07.09.2015 Lesson Learned from EPA Enforcement of EPCRA Form R Requirements By: Ryan W. Trail

EPCRA § 313 requires certain facilities manufacturing or “processing” more than 25,000 lbs. or otherwise using 10,000 lbs or more of a listed toxic chemical to file a Form R annually on or before July 1.  In the last two issues of this newsletter, we discussed frequently asked questions and answers designed to assist you in the preparation of Form R reports for your facility.  With the July 1 reporting deadline now behind us, we turn to an overview of three recent Form R enforcement cases and the trends they show for companies that fail to comply with applicable Form R requirements.

In March of 2015, EPA and the Department of Justice entered into a settlement with a large Idaho phosphate mining and processing company that failed to report uncontrolled releases of hydrogen cyanide, sulfur dioxide, nitrogen oxides and mercury.  The facility also failed to report use and releases of carbonyl sulfide, phosphine, sulfuric acid, and hydrogen cyanide as part of its annual Form R report for a period of at least 3 years.  As part of the settlement, the Company agreed to pay a $600,000 combined penalty.

In September of 2014, EPA settled an action against a large Nevada gold mining company for its alleged late and incorrect filing of Form R reports for arsenic, cobalt, copper, cyanide, lead, mercury, nickel, propylene and zinc. The company agreed to pay a civil penalty of $182,000 for the alleged violations.  EPA stated the action was part of its National Mineral Processing Enforcement Initiative which aims to minimize risks to drinking water and other resources posed by hazardous waste operations at mineral processing facilities.

In December of 2014, EPA entered into a settlement agreement with a manufacturer of highly engineered advanced carbon composite materials, whose Maine facility allegedly failed to file Form R reports for several polycyclic aromatic compounds.  The facility allegedly processed and failed to report more than 4,000 pounds of these compounds in 2012, far more than the 100-pound threshold established by EPA for reporting.  In addition to a $6,935 civil penalty, the settlement agreement included a Supplemental Environmental Project (“SEP”). Under the SEP, the company will provide local emergency responders with $13,240 worth of equipment, including specialized confined space entry equipment, a gas detection unit, and air cylinders, which will increase the time crews may spend responding to emergencies in dangerous atmospheres.

These recent cases are a reminder of two important points in EPCRA enforcement.  First, EPCRA violations are often discovered as the result of agency compliance initiatives focused on other areas, so facilities in the crosshairs of any EPA compliance initiative should be mindful of EPCRA compliance.  Second, SEPs are still a viable settlement tool, and are often used in the context of EPCRA enforcement actions to reduce the size of civil penalties and directly benefit the communities EPCRA seeks to protect.