EPA Updating Policies on Enforcement, Penalties for Violations of Chemical Rules

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By Pat Rizzuto

The Environmental Protection Agency is revamping its penalty policies to ensure fines consider economic benefits chemical manufacturers reap from violations of the Toxic Substances Control Act, the director of EPA's chemical enforcement office said Sept. 19.

The agency is working to increase the consistency of enforcement actions conducted throughout its regions and divergent regulatory inspections, said Rosemarie Kelly, director of waste and chemical enforcement.

EPA is issuing more subpoenas to gather information needed for TSCA inspections, Kelly told participants at an American Bar Association committee's briefing. ABA's Pesticides, Chemical Regulations & Right to Know Committee hosted the enforcement briefing.

Guidance the agency is preparing for its regions will encourage them to increase their TSCA enforcement activity by offering resources and expertise from headquarters, Kelly said.

Agency Anticipates Fewer Settlements

In response to such efforts, EPA anticipates fewer of its enforcement cases will be settled, she said. “About 98 percent of [TSCA] cases are settled now. I think that will change.”

Kelly said she expects an increase in the number of enforcement actions that chemical manufacturers challenge. Most of those challenges come before the agency's Environmental Appeals Board rather than federal courts, she noted.

EPA is referring more TSCA cases to the Department of Justice, Kelly said. “We're getting two to three DOJ attorneys up to speed on TSCA.”

As it did with the Federal Insecticide, Fungicide, and Rodenticide Act in 2009, EPA is revising its penalties policy for TSCA to reflect financial benefits companies may have obtained by violations of that law, Kelly said.

EPA expects to issue an updated TSCA Enforcement Response Plan by the end of fiscal year 2012, Kelly said.

Similar updates in enforcement penalties for other environmental statutes such as the Clean Air Act are also under way, she told BNA.

Pursuing ‘Illegal Profits.'

Economic benefits companies can obtain are avoided costs from not complying with regulations and “illegal profits,” Kelly said.

For example, if a company sells a new chemical that should have been submitted to EPA for review, but which it did not submit, that company would profit from the sales of that new chemical, she said.

TSCA distinguishes between existing chemicals and new chemicals. Existing chemicals are compounds that are on the TSCA inventory of compounds that are or have been made or sold in the United States. New chemicals are not on that inventory. The law requires that new chemicals be reviewed by the agency before they are manufactured.

“Finding non-filers is not the easiest thing to do,” Kelly said, referring to manufacturers who should have filed a premanufacture notice, or PMN, with EPA before they manufacture a new chemical.

But information the agency obtains from competitors is often helpful, she said.

‘Fractions’ May Be New Chemicals

EPA inspectors also are looking for “fractions” of chemicals, Kelly said.

A chemical fraction refers to a shorter version of a chemical that is listed on the TSCA inventory.

The fraction may not be on the inventory, and it may have different toxicological and environmental effects than the larger compound, Kelly said.

As it has inspected manufacturers and importers of short-chain chlorinated paraffins, EPA has found examples of “fractions” that should have been reported as new chemicals, Kelly said. Short-chain chlorinated paraffins are persistent, bioaccumulative, and toxic to aquatic organisms at low concentrations.

In response to an action plan issued in December 2009, EPA is considering a variety of rulemakings to manage concerns it has about these chemicals (195 DEN A-11, 10/12/10).