EPCRA Enforcement - ChemicalRight2Know

EPCRA Enforcement
Trends, Developments and the
EPCRA Penalty Policy
I. Background
 Bhopal, India incident
II. EPCRA Is Spelled “E”nforcement
 Why?
 Public reaction to chemicals is emotional
 Emergency Planning is an important element
in the Congressional intent
 Community Right-To-Know means access to
timely and accurate data
 EPA really uses TRI data
 Emergency Planning is an important statelocal-national priority
III. EPA’s National Priorities
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Pollution Prevention
Protection of Whole Ecosystems
Building Partnerships
Environmental Justice
IV. Pollution Prevention: The New
Environmental Ethic
 Pollution Prevention Policy Statement
 Definition
 Regulations and Compliance
 Public Information/The Right-To-Know
V. EPCRA & The Toxics Release
Inventory
 The broadest regulatory net ever cast by
Congress
 Community Right-To-Know;
 SIC Codes 20-39…
 10 employees or more…
 One or more of 500+ chemicals…
 Right-To-Know More…and More???
V. EPCRA & The Toxics Release
Inventory cont’d
 EPA uses TRI Daily
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To measure reductions
Improved targeting
Negotiation leverage
Pollution prevention settlements
 Toxics in the Community – Looking at the
Big Picture
VI. EPCRA & The Enforcement Process:
Current Status & Trends
 250+ Administrative Law Judge decisions
suggest few defenses are available to violators;
Genicom Corporation upheld penalty
calculation; no need to show “off site” risk or
actual harm; failure to report can be a
continuing violation. [Environmental Appeals
Board ruling: December 15, 1992]
VI. EPCRA & The Enforcement Process:
Current Status & Trends cont’d
 All regions laboratories appeals fail at both
district and appellate courts; $89,000 fine for
failure to report chlorine release
 Citizen groups can enforce EPCRA; Atlantic
States Legal Foundation v. Whiting Roll-Up
Door Manufacturing Corporation; Federal
District Court for the Western District of New
York
VI. EPCRA & The Enforcement Process:
Current Status & Trends cont’d
B U T……..
 Citizens for a Better Environment v. The
Steel Company 523 US 83 (1997)
VI. EPCRA & The Enforcement Process:
Current Status & Trends cont’d
 Some additional decisions:
 Clarksburg Casket Company. OK to use EPA
Penalty Policy to calculate fine. [Environmental
Appeals Board ruling: July 16, 1999]
 Steeltech, Ltd. OK to use EPA Penalty Plicy to
calculate fine. [Environmental Appeals Board
ruling: August 26, 1999]
VI. EPCRA & The Enforcement Process:
Current Status & Trends cont’d
 While EPA is willing to litigate, it will want to make
it easy to settle. When facing an EPA enforcement
action:
 Recognize that you will be required to pay a substantial
base civil penalty
 That pollution prevention, source reduction or
environmentally beneficial expenditures may be negotiated
to reduce the proposed penalty
 “Good faith” means compliance in the future; failure to
comply with EPCRA or other statutes might mean
initiation of criminal proceedings
VII. Federal Facility Requirements of
Executive Order 12856
 Submit EPCRA 313 Data to the Toxic Release Inventory
 Submit Emergency Planning Notification under 302 of
EPCRA to Local Emergency Planning Committee and State
Emergency Response Commissions
 Submit information for the preparation of the Comprehensive
Emergency Response Plan under 303 of EPCRA to LEPC
 Submit Material Data Safety Sheets under 311 to LEPC,
SERC and local fire department
 Annually submit an Emergency and Hazardous Chemical
Inventory Form under 312 of EPCRA to SERC, LEPA and
local fire department
 Provide Emergency Release Notification and Written followup notice for Releases of an Extremely Hazardous Substance
or Hazardous Substance under 304 of EPCRA to SERC and
LEPC
http://www.epa.gov/tri/
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