$2.57 Million Elementis Penalty Reversed In Decision on Hexavalent Chromium Study

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By Pat Rizzuto

March 16 — A $2.57 million fine against Elementis Chromium Inc. has been reversed by a final order by the Environmental Protection Agency's Environmental Appeals Board.

Elementis was not required to submit a study that showed workers exposed to hexavalent chromium faced an increased risk of lung cancer, because the agency already knew that lung cancer could result at a lower cumulative dose, the board said in an order posted online March 16.

Chemical manufacturers are required to file adverse effects information, known as substantial risk notifications, when the information pertains to a previously unknown effect or when an effect is more serious than previously known, the board said. It cited EPA guidance as to when Section 8(e) of the Toxic Substances Control Act requires chemical manufacturers to file substantial risk notifications.

If Elementis's worker study had been reportable—meaning it should have been submitted in accordance with Section 8(e) of TSCA—the company's violation of the law would have constituted a continuing violation for which fines accrue each day the obligation to provide the information remains unfilled, the board said.

Elementis claimed it was not required to submit the report. It also argued that the agency did not file its complaint until 2010, which was after the five-year statute of limitations had expired.

Because violations of TSCA 8(e) are continuing, the statue of limitations did not apply, the board said.

Exemption for Reporting 

The good news for chemical manufacturers is that appeals board judges Leslye Fraser and Kathie Stein wrote a well-reasoned opinion that concluded the study at issue supported well-established information already known to the agency and, therefore, fell within the exemption from reporting, Lynn Bergeson, managing partner of Bergeson & Campbell PC, told Bloomberg BNA by e-mail.

The ruling, however, confirms “once again, that EPA takes TSCA Section 8(e) extremely seriously and while compliance with all of TSCA is important, special attention needs to be devoted to TSCA Section 8(e) reporting obligations,” she said.

Neither of the attorneys who represented Elementis—Ronald Tenpas, with Morgan, Lewis & Bockius, LLP, nor John McAleese with McCarter & English, LLP—could be reached immediately March 16.

Study on Worker Mortality Rate 

At issue was an industry-funded study on the mortality rate of workers exposed to hexavalent chromium. The study showed workers faced significant lung cancer risks. Elementis obtained the information Oct. 8, 2002, but did not provide it to the agency until Nov. 17, 2008, when the company submitted the study in response to an EPA subpoena. The agency fined Elementis $2.57 million in 2013 for failing to disclose that information.

Elementis argued that it was not obliged to submit the occupational study for many reasons, including that it confirmed information the EPA already had about the carcinogenic risks of hexavalent chromium.

Although they disagreed with many points Elementis raised about its study, the judges concluded it was not reportable.

To contact the reporter on this story: Pat Rizzuto in Washington at prizzuto@bna.com

To contact the editor responsible for this story: Larry Pearl at lpearl@bna.com

The Environmental Appeals Board order is available at http://op.bna.com/env.nsf/r?Open=prio-9untjn.