On February 7 the US EPA announced that Dover Chemical Corporation agreed to pay a US$1.4 million civil penalty for violations of the Toxic Substances Control Act (TSCA). The agreement is embodied in a consent decree lodged with the United States District Court for the Northern District of Ohio and is subject to a 30-day comment period and approval by the federal court. The agreement settles claims by US EPA that the company failed to file premanufacture notices (PMNs) required under TSCA for chlorinated paraffins it was manufacturing at its Dover, Ohio and Hammond, Indiana facilities. The US$1.4 million penalty underscores US EPA’s announced intent to use its existing TSCA authorities more aggressively and bring financially significant enforcement actions for violations of the statute.

In addition to the US$1.4 million penalty, Dover has agreed to (i) cease manufacturing short-chained chlorinated paraffins (SCCPs); and (ii) submit PMNs for any medium-chained or long-chained chlorinated paraffins (MCCPs or LCCPs) it intends to manufacture within 30 days of the effective date of the consent decree

US EPA’s action against Dover had been in the works for more than two years and was foreshadowed in the agency’s chemical action plan on chlorinated paraffins, which was issued on December 30, 2009. In the process of preparing that action plan, US EPA staff concluded that there were discrepancies between the data on chlorinated paraffins submitted to the agency under other statutes and the information contained on the TSCA Inventory. The action plan stated:

EPA is addressing the discrepancy between the specific chlorinated paraffins companies are actually manufacturing or importing and those listed on the TSCA Inventory. Only some of the chlorinated paraffin fractions being manufactured or imported are on the TSCA Inventory. EPA intends to require companies to submit Pre-Manufacture Notices for the SCCPs, MCCPs, and LCCPs fractions that are not on the TSCA Inventory.

As the consent decree points out, US EPA issued a notice of violation to Dover on December 15, 2009.

US EPA’s action against Dover illustrates the need for chemical manufacturers and importers to ensure that the information they have provided to US EPA about the chemicals they manufacture or import is complete and up to date. In light of EPA’s increased focus on TSCA compliance, it is critical that the description of a company’s chemical substances on the TSCA Inventory accurately reflect the chemicals they are manufacturing or importing, especially if those chemicals have been listed on the TSCA Inventory for a long time. Careful attention should especially be paid to the information that companies are submitting to US EPA under the agency’s new Chemical Data Reporting (CDR) rule. The CDR rule requires companies to provide more comprehensive data on the chemical substances they manufacture or import than has been required in the past. As the Dover case shows, if a company is manufacturing or importing a chemical substance that appears to be different from what is listed on the TSCA Inventory, the company can face significant enforcement action from US EPA.

The Dover case also illustrates the different way that TSCA treats “new” and “existing” chemical substances. Under TSCA any chemical not listed on the TSCA Inventory is considered a “new chemical substance” for which a PMN must be filed with US EPA at least 90 days before a company begins producing it. Although chlorinated paraffins have been manufactured for decades and were “grandfathered” onto the TSCA Inventory when it was established in 1978, US EPA claimed that the specific chlorinated paraffins manufactured by Dover were different from those listed on the TSCA Inventory. Because of the differences, US EPA took the position that Dover’s chlorinated paraffins were “new” chemical substances under TSCA and that Dover’s failure to file PMNs for these “new” chemicals violated TSCA. In the public statement it issued about this matter, Dover explained that the “original substance descriptions. . . were often not well-defined and this problem apparently created confusion regarding the appropriate CAS number/substance descriptions to use in reporting CP manufacture.”

In addition to underscoring the importance of ensuring that the information on the TSCA Inventory is complete and up to date, the Dover case demonstrates that chemical manufacturers and importers need to ensure that the data they submit to US EPA under other environmental statutes is consistent with the data they submit under TSCA. As US EPA’s chemical action plan on chlorinated paraffins implies, the agency is increasingly reviewing and comparing these various data sets for consistency. If the data a company has submitted to US EPA under the Clean Water Act, the Clean Air Act, the Resource Conservation and Recovery Act, the Emergency Planning and Community Right to Know Act, or other law indicates that the company is manufacturing or importing a chemical substance that is not listed – or not accurately listed – on the TSCA Inventory, the agency may bring an enforcement action under TSCA.

US EPA has been signaling its focus on increased TSCA implementation and enforcement for some time. US EPA Administrator Lisa Jackson has made “assuring the safety of chemicals” a top priority. In addition to preparing chemical action plans and pursuing new rulemakings, the agency is stepping up its TSCA enforcement activity, including devoting more resources to TSCA enforcement, inspecting more facilities, and seeking and reviewing more data on chemicals. Moreover, based on the Dover case, as part of its increased enforcement efforts, US EPA intends to seek significant financial penalties for violations of TSCA, in addition to any injunctive relief it requires.

More information on US EPA’s penalty settlement with Dover Chemical Corporation can be found on US EPA’s website.