EPA Enforcement Policies and Procedures

The EPA established policies and procedures for calculating the amount of civil penalties for TSCA violations. It maintains a series of Enforcement Response Poficies (ERPs) covering each of the sections of the TSCA statute and describing in great detail how the EPA used a multitude of factors to determine the severity of each type of violation and what the appropriate monetary penalty should be. 

The ERPs only come into play once the EPA has learned of a violation, either through self-reporting, an EPA inspection, or a whistleblower. To encourage companies to self-report potential violations, the EPA issued its Incentives for Self-Policing Discovery, Disclosure, Correction, and Prevention 

Most companies begin their analysis of the potential ramifications that could follow a TSCA violation by determining if they meet the Audit Policy criteria for complete penalty mitigation. If they do meet all of the criteria, then the dollar value of the potential penalties that they have avoided becomes an academic question. However, the Audit Policy assumes familiarity with some of the terms in the ERPs, and so it is helpful to discuss the ERPs first. 

The ERPs are also important if the Audit PoHcy only provides a reduction in penalty, instead of complete penalty mitigation. 

The EPA adopted ERPs for each of the major TSCA provisions. There is an ERP that apphes to violations of 4 test rules as well as one that applies to the Good Laboratory Practice rules estabhshed under one for 8, 12 and 13 adverse effect reporting and imports and exports, one for 5 including the premanufacture notification rules, one for PCBs, two for lead, and one for asbestos.  

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EPA has indicated that it will not take enforcement actions against individuals related to their exercise of personal responsibility for reporting imder TSCA 8(e) if their employers implement compliance policies and procedures to ensure reporting of substantial risk information. In order to provide that protection to officers and employees, companies must have a policy and procedure for channeling substantial risk information to the person responsible for reporting that information directly to EPA, and a procedure for company processing of substantial risk information. ... 

A model policy and procedure designed to meet the minimum requirements for qualifying for the EPA policy is located in Chapter 20, Practice Tools. The EPA does not have the authority to absolve individuals of criminal Hability or HabiHty for violation of the clear language of the statute, but the guidances provide a valuable statement of the EPAs intent to exercise discretion in civil enforcements and referrals to the Department of Justice for criminal prosecution. 

EPA has said it will not enforce TSCA 8(e) obligations against individuals if their employers have adopted and implemented a policy and procedure for employee submission and company processing of substantial risk information. 

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