Internal Guidelines and TSCA: The Implications of EPA`s Case Against DuPont

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Courtesy of Bergeson & Campbell, P.C.

The United States Environmental Protection Agency (EPA) has urged industry for years to view federal environmental standards as floors, not ceilings. Companies have been urged at every opportunity to do better than what the law requires, and to improve upon federally enforced environmental standards whenever possible.

Many in industry have heeded the call and have proactively established voluntary guidelines to minimize adverse impacts on the environment. The legal relevance of these voluntarily set guidelines has been the subject of debate for years. In a case that EPA brought against E.I. du Pont de Nemours and Company (DuPont) earlier this year, the debate has become less academic and very real.

In a much publicized administrative action where the government may seek record-breaking penalties, EPA charged DuPont on July 8, 2004, with violations of the Toxic Substances Control Act (TSCA) and the Resource Conservation and Recovery Act (RCRA). The charges are based in part on DuPont’s alleged failure to report certain exceedences of an internal exposure guideline that EPA alleges should have been reported under TSCA Section 8(e).1 Although the complaint does not seek a specific penalty amount, EPA could seek a sum in excess of $300 million under TSCA’s statutory penalty provisions and controlling EPA penalty policies.

This column summarizes the administrative enforcement action that EPA has brought against DuPont for violation of its internal exposure drinking water guideline, and the le

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