EPA Settles with Slack Chemical Company Following Alleged EPCRA Violations

On October 11, 2023, EPA announced a settlement with Slack Chemical Company, Inc. (“Slack”) following alleged violations of the Emergency Planning and Community Right-to-Know Act (EPCRA) at two of the New York corporation’s facilities. The settlement includes a civil penalty of $231,300.

Under Section 313 of EPCRA, owners or operators of certain facilities are required to annually submit a Toxic Chemical Release Inventory Reporting Form R (“TRI Form R”) report for each chemical listed under 40 CFR 372.65 that was manufactured, processed or otherwise used in quantities exceeding a certain threshold. TRI Form R reports require information about on-site releases of the chemical into the environment, transfers of the chemical in waste to off-site locations, on-site waste treatment methods, and source reduction and recycling activities. Alternatively, owners or operators can opt to submit a simpler Toxic Chemical Release Inventory Reporting Form A (“TRI Form A”)  report when the quantity of the chemical manufactured, processed, or otherwise used is one million pounds or less, the total quantity released, disposed, and treated at the facility is 500 pounds or less, and the chemical is not considered to be of special concern. TRI Form R/Form A reports are due no later than July 1 for the preceding calendar year.

EPA alleges that Slack, which describes itself as a “chemical warehousing, repackaging and distribution company,” failed to submit timely TRI Form R/Form A reports at its Carthage and Saratoga Springs facilities for calendar years 2019 and 2021. More specifically, EPA alleges that Slack:

  • Submitted TRI Forms R or A for the chemical’s ammonia, methanol, nitric acid, and toluene at its Carthage facility and a TRI Form R for methanol at its Saratoga Springs facility on May 10, 2021, for calendar year 2019, approximately 10 months late; and
  • Submitted TRI Forms R or A for the same chemicals at the facilities on November 21, 2022, for the calendar year 2021, approximately 4.5 months late.

In a news release, EPA stated that Slack has “voluntarily instituted a corporate compliance plan to prevent recurrence of EPCRA reporting violations,” which includes a written procedure listing the steps needed to identify TRI chemicals and their quantities.

Environmental Groups Request EPA Require TRI Reporting for Waste Incinerators

Public Employees for Environmental Responsibility (“PEER”) and the Energy Justice Network recently filed a with EPA requesting that the Agency require companies to disclose the chemicals discharged from waste incinerators and facilities that recycle plastics (“advanced recycling facilities”). Currently, none of the approximately 400 incinerators and advanced recycling facilities throughout the nation are required to report their facility’s toxic chemical emissions under EPA’s Toxics Release Inventory Program (“TRI”). TRI data provides local communities with information about toxic chemical releases and management activities in their area.

Petitioners argue that waste incinerators are among the largest local air polluters and that the public is entitled to information about these emissions; therefore, they should be TRI data. One particular concern expressed in the petition is that ash generated from the incineration of solid and industrial waste can contain toxic chemicals and heavy metals, including lead and mercury. Additionally, according to petitioners, incineration does not destroy per- and poly-fluoroalkyl substances (“PFAS”). Therefore, petitioners assert that when incinerator ash is placed on top of landfills, as it often is, the contaminants can then travel into communities contaminating local air, water, and soil.

Petitioners have also included advanced recycling facilities in their request for required TRI reporting. Advanced recycling facilities, also called chemical recycling facilities, are categorized by EPA as incinerators. These facilities heat waste, generally plastics, to create a fuel product. While EPA has released a proposed rulemaking to approve the products as renewable fuels, the Agency is also facing litigation for approving a renewable fuel associated with a high cancer risk. Petitioners have the same concerns about emissions from the advanced recycling facilities reaching local communities.

This April’s petition is not the environmental organizations’ first attempt to discuss the matter with EPA; petitioners sent a letter to EPA last October highlighting their health concerns related to incineration.

Verdant Settles EPCRA Enforcement Matter for New Cingular Wireless

EPCRA:

Verdant is pleased to announce that it helped its client, New Cingular Wireless, reach a favorable settlement with EPA over a longstanding EPCRA enforecement matter involving legacy facilities owned by a predecessor company.  A copy of EPA’s press release is embedded below. 

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WASHINGTON – The U.S. Environmental Protection Agency (EPA) and New Cingular Wireless (NCW) have reached an administrative settlement requiring the company to pay a civil penalty of $750,000 and spend $625,000 on environmental projects to resolve alleged reporting, planning and permitting violations at 332 legacy AT&T Wireless (AWS) sites now owned by NCW.

The violations, which occurred at AWS sites in 43 states, such as cellular towers, transmitter sites, switching stations and warehouses, included failure to comply with Emergency Planning and Community Right-to-Know Act (EPCRA) reporting requirements related to the presence of sulfuric acid and diesel fuel at sites, inadequate or no Clean Water Act (CWA) Spill Prevention, Control, and Countermeasure (SPCC) Plans, and Clean Air Act (CAA) minor source permitting requirements.

The EPCRA requirements help communities plan for emergencies involving hazardous substances, the CWA’s SPCC rule requires facilities to have oil spill prevention, preparedness, and response plans to help prevent oil discharges to navigable waters and adjoining shorelines, and the minor source permitting requirements under the CAA ensure that air emissions limits are met.

Under the settlement, NCW will provide a certification of EPCRA compliance at 1,356 sites and conduct comprehensive compliance audits of CAA and CWA/SPCC requirements at 1,361 and 41 legacy-AWS facilities, respectively. NCW has also agreed to pay stipulated penalties for all disclosed and corrected violations discovered through these audits.

NCW has also agreed to conduct environmental projects, which will provide hazardous materials awareness and health/safety training to building inspectors and fire fighters. The projects will also support the procurement of emergency response equipment such as fire-fighting equipment, gas meters, hazmat identification equipment, satellite phones and other emergency communications equipment. The seven entities, located in four states that will benefit from the projects are: Palm Beach County Fire Rescue and Georges Lake Volunteer Fire Department, Putnam County, Fla., New York City Fire Department, N.Y., Yancey, Texas Volunteer Fire Department, Texas, and San Diego, County California Office of Emergency Services, Bodega Bay, California Fire Protection District, and Los Angeles, California Police Department Calif.

Since 1998, nearly 6,000 telecommunications facilities have been brought into compliance through more than 30 settlements as part of EPA’s effort to improve compliance in the telecommunications sector.

More information on the New Cingular Wireless settlement: http://www.epa.gov/enforcement/waste/cases/att.html

New EPCRA TRI Website

EPCRA Toxics Release Inventory (TRI):

On November 19, 2012, EPA rolled out a new website to provide information on how industrial facilities are preventing releases of chemicals. The site shows how industry is making progress in reducing releases reported under Section 313 of the Emergency Planning and Community Right-to-Know Act (ECPCRA).  The site and additional information about the TRI program is available  here

EPA Announces Action Plans for Chemicals Used in Dyes, Detergents, and Flame Retardants

TSCA/EPCRA:

On August 18, EPA posted action plans for benzidine dyes, nonylphenol and nonylphenol ethoxylates, and hexabromocyclododecane.   The chemicals at issue are “existing,” meaning that they are currently included on the inventory established under the Toxic Substances Control Act (TSCA) and therefore may be lawfully manufactured, processed, and used in the United States, subject to whatever restrictions or other requirements the Agency imposes.   According to EPA, these chemicals are widely used in both consumer and industrial applications, including as dyes, flame retardants, and industrial laundry detergents, respectively.   Restrictions or further conditions on their use could therefore have significant economic implications for certain stakeholders.

The action plans summarize available hazard, exposure, and use information; outline the risks that each chemical may present; and identify the specific steps EPA is contemplating to address those concerns.   According to the plans, the Agency is contemplating a range of actions under TSCA as well as listings under the Toxic Release Inventory (TRI) established pursuant to Section 313 of the Emergency Planning and Community Right-to-Know Act (EPCRA).   As it undertakes the proposed actions, EPA will provide opportunities for public and stakeholder comment and involvement. 

The action plans are a further demonstration of EPA’s commitment to using its existing legal authorities to regulate chemicals that may pose a risk to human health and the environment.   Until new legislation amending TSCA is enacted, readers should anticipate EPA’s creative and robust use of its existing authorities to implement the Administration’s chemicals management policies. 

More information, including copies of the action plans, is available here.   A summary of the plans is provided below.

Benzidine Dyes

This action plan addresses 48 dyes derived from benzidine and its congeners, 3,3′-dichlorobenzidine, 3,3′-dimethylbenzidine, and 3,3′-dimethoxybenzidine.

According to EPA, Benzidine and its congeners are important precursors in the synthesis of dyes.   Some of these dyes have the potential to metabolize to aromatic amines that are considered to be carcinogenic.   Benzidine and dyes metabolized to benzidine are classified as known human carcinogens, and Benzidine’s congeners, 3,3′-dichlorobenzidine, 3,3′-dimethylbenzidine, and 3,3′-dimethoxybenzidine and dyes metabolized to the latter two congeners have all been classified as “reasonably anticipated to be human carcinogens.”

The dyes are used in the production of textiles, paints, printing inks, paper, and pharmaceuticals.   According to the Agency, they have the potential to be leached from textiles, such as clothing, that are in prolonged contact with human skin.   They are also used as reagents and biological stains in laboratories, are used in the food industries, and have more recent uses in laser, liquid crystal displays, ink-jet printers, and electro-optical devices.   Because the dyes have the potential to metabolize to carcinogenic amines both in and on the human body, EPA is concerned about the potential risk from exposure, including exposure of children, from using products containing benzidine and congener-based dyes.

On the basis of existing information, EPA has concluded that the following actions would be warranted:

1.   Initiate rulemaking to add four benzidine-based dyes to an existing TSCA section 5(a)(2)significant new use rule (SNUR) for benzidine-based substances at 40 CFR 721.1660.  (A SNUR requires manufacturers who intend to use a chemical for the identified significant new use to submit an application, known as a Significant New Use Notice (SNUN), to the Agency for review at least 90 days prior to beginning that activity.  The Agency’s review of the SNUN provides an opportunity to take other regulatory action if appropriate.)

2.   Initiate rulemaking to establish a new TSCA section 5(a)(2)SNUR for benzidine congener-based dyes, including 44 specific such dyes.

3.   Consider proposing to eliminate the article exemption applied to SNURs to address potential concerns for exposure to these dyes on imported finished textiles.

4.   Consider initiating action under TSCA section 6, if EPA learns that these dyes are present in imported finished textiles.

5.   Consider additional regulatory action, if EPA determines that there are other ongoing uses for these dyes and needs to obtain information necessary to determine whether those uses present concerns which need to be addressed.

Nonylphenol and Nonylphenol Ethoxylates 

This action plan addresses Nonylphenol (NP) and Nonylphenol Ethoxylates (NPEs).  NP and NPEs are produced in large volumes, with uses that lead to widespread release to the aquatic environment. 

NP is persistent in the aquatic environment, moderately bioaccumulative, and extremely toxic to aquatic organisms.   NP has also been shown to exhibit estrogenic properties in in vitro and in vivo assays.   NP’s main use is in the manufacture of NPEs.

NPEs are nonionic surfactants that are used in a wide variety of industrial applications and consumer products.   Many of these, such as laundry detergents, are “down-the-drain” applications.  Some others, such as dust-control agents and deicers, lead to direct release to the environment. NPEs, though less toxic and persistent than NP, are also highly toxic to aquatic organisms, and, in the environment, degrade into NP.

According to the Agency, NP and NPEs have been found in environmental samples taken from freshwater, saltwater, groundwater, sediment, soil and aquatic biota.   NP has also been detected in human breast milk, blood, and urine and is associated with reproductive and developmental effects in rodents.

EPA is initiating both voluntary and regulatory actions to manage potential risks from NP and NPEs. EPA intends to:

1.   Support and encourage the ongoing voluntary phase-out of NPEs in industrial laundry detergents, as  agreed to by the Textile Rental Services Association of America (TRSA) The phase out, which has already begun, is being coordinated with EPA’s DfE Safer Detergents Stewardship Initiative (SDSI)program and would end the use of NPEs in industrial laundry detergents by 2013 for liquid detergents and 2014 for powder detergents.   In addition, EPA intends to encourage the manufacturers of all NPE-containing direct-release products (e.g., firefighting gels and foams, dust-control agents and deicers) to move to NPE-free formulations.   EPA will develop an alternatives analysis and encourage the elimination of NPE in other industries that discharge NPEs to water, such as the pulp and paper processing and textile processing sectors, where safer alternatives may be available.

2.   Initiate rulemaking to simultaneously propose a SNUR under TSCA section 5(a)and a test rule for NP and NPEs under TSCA section 4.    The SNUR would designate use of NPEs in detergents and cleaning products as a significant new use, which would require submission of a SNUN at least 90 days before beginning that use.   The proposed test rule would require development of the information necessary to determine the effects that NPEs and NP may have on human health or the environment.  

3.   Consider initiating rulemaking under TSCA section 5(b)(4)to add NP and NPEs to the Concern List of chemicals that present or may present an unreasonable risk of injury to health or the environment.

4.   Initiate rulemaking to add NP and NPEs to the Toxics Release Inventory (TRI) established under EPCRA, which would require facilities to report releases of these chemicals to the environment.

Hexabromocyclododecane

This action plan addresses EPA’s review of hexabromocyclododecane (HBCD), a category of brominated flame retardants.  HBCD is used in expanded polystyrene foam (EPS) in the building and construction industry, as well as in consumer products. 

According to EPA, people may be exposed to HBCD from products and dust in the home and workplace, as well as its presence in the environment.   HBCD is supposedly found world-wide in the environment and wildlife.   EPA claims that HBCD is found in human breast milk, adipose tissue, and blood.   It supposedly bioaccumulates in living organisms and biomagnifies in the food chain, and it is persistent in the environment and is transported long distances.

The action plan finds that HBCD is highly toxic to aquatic organisms.  It also presents human health concerns based on animal test results indicating potential reproductive, developmental and neurological effects.

EPA intends to initiate the following actions to manage the risk that may be presented by HBCD.

1.   Consider initiating rulemaking under TSCA section 5(b)(4)to add HBCD to the Concern List of chemicals which present or may present an unreasonable risk of injury to health or the environment.   EPA intends to publish this notice of proposed rulemaking by the end of 2011.

2.   Initiate rulemaking under TSCA section 5(a)(2) to designate manufacture or processing of HBCD for use as a flame retardant in consumer textiles as a significant new use.   This would require manufacturers and processors to file a SNUN 90 days before manufacturing or processing HBCD for this use.   The SNUR also would be proposed to apply to imports of consumer textiles articles containing HBCD.  

3.   Consider initiating rulemaking under TSCA section 6(a)to regulate HBCD.   A section 6(a) action could take the form of a comprehensive ban on the manufacturing, processing, distribution in commerce and use of a chemical substance, or a more targeted regulation to address specific activities.   The extent of the rule for HBCD would be determined during the rulemaking process.

4.   Initiate rulemaking in 2011 to add HBCD to the Toxics Release Inventory (TRI).   Listing on TRI will require manufacturers or importers to provide environmental release information.

5.   Conduct a Design for the Environment (DfE)alternatives assessment of HBCD.   The information developed may be used to encourage industry to move away from HBCD instead of, in addition to, or as part of any regulatory action taken under TSCA.   The alternatives assessment would build upon existing knowledge and would consider various exposed populations, including sensitive human subpopulations, as well as environmental exposure.   The work will begin in 2011, with completion expected in 2013.

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Follow the Green Chemistry Law Report for future updates on EPA’s contemplated actions for these chemicals.