New Concerns for Companies That Import or Manufacture "Toxic" Chemicals

Inevitably, a change in Administrations leads to changes in policies and priorities of regulatory agencies. Most media coverage has focused on opposition to the Trump Administration's efforts to revise existing or proposed regulations and an anticipated decrease in federal enforcement actions.

However, less attention is being paid to an uptick in citizen enforcement suits filed directly against manufacturers and importers of "toxic" chemicals (i.e., existing chemicals regulated by the Toxic Substance Control Act ("TSCA")) that are subject to reporting obligations. For example, last Spring, the Asbestos Disease Awareness Network, Safer Chemicals, Healthy Families (a coalition of 450 citizen groups) and the Environmental Health Strategy Center sent a large chemical company a "citizen suit notice letter" alleging that the company had imported 900,000 lbs. of asbestos without reporting it as required by the EPA Chemical Data Reporting TSCA rule (available here). Similarly, on July 6, 2017, two of these same groups filed a notice of intent to file a TSCA citizen suit against seven chemical importers for failing to notify EPA of their import of 25,000 pounds or more of n-Propyl Bromide in the prior four-year period pursuant to the TSCA Chemical Data Reporting ("CDR") regulations (available here). In addition to seeking civil penalties (which go to the Treasury), these citizen groups are seeking the "cost of the suit" and may obtain it if the court determines "such an award is appropriate" (Section 20 of TSCA), thereby funding future litigation.

To add fuel to the fire, the EPA's independent Inspector General ("OIG") is investigating whether: (a) companies are complying with TSCA's CDR reporting requirements and (b) EPA is utilizing the CDR data to prioritize its evaluations of whether existing imported or manufactured toxic chemicals present an unreasonable risk (see EPA OIG Investigation Notice). This Inspector General's reports historically have been aggressive. Citizen groups can then use the results of the investigation in prioritizing their future citizen suits.

It is beyond the scope of this Alert to assess the merits of these claims. However, these citizen suits signal a strategy of counteracting any perceived lessening of federal enforcement efforts with intensifying private litigation. Such lawsuits tie up private sector resources and many companies settle to avoid litigation costs, even if a defense is likely to be successful. Given these forceful new trends, importers and manufacturers of "toxic chemicals" may find now a good time to perform internal TSCA reporting audits to ensure full compliance and adequate preparation against potential litigation offensives.

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