Advanced Environmental Crimes Training Program M2

MODULE TWO

Toxic Substances Control Act

Federal Insecticide, Fungicide, Rodenticide and Insecticide Act

Comprehensive Environmental Response, Compensation and Liabilities Act

Safe Drinking Water Act

Ocean Dumping Act

Clean Air Act

Environmental Law Potpourri

1

TSCA (15USC §2615)characterize risk a chemical poses to humans and the environment before its introduced into commerce:

companies that want to manufacture a new chemical must submit pre-manufacture review (PMN)

Seeks to regulate any chemical that present an unreasonable risk

2

TSCA

Based on broad unreasonable risk evaluation EPA has authority to regulate:

Manufacture, Use,

Distribution and Disposal

unreasonable risk evaluated via manufacturer

data on health and environmental effects

3

Title I: Control of Toxic Substances(40 CFR Parts 700-766)

Title II: Asbestos Hazard Emergency Response*(40 CFR Part 763)

Title III: Indoor Air Radon Abatement(40 CFR Part 195)

Title IV: Lead Based Paint Exposure(40 CFR Part 745)

TSCA The Statute

4

TSCA §4: Authority to require testing

TSCA §5: Pre-manufacture review

TSCA §6: Authority to limit or prohibit

TSCA §8: Record keeping and reporting

TSCA §12: Export notice

TSCA §13: Import certification

TSCA

Core Enforcement Programs

5

The citizens of Hinkley, California, made famous by a Julia Roberts movie, are still plagued with toxic pollution. Uploaded by CNN on Nov 23, 2010

Asbestos (Partially overturned)*Chloroflourocarbons (CFCs)Dioxins (2,3,4,5 TCDD)

Hexavalent chromium (chrome-6)Certain metal working fluidsPolychlorinated biphenols (PCBs)

TSCA §6: Authority to limit or prohibit

6

TSCA §6(e): PCBs pose unreasonable risk

40CFR§761: PCB Mega-RuleEnhanced policy for contaminated environmental media >50ppm

7

TSCA Criminal Violations

15USC §2615(b) and 15USC §2614(1)

Any person who knowingly and willfully

failed or refused to comply with a

PCB regulation, and the PCB substance

contained 50ppm or greater PCBsone year in jail and/or

up to $27,500/day/violation

8

TSCA CorporateCriminal Liabilities

Lack of corporate knowledge not a defense to liability:

anyone handling substance presumed to

be aware it’s regulated

9

TSCA in the News

Chromium Industry potentially facing $70M in TSCA Fines

Dupont Pays $3.3M in TSCA Fines

10

Pesticide History

Rachel Carson credited as Mother of the Modern Environmental Movement

11

FIFRA walks a fine

line between the

benefits of pesticides

and the documented

hazards...

12

Complex Promulgation with

FDA (registration)USDA (application)

OSHA (worker safety)

Federal Environmental Pesticide Control Act of 1972 (Amended in 1975, ‘78, ‘80, ‘88, ‘90, ‘96 and 2003)

FIFRA (7USC §136)

13

Enforcement Motto:

“The Law is the Label and

the Label is the Law”

14

Any substance intended for preventing, destroying, repelling or mitigating any

insect, rodent, nematode, fungi or weeds or any other forms of life declared to be pests

Definition depends upon a use

that is intended or claimed

What is a Pesticide?

15

Any form of plant or animal life or virus, bacteria or other microorganism, except those on or in living man or animals

What is a Pest?

16

FIFRA Framework

FIFRA §3: A pesticide product must be

registered by EPA prior to sale or distribution

FIFRA §18: EPA may grant registration

exemption for emergencies (public health & crisis)

17

FIFRA and The Label

What other Environmental Laws

may cover spilled pesticides etc.?

Who, What, When, Where and How of Use*

*Spills, dumping, abandonment, etc.

not regulated by FIFRA

18

Manufacturer: permit to sell

Federal or state gov’t: means to control

the sale, use, distribution, storage, and sale

Buyer or user: source of information on

how to use the pesticide correctly and legally

Criminal investigator: provides useful

real-time legal/enforcement information in the event of a pesticide release or misapplication

(not the primary purpose of the label)FIF

RA and The Label

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It is a violation of federal law to

use this product in a manner

inconsistent with its labeling.

20

Registrant, applicant or producer

fined <$50K orimprisoned for not more than 1 year or both

FIFR

A Crim

inal P

enaltie

s

Commercial applicator, distributor or seller

fined <$25K or imprisoned for not more than 1 year or both

Private applicator or other person

fined <$1K orimprisoned for not more than 30 days or both

21

Spot the FIFRA Violation

22

State agriculture: enforce label/law,

certify applicators, registers most pesticides, operates labs and coordinates collection events

Enforcement Tips

Spills or abandonment of FIFRA

chemicals are not FIFRA cases

Find a friendly state

agriculture SME to interpret

violations of label/law

23

Questions & Answers

24

CERCLA/

SUPERFUND

Requires reporting of hazardous substances

released into environment over RQ

25

CERCLA/

SUPERFUND

Enforced via civil litigation

Review Strict, Joint & Several, and Retroactive Liability

SUPERFUND incidents can lead

to RCRA enforcement actions

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Regulates public sources of drinking water, regardless

of source*

*Exemption for private wells

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Public W

ater System

System for the provision of water to the public for

human consumption through pipes or other constructed conveyances, if such system

has at least 15 service connections or regularly

serves at least 25 individuals

28

SDWAAmended in 2002:

Public Health Security and

Bioterrorism Preparedness and

Response Act

If...>3,300 customers served

then...vulnerability assessment and ER Plan required

Applies to 168,000 P/POTWs

29

90 MCLsSDW

A ENFORCEM

ENT National Primary Drinking

Water Regulation is a legally

enforceable standard that applies to public water systems.

Primary standards protect drinking water quality and take the form of Maximum Contaminant Levels

or Treatment Techniques

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SDW

A Crim

inal In

vestigations

States have primacyEPA retains jurisdiction

Fraud, false statements, tampering

Tampering with drinking water system

25 year felony

SDWA willful violations

3 year felony

31

Prohibits dumping at sea without EPA permit within specific locations

EPA sets materiel dumping standardsUSCG inspects/affirms permit claims

Violation: 5 year felony

Ocean Dumping Act(Marine Protection, Research and Sanctuaries Act)

32

Clean Air Act (42USC §7401)Regulates air pollutant emissions

Very confusing, highly technical

Amended 1970, 1977, 1990

command and control transitioned

to market-based mechanisms

33

National Ambient Air Quality Standards

(NAAQS)

State Implementation

Plans (SIPs)

New Source & Pre-construction review

(NSR)

Hazardous Air Pollutants and

Air Toxics

Title V Permits

Clean Air Act Programs

34

NAAQS: Seeks to

control pervasive

pollution that

endangers public

health & welfare

Lead

35

NAAQS set to

protect public health

Attainment vs. Non-attainment

Requirement to review every 5 years

NAAQS changes controversial

State Implementation Plans

36

Air Toxics Rule

(§112)

188 substances controlled

as Hazardous Air Pollutants

(40CFR Part 63)

Stationary sources are major source if emit:

>10 tons per year, or>25 tons of any combination

1990 CAA Provisions

37

Four types of HAP exposure control

(NESHAPs)

Maximum Achievable Control Technology (MACT) Standard

Health based standards

Standards for stationary ‘area sources’

Prevention of catastrophic releases

Hazardous Air Pollutants38

Applicable emission controls &

limitation standards

Essential monitoring and record-

keeping document

Modified, revoked, reopened, and reissued or terminated for cause

5 year permits are state managed,

federally funded

CAA Title V: Operating Permit

39

CAA Permit Shield

Section 504(f):

permit compliance = CAA compliance

If permit does not specify a control, no enforcement for not meeting the control

no shield presumed

40

CAA Title Vannual permitee certification:

“...is in compliance with any applicable

requirements of the permit, and to

promptly report any deviations from

permit requirements...”

41

CAA Crim

inal Provisio

ns

Criminal liability attaches if

individuals or corporations

make false statements and/or

fail to file or maintain records

or reports required by CAA

42

CAA Crim

inal Provisio

ns

§113(c) any person who

knowingly violates

Persons can be individuals & corporationsIndividuals: Five years

in jail and up to $250

K/

day/violationCorporations: up to

$500K/violation

Some CAA enforcement exclusive to corporate officers

43

CAA Crim

inal Provisio

nsPenalties double for repeat offenders

Corporations: up to $500K

Individuals: one year in

jail and up to $100K

Knowing failure to pay any fee owed

44

Applicable criteriaNegligent vs. knowing

HAPs vs. extremely hazardous substances

CAA Crim

inal Provisio

ns

Criminal release of air toxics

Imminent danger of death

or serious bodily injury

45

CAA Crim

inal Provisio

ns

Negligent Individuals: up to $100K per day and up

to 1 year in prison

Negligent Corporations: up to $200K per day

Knowing Individuals: up to $250K per day and up

to 15 years in prison

Knowing Corporations: up to $1M per day

Requires actual knowledge

46

"Knowingly removing asbestos

improperly is criminal. Exploiting the

homeless to do this work is cruel."

-Attorney General Janet Reno

47

CAA Criminal Investigation Tips

Difficult, complex, requires SMEs

Non-attainment areas

SIPs and source specific controls

Toxic air release = regulatory controls

EPA’s National Priority Sectors

Tampering = enforcement

HAPs vs. Hazardous Substances

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