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By Pat Rizzuto
Nov. 18 — Information-forcing provisions of the amended Toxic Substances Control Act increase the situations in which the Environmental Protection Agency could charge a company with criminally concealing chemical risk data and violating the law, an EPA attorney said Nov. 18.
The amendments, however, increase the burden of proof on the agency to establish whether concealment, alteration or destruction of chemical risk data are criminal violations, John Gregory, senior counsel with the EPA’s Office of Criminal Enforcement told an American Bar Association committee.
What position the Trump administration will take on the amended chemicals law or its enforcement is unknown, said Mark Garvey, a senior attorney with EPA’s Office of Civil Enforcement.
“We’re as interested as you in finding out what that will be,” Garvey told the American Bar Association’s Pesticides, Chemical Regulation and Right-to-Know Committee during a policy briefing.
Gregory said Congress added a felony penalty to TSCA allowing the EPA to seek higher-than-typical penalties for violations that pose an imminent danger of death or serious bodily injury.
The language in that provision, however, “ratchets up the government’s burden to show that the defendant generally understood the unlawfulness of [the] action” even if they don’t know the exact law at issue, he said.
The Frank R. Lautenberg Chemical Safety for the 21st Century Act (Pub. L. No. 114-182), which amended TSCA on June 22, increased the authority the EPA has to order chemical manufacturers and processors to provide toxicity and other data about their chemical, Gregory said. Concealing, altering or destroying data could result in criminal violations of TSCA, he said.
Similarly, if companies reviewing their data uncover substantial risk information they should already have provided the EPA, they need to communicate with the agency in accordance with Section 8(e) of TSCA, Gregory said.
The EPA could pursue criminal violations under a TSCA Section 16 criminal penalty provision that authorizes the EPA to pursue misdemeanor charges against an individual or company that knowingly or willfully violates the law, he said.
That provision is essentially the same under the original and amended law, except the amendments doubled the maximum criminal fines from $25,000 to $50,000, Gregory said.
“The second, and arguably more important update, is the addition of a new felony endangerment provision,” Gregory said.
The amendments added the provision for situations in which an individual or company causes “imminent danger of death or serious bodily injury,” he said. The maximum fine for an individual found guilty of such a criminal violation is $250,000, or imprisonment of up to 15 years, or both.
An organization that commits a violation may be fined up to $1 million, he said. The Lautenberg Act’s provision is nearly identical to the knowing endangerment criminal penalty provisions of the Clean Air Act, Clean Water Act and Resource Conservation and Recovery Act, he said.
The U.S. Supreme Court has interpreted the knowing endangerment standard to mean the government must prove beyond a reasonable doubt that the defendant was aware of the facts that constitute the offense and knowingly chose to act unlawfully, Gregory said.
The defendant doesn’t have to know the specific law being violated, but must be aware of engaging in something unlawful, he said. The person or institution’s conduct must be voluntary and intentional and not a mistake, accident or the result of negligence, Gregory added.
The burden of proof in the final version of the Lautenberg Act differs, however, from the burden the government faces under the air, water and waste acts, he said.
Those laws require the government to prove the defendant knew the actions were unlawful, Gregory said.
The Lautenberg Act requires the government to prove the defendant knew the actions were illegal and willfully violated the law, he said.
The imminent endangerment provision’s requirement that the government prove the defendant “knowingly and willfully” violated the law differs from the standard in the misdemeanor provision, which requires the government to prove the defendant either knowingly or willfully violated the law, he said.
“This is a significant departure; this increases the burden on the government,” Gregory said.
John Gibson—as an assistant attorney general for New York State—analyzed the knowing endangerment provision of the Clean Air Act in a 2011 article in the Fordham Environmental Law Review. In some situations, the Clean Air Act requires the government to prove a violation was both knowing and willful, he wrote. That dual burden of proof “is often insurmountable,” Gibson wrote.
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