Amicus Curiae Brief — Steel Co. v. Citizens for Better Environment

Supreme Court Of The United States

OCTOBER TERM, 1996

THE STEEL COMPANY, a/k/a

CHICAGO STEEL AND PICKLING COMPANY,

Petitioner,

VS.

CITIZENS FOR A BETTER ENVIRONMENT,

Respondent.

On Writ of Certiorari to the United States

Court of Appeals for the Seventh Circuit

BRIEF OF THE CHEMICAL MANUFACTURERS ASSOCIATION

AS AMICUS CURIAE

IN SUPPORT OF THE PETITIONER

Carter G. Phillips David F. Zoll <8

Sidley & Austin Dell E. Perelman

1722 Eye Street, N.W. James W. Conrad

Washington, D.C. 20006 Christina Franz*

(202) 637-8000 Chemical Manufacturers

%. / ~o 7

1300 Wilson Blvd.

Arlington, VA 22209

(703) 741-5000

May 2, 1997

Of Counsel *Counsel Of Record

15 PF

oe =e

TABLE OF CONTENTS

1. EPCRA Reporting Requirements Are Highly

Complex :

a. Chemical Listings Are In Flux

b. EPCRA’s Reporting Requirements Are

Comprehensive And Demanding

c. EPCRA’s Reporting Instructions Are

Lengthy, Revised Constantly, And Subject

To Variable, But Legally Enforceable,

. EPA Intends To Expand The Scope Of The

TRI Reporting Requirements

. The Decision Of The Seventh Circuit Will

Discourage Voluntary Audits And Reporting

Corrections, And Will Excessively Burden The

Federal Courts

. The Seventh Circuit Seriously Overestimates

The Costs To Citizens Enforcing EPCRA

SUMMARY OF THE ARGUMENT

CONGRESS DID NOT AUTHORIZE

CITIZEN SUITS FOR EPCRA

VIOLATIONS CORRECTED DURING

THE 60-DAY NOTICE PERIOD

A. The 60-Day Notice Provision And The

Purpose Of Citizen Suits

il

B. Citizen Suits Prohibited When EPA Seeks

SRE TE PE AO 14

C. “Plain And Ordinary Meaning” Requires

Simple Common Sense...................6...00 17

D. If The Court Has Doubts About The Breadth

Of EPCRA’s Citizen Suit Provision, It Should

Resolve Them Against Respondent To Avoid

The Serious Article III Issue That Would

Ma tincoddsorendiescesdaicoscesecccees 19

a a 22

APPENDIX

September 16, 1994 Letter from CMA to EPA

re: EPCRA Section 313 Reporting: Transient

FT CI occ oc eiccsivsseccccccesccccccces: Al

Consent Agreement And Consent Order,

Docket No. II EPCRA - 94-0113................. A8

iil

TABLE OF AUTHORITIES

Cases

Atlantic States Legal Foundation v. United

Musical Instruments, U.S.A., Inc. 61 F.3d 473

(Gth Cir. 1995)..........cccceeeeeeereeeeeeneneessens 17, 18

Crandon v. U.S., 494 U.S. 152 (1990)......--++-+ 12

De Bartolo v. Florida Gulf Coast Building &

Construction Trades Council, 485 U.S. 568

(19B9).......cesececereeseeceennneneennneneeennenen snes 21

Gwaltney of Smithfield, Ltd. v. Chesapeake Bay

Foundation, Inc., 484 U.S. 49 (1987).....--.-- ~y “

Hallstrom v. Tillamook County, 493 U.S. 18 ;

(19B9)......c.cseeeeeeeeecnsensnennnseensreneenenees l

K Mart Corp. v. Cartier, Inc., 486 US. 281

(19BB)........cccseseceeeeeeennnneneneeneennnnnennnnes 12

Lujan v. Defenders of Wildlife, 504 U.S. 553

(1992)........ceeceeceeeeneeneeeenenens aseeeeeeeenees 19, 20

NLRB v. The Catholic Bishop of Chicago, 440

U.S. 490 (1979)........ccecceeeneereeneneeneecerees 21

Sierra Club v. Morton, 405 U.S. 727 (1972)....--. 19

United Savings Association v. Timbers of Inwood

Forest, 484 U.S. 365 (1988).......---.0.00e022e0 12

Warth v. Seldin, 422 U.S. 490 (1975).....-----.6 19, 20

iv

Whitmore v. Arkansas, 495 U.S. 149 a 19

Statutes

42 U.S.C. § 7604(a)(1).........ceeccccccceeceee 14

deities: 5

Be ee, © TPR oo ccncccccccccccceceecees...... 2

42 U.S.C. § En ee 2

42 U.S.C. § AGATE Rn RET 18

42 U.S.C. § 11046(a)(1)....0oo. ec ccccccccce eee. 11

42 U.S.C § 11046(G)(1)..00 00. 1]

42 U.S.C. $11046(E)..........cccccccccccccceee 12, 15

ae 3

Legislative History

Hearings on S. 3229, S. 3466 & S. 3546 Before

the Subcomm. on Air and Water Pollution of

Cog. 2 Sen (OM 3

Miscellaneous

Brief In Opposition to Petition for Certiorari...... 20, 21

Citizens for a Better Environment’s (CBE)

eee cccitcncsseesinkenpidliittdeiiteedi id i 20

EE a

v

CMA, Comments to EPA on ANPRM on TRI

Phase 3: Materials Accounting (February 14, g

CMA, Environmental Paperwork: A Baseline for

Evaluating EPA's Paperwork Reduction

Efforts (April 3, 1996)...............0.ceeeeeeeeees 6

EPA, 1994 Toxic Release Inventory Public

Refine BRR. .ccecccocceccncececcccessoccvsvccee secs 5

EPA, Toxic Chemical Release Inventory

Reporting Form R and Instructions, Revised

JOBS PRGIRR. .cvccccvcccccssccecececccscccccccccceee ‘

General Accounting Office, EPA's Toxic Release

Inventory Is Useful But Can Be Improved,

GAO/RCED 91-121(June 1991).............---+ 4

Notice by Citizen Plaintiffs in Environmental

Litigation, 79 Mich. L. REV. 299 (1980)....... 12, 13

Opening Brief Before the U.S. Court of

Appeals for the Seventh Circuit...............---. 20

Pesticide & Toxic Chemical News, CMA Survey

Notes TRI Paperwork as Most Onerous (April

BD, BOB cevccccccccsccovcccsescecccscesccccccceers 5

Toxic Release Inventory Expansion Rule Still

Undergoing Budget Office Review, Dail

Report for Executives (BNA) Vol. 42, at A22

(Masch 4, 1997)...........ccccececccccecerececeseees 8

Webster’s New World Dictionary (2d. ed. 1986)... 17

No. 96-643

IN THE

Supreme Court Of The United States

OCTOBER TERM, 1996

THE STEEL COMPANY, a/k/a

CHICAGO STEEL AND PICKLING COMPANY,

Petitioner,

VS.

CITIZENS FOR A BETTER ENVIRONMENT,

Respondent.

re

On Writ of Certiorari to the United States

Court of Appeals for the Seventh Circuit

Brief OF THE CHEMICAL MANUFACTURERS ASSOCIATION

AS AMICUS CURIAE

IN SUPPORT OF THE PETITIONER

Interest of Amicus Curiae

The Chemica! Manufacturers Association (CMA) is a

account for more than 90% of the U.S. productive capacity

for basic industrial chemicals.' The U.S. chemical industry

' Pursuant to Supreme Court Rule 37, the written consent of the parties to

CMA’s Amicus brief were obtained and are on file in the Clerk’s Office.

Additionally, pursuant to Rule 37, this brief was prepared and paid for in

its entirety by CMA.

ede a

is the industry most affected by the reporting requirements of

4 Tt Planning and Community Right-to-Know Act

The two provisions at issue in this case are secti

and 313 of EPCRA. Section 312 requires certain ailites

submit inventory forms annually to state and local agencies

providing information regarding the amount and location of

hazardous chemicals” at the facilities during the previous

year. Section 313 requires certain facilities using any of 651

specified “toxic chemicals” to submit forms to EPA annually

providing information about the amount of the chemicals

present at the facilities and their routine emissions during the

previous year. This is called the Toxic Release

the TRI. 42 U.S.C. §§11023(a), (g). en *

The vast majority of chemicals produced by CMA’s

member companies -- roughly 85% by volume -- are subject

to the TRI reporting requirements of EPCRA section 313.”

These chemicals are the core of virtually every product

people use or consume in the United States, from

pharmaceuticals and medical supplies to computers

electronics, and the Internet. These chemicals are essential

to the U.S. and global economies.’

. }- this Court _ a0 the decision of the court of appeals

$ case, it will have enormous, adverse consequences for

the chemical industry and will pose equally significant

problems for numerous other businesses, large and small

alike. Further, this decision will impose an excessive and

* This percentage includes those

or cataya i chemicals that are used as a component

The chemical and allied products industry employs over | million

y

unnecessary burden on the federal courts. This Court should

consider these repercussions as it undertakes its analysis of

the legal issues presented.

Statement

CMA and its members are staunch supporters of the

public’s right-to-know of the environmental and health risks

they face in their communities. CMA is an equally

committed supporter of EPCRA and the Pollution Prevention

Act of 1990 (PPA), which amended EPCRA. 42 U.S.C. §§

13101 et. seg. In fact, CMA relies upon TRI data generated

under EPCRA as the performance measure for the

Responsible Care® Pollution Prevention Code, a chemical

industry initiative promoting continuous improvement in

waste reduction. Accordingly, CMA firmly believes that

effective enforcement of EPCRA is vital.

However, the decision in this case does not promote the

effective enforcement of EPCRA. The Seventh Circuit's

analysis was blurred by two important misunderstandings.

Most fundamentally, the court seriously underestimated

EPCRA’s reporting complexities. Secondarily, the court

exaggerated the significance of costs incurred by citizen

groups in ferreting out facilities that fail to comply with

EPCRA’s reporting requirements. Pet. App. Al4-A15.

These misperceptions interfered with the Court's

interpretation of EPCRA’s citizen suit provision, resulting in

a decision that improperly imposes civil penalties on a

diverse group of businesses, most of which are trying

magnitude far more burdensome than the minimal costs

The discussion below describes these reporting difficulties,

-4-

as well as the sweeping and unfair consequences posed by

the decision in this case.

1. EPCRA Reporting Requirements Are Highly Complex

Several factors make EPCRA’s reporting requirements

considerably more complicated than the court of appeals

assumed.

a. Chemical Listings Are In Flux

EPCRA’s reporting requirements are triggered by the

presence of certain quantities of specific chemicals. Each

reporting requirement is linked to a particular list of

chemicals. These lists of “toxic,” “hazardous,” and

“extremely hazardous” substances are in a state of flux --

additions and deletions to these lists are made regularly by

EPA. For example, when EPCRA was enacted in 1986,

Congress placed 309 individual chemicals and 20 chemical

categories on the TRI list. There are now 651 chemicals and

28 chemical categories on this list. Therefore, a company that

properly determines that it is not currently subject to

EPCRA’s reporting requirements could face significant

liability if it inadvertently fails to note a subsequent change

in the chemical lists. See General Accounting Office, EPA 's

Toxic Release Inventory Is Useful But Can Be Improved,

GAO/RCED 91-121 (June 1991). Under this decision, each

and every facility caught unaware of a sudden change in

EPCRA’s chemical lists is subject to a citizen suit even after

it rectifies all errors during the 60-day notice period.

b. EPCRA’s Reporting Requirements Are

Comprehensive And Demanding

TRI reporting requires certain manufacturing and

processing facilities that use more than 10,000 pounds of a

he

toxic chemical, or that manufacture, import, or process more

than 25,000 pounds of a toxic chemical, to complete and

submit a Form R. Once reporting is triggered, a facility must

estimate all releases of the reportable substances during

normal operations, i.e., all releases to land, underground

injection, discharges to water, point source air emissions and

non-point source air emissions. 42 U.S.C. §1 1023.

Not only must facilities estimate all releases for any given

chemical, they also must complete and submit a separate

Form R for each and every chemical at the facility that falls

within the reporting parameters noted above. Since

chemicals are the chemical industry’s business, it is not

uncommon for a facility of one of CMA’s larger member

companies to handle as many as 88 chemicals or chemical

categories that are subject to TRI reporting requirements in

any given year. EPA, 1994 Toxics Release Inventory Public

Release Data, at 36. These reporting requirements involve

sophisticated engineering calculations that frequently require

significant technical expertise to complete the Form Rs. See

EPA, Toxic Chemical Release Inventory Reporting Form R

and Instructions, Revised 1995 Version, at 28-35.

Thus, contrary to the Seventh Circuit’s conclusion that

“the cost of compliance . . . is low[, requiring) little

additional effort,”” considerable effort and expense is

required to comply with EPCRA’s reporting requirements.

In fact, EPA estimates that the reporting burden is more than

one full work week per facility for just one listed chemical.

Pesticide & Toxic Chemical News, CMA Survey Notes TRI

Paperwork as Most Onerous, 6, at 6-8, (April 17, 1996).

How does this translate into dollars? Using EPA estimates

* Eleven copies of the Toxic Chemical Release Inventory Reporting Form

R and Instructions, Revised 1995 Version have been lodged with the

Clerk of the Court for the Court’s convenience.

* Pet. App. A1l4-A15.

-6-

once again, TRI reporting costs for 1993 - 1996 totaled

almost $1 billion.®

Under the decision below, every facility that innocently

miscalculates a routine release (either by under- or

overestimating) for a reportable substance, despite its

diligent efforts, is subject to a citizen suit even after it

corrects the miscalculation during the 60-day notice period.

c. EPCRA’s Reporting Instructions Are Lengthy,

Revised Constantly, And Subject To Variable, But

Legally Enforceable, Agency Interpretations

Although the TRI reporting form is a mere 9 pages long,

it should not be confused with the 1040 EZ tax form. The

sheer length of the reporting instructions -- 58 pages plus 3

tables plus 8 appendices -- demonstrates the complexity of

the reporting process. See EPA, Toxic Chemical Release

Inventory Reporting Form R and Instructions, Revised 1995

Version. A glance at “Example 9: Calculating Releases and

Transfers” on page 34 of the instructions, or any other

example or significant instruction, confirms the complexity

of the reporting requirements. And, confusing the reporting

process even further, EPA has revised the reporting

instructions every year since EPCRA’s inception. In short,

EPCRA reporting is never routine.

Exacerbating an already arduous process, EPA enforces

interpretations of reporting obligations that it has never made

public in regulations or other EPCRA publications. For

example, in 1994, EPA brought an administrative action

against a CMA member company alleging that it had not

complied with EPCRA reporting requirements for 1988

° Industry figures are higher than those of EPA, both in reporting burden

and cost. CMA, Environmental Paperwork: A Baseline for Evaluating

EPA's Paperwork Reduction Efforts, 8-9 (April 3, 1996).

x %

through 1992. EPA claimed that the company failed to

report a TRI-listed chemical that was produced during a

transitory chemical reaction, i.e., where, for a fleeting

moment during a chemical process, a TRI-listed chemical

was created and then converted to a different chemical nos

subject to TRI reporting.’ This transitory chemical reaction

was not addressed in the Form R instructions or any other

regulation or publication pertaining to EPCRA. See Letter

from CMA to EPA re: EPCRA Section 313 Reporting:

Transient Reaction Chemistry (Sept. 16, 1994), App. Al-A6.

Although EPA’s interpretation had never been addressed in

EPA guidance documents, the enforcement action resulted in

a fine and a consent agreement. See Consent Agreement,

App. All.

Under the decision below, every facility that interprets the

Form R instructions (which change every year) in a manner

inconsistent with EPA’s interpretation of the requirements

(whether published or not) will remain subject to a citizen

suit even after the facility complies with EPA’s interpretation

during the 60-day notice period. In fact, under this decision,

even a facility that complies with an EPA interpretation

before ever receiving a citizen suit notice is still subject to a

citizen suit.

2. EPA Intends To Expand The Scope Of The TRI

Reporting Requirements

EPA has announced its plans to expand the TRI reporting

requirements. This expansion -- embracing new industries

and adding more complicated reporting obligations --

promises to transform EPCRA’s already complex reporting

system into a compliance labyrinth. EPA’s recent proposals

’ A simple example is the manufacture of Trichloro X, where the basic

chemistry of the chlorinating sequence is monochloro X to dichloro X to

trichloro X, where dichloro X is an EPCRA 313-listed chemical.

-8-

include two distinct expansions. The first, announced on

April 22, 1997, adds seven new industry sectors (including

many small businesses), and makes other significant changes

affecting many facilities already subject to EPCRA’s

reporting requirements. The second expansion, due to be

final in November 1997, proposes to add occupational

demographics and detailed tracking of chemical use in

products (i.e., materials use accounting) to TRI reporting.

TRI’s interpretive complexities will balloon if materials use

accounting is adopted. At a minimum, collecting and

reporting will require each facility to interpret the rule;

identify the covered chemicals; identify and separate

chemicals in mixture streams; design and implement

appropriate information management systems; and train

personnel, not to mention the laborious steps necessary to

track chemical use for each chemical affected. See CMA,

Comments to EPA on ANPRM on TRI Phase 3: Materials

Accounting, 64-69 (February 14, 1997). Companies and

businesses are certain to confront authentic compliance

problems despite their very best intentions.

Even EPA officials recognize that these changes will

result in errors, publicly stating:

This is not unusual. People learn by

doing. [T]jhe Agency is developing

guidance to ease reporting for these

groups, which are expected to have

unique compliance problems.

The frequency of innocent errors should not be

underestimated. Under EPCRA’s current reporting

complexities, it is not at all uncommon for medium-to-large-

* Toxic Release Inventory Expansion Rule Still Undergoing Budget

Office Review, Daily Report for Executives (BNA) Vol. 42, at A22

(March 4, 1997). (Emphasis added).

-9-

size CMA member companies to make anywhere from 10 to

15 corrections per year to past TRI filings. Technically,

those companies are out of compliance. Under the holding in

this case, each and every one of those companies is subject to

a citizen suit for each and every inaccurate report even after

it comes into compliance during the 60-day notice period.

3. The Decision Of The Seventh Circuit Will Discourage

Voluntary Audits And Reporting Corrections, And Will

Excessively Burden The Federal Courts

Amicus and its member companies are committed to the

goals of the public’s right-to-know embodied in EPCRA.

Accordingly, CMA members will continue to revise past

EPCRA filings to correct errors or reflect changed

interpretations despite the inevitably unfair and costly

consequences resulting from the decision in this case.”

However, many businesses, particularly smaller ones, are far

less financially capable of withstanding the potential flurry of

citizen suits that will follow if the ruling below is not

reversed. Under this decision, correcting an erroneous filing

will increase liability rather than limit it. This perverse

disincentive can only discourage regulated entities from

voluntarily seeking out and correcting TRI reporting errors.

CMA and its members are deeply troubled by this result,

which undermines the voluntary compliance goals and

objectives of EPA and Congress.

4. The Seventh Circuit Seriously Overestimated The Costs

To Citizens Enforcing EPCRA

Even if the costs incurred by citizens were an appropriate

inquiry for the court, the Seventh Circuit incorrectly

*Every correction made to a past filing is in essence an admission of

having been out of compliance. Such an admission is all that a citizen

will require to sue for civil penalties.

-10-

determined that if citizens could not sue when a violator

came into compliance during the 60-day notice period,

“citizens would have no real incentive to incur the costs of

learning about EPCRA, investigating suspected violators,

and analyzing information. Put simply, if citizens can’t sue,

they can’t recover the costs of their efforts.” Pet. App. Al4.

However, Congress intended the 60-day notice period to

compel compliance. Congress was concerned that citizens

recoup their costs only if the violator or the government did

not act during the 60-day notice period and the citizen was

forced to litigate. Moreover, contrary to the Seventh

Circuit’s assessment, public access to EPCRA reporting

information is widely available on CD ROM and the Internet,

and thus the cost of monitoring companies subject to EPCRA

requirements is truly minor.

SUMMARY OF ARGUMENT

The Seventh Circuit distorted the plain language of

EPCRA’s citizen suit provision, striking from the statute a

critical purpose of the 60-day notice requirement: to provide

an alleged violator with notice of a violation so that it can

bring itself into compliance without the need for litigation.

Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation,

Inc., 484 U.S. 49, 60 (1987). Under this decision, the only

time a citizen suit can ever be barred under EPCRA is when

the government brings an action first.

Not only did the Seventh Circuit err in its analysis of

EPCRA’s citizen suit provision, but allowing CBE’s case to

proceed raises serious Constitutional questions about CBE’s

standing to sue for corrected EPCRA violations. CBE failed

to set forth clear and specific facts demonstrating that it

suffered actual or threatened harm. More importantly, any

harm that may have been suffered was redressed when The

Steel Company filed all of its EPCRA reports during the 60-

-ll-

day notice period before CBE filed its complaint. .

Accordingly, the Court should construe the citizen suit

provision in EPCRA narrowly to avoid the significant Article

II] issue that would otherwise arise.

ARGUMENT

CONGRESS DID NOT AUTHORIZE CITIZEN SUITS

FOR EPCRA VIOLATIONS CORRECTED DURING

THE 60-DAY NOTICE PERIOD

EPCRA’’s citizen suit provision provides that any person

may bring a civil action against an owner or operator of a

facility “for failure to . . . complete and submit” inventory

forms “under” section 312 or toxic chemical release forms

“under” section 313 of the act. 42 U.S.C. § 11046(a)(1).

However, a citizen must first give notice of the “alleged

violation” to EPA, the State in which the “alleged violation

occurs,” and the alleged violator 60 days before filing suit.

Id. at §11046(d)(1). The purpose of this requisite notice

prior to filing a citizen suit is to provide the government with

the opportunity to enforce EPCRA's requirements, and to ;

allow the violator the opportunity to comply in order to avoid

litigation. In either event, a citizen suit should be barred.

Gwaltney, 484 U.S. at 60.

under the Clean Water Act in Gwalmey. Pet. App. Al3.

Second, the court concluded that the most natural reading of

-12-

the word “under” in reference to sections 312 and 313 in the

citizen suit provision is “in accordance with the requirements

of the referenced sections.” /d. Therefore, because sections

312 and 313 require that the reports be submitted by specific

dates, the court determined that EPCRA must authorize

citizens to enforce timely compliance with its requirements.

The court stated that any other interpretation “would render

gratuitous the compliance dates .. . .” Jd.

Although the Seventh Circuit began its analysis properly

by looking for the “plain and ordinary meaning” of the

specific language in question, the court's efforts

unquestionably derailed as it failed to follow other well-

established principles of statutory construction, resulting in a

seriously flawed ruling. “Statutory interpretation is a holistic

endeavor.” United Savings Association v. Timbers of Inwood

Forest, 484 U.S. 365, 371 (1988). Courts must look to “the

particular statutory language at issue, as well as the language

and design of the statute as a whole -- to its object and

policy” when searching for the plain and ordinary meaning of

a statute. Crandon v. U._S., 494 U.S. 152, 158 (1990); K Mart

Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988). To

interpret the citizen suit provision most plausibly, a court

must read it in relation to the statute’s other, equally relevant

provisions. Otherwise, the court will fail to give full effect to

EPCRA’s overall objective. Gwaltney, 484 U.S. at 57.

The Seventh Circuit failed to consider the significance of

two crucial provisions in EPCRA. First, it ignored the 60-

day notice provision and with it the purpose of citizen suit

provisions generally. Notice by Citizen Plaintiffs in

Environmental Litigation, 79 Mich. L. REV. 299, 301-307

(1980). Second, it disregarded a provision barring citizen

suits when the government acts only to enforce compliance

and not to obtain civil penalties. 42 U.S.C. §11046(e). In so

-13-

doing, the court entirely misconstrued the plain and ordinary

meaning of the citizen suit provision.

A. The 60-Day Notice Provision And The Purpose Of

Citizen Suits

Congress intended that citizen suits supplement

government enforcement. Gwaltney, 484 U.S. at 60. By

requiring citizens to comply with the 60-day notice

provision, Congress allows government agencies to enforce

the environmental laws without the need for a citizen suit.

Id. at 59-60. “In many cases, an agency may be able to

compel compliance through administrative action, thus

eliminating the need for any access to the courts.” /d. at 60.

Similarly, notice gives the alleged violator “an opportunity to

bring itself into compliance . . . and likewise” obviate the

need for a citizen suit. Jd. Congress believed that the threat

of suit would trigger agency enforcement and encourage

violators to comply without overburdening the courts with

citizen suits. See Notice by Citizen Plaintiffs in

Environmental Litigation, supra, at 304-307. As the facts of

this case well illustrate, the 60-day notice requirement

achieves that objective.'°

'° See also Hallstrom v. Tillamook County, 493 U.S. 18, 24, 28 (1989).

(stating that EPCRA's citizen suit provision was modeled after the Clean

Air Amendments of 1970); Hearings on S. 3229, S. 3466 & S. 3546

Before the Subcomm. on Air and Water Pollution of the Senate Comm.

on Public Works, 91st Cong.. recent “lene ty “tysomty nc

Douglas M. Head, Minnesota Attorney General): “The one danger . .

the multiplicity of suits that would overnde compliance agreement

already entered into by the [Minnesota] Pollution Control Agency so that

I believe that citizens should be very carefully correlated with the present

enforcement provision so that we do not unnecessarily duplicate the

enforcement of the law and that we do not unnecessarily clog up the

course where we are in fact making very swift efforts to enforce.”

-14-

By allowing a citizen suit to proceed even if a company

comes into compliance during the 60-day notice period, the

Seventh Circuit's decision totally defeats a primary purpose

of the provision, striking it from the statute altogether. No

longer is any purpose served by providing the violator with

notice of the violation and the intent to sue. Under the

decision below, the only time a citizen suit can ever be

barred under EPCRA is when the government takes action.

This result is certain to flood the federal courts with

unnecessary citizen suits. Clearly, this was not the intent of

Congress. If it had been, Congress would not have required

citizens to notify violators of their intent to sue.

Alternatively, Congress would have expressly provided for

litigation regardless of compliance. The court’s analysis

simply defies logic and the unambiguous purpose of the

statute.

In a rather curious statement, the Seventh Circuit states

that the logic underlying this portion of the citizen suit notice

provision:

is no longer as compelling as it was when

Gwaltney was decided. Since then,

Congress has expressly intended precisely

[that citizen suits should lie for past

violations}. The Clean Air Act...

contains a notice provision just like the

one in the Clean Water Act. In 1990

Congress amended the Clean Air Act to

permit citizen enforcement actions for

past violations, yet left the notice

provision intact.

Pet. App. Al3.

-15-

What the court failed to recognize is that (1) the Clean Air

Act Amendment permits citizen enforcement of past

violations only when they are repeated violations, '' and (2)

the amendment has absolutely no effect on EPCRA or any

statute other than the Clean Air Act. Indeed, the Clean Air

Act Amendments argue forcefully against the ruling below.

They demonstrate that Congress knows precisely how to

craft a notice provision that permits a citizen suit to go

forward in the face of compliance. The fact that Congress

chose not to amend EPCRA in a comparable fashion reveals

that it is not a statute where citizens should proceed against

companies after they have come into compliance during the

60-day notice period.

An equally formidable effect of the decision below 1s the

enormous burden it will impose on the federal courts. With

the addition of seve™ new industry sectors to the 461

industries already subject to EPCRA’s increasingly complex

reporting requirements, as well as the addition of chemical

use reporting, the burden could be staggering. See EPA,

Toxic Chemical Release Inventory Reporting Form R and

Instructions Revised 1995 Version, Table |. This result is

completely at odds with Congressional intent to strike a

balance between encouraging citizen suits and avoiding an

excessive and unnecessary burden on the federal courts after

compliance has been achieved.

B. Citizen Suits Prohibited When EPA Seeks Only

Compliance

A second EPCRA provision ignored by the Seventh

Circuit provides that a citizen may not sue where EPA has

brought and is diligently prosecuting either an administrative

order or a civil action “to enforce the requirement concerned

or to impose a civil penalty... .” 42 U.S.C. §11046/e).

'' 42 U.S.C. § 7604(a\(1).

-16-

Congress was clearly satisfied that compliance alone --

without civil penalties being imposed -- was sufficient to bar

citizen suits when compliance is sought by EPA (the primary

enforcement authority for EPCRA violations). EPCRA does

not contain any language suggesting Congress was not also

equally satisfied that compliance alone should bar a citizen

suit when the threat of that suit secures compliance during

the 60-day notice period.'? Indeed, it is irrational to conclude

that entities who come into compliance independently should

remain exposed to fines, while those who only do so in

response to governmental order are shielded from liability.

The Seventh Circuit failed to respect the structure and

purpose of the statute as a whole when it obsessed over:

citizens’ . . . incentive to incur the costs

of learning about EPCRA, investigating

Suspected violators, and analyzing the

information . . . [and whether] private

citizens . . . have to absorb much of the

cost of monitoring chemical use . . . with

little or no hope of recovering those costs

through awards of litigation expenses.

As stated earlier, these costs are minimal and

Gwarfed in comparison to the costs of EPCRA

compliance

Further. under every other environmental statute -- except where

~ongress has expressly stated to the contrary -- this same 60-day notice

provision Operates to bar a citizen suit when a violator comes into

compliance during the 60-day notice period. It does not make sense that

Congress would treat EPCRA -- a reporting statute -- differently than

every other environmental statute concerned with potential risk to human

health and the environment.

-|7-

C. “Plain and Ordinary Meaning” Requires Simple

Common Sense

“Plain and ordinary” means obvious, direct, simple, and

customary’? -- words suggesting that a practical, common

sense approach to the statute is in order. Since Congress

intended citizens only to supplement government

enforcement and not to overburden the federal courts,

EPCRA’'s citizen suit provision should be interpreted

consistent with these Congressional objectives and the

overall objectives of the statute. In contrast to the Seventh

Circuit’s and CBE’s rather tortured and convoluted

interpretation of the relevant words (which they read in

isolation rather than in context with the rest of the statute),

the Sixth Circuit's decision in Atlantic States Legal

Foundation v. United Musical Instruments, U.S.A., Inc. is

consistent with these objectives. 61 F.3d 473 (6th Cir.

1995).

In United Musical, the court concluded that although

sections 312 and 313 of EPCRA require the submission of

inventory forms by certain dates, the citizen suit provision

emphasizes only completing and submitting the forms, not

mentioning dates or the timeliness of reporting at all. /d. at

475. Moreover, sections 312 and 313 identify various

procedures for completing and submitting the required

forms. The due dates for the reports are merely one of many

procedural steps directed to those who complete and submit

the forms. Had Congress intended to authorize citizen suits

for any violation -- such as late submission -- it could easily

have done so. /d. Most simply, it could have inserted the

word “timely” between the words “and” and “submit.”

Alternatively, it could have said “in compliance with the

requirements of” instead of merely using the term “under.”

> Webster's New World Dictionary 1001, 1087 (2d. ed. 1986).

-18-

Importantly, EPCRA itself distinguishes between the

narrow conditions under which citizen suits can be filed and

the broader circumstances under which EPA can act. For

example, EPCRA authorizes EPA to bring actions to assess

and collect civil penalties against any person “who violates

any requirement of section [313].” 42 U.S.C. § 11045(c)(1).

The Sixth Circuit recognized that:

Congress limited citizen suits by

emphasizing that it is the failure to

submit the requisite forms that gives rise

to a citizen action. Congress did not

authorize citizen suits for other violations

of section [313]. This difference between

the grants of authority to the EPA and

citizen plaintiffs is significant because it

indicates a congressional intent to limit

citizen suits to ongoing violations and to

give the EPA sole authority to seek

penalties for historical violations.

61 F.3d at 475. (Emphasis added).

The Sixth Circuit’s decision also gives full effect to

EPCRA’s two overriding objectives -- emergency planning

and public access to the required information. Once the

forms providing the information are filed, the Congressional

goals are achieved and a citizen suit is unnecessary. /d. at

477. Although civil penalties may be appropriate in some

cases, Congress left that decision to EPA. /d. It is the

government that has “the broad perspective on enforcement

and compliance” that is best suited to determine those

violators whose conduct warrants penalties. /d.

-19-

D. If The Court Has Doubts About The Breadth Of

EPCRA’s Citizen Suit Provision, It Should Resolve Them

Against Respondent To Avoid The Serious Article III Issue

That Would Otherwise Arise

CBE bears the burden of establishing that it has standing

to invoke the jurisdiction of this Court. Lujan v. Defenders

of Wildlife, 504 U.S. 553, 561 (1992). Standing requires that

CBE “clearly and specifically set forth facts sufficient to

satisfy” the following three criteria:

“injury-in-fact” -- a “concrete and particularized,

actual or imminent” invasion of a legally protected

interest;

a causal connection between the injury and the

conduct of the petitioner; and

a likelihood, not mere conjecture, “that the injury will

be redressed by a favorable decision.”

Id., Whitmore v. Arkansas, 495 U.S. 149, 155 (1990). CBE

has failed to set forth clear and specific facts that it has

suffered an injury-in-fact and that any injury, if it had

occurred, would be redressed by a favorable decision of this

Court.

CBE must allege facts demonstrating that at least one of

its members has suffered some actual or threatened harm.

Sierra Club v. Morton, 405 U.S. 727, 738 (1972); Warth v.

Seldin, 422 U.S. 490, 504 (1975); Lujan, 504 U.S. at 560.

This “requires more than an injury to a cognizable interest”

such as “aesthetic and environmental well-being” or

“environmental interests” that are shared by many. Morton,

405 U.S. at 734-735. It requires that at least one of CBE’s

members be among the injured “in a personal and individual

-20-

way.” Lujan, 504 U.S. at 560. “Generalized grievances” and

remote possibilities are not sufficient. Warth, 422 U.S. at

500, 504, 507.

CBE has never alleged any facts that establish an injury.

Beginning with its initial complaint and persisting

throughout each of its briefs, CBE alleges only that it was:

deprived of information ... crucial to the

public welfare . . . [that] its interests in

protecting and improving the

environment and the health of its

members have been . . . adversely

affected by defendant's actions . . . [that

tlhe safety, health, recreational,

economic, aesthetic and environmental

interests of CBE’s members and their

right to know ... have been...

adversely affected . . . [that] members of

CBE have suffered and continue to suffer

. .. [that] the Local Emergency Response

Commission’s emergency plan . . . is

skewed and inaccurate . . . [and that]

CBE and its members are relying on the

incomplete data [in public data] reports . .

. to identify and respond to environmental

concerns and to encourage industry to

reduce the use of hazardous chemicals.

See Citizens for a Better Environment’s (CBE) Complaint at

{| 1,8, and 9; Opening Brief before the U.S. Court of

Appeals for the Seventh Circuit at 11 and 41-42; and Brief In

Opposition to Petition for Certiorari, at 3.

CBE claims that it was deprived of the information

companies gather under EPCRA “to identify and respond to

-21-

environmental concerns and to encourage industry to reduce

the use of hazardous chemicals.” See Brief In Opposition, at

3. Presumably, the interest CBE claims was injured was its

access to information. Imposing penalties in this case,

however, will not redress that “injury,” since The Steel

Company filed all of its EPCRA reports during the 60-day

notice period before CBE filed its complaint. As 4 result, |

CBE now has access to the information of which it claims it

was deprived and the asserted injury has been remedied. To

construe EPCRA’s citizen suit provision as permitting a

claim in this case would raise a serious Constitutional

standing problem, which argues forcibly for interpreting

EPCRA as not authorizing this litigation. De Bartolo v.

Florida Gulf Coast Building & Construction Trades Council,

485 U.S. 568 (1989); NLRB v. The Catholic Bishop of

Chicago, 440 U.S. 490 (1979).

-22-

CONCLUSION

For the foregoing reasons, amicus respectfully requests

that the decision of the Seventh Circuit be reversed.

Respectfully submitted,

David F. Zoll

Dell E. Perelman

James W. Conrad

Christina Franz*

Chemical Manufacturers

Association

1300 Wilson Blvd.

Arlington, VA 22209

(703) 741-5000

Counsel For Amicus Curiae

*Counsel of Record

Carter G. Phillips

Sidley & Austin

1722 Eye Street, N.W.

Washington, D.C. 20006

(202) 736-8000

Of Counsel

APPENDIX

Chemical Manufacturers Association

September 16, 1994

Mr. Sam Sasnett

Chief. Toxic Release Inventory Branch

U.S. Environmental Protection Agency

Mail Stop TS 799

401 M Street, SW

Washington, DC 20460

Dear Mr. Sasnett:

The Chemical Manufacturers Association's (CMAs)

Pollution Prevention Regulatory Work Group (PPRWG) ts

disappointed that you could not attend our August 11, 1994

meeting to discuss the issue of transient reaction chemistry as

it relates to the Emergency Planning and Community Right-

to-Know Act (EPCRA) Toxic Release Inventory (TRI)

reporting requirements. The purpose of the meeting was to

discuss the scope and impact of your February 16, 1994

memorandum to Mr. Emest Regna, Chief, EPA Pesticides

and Toxic Substances Branch, regarding treatment of

transient reaction chemistry under EPCRA Section 313. (See

Attachment.) We are concerned by EPA’s apparent view

that transition products which may be formed and further

transformed in closed systems are now considered to fall

within the purview of EPCRA.'* CMA believes such an

A ———

‘* These would include “polymerizations and similar reactions which

may involve many steps and literally thousands of intermediate

A2

interpretation is inconsistent with the purposes of EPCRA--

to promote risk communication and foster significant risk

reduction activities.

As CMA interprets your February 16 memorandum,

during a sequential reaction (A to B to C) or decomposition

sequence (C to B to A), if a TRI-listed reaction product is

formed (Chemical B in either example), but then converted

to another chemical, (TRI-listed or non-listed), EPA expects

a facility to assess this transient product for TRI reporting

regardless of how long the transitory reactant exists. '°

CMA has serious concerns regarding this

interpretation of EPCRA, and the process by which it has

been reached. First, CMA believes that EPA has failed to

provide adequate public notice of its interpretation. Second,

we are concerned about the lack of bright-line criteria

regarding assessment of transient reaction products. Finally,

CMA is concerned about the compliance burden imposed by

EPA’s interpretation. Each of these concerns is explained in

greater detail below.

rirst, CMA believes EPA has failed to provide

adequate public notice of its interpretation. As you know,

CMA was very active in the development of EPCRA Section

313. The proposed and final rules implementing Section 313

discussed coincidental manufacture; however, the issue of

non-coincidental transitory reactants or decomposition

materials was not addressed. In conflict with the conclusion

compounds.” EPA April 1989 Final Monthly Hotline Report. (See

Attachment )

* A simple example is the manufacture of Trichloro X. where basic

hornbook chemustry of the chlorination sequence is: monochloro_X to

dichloro X to trichloro X, and where dichloro X is a EPCRA 313-listed

chemical.

A3

reached in EPA’s February 16, 1994 memorandum, EPA's

final rule on Section 313 unambiguously states that the

Agency’s approach to defining “manufacture” “was intended

to cover listed chemicals which were created (intentionally or

unintentionally) and then passed on in commerce or disposed

of, but never otherwise accounted for.” 53 Fed. Reg. 4500,

4504 (February 16, 1988). Unlike byproducts and impurities,

which are formed and then leave the manufacturing system,

transitory reaction products and/or decomposition products

are neitnhe

~~”

CMA disagrees with EPA’s statement that the

issue of eiendsnanee has been publicly addressed.

We can find no reference to this issue, or any notice of

Inventory Questions and Answers documents EPA published

in 1990 and 1991 addresses this issue.'* In fact, CMA has

found nothing in the public domain to support the statement

that EPA ever considered this issue in the EPCRA Section

313 rulemaking, or otherwise communicated a position on

this issue to the regulated community.

© “The Agency has already answered substantially the same question in

a publicly available document.” Menerenten Gem Sem Semmes, CRist

EPA Toxics Release Inventory Branch to Ernst Regna, Chief,

Pesticides and Toxic Substances Branch, February 16, 1994. (See

Attachment.)

'” Including the revised 1993 version of the Form R, see ¢.g., Appendix I,

Section 313 Related Materials and Information Access.

'S See EPA $60/4-91-003 (revised 1990 version), 560/4-90-003 (revised

1989 version).

'° In fact the term, “intermediates”, is not even defined under EPCRA,

nor in the TRI reporting regulations, 40 C.F.R. 372 et. seq., nor in the

A4

a8 Second, CMA is concerned about the lack of “bright

line Criteria on how long transient material must exist to be

considered for TRI reporting. The approach taken in the

February 16 memorandum defies practical interpretation

since it implies that a manufacturer must screen the TRI

chemical list to determine if a listed chemical may be formed

transiently in the production or decomposition of another

substance. We understand that EPA presumes that, for some

compounds, there will always be a 1-to-1 ratio between each

molecule of a product produced and any transitory products

that may form in a manufacturing process. In many cases

transition products may exist for only a fraction of second

until the reaction sequence is completed. As a result, the

compliance burden imposed by application of the Agency’s

February 16 memorandum is significant.”°

EPA Toxic Chemical Release | Reporting Form R and

Instructions.

*° The lack of bright-line criteria for assessing transi

reacti

products places a significant compliance eed iaeaiaieeate must

attempt to collect this information. The compliance burden includes

idenufication of the transient species in chemical processes for

determination if the process meets EPCRA reporting thresholds. It also

cludes 4 facility-wide assessment as to whether, taken as a whole

transient ormat’ )n in multiple operations could meet or exceed the

EPCRA reporting threshold. This burden has never been considered by

EPA or the Office of Management and Budget (OMB) in assessing th

cost of EPCRA Section 313. EPA's original burden estimate of Sectio’:

313 assumed that an average reporting facility would be submitting four

chemical reports and one mixture reporv year. See, 1.C.F. Inc. Regulatory

itth il of tt VUVCTIUNG AMenamer NC -authori j de

(February 1988). In addition, the Agency's recently proposed chemical

chemical

expansion of the TRI also does not consider the burden imposed by

assessing transient species, 59 Fed. Reg. 1788 (January 12, 1994), on an

expanded list of more than 300 chemicals and chemical categories.

AS

Third, CMA is concerned about the burden the

Agency imposes on the regulated community to ascertain the

potential formation of TRI-listed transitory reaction or

decomposition products. This imposes a significant

additional compliance burden upon the regulated community

particularly since EPA has recently proposed doubling the

Section 313 list of regulated materials. The burden inherent

in verifying whether any specific chemical could form a

transition product in a complex chemical reaction would be

enormous. As noted earlier, basic chemistry suggests that

there are numerous TRI-listed chemicals which could form

during sequential chemical reactions in the formation of

other listed chemicals. CMA does not believe that Congress

or EPA intended to require the regulated community to

search the TRI list of specific chemicals and chemical

categories to determine if their processes or thermal units

might “manufacture” TRI-listed chemicals as transient

species. In the past, EPA has recognized that non-isolated

transient species are extremely difficult to identify and have

limited exposure potential. 48 Fed. Reg. 21729 (May 13,

1983) (EPA exempted non-isolated intermediates from

reporting under the Toxic Substances Control Act because

these substances are extremely difficult to identify and have

limited exposure potential.)

Finally, the February 16 memorandum is inconsistent

with the Agency’s efforts to redefine the glycol ethers

category for TRI reporting, 59 Fed Reg. 34386 (July 1,

1994). For example, if the criteria described in the

memorandum are applied to manufacturers of (presently

excluded) high molecular weight glycol ethers, these same

manufacturers would now be obligated to submit TRI reports

on transient low molecular weight glycol ether species that

may form in process equipment during the manufacture of

the excluded high molecular weight products. Such a result

is clearly not consistent with the relief provided by the final

A6é

rule. Similarly, application of the February 16 memorandum

to on-site thermal treatment units would cause reporting of

TRI listed transitory species formed during molecular

decomposition as “manufactured” by the facility -- a result

that is inconsistent with the structure of the current Section

313 reporting form and regulation.

CMA does not believe that the issue of transient

reaction chemistry has been adequately considered by the

Agency or is well-settled under EPCRA. We also do not

believe that the Agency’s seeming reluctance to address this

matter through rule clarification (versus rule enforcement)

complies with Executive Order 12862 (Setting Customer

Service Standards), or Executive Order 12866 (Regulatory

Planning and Review). The process by which EPA has

reached its current position on transient reaction chemistry is

inconsistent with administrative fairness and statutory due

process.

CMA previously requested a meeting with your office

to help us gain a better understanding of the Agency’s

position. We would appreciate your involvement in

arranging such a meeting in the near future. Please contact

Leslie Winik at (202) 887-4764 if you have any questions, or

would like to discuss this matter further.

Sincerely,

Claudette M. Cofta

Director,

Product Stewardship

A7

Attachment

cc: Mark Greenwood, EPA OPPT

A8 Ag

UNITED STATES ENVIRONMENTAL PROTECTION FINDING OF FACT AND CONCLUSIONS OF LAW

AGENCY REGION II

1. Respondent is XXXX, a corporation duly existing under

and organized pursuant to the laws of the State of

In the Matter of

XXXXXXXX XXXXX.

Respondent. CONSENT AGREEMENT

- AND 2. Atall times relevant hereto, Respondent has owned and

Proceeding under Section 325(c) CONSENT ORDER operated a facility located at XXXX, XXXX, XXXX

of Title III of the Superfund XXXX (hereafter, “Respondent’s Facility”).

Amendments and Reauthorizati DOCKET NO.

Act ow Il EPCRA-94-0] 13 3. Respondent is a “person” within the meaning of Section

329 (7) of EPCRA, 42 U.S.C. § 11049(7).

4. Respondent is an owner of a “facility” as that term is

defined by Section 329(4) of EPCRA, 42 U.S.C §

PRELIMINARY STATEMENT 11104(7), and by 40 C.F.R § 372.3.

ML tent” iin ts sanitation : sani

r —_ administrative proceeding for the assessment of a EPCRA ane TY 0.420. S.C § 11023(b), and 40

1V1 penalty was instituted pursuant to Section 325 (c) of CFR § 372 22 f hai ‘

Title III of the Superfund Amendments and Reauthorizati

u

ma 42 U.S.C § 11001 et seq. [also known as the =

mergency Planning and Community Right-to-Kno

1986 (hereinafter, “EPCRA”)). fe guy

6. On July 21, 1993 duly designated representatives of the

EPA conducted an inspection of and at Respondent's

facility (hereinafter, “the Inspection”).

The Complainant in this proceedin i |

g. the Director of the ; ; .

a ; 7. A issued a Complaint

tei Services Division, Region II, United States ota e rea ' ca ident aa ee oe rt sana

Ptr aoyrart ual ron has armen manner to the Administrator and to the State XXXX

heeds Nae ~ 7 for Hearing to XXXX a complete and correct Form R for XXXX for the

ay —— t"), on May 17, 1994. calendar year 1991, which would constitute a failure to

comply with Section 313 of EPCRA, 42 U.S.C § I! 1023,

The Complaint charged Respondent with six (6 and

P22 | ) ith «

violations of Section 313 of EPCRA, 42 U.S.C. § 11023 and gegen ca neonate

regulations promulgated to that Section, 40 C.F.R Part 372. 8. Asa result of the Inspection, EPA issued a Complaint

alleging that Respondent failed to submit in a timely

manner to the Administrator and to the State of XXXX

Se, nee

10.

ll.

12.

13.

Al0

Jersey complete and correct Forms R for [Chemical A]

for the calendar years 1988, 1989, 1900, 1991, and 1992,

which would constitute failures to comply with Section

313 of EPCRA 42 U.S.C § 11023, and with 40 C.F.R. §

372.30 for each of these years.

On July 6, 1994, the parties met for an informal

settlement conference.

EPA withdraws the allegations contained in the

Complaint, Count 5. XXXX has satisfied EPA that its

XXXXXXXXX facility did not “otherwise use”

formaldehyde in excess of threshold quantities during the

calendar year 1991.

XXXX does not admit as true EPA’s Findings of Facts

and Conclusions of Law which purport to support EPA’s

allegation that XXXX violated EPCRA Section 313 on

the basis that XXXX XXXXXXXX Facility

“manufactured” or “processed” [Chemical A] in excess

of threshold quantities during the calendar years 1988

through 1992, as alleged in the Complaint, Counts 1, 2,

3, 4 and 6.

On September 14, 1994, the Chemical Manufacturers

Association (CMA) sent a letter concerning the

reportability of transient reaction chemistry producis

under EPCRA Section 313 to Mr. Samuel K. Sasnett,

U.S.E.P.A., which XXX herein adopts. A copy of the

CMA letter is attached to this Consent Agreement.

EPA does not consider [Chemical A] to be a transient

chemical, but rather a stable chemical species, subject to

the reporting requirements of section 313 of EPCRA, 42

U.S.C § 11023 and regulations pursuant to that Section,

40 C.F.R Part 372.

All

14. XXXX does not agree with the paragraph 13 statement or

that current EPCRA regulations require a determination

of chemical species stability as a relevant factor in the

decision to report.

NSENT MENT

Based on the foregoing, and pursuant to Section 325(c) of

EPCRA, and in accordance with the Consolidated Rules of

Practice Governing the Administrative Assessment of Civil

Penalties and the Revocation or Suspension of Permits, 40

C.F.R. Part 22 (hereinafter, “Consolidated Rules”), it is

hereby agreed by and between the parties hereto, and

accepted by Respondent, that Respondent voluntarily and

knowingly agrees to, and shall, comply with the following

terms:

1. Respondent shall pay, by cashier’s or certified check, a

ivi in the amount of Fifty Six Thousand Two

civil penalty yom

“Treasurer of the United State of America”. The check

shall be identified with a notation of the name and docket

number of this case, set forth in the caption on the first

page of this document.

Such Check shall be mailed to:

EPA Region II (Regional Hearing Clerk)

P.O. Box 360188M

Pittsburgh, Pennsylvania 15251

Payment must be received at the above address on or before

sixty (60) calendar days after the effective date (the date by

which payment must be received shall hereafter be referred

to as the “due date”’).

Al2

Respondent shall also send a copy of this payment to Barbara

Metzger, Director, Environmental Services Division, U.S.

Environmental Protection Agency, Region II 2890

Woodbridge Avenue, Edison, New Jersey 08837.

The effective date of this order shall be the date it is signed

be the regional Administrator, shown below.

a. Failure to pay the penalty in full, according to the

above provisions, will result in the referral of this matter to

the U.S. Department of Justice for collection.

b. Furthermore, if payment is not received on or before

the due date, interest will be assessed, at the annual rate

established by the Secretary of the Treasury pursuant to 3]

U.S.C § 3717, on the overdue amount from the due date

through the date of payment. In addition, a late payment

handling charge of $15.00 will be assessed for each 30 day

period (or any portion thereof) following the due date in

which the balance remains unpaid.

c. A 6% per annum penalty also will be applied on any

principal amount not paid within 90 days of the due date.

2. Respondent will undertake the Supplemental

Environmental Project (SEP) agreed to between the parties

which is to modify the XXXX< facility’s manufacturing

process by controls. This SEP will enable Respondent to

reduce XXXX waste discharged by (an estimated) XX to XX

pounds per year. Respondent estimates that it will take

approximately eighteen (18) months from the entry of this

Consent Agreement and Consent Order to complete the

installation of the SEP. It is agreed that the SEP will be in

place within eighteen (18) months of the entry of this

Consent Agreement, and utilized to reduce XXXX waste

Al3

ischarges the production scheme remains the

a titi cen ncteaster es dene or to ant wiltnet

thereafter to reduce waste discharges, for any reason other

than the discontinuance of the current manufacturing scheme,

the SEP reduction of 25% of the total proposed penalty or

Thirty One Thousand Two Hundred Fifty Dollars

($31,250) shall be immediately due and payable in

accordance with paragraph | of this Section.

espondent has submitted estimated costs for the |

I a of the SEP, which include a general description

of the equipment and process to Dr. Ernest Regna, Chief,

Pesticides and Toxic Substances Branch, 2890 Woodbridge,

Ave., Building 10, (MS-105), Edison, New Jersey 08837, to

document Respondent’s intention to implement the SEP. |

Respondent estimates that the project costs for this SEP will

equal or exceed $70,000. Respondent agrees to provide EPA

three (3) written progress reports on the status of the SEP

within six (6), twelve (12) and eighteen (18) months of the

entry of this Consent Agreement and Consent Order. an

Respondent also agrees to retain invoices and other rec !

necessary to document the cost of the SEP and will provide

to Dr. Ernest Regna copies of its internal cost summary

records in the two status reports. Further, if it is determined

that the final cost of this SEP is less that Sixty Two

Thousand Five Hundred Dollars ($62,500), Respondent

that one half of the cost difference between the actual

cost anc’ $62,500 shall be immediately due and payable under

the terms specified in paragraph | of this Section.

4. This Consent Agreement and Consent Order shall

relieve Respondent of its obligation to comply with all =

applicable provisions of federal, state, or local law, nor

it be construed to be a ruling on, or determination, any issue

related to any federal, state, or local permit nor shall it be

construed to constitute an EPA approval of the equipment or

Al4

technology installed by Respondent under the terms of this

Agreement.

5. Respondent and the signatory for the Respondent both

certify, as of the date of Respondent is not otherwise

required, by virtue of any local, state or federal statute,

regulation, order, consent decree or other law, to perform the

tasks specified in Paragrapas 2 though 3 of this Consent

Agreement. Respondent's signatory further certifies that

Respondent has not already received, and is not currently

negotiating to receive credit in any other enforcement action

for any of these same tasks.

6. For the purpose of this Consent Agreemeni,

Respondent: (1) admits the jurisdictional allegation of the

Complaint, §§ 8 through 14; and (2) neither admits nor

denies the specific allegations of the facts in the Complaint

or in this Consent Agreement.

7. Each Party to this action agrees to pay its own costs and

attorney fees.

8. EPA agrees to respond to the Chemical Manufacturers

Association (CMA) regarding the issues raised in its

September 14, 1994 letter to Mr. Samuel K. Sasnett,

U.S.E.P.A.

9. XXXX agrees to file Forms R for the “manufacturing”

and “processing” of [Chemical A] at its XXXX facility for

the reporting years 1988 though 1992 within ten (10) days of

XXXX’s receipt of the executed Consent Agreement and

Consent Order. XXXX will send copies of these Forms R to’

Dr. Ernest Regna.

10. This consent Agreement is being entered into by the

parties in full settlement of all civil liabilities, if any, that

AlS

ight have attached as a result of the allegations in the

caeibe Respondent has read the Consent Agreement and

Consent Order; consents to the terms of the Agreement and

its issuance as an Order.

t

11. Furthermore, Respondent consents to the assessmen

of the civil penalty as set forth in this Consent Agreement

and explicitly waives its right to request a hearing on the

Complaint, this Agreement, or the attached Consent Order.

12. Respondent waives any right it may have pursuant to

40 C-F.R 22.08 to be present during discussions with or to be

served with and to reply to any memorandum or .

the attached Consent Order.

: : is Consent Agreement

13. Each undersigned signatory to this a

certified that he or she is fully authorized to enter into the

terms and conditions of this Consent Agreement.

XXXX

RESPONDENT: Dete: 11/22/94

COMPLAINANT: Barbara Metzger, Director

Division

ee

Al6

CONSENT ORDER

The Regional Administrator of EPA, Region II concurs in

the foregoing Consent Agreement, which is being entered

into by the parties in full settlement of EPA’s Complaint

bearing Docket No. Il EPCRA-94-0113, issued in the matter

of XXXX. The Agreement entered into by the parties is

hereby approved and issued, as an Order, effective

immediately upon execution below.

Date: 12/12/94 William J. Muszynski, P.E.

Deputy Regional

Administrator

U.S. Environmental Protection

Agency - Region II

26 Federal Plaza

New York, New York 10278