TSCA §§11, 15, 16, and 17-Enforcement
| Author | Carolyne R. Hathaway/William K. Rawson/Ann Claassen/Julia A. Hatcher |
| Pages | 121-136 |
Page 121
Chapter XII:
TSCA §§11, 15, 16, and 17—Enforcement
TSCA provides EPA with signicant tools to
enforce its provisions; indeed, some of the
largest civil nes EPA has obtained have
been pursuant to the TSCA provisions.1 TSCA §11
grants EPA inspection and subpoena authorities to
investigate TSCA violations. TSCA §15 makes it
unlawful for any person to:
(1) fa il or ref use to comply with any rule pro-
mulgated or order issued under TSCA §4,
§5, or §6, or any requirement prescribed by
§5 or §6;
(2) use for commercial purposes a chemical sub-
stance or mixture which the person knew or
had reason to know was manufactured, pro-
cessed, or distributed in violation of §5 or §6
or a rule or order under §5, §6, or §7;
(3) fail or refuse to establish or maintain records,
submit reports, notices or other information,
or permit access to or copying of records
required by any portion of TSCA; or
(4) fail or refuse to permit entry or inspection as
required by §11.2
TSCA §16 provides civil and criminal penal-
ties for violations of §15.3 As explained below, civil
penalties can amount to as much a s $37,500 per
1. Summaries of EPA enforcement cases and settlements, includ-
ing those based on alleged TSCA violations, can be accessed
from U.S. EPA, Cases and Settlements, http://www.epa.gov/
compliance/resources/cases/index.html (last visited Sept. 30,
2010). Administrative Law Judge decisions can be accessed from
U.S. EPA, Decisions and Orders, http://www.epa.gov/aljhomep/
orders.htm (last visited Sept. 30, 2010) and decisions of the
Environmental Appeals Board can be accessed from U.S. EPA,
EAB Decisions, http://yosemite.epa.gov/oa/EAB_Web_Docket.
nsf/Board+Decisions?OpenPage (last visited Nov. 7, 2010).
2. 15 U.S.C. §2614, ELR S. TSCA §15.
3. Id. §2615, ELR S. TSCA §16.
day per violation,4 and a person convicted of know-
ingly or willfully violating any provision of §15
may, in addition to or instead of a ny civil pena lty,
be subject to nes as much as $25,000 per day per
violation and/or imprisonment for up to one year.5
Where EPA believes civil penalties are insucient
to rectify TSCA violations, TSCA §17 gives EPA
the authority to seek either specic performance or
injunctive relief in federal district cour ts.
A. Inspections and Subpoenas
Section 11 grants EPA both inspection and sub-
poena authorities “for purposes of administering”
and “carrying out” TSC A. ese t wo authorities
provide EPA with distinct tools. EPA’s inspec-
tion authority enables the Agency to gain physical
access to the premises of a facility that manufac-
tures, processes, or distributes chemical substances,
upon written notice to the owner. e subpoena
authority entai ls a formal demand for production
of documents and witnesses which is enforceable
by EPA in federal court.
1. Inspection Authority
Section 11(a) authorizes EPA to
inspect any establish ment, facility, or other prem-
ises in which chemical substances, mixtures, or
products subject to subc hapter IV of this chapter
[i.e., lead-based paint] are manu factured, pro-
cessed, stored, or held before or after their distri-
bution in commerce and a ny conveyance being
4. Id. §2615(a), ELR S. TSCA §16(a). e amount specied
in the statute has been adjusted under the Debt Collection
Improvement Act of 1996. See infra note 28.
5. Id. §2615(b), ELR S. TSCA §16(b). e Debt Collection
Improvement Act of 1996 did not aect criminal penalties. 61
Fed. Reg. at 69360.
Page 122 TSCA Deskbook
used to t ransport chemical subs tances, mixtures ,
such products, or such articles in connection with
distribution in commerce.6
“Such an inspection may only be made upon
the presentation of appropriate credentials and of
a written notice to the owner, operator, or agent
in charge of the premises or conveyance to be
inspected.”7 It must be “conducted at reasonable
times, within reasonable limits, and in a reasonable
manner,” and must be “commenced and completed
with reasonable promptness.”8
In carr ying out inspect ions, EPA is autho-
rized to review “all things within the premises or
conveyance inspected (including records, les,
papers, processes, controls, and facilities) bearing
on whether” the requirements of TSCA have been
met.9 However,
[n]o inspection . . . shall e xtend to– (A) nan-
cial data, (B) sa les data (other than shipment
data), (C) prici ng data , (D) personnel data, or
(E) research data (other th an data required under
[TSCA]), unless the n ature and extent of such
data are described with re asonable specicity in
the written notice required by subs ection (a) ….
TSCA §15(4) makes unlawfu l the refusal to per-
mit entry or inspection as required by §10.10 How-
ever, EPA policy is to obtain consent for EPA to
gain physical access a nd perform the inspection.
EPA’s OECA Multimedia Investigation Manual
addresses situations where a facility denies entry to
an EPA inspector:
Occasionally, entry is denied, usually in situations
where the inspect ion is unannou nced or enforce-
ment action is pending (e.g., outstanding Notice
of Violation, ongoing Admi nistrative Order
negotiations, etc.). Consequently, the team leader
needs to know how to deal w ith deni al of entry
situations. W henever entry consent is denied (or
withdrawn during the course of t he inspection),
the team leader should explain the Agency author-
ity to conduct the i nvestigation and verify t hat
the authority is understood by the facility repre-
sentative. I f the person persists in denying entry
or withdrawing consent, t he team leader needs
to fully document the circumstanc es and actions
taken; this includes recording the name, title, and
telephone number of the person denying entr y or
6. 15 U.S.C. §2610(a), ELR S. TSCA §11(a).
7. Id.
8. Id.
9. Id. §2610(b), ELR S. TSCA §11(b).
10. Id. §2614(4), ELR S. TSCA §15(4).
withdrawing consent. Inspec tion team memb ers
must never make threateni ng remarks to facility
personnel. e team leader should then contact
his/her supervisor a nd Agency legal counsel.11
Where entry is denied (or in situations where
EPA expects that it will be), EPA can obtain a war-
rant from a local magistrate or judge. Such a war-
rant must be served by “an EPA special agent, a
Federal Marshal, or sheri.”12 It may be obtained
ex parte and is subject to various legal require-
ments and limitations, including the “unreason-
able search and seizure” prohibition in the Fourth
Amendment to the U.S. Constitution.13
In its Multimedia Investigation Manual , the
OECA notes that TSCA §11(c) subpoena authority
(which is discussed in the next section below) may
oer a useful alternative to obtaining a warrant for
inspection. Although a subpoena is for documents
and testimony—and therefore cannot substitute
for a warrant to compel EPA’s physical access to
premises to perform an inspection—a subpoena
may prompt a company to give its consent for such
inspection.14
TSCA inspections are conducted by EPA Head-
quarters, EPA Regions, and/or EPA’s Core TSCA
Enforcement Program in Denver, Colorado.
EPA’s Oce of Inspector General issued a report
in Februa ry 2010 calling for greater coordination
between the OECA a nd the OPPT, consistent
enforcement strategies across regions, a nd strategic
targeting of chemical manufactu rers and importers
for inspections.15
2. Subpoena Authority
EPA may issue a subpoena pursuant to TSCA
§11(c) to require “the attendance and testimony
11. OECA, U.S. EPA, M I M
(1992) (EPA-330/9-89-003-R), available at http://www.epa.
gov/compliance/reso urces/policies/civil/rcra/ mmmall-rpt.pdf
[hereinafter I M] (footnote omitted).
12. Id. at 25.
13. See Boliden Metech, Inc. v. United States, 695 F. Supp. 77, 19 ELR
20326 (D.R.I. 1988) (TSCA-related inspection and sampling
of facility performed by EPA pursuant to ex parte warrant did
not violate plainti’s Fourth Amendment rights against illegal
search and seizure).
14. I M, supra note 10, at 24 n.5 (“A warrant
is only one of several legal vehicles that should be considered. A
TSCA subpoena, issued to a high-ranking corporate ocial, was
used successfully in one instance as a vehicle to gain consensual
entry; the limitations imposed by a warrant were avoided.”).
15. O I G, U.S. EPA, EPA N C-
P O I T S C
A R (2010) (Report No. 10-P-0066), available
at http://www.epa.gov/oig/reports/2010/20100217-10-P-0066.
pdf.
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