Criminal Enforcement

As of 2009 the maximum daily civil penalty for all TSCA violations, except those dealing with certain asbestos violations, is 37,500. Section 16 of TSCA provides that a person who violates TSCA is liable for penalties of up to 25,000 per day for each violation. However, after TSCA was enacted 

Congress passed the Civil Penalties Inflation Adjustment Act of 1990, which required each federal agency to adjust its maximum penalties to maintain a deterrent effect in the face of inflation. As required by that legislation, EPA increased the daily maximum penalties to 27,500 effective after January 30, 1997, and again to 32,500 effective March 15,2004, and again to 37,500 effective January 12,2009. The Debt Collection Improvement Act requires penalty adjustments every four years and so another increase should be forthcoming in 2013. When calculating penalties it is important to use the maximum penalty that was in effect at the time of the violation.  

The statute requires a hearing under the Administrative Procedure Act if the company or person that the EPA proposes to penalize asks for one. The EPA must give fifteen days notice of the right to request a hearing before it issues a final order. The EPA has promulgated Consolidated Rules of Practice for civil penalty assessments that is a procedure manual for all civil TSCA penalty assessments. The Consolidated Rules of Practice governs hearings and appeals to the EPA s Environmental Appeals Board. 

Once the EPA issues an order after a hearing, the losing party can appeal to the Federal Circuit Court for the District of Columbia, or any other Circuit 

500 - 596. It mandates uniform procedures among the various executive agencies for rulemaking, hearings, agency adjudications and administrative appeals. 

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Both the FDA and the U.S. Department of Justice have ongoing criminal enforcement actions against GHB. As of 2000, the government had investigated 850 incidents involving GHB, including 124 cases of large-scale interstate manufacture and distribution of GHB, 150 clandestine laboratories, and 500 seized and analyzed laboratory exhibits. There have been more than 33 GHB-related convictions. 

Criminal enforcement of the Substitution Principle is a contentious issue. While the principle can be criminally enforced according to the Environmental Code, criminal enforcement is difficult to use in practice, and so far no one has been charged because he did not substitute chemicals. There has however been at least one case where the environmental authorities have reported a suspected crime based on the fact that a substitution was not made (Kemikalieinspektionen, 1997). Criminal enforcement is still useful as a potential threat. It can be used in a situation where it is easy to prove that the user was aware of the risk of a substance and that there were alternatives. This would typically be the case when the authorities have informed the user of the toxicity of the chemicals used and that substitution possibilities do exist. 

US Environmental Protection Agency Criminal Enforcement Activities... 

Criminal Enforcement of Environmental Laws, Pages 680-684, Grant R. Trigger SummaryPlus Full Text + Links PDF (76 K)... 

In Canada it is a criminal offence to fail to comply with the legislation for drug advertising, and this falls under the jurisdiction of the Minister of Health. It is punishable by 6 months imprisonment and/or a fine of up to CDN5000. However, because of the Minister s power to refuse drug licences or create regulatory difficulties for non-compliant drug manufacturers, criminal enforcement of the rules is infrequent. 

EPA, Office of Enforcement and Compliance Assurance, Office of Criminal Enforcement, Forensics and Training, Compliance-Focused Environmental Management System—Enforcement Agreement Guidance, EPA-330/9-97-002, as revised through June 2005, available at www.epa.gov/compliance/resources/publications/incentives/ems/... 

EPA has committed to aggressively go after pollution problems through vigorous civil and criminal enforcement that targets the most serious water, air, and chemical hazards. ... 

The criminal enforcement record of both agencies was unimpressive throughout the entire Laissez Faire Revival. Criminal prosecutions for willful violations of OSHA standards were exceedingly rare, even in cases in which multiple workers were killed. From 1982 to 2002, the Department of Labor referred only 7 percent of OSHA s 1,242 criminal investigations to the Justice Department for prosecution. Between 2003 and 2007, MSHA referred a total of 16 violations to the Justice Department. In stark contrast, a single Kentucky U.S. Attorneys office on its own secured 112 convictions against mining companies between 1992... 

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