
ORDERED, by the Court, that the mandate of the Court is
stayed for a period of eighteen months insofar as the decision
of the Court set aside the regulation promulgated by the
u Sitting by designation pursuant to 23 U.S.C. 5292(a) (1976>.
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Environmental Protection Agency (classifying the use of
intact, non-leaking, PCB-containing transformers, capacitors,
and electromagnets as uses of PCSs in a "totally enclosed
manner,") 40 CFR 761.30, 44 Fed. Reg. 31530, 31531, 31548-9
(1979); this stay shall apply only where those claiming the
benefit of the stay comply with any applicable requirements
of the Interim Measures Program attached as Appendix B to
this Order.
Further ORDERED that the mandate of the Court, insofar
as the decision of the Court set aside the regulation promul-
gated by the Environmental Protection Agency defining "PCBs"
(for purposes of the statutory prohibition on further manu-
facture, processing, distribution in commerce, and use of PCBs)
as PCBs in concentrations of 50-parts per million or greater,
40 CFR 761.2(x), 44 Fed. Reg. 31444 (1979), is stayed for the
following periods:
With respect to use of PCBs in
transformers, capacitors, and
electromagnets, for a period of
eighteen months?
With respect to all other manu-
facture, processing, distribution
in commerce and use of PCBs, for
a period of thirty days.
Further ORDERED that Intervenor Edison Electric Institute
undertake the actions set out in Appendix A to this Order.
Further ORDERED that Respondent Environmental Protection
Agency publish in the Federal Register, within three weeks
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-3-
after the date of this Order, an Advanced Notice of Proposed
Rulemaking relating to the use of PCBs in electrical equipment.
Further ORDERED that Respondent Environmental Protection
Agency promulgate a final rule with respect to the use of
electrical equipment containing PCBs within six months
of receipt of the material set out in Appendix A.
Further ORDERED that if the Edison Electric Institute or
the Environmental Protection Agency fails to comply with the
orders of this Court set out above, any party may apply to the
Court for appropriate relief, including the immediate issuance
of the Court's mandate.
Further ORDERED that the parties submit to the Court a
status report on' October 1, 1981.
Per Curiam
FOR THE COURT:
GEORGE A. FISHER
Clerk
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APPENDIX A
PROPOSAL TO SUPPLY SPA WITH INFORMATION FOR RULEMAKING
ON USES OF PCBS BY THE ELECTRIC UTILITY INDUSTRY
INTENT TO PROVIDE INFORMATION
To assist EPA in the development of an adequate rule-
making record for the regulation of PCBs, USWAG will retain inde
1/
pendent contractor(s), acceptable to EPA ana EDF, to conduct
y
a study on current PCB usage in utility equipment. -This study
will address the effects of the use of PCB-containing equipment
on human health and the environment. It is expected that data
will be supplied on: types of electrical equipment? leakage
phenomena, including the incidence and magnitude of leaks;
feasibility of containment, inspection and maintenance; and
feasibility of transformer, and capacitor phase out. Addi-
tionally, several other areas of inquiry will be included,
such as the impact of a regulatory cutoff above or below 50
ppm? the health effects of PCBs; a pathway analysis for PCBs
that may be released into the environment from electrical
systems; nonelectrical materials potentially containing PCBs;
and viable substitutes for PCBs. Finaily, an overall economic
1/ To insure the timely commencement of the study, EPA and
"" EDF will promptly respond as to the acceptability of the
contractor(s) proposed.
2/ Other uses of similar equipment by other industries may
~~ vary and for this reason will not be covered. In addition,
other equipment containing PCBs, such as small capacitors,
that is used more,broadly throughout the industrial, com-
mercial and residential sectors will not be included.
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analysis would be developed to reflect both costs incurred to
date to comply with the TSCA-PCB regulations as well as the
3/
incremental costs of new regulatory approaches.
It is contemplated that the study will be completed
vithin nine months and portions of it will be submitted to EPA
1/
prior to that time. If it appears that USWAG will be unable
to complete Tasks 1 through 4 below within nine months despite
good faith efforts to do so, it may request of EPA and EDF
an additional period of up to three months for'its work.
EPA and EDF will not unreasonably withhold their consent to
such extension, after considering USWAG's efforts to date
and the circumstances which USWAG believes necessitate the
extension.
3/ Tn addition to the information contained in the study, USWAG
reserves the right to submit to EPA such other studies, in-
formation, and data -(e.g.., problems of testing and develop-
ment of testing protocols) as USWAG believes are necessary
qj. appropriate to further rulemaking.
4/ Since some brief period of time will be necessary to
encage consultants and develop sampling protocols fol-
lowing acceptance of the scope of work by the parties,
the study period should commence no later than two
months following the issuance of a stay of mandate by
the Court. It is contemplated that Task 1 would be
completed'within three months of the commencement of
the studv and Task 2, with respect to PCB Capacitors
and PCB Transformers, would be completed within six
months of the commencement of the study.
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- 3 -
SCOPE OF THE INFORMATION GATHERING EFFORT
The scope of information gathering will be divided into
several discrete tasks, as set forth below.
1. Compilation of a complete listing of all types of electrical
equipment that contain mineral oil or other fluid containing
PCBs.
The first task will be to list and quantify such equip-
ment, describe its use, geographical location," and distribution
of ranges of PCB concentrations. Descriptions of equipment main-
tenance procedures and of measures taken for .worker protection
also will be provided. The inventory of equipment will include:
transformers, capacitors, electromagnets, electrical switches,
voltage regulators, and underground cable systems as well as
any other utility equipment identified as containing PCBs. A
complete narrative on each category of equipment will be pro-
vided covering its function, configuration- and chemical content.
2* Frequency of leaks or ruptures.
For purposes of the study, "leak" will be defined quan-
titatively. Leaks may be described as small, as moderate or as
6/
ruptures." Small leaks include all instances in which a PCB
Article has any PCBs on any portion of its external surface, but
*/ ceooraohical location shall include not only various geo
Graphical regions of the United States but also various
types of terrains (e.£., deserts, swamps, near or over
waterways).
6/ Further differentiations of leaks may bo necessary.
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y
no PCBs have run off the surface of the PCB Article. Moderate
leaks include instances in which a leak results in any quantity
of PCBs running off the surface of the PCB Article. Initially,
ruptures will mean leaks causing immediate cessation of equipment
functio-n, although other definitions may be applied. For each
type of electrical equipment, an attempt will be made to deter-
mine the frequency of leak or rupture, the volume of liquid
lost, equipment type* and geographical location. These leaks
may conform to a frequency distribution of magnitude according
to different variables. Equipment type, geographic location,
age and electrical loading (to the extent data are available)
are factors to be evaluated. The relationship between equip-
ment failure and subsequent leaking will be studied.
3. Feasibility of a program to contain, inspect and maintain
different electrical.equipment items.
This task will- be to identify a number of inspection
and maintenance programs and to provide cost estimates and tech-
nological feasibility evaluations with respect to each program.
Variables to be considered may include electrical equipment type,
geographical location, and potential for exposure to different
concentrations and quantities of PCBs. At a minimum, the follow-
ing programs shall be evaluated:
7/ "PCB Article" is defined at-40 C.F.R. 5 761.2(t).
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(a) A program to provide complete containment
of any PCBs which might leak from each
category of electrical equipment identified
in Task 1.
(b) A program to inspect visually, at various
frequencies ranging from weekly to annual-
ly, all items within each category 'of elec-
trical equipment for leakage and to correct
all moderate leaks detected,.
4, Feasibility of a phase-out program for transformers and
capacitors.
The approach to this effort will be similar to* the
feasibility of inspection, maintenance and containment as de-
8/
scribed above. Alternative approaches will be assessed, in-
cluding the following:
(a) 2, 5, 10 & 20-year phase outs of PCB Transformers;
(b) 2, 5, 10 & 20-year phase outs of PCB-Contaminated
Transformers;
9/
(c) 2, 5, 10 i 20-year phase outs of PCB Capacitors.^
In this aspect of the study, the availability of replacement equip-
ment and liquids will be examined, as well as their suitability,"^
8/ The evaluation will also reflect the viability of substi-
~ tutes.
9/ The time frames will be measured from January 1982.
10/ For example, it may be necessary to assess the toxicitv and
flammability of substitute fluids,, in addition to developing
data on the availability of equipment and raw materials.*
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the availability of storage and disposal facilities, and the fea-
sibility of reducing or eliminating PCB concentrations by retro-
filling."7 An attempt also will be made to analyze the effect
an increased demand for replacement equipment may have on prices.
5. Literature Search*
A comprehensive literature search and review of the
health effects of PCBs will be undertaken and an attempt will be
r-f
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- 7 -
7. Non-electrical svstejr sources of PCBs,
The study will also seek to determine the risks and
benefits of permitting the continuation of certain non-enclosed
uses of PCBs, such as burning of fuel oil.
SAMPLING PROCEDURES
The study must reflect a' statistical approach that assures
a high degree of confidence in the validity of the results.
SPA AND EPF REVIEW
It is contemplated that EPA, EDF, tJSWAG and the contractor
performing the study will meet for progress reports periodically
and with sufficient frequency- to keep EPA and EDF abreast" of the
progress of the study. EPA and EDF/ at their own expense, will
have the right to review all underlying data generated in co.anec-
tion with the study. It is understood that identification of par-
ticular companies, facilities and locations may be masked. While
it is not anticipated, review of the ongoing study may result in
the need for additional information or for the refocusing of cer-
tain portions of this study. Such revisions may result in an
extension of the complstion date as set forth above.
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APPENEIX b
INTERIM MEASURES PROGRAM
This document describes the interim measures required
for all owners and users of PCB Transformers and certain owners
and users of PCB-Contaminated Transformers who wish to continue
to use/ or store for reuse# transformers containing PCBs while
EPA conducts further rulemaking with respect to PCB uses which
the Agency previously had designated as "totally enclosed."
To continue to use transformers containing PCBs during this
interim period# owners and users of this equipment must comply
with the requirements set forth in this document within sixty
days after the publication by EPA of the Federal Pegister Notice
announcing the Interim Measures Program or within ninety days
after January 21, 19B1 (the date of filing the Joint Motion
for Further Stay of the Issuance of the Mandate)# whichever is
later.
I. nefinitions:
The following definitions apply to this document. The
definitions which are part of EPA's PCB Ban Rule# 40 C.F.R. part
761, also apoly to this document unless they are inconsistent
with the definition^ set forth below,
A. "leak" means any instance in which a PCB Unit
has any PC3s on any portion of its external surface.
a. "moderate leak" means any leak which results in
anv ouantity of PCBs running off or about to run off the external
surface of the PCB CJnit.
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- 2 -
C. "PCB Unit" means any PCB Transformer or PCB-
Contaminated Transformer in use or stored for reuse.
D. "posing an exposure risJc to food and feed pro-
ducts'' means any potential exposure or food and feed products
to PCBs as defined below. PCB Units used by federally inspected
meat, poultry product, and egg product establishments, as well as
facilities manufacturing, processing, packaging or holding human
food or animal feed, but excluding retail establishments such as
grocery stores and restaurants, are considered to pose an expo-
sure risk to food and feed products, unless the PCB Unit is in
a location such that a discharge of the dielectric fluid cannot
contaminate the food and feed products or processes,
E. "servicing" means repairing and cleaning or re-
placing the PCB Unit to eliminate the source of the leak. Cleaning
of the PCB Unit means removing any unsolidified dielectric fluid
on its external surface.
P. "visual inspection" means to investigate for any
leaJc of dielectric fluid on or around the PCS Unit. A visual in-
spection should not require an electrical shutdown of the PCB
Unit being inspected. The extent of the visual inspection will
depend on the physical constraints of each PCB Unit installa-
tion.
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and feed products shall notify the owner of the PCB Unit that
the unit poses an exposure risk to food and feed products. If
the user fails to notify the owner, the. user is responsible for
the inspection, recordkeeping, reporting and servicing of the
PCB Unit as set forth below.
The owner of a PCB Unit posing an exposure risk to
j «hall perform the following activities:""
food and feed products shaiJ.
A A visual inspection of each PCB Unit posing an ex-
m and feed products shall be performed at least
posure risk to food ana f
once every week.
B All leaks shall be recorded. All moderate leaks
^ j i-he appropriate EPA regional office within
shall be reported to tne v
f^ojn the date the leak is observed. If a
five (5) business days
a t-n have a moderate leak, servicing is required
PCB Unit is founa co
of the PCB Unit is not the owner of the food
y If.t5LdWestablishment, the owner of the PCB Unit shall
and ceea to perform the inspections required in
have no 001 g untii the owner is notified by the establish-
this sectio t establishment is a food and feed facility or
men?, owner of the PC3 Unit has other knowledge that
until rJIlishBent is a food and feed facility. To inform
the estao establishments of the necessity of notifying
food ana - Units used at their establishments, utilities
owners oc w their comntercial and industrial cus-
undertax ann0uncement requesting food and feed establish-
tom! to contact the utility or other owner of the PCB
mencs
Unit.
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- 4 -
and must commence within two (2) business days from the date
the leak is observed.
C. Records, containing inspection/servicing history,
with respect to all PCB Units posing an exposure risk to food
and feed products shall be maintained for a period of three
years and shall be made available for inspection, upon request,
by EPA. Such records shall contain the following information
for each PCB Unit:
(1} its location;
(2) the date of each visual inspection made of
the Unit, together with an identification of
the person performing the inspection;
(3) all leaks observed in the Unit, together with
the date observed, and whether the leak was a
moderate leak; and
(4) a description of all servicing performed
on the Unit commencing as of the date the
Unit is first inspected pursuant to these
Interim Measures, together with the date
of such servicing.
*
D. Reports to EPA regional offices shall be in writ-
ing and shall contain the location of the PCS Unit involved, the
date the moderate leak was observed, an estimate of the extent
of the leak and a description of the servicing performed,
including the date(s) of the servicing performed.
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III. The following procedures must be followed with resoect
to all PCB Transformers in use or stored for reuse
posing no exposure risk to food ana feed products '(all
PCB Transformers not covered in section II):
Owners of PCB Transformers in use or stored for reuse
posing no exposure risk to food and feed facilities shall per-
form the following activities:
A. A visual inspection of each PCB Transformer posing
no exposure risk to food and feed products shall be performed at
least once every three months.
B. All leaks shall be recorded. If a PCB Transformer
is found to have a moderate leak, servicing is required and
must commence within two (2) business days from the date"the
leak is observed.
C. Records, containing inspection/servicing history,
with respect to all PCB Transformers in use or stored for reuse
shall be maintained for a period of three years and shall
be made available for inspection, upon request, by EPA. Such
records shall contain the following information for each PCB
Transformer:
(1) its location;
(2) the date of each visual inspection made of
the PCB Transformer, together with an identi-
fication of the person performing the inspec-
tion;
(3) all leaks observed in the PCB Transformer, to-
gether with the date observed, and whether the
leak is a moderate leak; and
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a description of all servicing performed
on the PCB Transformer commencing as of the
date the PCB Transformer is first inspected
pursuant to these Interim Measures, together
with the date of such servicing.
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