Enforcement under TSCA

Chemical exporters are potentially subject to Section 12(b) of TSCA. EPA s TSCA Section 12(b) export notification requirements apply to chemical substances or mixtures for which data are required under TSCA Section 5(b), an order has been issued under TSCA Section 5, a proposed or final rule has been issued under TSCA Sections 5 or 6, or an action is pending or relief has been granted under TSCA Sections 5 or 7. With regard to Section 4 of TSCA, only those chemical substances or mixtures listed in final TSCA Section 4 test rules and TSCA Section 4 Enforceable Consent Agreements are subject to the export notice requirements under TSCA Section 12(b). Notification of export is generally not required for articles, as provided by 40 CFR section 707.60(b). 

The enforcement response poKcy appKcable to 12 and 13 is entitled The Enforcement Response PoKcy for Reporting and Recordkeeping Rules and Requirements for TSCA Sections 8,12 and 13 (the Reporting Rule ERP). Under this poKcy, the EPA may seek civil penalties, refer a violation for criminal penalties under TSCA 16, seek to enjoin a violation, issue a Notice of Noncompliance if the violation was minor, or a combination of these. 

EPA has announced that while its priority is the passage of a more effective chemical management statute, it will work more actively with the tools available to it under TSCA ( 4, 5, 6, and 8) to require information needed to understand the risks posed by chemicals, to develop chemical action plans for high risk chemicals, and to regulate those risks. It is likely that this new emphasis on a more regulatory and less voluntary approach will be accompanied by a greater emphasis on enforcement. 

In addition, citizens can bring private enforcement actions under TSCA 20, and can petition the EPA to issue, amend, or repeal a rule or order under 21. 

While EPA may seek broad forms of mandatory injunctive relief under TSCA, private plaintiffs can only seeka restraint of ongoing violations. Additionally, private plaintiffs cannot enforce the penalty provisions as a method for recovering compensatory damages. ... 

C. Interplay between Private Enforcement Options Under TSCA... 

The EPA has enforcement policies applicable to the different types of violations possible under TSCA. Each of these enforcement policies contains provisions on miti ting penalties. The seller should consult the relevant enforcement policy in the event that it does not qualify for relief under the Audit PoUcy. See Chapter 14, Penalties and Enforcement for a discussion of the EPAs enforcement pohcies. 

EPA, Office of Enforcement CompKance Assurance EPA 305-8-99-001 Introduction to the Chemical Import Requirements of the Toxic Substances Control Act (June 1999) Import Introduction 7-99 Question and Answer Summary, EPA Seminar on Industry ObUgations Under TSCA, OTS Existing Chemicals Division (May 5,1987) Industry Obligations QA 5-87... 

The Toxic Substances Control Act (TSCA) is intended to control new or existing chemicals that may present unreasonable risks to human health or the environment. In 1976, Congress enacted this statute to fill gaps in chemical control not covered by other laws and agencies, such as the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA), the Food and Drug Administration (FDA), and the Occupational Safety and Health Administration (OSHA). TSCA is not intended to overlap other laws that already regulate specified chemical uses. TSCA authorizes EPA to administer and enforce the mles it develops under TSCA. 

Despite its low profile in the EPA, TSCA fines collected for violation of this complex scheme of chemical regulation have often exceeded those collected under the Resource Conservation and Recovery Act, the Comprehensive Environmental Response, Compensation and Liability Act, the Clean Air Act and the Federal Water Pollution Control Act. Much of this enforcement is centered on the information collection and reporting requirements of TSCA. Mixtures are not chemical substances under TSCA however, all ingredients within a mixture can be defined as chemical substances. Articles are not considered chemicals under TSCA. The incorporation... 

One state commenter disagreed with EPA s proposed approach and requested that EPA authorize state, territorial, or tribal programs that incorporate only the training, certification, accreditation, and work practices of this final rnle becanse TSCA section 404 allows states to administer and enforce the standards, regulations, or other reqnirements established under TSCA section 402 or TSCA section 406, or both. EPA agrees with this commenter s reading of TSCA. Therefore, this final rule provides for the authorization of state, territorial, or tribal programs that inclnde either the pre-renovation edncation... 

Because the microorganism regulations were issued imder TSCA 5, the Enforcement Response Policy (ERP) for 5 applies to any violation of the microorganism rules governing MCANs and TERAs. Violations of the substantial risk reporting provisions of TSCA and the import and export regulations would be penalized under the ERP for 8, 12 and 13. Similarly, each type of violation would be penalized under the corresponding ERP applicable to traditional chemicals. 

In passing 20 of TSCA, Congress built on the success of the private attorney general concept embodied in the CAA and other statutes that predated TSCA, and reaffirmed that individuals could play an important role in enforcing environmental legislation by bringing suit to protect the public interest if the Administrator of the EPA was lax in carrying out his duties under the Act. ... 

The ERA can seek injunctions under AHERA if a violation poses an imminent and substantial endangerment to human health or the environment. Most of the enforcement options available for non-asbestos violations are also available for asbestos violations. For example, TSCA 16 authorizes the... 

Most states have their own lead programs which have been authorized by the EPA and supplant the lead-based paint activities rule in subpart L. ° States and tribes may seek authorization under the Renovation, Repair, and Painting Rule in addition to the lead-based paint activities rule of Subpart L. Section 404 of TSCA ° requires state programs to be at least as protective as the TSCA program before the EPA can authorize them. In those jurisdictions where the state or tribal program has not been authorized by EPA, both the federal and state or tribal programs will be in effect. States and Tribes may become authorized by the EPA to administer and enforce the renovation... 

Enforcement Response Policy for Test Rules Under Section 4 of the Toxic Substances Control Act (May 28,1986), available at http //www.epa.gov/ compliance/resources/policies/civil/tsca/tscasec4ruleserp-052886.pdf... 

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