Such an interpretation also advances important policy objectives. Alleged violations that are greater than one but less than five years old are, of course, subject to potential judicial enforcement regardless of how section 113(d)(1) is interpreted. However, an interpretation that provides for the possibility of using an administrative forum could benefit both the Agency and potential respondents by potentially reducing the transaction costs involved in an enforcement action. Further, it avoids cluttering the burgeoning dockets of the federal courts with matters that can be effectively handled in an administrative forum. Significantly, such an interpretation does not guarantee that waivers will be issued on a routine basis. Instead, it is left to EPA and DOJ, subject to congressional oversight," to ensure that the waiver authority is not abused.

C. Alleged Procedural Improprieties

Finally, the Region argues that the Presiding Officer committed procedural errors in dismissing this matter on the basis of an argument allegedly not raised in the answer and without a written motion by Respondent, as purportedly required under the Consolidated Rules of Practice. Given our disposition of this case on the foregoing arguments, we need not reach these issues.

III. CONCLUSION

For the reasons discussed above, we affirm the Presiding Officer's decision to evaluate the legality of EPA and DOJ's joint waiver of the statutory limitation on administrative penalty authority in this case. We reverse, however, the Presiding Officer's interpretation of “longer period of violation,” as that phrase is used in CAA section 113(d)(1). In light of the statutory language and structure, legislative history, and policy arguments made in this case, we find that the better reading of the phrase is that it simply refers to a period of time greater than twelve months between the first date of a violation and the date of the complaint. Accordingly, we reinstate the complaint and remand this case to the Presiding Officer for resolution on its merits.

So ordered.

As the Region points out, the House Committee on Energy and Commerce directed EPA and DOJ to maintain records of waiver determinations and the reasons for them “since the Committee would most likely be interested, as time goes on, in such matters."" Appeal Brief at 35 (quoting H.R. Rep. No. 101-490, at 393 (1990)).

IN RE STEELTECH, LIMITED

EPCRA Appeal No. 98–6

FINAL DECISION

Decided August 26, 1999

Syllabus

This is an appeal by Steeltech, Limited (“Steeltech") from an Initial Decision, dated May 27, 1998, issued by Chief Administrative Law Judge Susan L. Biro (the “Presiding Officer"). This matter arises out of an administrative enforcement action by the United States Environmental Protection Agency Region V (the "Region") against Steeltech for alleged violations of section 313 of the Emergency Planning and Community Right-toknow Act ("EPCRA"). By the Initial Decision, the Presiding Officer determined that Steeltech is liable for nine violations of the reporting requirements of EPCRA § 313, and the Presiding Officer assessed a civil penalty of $61,736 for these violations. The Presiding officer based her penalty analysis on the guidance of an Agency penalty policy, the "Enforcement Response Policy for Section 313 of the Emergency Planning and CommunityRight-to-Know Act and Section 6607 of the Pollution Prevention Act" (Aug. 10, 1992) (the "ERP").

Steeltech is a corporation that owns a manufacturing facility in Grand Rapids Michigan (the "Facility"). At the Facility, Steeltech used nickel and chromium during calendar years 1989, 1990 and 1992 and, in 1993, used nickel, chromium and cobalt. Nickel, chromium and cobalt are subject to the reporting requirements of EPCRA, which requires manufacturers to file Toxic Chemical Release Inventory Reporting Forms (“Form Rs”) reporting their use of certain toxic chemicals. The Form Rs must be filed with the EPA no later than July 1 following the calendar year in which the use of the toxic chemicals exceeded the applicable reporting thresholds. On appeal, Steeltech has admitted that it failed to file the requisite Form Rs and is liable for nine violations of EPCRA § 313; the only issues raised go to the amount of penalty to be assessed for these violations.

Steeltech raises essentially two general arguments on appeal. Steeltech argues that the Presiding Officer erred by applying the “formulaic restrictions of the [ERP]" in determining the amount of the penalty and in requiring a showing of "extraordinary circumstances" as a basis for departing from the ERP. Steeltech also argues that, even under the guidance of the ERP, the Presiding Officer erred by failing to grant further reductions to the penalty.

Held: 1) Although it is not necessary to show "extraordinary circumstances” to justify departing from the ERP, it is appropriate to apply the ERP to the facts of this case and the circumstances do not warrant a deviation from the ERP's guidance. In particular, the following circumstances of this case do not warrant deviation from the ERP: (a) Steeltech's alleged lack of awareness of the EPCRA filing requirements; (b) Steeltech's alleged strained financial condition; and (c) alleged lack of actual harm to the environment. In addition,

the guidance of another Agency policy applicable to penalties assessed in settlements ("Incentives for Self-policing: Discovery, Disclosure, Correction, and Prevention of Violations," 60 Fed. Reg. 66,706 (Dec. 22, 1995)) does not provide a basis for departing from the guidance of the ERP in this litigated case.

2) Steeltech has failed to show any clear error in the Presiding Officer's application of the ERP's guidance. In particular, Steeltech has failed to show clear error in the Presiding Officer's decision regarding the amount of penalty reductions to grant for (a) Steeltech's voluntary disclosure of the 1992 and 1993 violations, and (b) Steeltech's favorable “attitude." Steeltech also has failed to show circumstances that would warrant a penalty reduction under the ERP's guidance for "other factors as justice may require."

Before Environmental Appeals Judges Scott C. Fulton, Edward E. Reich, and Kathie A. Stein.

Opinion of the Board by Judge Reich:

This is an appeal by Steeltech, Limited ("Steeltech") from an Initial Decision, dated May 27, 1998, and from an Order Denying Motion to Reopen Hearing, dated August 14, 1998, entered by Chief Administrative Law Judge Susan L. Biro (the "Presiding Officer"). This matter arises out of an administrative enforcement action by the United States Environmental Protection Agency Region V (the "Region") against Steeltech for nine alleged violations of section 313 of the Emergency Planning and Community Right-to-Know Act ("EPCRA"), 42 U.S.C. § 11023. By the Initial Decision, the Presiding Officer determined that Steeltech is liable for nine violations of the reporting requirements of EPCRA § 313, and the Presiding Officer assessed a civil penalty of $61,736 for these violations.

I. BACKGROUND

A. Statutory and Regulatory Background

"EPCRA § 313 requires certain facilities to submit annually, no later than July 1 of each year, a Toxic Chemical Release Inventory Reporting Form ("Form R") for each toxic chemical listed under 40 C.F.R. § 372.65 that was manufactured, imported, processed, or otherwise used during the preceding calendar year in quantities exceeding established chemical thresholds." In re Catalina Yachts, Inc., 8 E.A.D. 199, 201 (EAB 1999) (footnote omitted) (citing In re Spang & Co., 6 E.A.D. 226, 228 (EAB 1995); In re K.O. Mfg., Inc., 5 E.A.D. 798, 799–800 (EAB 1995)). The reporting threshold relevant to this case is 25,000 pounds of a toxic chemical used at a facility in a calendar year. EPCRA § 313(f)(1)(B)(iii); 40 C.F.R. § 372.25(a). The Agency has the authority to enforce the reporting requirements of section 313 and, at the time of the violations at issue

here, was authorized to impose civil penalties of up to $ 25,000' for each failure to file a Form R and for each day that the violation continued. EPCRA $ 325(c), 42 U.S.C. § 11045(c).

B. Factual and Procedural Background

Steeltech is a corporation that, at all relevant times, had a place of business located at 1252 Phillips Avenue, S.W., Grand Rapids, Michigan (the "Facility"). During the relevant calendar years of 1989 through 1993, Steeltech used nickel, chromium, and cobalt in the manufacture of alloy castings at the Facility. Steeltech used nickel, chromium and cobalt in the following amounts in the indicated calendar years:

Joint Stipulated Facts (Ex 26) (“Stipulations”) ¶¶ 15, 17, 22, 26, 31, 33, 39, 42, 48, 51, 54. Nickel, chromium and cobalt are subject to the reporting requirements of EPCRA. EPCRA $ 313(c); 40 C.F.R. § 372.65; see also Stipulations ¶¶ 9, 10, 11. However, Steeltech did not timely file the required Form Rs reporting its use of nickel, chromium and cobalt in calendar years 1989, 1990, 1992 and 1993. Stipulations ¶¶ 16, 18, 23, 27, 32, 34, 41, 44, 50, 56. As noted above, Steeltech's Form Rs were required to be filed no later than July 1 following the calendar year in which Steeltech's use of these toxic chemicals exceeded the reporting threshold of 25,000 lbs. Catalina Yachts, 8 E.A.D. at 201.

On February 12, 1992, an EPA representative conducted an inspection of the Facility to determine whether Steeltech was in compliance

Subsequent to the violations at issue in this case, the Debt Collection Improvement Act of 1996 was enacted directing the Agency to make periodic adjustments of maximum civil penalties to take into account inflation. The Agency has published inflation-adjusted maximum penalties at 40 C.F.R. pt. 19.

with the EPCRA. Stipulations ¶ 12. Based on that inspection, the Region filed the complaint commencing this matter on September 2, 1994 (the "Complaint"). The Complaint originally alleged four violations for the years 1989 and 1990 (a separate violation was alleged for the failure to file a Form R for each of nickel and chromium in each year). Subsequently, the Region was granted permission to amend the Complaint to allege five additional violations for the years 1992 and 1993 (a separate violation for each of nickel and chromium in 1992 and 1993 and for cobalt in 1993) (the "Amended Complaint"). The parties stipulated that the five violations for 1992 and 1993 had been "voluntarily disclosed" by Steeltech. Stipulations ¶¶ 40, 43, 49, 52, 55.

The Region requested a total penalty of $74,390 for the nine Form R reporting violations alleged to have occurred for calendar years 1989, 1990, 1992 and 1993.3 The Region's proposed penalty was calculated based upon the guidelines of the Enforcement Response Policy for Section 313 of the Emergency Planning and Community-Right-to-Know Act and Section 6607 of the Pollution Prevention Act (August 10, 1992) (the "ERP"), which was prepared by the Agency's Office of Compliance Monitoring of the Office of Prevention, Pesticides and Toxic Substances.*

Steeltech filed answers to both the Complaint and the Amended Complaint alleging, among other things, lack of knowledge or information sufficient to form a belief as to the truth of the allegations as to liability and also raising certain affirmative defenses. Steeltech also requested a hearing. On April 6, 1995, Michael F. Farmer, the former owner of Steeltech, was granted leave to intervene in this action. Mr. Farmer's intervention was based on the fact that, when he sold his stock in Steeltech to its present owners in July 1990, he had entered into an indemnification agreement covering certain environmental liabilities."

The Complaint also originally alleged two violations for calendar year 1988. However, the Region subsequently abandoned its claims with respect to calendar year 1988 based on statute of limitations considerations, and those claims were formally dismissed by Order dated December 3, 1997.

'The Region's final penalty request was stated in its post-hearing brief (after it abandoned its request for a finding of the two violations for calendar year 1988 as noted supra note 2).

'The stated purpose of the ERP is to “ensure that enforcement actions for violations of EPCRA $ 313 are arrived at in a fair, uniform and consistent manner; that the enforcement response is appropriate for the violations committed; and that persons will be deterred from committing EPCRA § 313 violations.” ERP at 1.

'The stock of Steeltech was transferred from Mr. Farmer to Gary Salerno and Armand Salerno on July 31, 1990. Stipulations ¶ 2.