January 20, 2011

A business owner from Toledo, Ohio sent www.enviroattorney.net website the following inquiry:

Question:  “Two and half years ago we received a call several weeks ago from the EPA office. They told us they wanted to visit our plant and check our community right to know filings. Shortly after the call they visited, conducted an inspection and reviewed our records. We thought we had filed all the required reports. The EPA inspectors reviewed our records and told us we had missed some filings and failed to include all of the chemicals on our recent reports. We were surprised and disappointed. Several years have passed since the EPA inspection, will we hear from the EPA? Frankly, we hope they have forgotten about us and moved on to more important issues. What should we expect?”

Environmental Law Attorney Answer: “Thank you for visiting our site and your question.  We are pleased to respond. We remind you that because we do not have an attorney client relationship, we cannot provide you with legal advice. We can provide general comments.  As stated in the disclaimer below, we urge you to consult with a qualified attorney as each situation is unique.

Based on the information you have provided, it appears the U.S. Environmental Protection Agency (EPA) inspectors were checking the compliance status of your business with the requirements of the federal Emergency Planning and Community Right to Know Act (EPCRA). This federal law requires businesses that store threshold quantities of hazardous substances to file annual reports disclosing the types and quantities of materials that are stored with federal, state and local authorities.

EPCRA is different from many other environmental laws.  Most federal and state environmental laws regulate waste materials – hazardous wastes, air pollutants or discharges of wastewater. EPCRA’s scope is more expansive. EPCRA applies to raw materials that are used by businesses to produce products. Information about the EPCRA program and its regulatory requirements can be found at: http://www.epa.gov/ceppo/web/content/epcra/ and athttp://www.epa.gov/oem/docs/chem/epcra.pdf. Most importantly, from the perspective of a business that is subject to EPCRA’s provisions, the law provides that the EPA may seek civil penalties from $10,000 to $75,000 per day per violation. For more information on how the EPA enforces requirements of EPCRA, you may want to review the EPA’s Enforcement Response Policy at: http://www.epa.gov/compliance/resources/policies/civil/epcra/epcra304.pdf

The EPA collaborates with state and local authorities and conducts periodic inspections of companies who are subject to regulation under EPCRA. If the EPA inspectors advised you that there were alleged violations, you should expect to hear back from the EPA. The EPA has a large caseload and is working under tight budget constraints. In many cases, the EPA may take two, three or more years after their inspection to actually bring a case.

Under most federal environmental laws the EPA, including EPCRA, has five years from the date when a claim first accrued to commence an enforcement action. If the EPA fails to act within that five year period, its claims may be barred by the statute of limitations.

Typically, the EPA will send a Pre-Filing Notice advising of their intent to pursue a formal enforcement action. The EPA seeks to negotiate these enforcement matters. If an agreement cannot be reached, the EPA may file a formal complaint before an EPA Administrative Law Judge. A defendant or respondent has a right to a hearing. The EPA bears the burden of proof to demonstrate that the alleged violations occurred and that the proposed penalty is warranted. A defendant or respondent may assert defenses and challenge the level of the proposed penalty.”

The environmental law attorneys at Hessian & McKasy regularly assist clients in responding to EPA enforcement matters. We advise clients on a range of compliance issues including responding to federal and state enforcement actions. We offer innovative legal service packages designed to address our clients’ needs in a cost effective manner. To learn about these services, please visit:http://www.enviroattorney.net/sample-price-list.php. For more information on the professional services that we provide, please visit:http://www.enviroattorney.net/practice/professional_services.php

The views contained within this entry and on this website are my own and do not constitute those of Hessian & McKasy, a Professional Association.

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