TSCA Criminal Provision Update: More Bark Than Bite

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On June 22, 2016, Congress passed the Frank R. Lautenberg Chemical Safety for the 21st Century Act, updating the Toxic Substances Control Act (TSCA).[1] Congress kept standard violations—whether done knowingly or willfully—as misdemeanors, though it increased the maximum fine from $25,000 to $50,000. Keeping even willful TSCA violations as misdemeanors distinguishes TSCA from other environmental laws, including the Clean Air and Clean Water Acts, in which negligent violations are misdemeanors but knowing or willful violations are felonies.

Congress did add a felony endangerment provision in the June update, though. Pursuant to that provision, it is a felony if an individual or organization “knowingly and willfully” violates TSCA and knows that, by doing so, it “places an individual in imminent danger of death or serious bodily injury.”[2] Individuals may be fined up to $250,000 and sentenced up to 15 years imprisonment and organizations may be fined up to $1,000,000 per violation. Crucially, however, Congress included a requirement that the violation be “knowingly and willfully”—as opposed to “knowingly or willfully”—setting a high burden of proof that makes this provision inapplicable to most if not all TSCA violations.[3] Thus, doubling the misdemeanor penalty will likely have more practical effect than adding a felony provision that only applies in extreme circumstances.

For any additional questions regarding this advisory, please contact Bruce Pasfield, Phil Sandick, or any other member of the Environmental team at Alston & Bird.

[1] For the full text of the Lautenberg Act, see https://www.congress.gov/bill/114th-congress/house-bill/2576/text.
[2] 15 U.S.C § 2615(b)(2).
[3] John Gibson, The Crime of “Knowing Endangerment” Under the Clean Air Act Amendments of 1990; Is It More ”Bark Than Bite” as a Watchdog to help Safeguard a Workplace Free From Life-Threatening Hazardous Air Pollutant Releases?, 6 Fordham Env. L. Rev. 197, 207 (1995), available at http://src.bna.com/kbK.