weeks prior to an inspection through an email or letter specifying the information that must be provided before, during and sometimes after the physical inspection.
TSCA inspections typically are‘ records’ inspections; a facility tour normally is conducted but samples or photographs are rarely taken. The EPA has expansive subpoena authority, but rarely uses it.
Section 15 makes it unlawful for any person to:
• Fail or refuse to comply with any requirement of TSCA and any associated rules, orders or agreements( TSCA § 15( 1))
• Use for commercial purposes a substance or mixture that a person knew or had reason to know was manufactured, processed or distributed in commerce in violation Section 5 or 6( as well as certain rules and orders under TSCA § 5, 6, or 7)( TSCA § 15( 2))
• Fail or refuse to establish or maintain records, or to submit reports, notices, or other information( TSCA § 15( 3))
• Fail or refuse to permit entry or inspection as required by Section 11( TSCA § 15( 4))
Violations of Section 15( 1), which are the vast majority of those that occur in practice, are subject to‘ strict liability’. Thus, for example, a company that manufactures or imports chemicals is responsible and liable, without regard to fault or negligence, for ensuring that those chemicals( either in neat form, or as part of mixtures) have suitable TSCA status, i. e., that they are listed on the Inventory or are properly covered by an exemption.
In contrast, under Section 15( 2), a company that purchases a substance from a US supplier violates TSCA Inventory requirements only if the person knows or has reason to know that the substance was manufactured, imported, processed, or distributed in commerce in violation of Section 5. Thus, all things being equal, from a TSCA liability and enforcement perspective it is preferable for a company to purchase a substance from a US supplier rather than manufacture or import it.
Civil & criminal penalties
Section 16 establishes the framework for TSCA’ s civil administrative penalty enforcement procedures and the maximum civil monetary penalty that can be imposed. This is periodically adjusted to for inflation; as of January 2025 it is $ 49,772.
The EPA’ s TSCA‘ Civil Penalty Policy’ establishes the general approach for determining penalties in administrative actions brought under TSCA. 1 The Agency, in turn, has published a series of Enforcement Response Policies( ERPs) that set forth the appropriate enforcement responses for each specific section of TSCA. 2 It has discretion to deviate from the ERPs upon a reasonable basis, but rarely does so in practice.
Under the ERPs, penalties are determined in two stages: determination of a‘ gravity-based penalty’ based on three factors:‘ nature’, the overall category of the violation;‘ circumstance’, the level or probability of harm; and‘ extent’, the quantity of substance involved.
The penalty can then be adjusted up or down taking into
44 SPECIALITY CHEMICALS MAGAZINE ESTABLISHED 1981