 |
EAB Throws Out Huge TSCA Penalty
Earlier this year, EPA’s Environmental Appeals Board (EAB) reversed a $2.5 million penalty against Elementis Chromium, Inc. for the company’s failure to report under TSCA Section 8(e) information contained in an occupational epidemiology study on hexavalent chromium. The study showed that occupational exposure to hexavalent chromium is associated with an elevated incidence of lung cancer.
The EAB said that Elementis was not required to report the study under Section 8(e) because EPA guidance documents had notified the regulated community that the EPA is already adequately informed of such information about hexavalent chromium.
Let’s take a look at TSCA Section 8(e) and why it generates so much confusion.
Forget expensive calls to lawyers and consultants. With Enviro.BLR.com, you get instant access, 24/7. Try it out today and get the 2015 EHS Salary Guide, absolutely free. Download Now.
What Is Section 8(e)?
TSCA Section 8(e) is a single short paragraph that has been the source of widespread confusion since TSCA became law in 1976. Section 8(e) simply states that U.S. chemical manufacturers (including importers), processors, and distributors must notify the EPA within 30 days of obtaining information that reasonably supports the conclusion that their chemical products present a substantial risk of injury to the health or environment.
Reporting is not required if the company has actual knowledge that the EPA has already been informed of such information. Many of the misunderstandings regarding Section 8(e) relate to the meaning of substantial risk and actual knowledge. Those misunderstandings have sometimes caused regulated entities to either not report when they should have or report when they did not have to.
The EPA has published a number of guidance documents to assist companies in better understanding their Section 8(e) obligations. We looked at some documents to glean some points about the meaning of substantial risk and what type of information about spills and other releases is reportable to the EPA under Section 8(e).
Substantial Risk and Exposure
A substantial risk is one that:
- Would have a “serious effect,” and
- Is occurring in fact or has a probability of occurring.
In other words, a serious effect on people or the environment would not be occurring in fact or have a probability of occurring if there are no circumstances where people or the environment would be exposed to the chemical.
Unlike “unreasonable risk” under TSCA, economic or social benefits of use or costs of restricting use are not considered when determining whether there is reasonable support for a conclusion of substantial risk.
Everything You Need for Environmental Compliance
Enviro.BLR.com puts everything you need at your fingertips, including practical RCRA, CAA, CWA, hazardous waste regulatory analysis and activity, news, and compliance tools. Try it at no cost or risk and get a FREE report.
What About Reporting Spills
Should a chemical that otherwise would not present an exposure risk be accidentally spilled, Section 8(e) reporting may be required. For example, if a “spill” (defined as an incident of environmental contamination) of a chemical that would have a serious effect occurs, the responsible party must report the spill to the National Response Center (NRC). The information reported to the NRC is considered “known” by the EPA, and that information should not be reported under Section 8(e). But if the company subsequently obtains any new substantial risk information concerning the incident, Section 8(e) reporting is triggered.
In some cases, a facility will report a spill to its local emergency planning committee (LEPC) or its state emergency response commission (SERC). Such information is considered known by the EPA if the SERC reports it to the NRC; alternatively, the LEPC may report to the SERC, which, in turn, reports to the NRC.
Tip: The EPA is vague on who is facing a potential violation if a facility reports an incident to a SERC, which fails to forward that information to the NRC. TSCA-regulated facilities should not assume that they bear no responsibility if the SERC they have reported information to does not report that information to the NRC.
Another spill variation concerns accidents that occur within the boundaries of the chemical facility. Contamination resulting from such a spill may or may not become sufficiently widespread to be considered for Section 8(e) reporting. Factors such as contamination of groundwater or migration through air to surrounding populations should be considered in deciding whether the contamination is reportable. The company would have to possess information that exposure is occurring; the 30-day time frame does not mean that that information must be developed 30 days after the spill occurs. The clock starts ticking once the information is obtained, which may be months or even years after the spill occurs.
Next month, we’ll consider a few other scenarios that may require reporting to the EPA under Section 8(e).
1 thought on “Why Is There So Much Confusion About TSCA 8(e) Reporting?”