ELR Citation: ELR 21003
No(s). 92-2402-GTV (D. Kan. Feb 18, 1994)

The court upholds the U.S. Environmental Protection Agency's (EPA's) definition of "full-time employee" under regulations implementing §313 of the Emergency Planning and Community Right-to-Know Act (EPCRA) and affirms the assessment of $12,750 in civil penalties against a company that violated §313's reporting requirements governing toxic chemical releases. Section 313 requires facilities with 10 or more full-time employees to file, within 180 days of the prescribed due date, forms relating to information on chemicals present in the community and released into the environment. In the implementing regulations at 40 C.F.R. §372.3, EPA defines a "full-time employee" as a person performing 2,000 hours per year of full-time equivalent employment. The number of full-time employees at a facility is calculated by totalling the hours worked during the calendar year by all employees—including contract employees—and dividing that total by 2,000. The court holds that EPA's interpretation of "full-time employee" in EPCRA is a permissible and rational construction of the statute under the test set forth in Chevron U.S.A., Inc. v. Natural Resources Defense Council, 14 ELR 20507 (U.S. 1984). That a more obvious interpretation of the phrase might focus on the number of individual employees working 40 hours per week does not make EPA's definition unreasonable. EPA decided that the definition should apply to the annual basis of reporting so that the standard would apply equitably to businesses with large seasonal variations in employment. Also, EPA wanted to make sure that businesses with large numbers of contract employees would not be able to avoid the reporting requirements. The court next holds that EPA promulgated its definition of "full-time employee" in compliance with the notice requirements of §553 of the Administrative Procedure Act (APA). Although EPA's notice of proposed rulemaking did not specifically solicit comments on the definition of "full-time employee," EPA properly gave general notice of a proposed rule, including the requirement that a facility with 10 or more full-time employees would be subject to EPCRA §313's reporting requirements. Moreover, the definition was a logical outgrowth of the proposed rule. The court also upholds EPA's interpretation of the phrase "full-time employee" as being within the Agency's inherent authority to interpret terms in the statutes it enforces, and this authority is not subject to APA §553 notice and comment. Finally, the final rule includes a detailed explanation of EPA's reasons for adopting the definition, and such an explanation satisfies §553(c)'s requirement that all final rules include a concise statement of their basis and purpose.

Turning to the company's appeal of the penalty amount, the court holds that the administrative law judge's (ALJ's) assessment of the $12,750 penalty was not an abuse of discretion. The assessed penalty was lower than EPA's requested penalty of $15,000 and well under the $75,000 statutory maximum. The ALJ weighed both aggravating and mitigating factors, and specifically found that the company's lack of diligence in submitting the required reports weighed against a significant reduction in the penalty.

Counsel for Plaintiff
John C. Tillotson
Murray, Tillotson & Nelson
606 Delaware St., P.O. Box 10, Leavenworth KS 66048
(913) 682-5894

Counsel for Defendant
Vicki A. O'Meara, Samuel W. Plauche
Environmental and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000