ELR Citation: ELR 20126
No(s). 91-3785 (3d Cir. Sep 2, 1992)

The court upholds a decision of the U.S. Environmental Protection Agency (EPA) to impose a $19,500 penalty on an importer of plastic pellets for violating the reporting requirement under §15(3)(B) of the Toxic Substances Control Act (TSCA) and the U.S. Customs Service's certification requirements in 19 C.F.R. §12.121. The court holds that EPA correctly interpreted TSCA §15(3)(B) to include the U.S. Customs Service's certification requirements in 19 C.F.R. §12.121, which require an importer of a chemical substance to certify to the Customs Service either that each shipment complies with TSCA or is not subject to TSCA. The court defers to the conclusion of an EPA administrative law judge that certifications under 19 C.F.R. §12.121 fall within the plain meaning of the phrase "reports, notices or other information" in TSCA §15(3)(B). EPA argues that Congress intended the phrase "reports, notices, or other information" to have a broad meaning. While other interpretations of §15(3)(B)'s reporting requirements may be possible, the court holds that EPA's interpretation is a permissible construction. EPA has always interpreted TSCA's penalty provisions and the Customs Service's detainment procedures as co-existing, independent enforcement mechanisms. If the Customs Service's detainment procedures were the exclusive means of enforcing the certification requirements, violating importers would not be subject to civil penalties, contrary to TSCA's purpose. Thus, the court holds that EPA reasonably interpreted TSCA and its regulations as giving EPA authority to impose TSCA's civil penalties for failure to certify a shipment as required by 19 C.F.R. §12.121, even though the shipment was also subject to the Customs Service's detainment procedures. The court also observes that the penalty was imposed not to redress a particular injury, but to ensure self-monitoring among importers. Finally, the court holds that the importer is not entitled to cure its TSCA violations by submitting the certifications after EPA notified it of its violations. Such a right to rectify would defeat the self-enforcement purpose of the certification and encourage noncompliance.

Counsel for Petitioner
James A. Geraghty
Donohue & Donohue
26 Broadway, Ste. 911, New York NY 10004
(212) 269-2330

Counsel for Respondent
Scott J. Jordan
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Hutchinson, J. (before Becker and Alito, JJ.):