The U.S. Environmental Protection Agency (EPA) recently announced that Dover Chemical Corporation has agreed to pay a $1.4-million civil penalty for alleged violations of Toxic Substances Control Act (TSCA) premanufacture notice (PMN) obligations for the production of various short-chain chlorinated paraffins (SCCP). This column explains why this enforcement action is noteworthy.
Under TSCA, chemical substances not listed on the TSCA Inventory are classified as “new” and prior to their manufacture or import for commercial use, a notice must be filed with EPA under TSCA Section 5. If EPA determines a chemical is being produced or distributed illegally, there are potentially catastrophic consequences for business interests. EPA is authorized to enjoin further production and initiate enforcement action, measures that disrupt a chemical producer and its downstream purchasers.
EPA’s action against Dover Chemical is significant for three reasons. First, EPA brought the action based on its belief that certain SCCPs manufactured by Dover Chemical are “new” and, because they are not listed on the TSCA Inventory, the company violated TSCA.
Some would characterize EPA’s interpretation of the scope of TSCA Inventory listings as new. The revised interpretation goes something like this: Many TSCA Inventory listings of polychlorinated alkanes (a term EPA uses that is interchangeable with paraffins) and mixtures contain polychlorinated alkanes. A common chemical substance description for chlorinated paraffins, certainly in 2009 when the enforcement action was filed, was “alkanes, chloro,” CAS # 61788-76-9, which is listed on the TSCA Inventory. EPA describes it as a mixture that may contain polychlorinated alkanes, but doesn’t specify any particular chain length. This appears to encompass all ranges of carbon atoms and all degrees of chlorination. Many other alkanes assigned CAS numbers and listed on the TSCA Inventory are more precise in terms of carbon chain length/fraction.
EPA believes that a broad listing of “alkanes, chloro” doesn’t sufficiently describe a chemical substance for TSCA purposes if the manufacturer knew or should have known that a more-specific chemical description would better reflect the chemical identity of the substance. However, entities have been describing their polychlorinated alkane substances using the broad “alkanes, chloro” CAS number for decades, believing such a description was adequate. EPA’s more recent focus on more chemical particularity likely comes as a surprise to many.
Second, this case tells us EPA is using various databases to assess compliance. EPA can, for example, compare information submitted under TSCA’s Chemical Data Reporting (CDR) rule, Section 313 Toxics Release Inventory (TRI) Form R submissions, and other reports submitted pursuant to other programs and determine if chemical substances are being reported inconsistently.
Finally, the investigation indicates that EPA may begin using its TSCA Section 11(c) administrative subpoena authority more routinely. Historically, EPA has used this authority sparingly. TSCA subpoenas could well be used regularly to obtain information.
Prepare to be More Precise
Companies should pay attention to how the chemical substances they manufacture and import are identified in terms of specific TSCA nomenclature and TSCA Inventory conventions. The enforcement action reflects recent shifts in EPA’s thinking regarding its interpretation of the TSCA Inventory, chemical naming conventions, and the level of particularity EPA expects in TSCA Inventory chemical listings. These actions indicate that EPA is looking closely at how chemical substances are identified for Inventory purposes and is enforcing its view that chemical manufacturers (including importers) must ensure that commercial chemical substances are identified as precisely as possible for TSCA Inventory listing purposes.
Companies should also expect EPA to rely more regularly upon administrative subpoenas. A timely response to such a subpoena is essential.
Finally, with no near-term TSCA legislative reform prospects on the horizon, chemical stakeholders should expect EPA to continue to use its TSCA authority to address perceived chemical exposure risks. Expect EPA to be more creative and ambitious in its use of the TSCA authorities.
LYNN BERGESON is Chemical Processing's Regulatory Editor. You can e-mail her at firstname.lastname@example.org.
Lynn is managing director of Bergeson & Campbell, P.C., a Washington, D.C.-based law firm that concentrates on chemical industry issues. The views expressed herein are solely those of the author.