As a result, combining the categorization of Steeltech as a company with less than 10 million dollars per year in gross sales and the facility having used less than 10 times the threshold of the §313 chemical involved, Complainant assigned an extent level of "C" to those four Counts: Count VI (1990 chromium), Count VIII (1992 chromium), Count X (1993 chromium), and Count XI (1993 cobalt).

In sum, Complainant categorized the nine violations at issue here as follows: Count III (1989 nickel) Circumstance level 1 & Extent level B
Count IV (1989 chromium) Circumstance level 1 & Extent level B
Count V (1990 nickel) Circumstance level 4 & Extent level B
Count VI (1990 chromium) Circumstance level 4 & Extent level C
Count VII (1992 nickel) Circumstance level 1 & Extent level B
Count VIII(1992 chromium) Circumstance level 1 & Extent level C
Count IX (1993 nickel) Circumstance level 4 & Extent level B
Count X (1993 chromium) Circumstance level 4 & Extent level C
Count XI (1993 cobalt) Circumstance level 4 & Extent level C

Thus, of the nine violations, three were classified as circumstance level 1/extent level B (Counts III, IV, VII), one was classified as circumstance level 1/extent level C (Count VIII), two were classified as circumstance level 4/extent level B (Counts V and IX); and three were classified as circumstance level 4/extent level C (Counts VI, X and XI).

C. Gravity-Based Penalty

For circumstance level 1/extent level B violations (Counts III, IV and VIII), the ERP penalty matrix assigns a fixed gravity-based penalty of $17,000. For circumstance level 1/extent level C violation (Count VIII), the ERP penalty matrix assigns a fixed gravity-based penalty of $5,000.

As to the circumstance level 4 violations, the gravity-based penalty is not a fixed amount but is calculated on a per day basis utilizing the figures set forth in the matrix.

The ERP provides the following per-day formula:

Level 4 Penalty  + (# of days late - 1)x(Level 1-Level 4 Penalty)


     	                           365

Applying that formula to the circumstance level 4/extent level B violation set out in Count V results in a gravity-based penalty of $6,000 plus $6,811 or $12,811 and for Count IX a gravity-based penalty of $6,000 plus $4,099, or $10,099. Applying the formula to the circumstance level 4/extent level C violation set out in Count VI results in a gravity-based penalty of $1,000 plus $2,477, or $3,477. Applying the formula to Counts X and XI results in a gravity-based penalty of $1,000 plus $1,490, or $2,490 per Count.

Thus, pursuant to the ERP, Complainant correctly calculated the total unadjusted gravity-based penalties for the nine violations to be as follows:

Count III (1989 nickel)  - Cir 1/Ext B	=	$17,000
Count IV (1989 chromium) - Cir 1/Ext B	=	$17,000	
Count V (1990 nickel)    - Cir 4/Ext B	=	$12,811
Count VI (1990 chromium) - Cir 4/Ext C	=	$ 3,477
Count VII (1992 nickel)  - Cir 1/Ext B	=	$17,000
Count VIII(1992 chromium)- Cir 1/Ext C	=	$ 5,000
Count IX (1993 nickel)   - Cir 4/Ext B	=	$10,099
Count X (1993 chromium)  - Cir 4/Ext C	=	$ 2,490
Count XI (1993 cobalt)   - Cir 4/Ext C	=	$ 2,490

                                                $87,367

D. Adjustments- Voluntary Disclosure

As indicated above, the ERP provides that the gravity-based penalty may be adjusted in consideration of a number of factors, including voluntary disclosure, history of prior violations, delisted chemicals, attitude, ability to pay, and "other factors as justice may require." Ex. 2, p. 8. In this case, the only adjustment made by Complainant to the penalty was made on the basis of voluntary disclosure. Specifically, in calculating the proposed penalty under the ERP against Steeltech, Complainant reduced the gravity-based penalties for Counts VII-XI (the 1992 and 1993 violations) by a total of 35% for voluntary disclosure, or a monetary reduction of $11,234.65, bringing the total proposed penalty to $74,390.

The ERP provides that the gravity-based penalty may be adjusted downward "up to 50%" for "voluntary disclosure" of a violation. To be eligible for voluntary disclosure, the violator must submit a signed written statement of voluntary disclosure and/or submit complete and signed Form Rs within 30 days of disclosure. At the outset it must be noted that the ERP provides that "the Agency will not consider a facility eligible for any voluntary disclosure reductions if the company has been notified of a scheduled inspection or the inspection has begun." As indicated in detail above, Steeltech did not disclose the 1992 and 1993 violations, until after the 1992 inspection occurred and after the original Complaint was filed, albeit the inspection and original Complaint related only to the 1988 and 1989 violations. Tr. 76-77. However, the testimony of Mr. Pews indicates that Steeltech's "voluntary disclosure" was not spontaneous; rather, it merely consisted of his confirmation to EPA of the accuracy of information concerning the existence of the additional violations, information which EPA had previously provided to him. Nevertheless, Complainant, in its enforcement discretion, chose to consider those violations to have been "voluntarily disclosed" within the meaning of the ERP and Complainant's discretion in this instance will not be disturbed.⁽²¹⁾

There was no testimony at the hearing proffered by Complainant as to how the figure of 35% was reached for voluntary disclosure. The only explanation for the adjustment is set forth in the Amended Complaint wherein EPA proffered that Respondent was given a 25% reduction for voluntarily disclosing the violations and an additional 10% for remediating the violations within 20 days after disclosure. The ERP, however, provides for an initial 25 percent reduction for "voluntary disclosure," that is, disclosure and remediation within 30 days of disclosure, and an additional 25 percent reduction only if certain criteria are met. Prompt remediation is not one of the criteria for receiving all or some portion of the additional 25%. Rather, those criteria are:

1) The violation was immediately disclosed within 30 days of discovery by the facility;

2) The facility has undertaken concrete actions to ensure that the facility will be in compliance with EPCRA § 313 in the future. Such steps may include but are not limited to: creating an environmental compliance position and hiring an individual for that position; changing the job description of an existing position to include managing EPCRA compliance requirements; and contracting with an environmental compliance consulting firm; and

3) The facility does not have a "history of violation" as to EPCRA § 313 for the two reporting years preceding the calendar year in which the violation is disclosed to EPA.

Ex. 2, p. 15.

It is clear that Respondent met the first two, but not the third, criterion. As to the first criterion, Mr. Pews testified that he discovered the 1992 and 1993 violations in October 1994, that he confirmed their existence to EPA that month, and filed the Form Rs for 1992 and 1993 on November 15, 1994. Tr. 76-77. Further, as to the second criterion, Respondent showed that it has ensured future compliance with EPCRA § 313 by hiring Mr. Pews, a certified public accountant, and giving him the specific responsibility for EPCRA compliance. Tr. 50, 73-75, 86-87. Mr. Pews testified that to assure that he fulfills this responsibility, he monitors and updates a computer spreadsheet which shows dates of expected receipt of EPCRA forms and Form R filing dates. Tr. 68, 79, 88. As a result of Mr. Pews efforts, Steeltech has timely filed its Form Rs for 1994, 1995 and 1996. Ex. 26 (Stip. 59), Tr. 81.

However, as to the third criterion, although Respondent did timely file Form Rs for 1991, Respondent failed to timely file Form Rs for 1990, which is two reporting years preceding the reporting years for the violations of Counts VII through XI. Respondent thus has a "history of violation" for purposes of this criterion.

Therefore, since Respondent met two of the three criteria, it is entitled to an additional reduction beyond the first 25%. The ERP provides that the 25% second reduction "can be applied in full or in part according to the extent to which the facility meets the criteria for the second 25% reduction." Ex. 2, p. 15 (italics added).

While Complainant proposed that Respondent receive the first 25% reduction and only 10% of the second 25% reduction, I conclude it is more appropriate to reduce the gravity-based penalties for Counts VII through XI by the first 25% plus two-thirds of the second 25%, for a total reduction per Count of 42%.

In this proceeding, Respondent both challenged the application of the ERP to calculating the penalties to be applied to the violations, and raised its right to additional adjustments within the framework of the ERP.

A. Application of the ERP

Respondent argues that the ERP should not be utilized at all in calculating the penalties to be imposed against it, claiming that the gravity of the violations "in no way equates to the amount of the penalty being proposed by the EPA." Tr. 12. Steeltech characterized the ERP and its monetary matrix as applying "to the most recalcitrant violator of these statutory requirements . . . someone who files false information and intentionally refuses to file these forms, is trying to hide something in effect." Tr. 14. In comparison, Respondent stated it was at "the other end of the spectrum." Tr. 14-15. Specifically, Respondent argued that the ERP creates penalties for multiple violations for multiple chemicals when Respondent claims, it did only "one thing" wrong, that is, being unaware of the filing requirement, it did not file the necessary paperwork. Tr. 12-13. In addition, Respondent argued the violation resulted in no harm to the environment. Further, Respondent asserted that the "actual enforcement in the matter is unfair" because: (a) EPA did not place Steeltech on its mailing list to annually receive the Form R instructions and blank forms, despite Respondent's request to be placed on the list and the promise made by EPA employees to do so; and (b) this action was not instituted until 2 1/2 years after the inspection and there was no communication between the EPA and Respondent during the interim period. Tr. 13-14. Respondent suggests that a penalty of no more then $10,000 would be appropriate. Tr. 17. Intervenor raised essentially the same points at the hearing. Tr. 18-22.

It must be noted that EPCRA is a strict liability statute; "intent" is not an element. The purpose of the statute is to provide communities with information on potential chemical hazards within their boundaries and to foster state and local community planning efforts to control accidental releases of toxic chemicals. Local emergency planning committees are charged with developing emergency response plans based upon the information provided in the Form Rs by covered facilities. The public, in turn, has the right to know of the toxic chemicals manufactured, processed or otherwise used and/or released at facilities in their communities as well as the contents of the emergency response plans. See, Huls America, Inc. v. Browner, 83 F.3d 445, 446-447 (D.C. Cir. 1996); see also, Atlantic States Legal Foundation, Inc. v. United Musical Instruments, U.S.A., Inc., 61 F.3d 473, 474 (6th Cir. 1995).

The environmental and public health goals of EPCRA cannot be achieved if a facility, such as Steeltech, uses toxic chemicals in excess of the reporting threshold but does not timely file a Form R with the EPA Administrator and state officials. See, TRA Industries, EPA Docket No. EPCRA-1093-11-05-325 (Initial Decision, Oct. 11, 1996). Failure to comply with the reporting provisions of Section 313 seriously impairs the public's right to know about toxic chemicals, as well as the Federal and state government's ability to respond to releases of toxic chemicals. See, Huls America, supra. This is particularly clear in this case since prior to the inspection, Respondent had never filed any Form Rs so that an emergency plan of action could be created and, even after the inspection, the Respondent was not able on its own to consistently comply with the filing requirement so as to keep the emergency planning officials up to date as to the toxic chemicals being handled on the premises of the facility. This error is made more egregious by the fact that in many cases Steeltech was manufacturing, processing or otherwise using more than ten times the reportable threshold of the toxic chemicals.

Consistent with the statute, EPA has set forth a policy in the ERP of strict liability as to violations of EPCRA § 313 with the intent of strongly discouraging ignorance of EPCRA and its requirements. Ex. 2, p. 15. The circumstances, or seriousness, of the violation, takes into account the accuracy and availability of the information to the community, states, and Federal government. Ex. 2, p. 8. Penalties for violations of EPCRA § 313, failure to timely file Form Rs, are not based upon direct harm to the environment, but upon harm to the integrity of the toxic chemical data and public's right to know that data, and the deprivation from industries and Federal, state and local governments of that data to manage and control toxic chemicals.⁽²²⁾ Contrary to Respondent's claim, the Policy is not directed solely towards intentional, recalcitrant misfeasors, but rather encompasses a whole range of violators and circumstances under which violations occur, providing flexibility in the penalty proposed based upon circumstances.

This case presents no extraordinary circumstances which would suggest any deviation from the ERP, so the gravity-based penalties calculated above, which are consistent with Complainant's proposed gravity-based penalties, will be assessed, except for the further adjustments provided for herein.⁽²³⁾

B. Additional Adjustments Under the ERP

In the event the ERP applied in this case, Respondent has raised factual issues supporting a claim of entitlement to additional adjustments within the framework of the ERP for attitude and other factors as justice may require.⁽²⁴⁾

1. Attitude

As noted above, the ERP provides that reductions for "attitude" and for "voluntary disclosure" are mutually exclusive, since both factors address a facility's concern with timely compliance. Ex. 2, p. 16. Therefore, only Counts III through VI are eligible for reduction on the basis of "attitude" under the ERP.⁽²⁵⁾

The ERP provides that up to a 15 percent reduction may be made for a respondent's cooperation throughout the compliance and enforcement process, such as degree of cooperation and preparedness during the inspection, allowing access to records, responsiveness and expeditious provision of supporting documentation requested by EPA, and cooperation and preparedness during the settlement process. According to the ERP, the penalty may be additionally reduced by up to 15 percent for good faith efforts to comply with EPCRA, and the speed and completeness with which it comes into compliance. Ex. 2, p. 15.

The record shows that Respondent submitted Form Rs for 1989 and 1990 on the day following the EPA's inspection which revealed the violations. Tr. 75, Ex. 15, 16, 17. The record shows also that Respondent made several requests to get onto EPA's mailing list for EPCRA forms, including Mr. Pews' requests by telephone in October 1994 and April 1995 and in writing in December 1994 and May 1995. Tr. 68-69, 75, 77-78, 87. Respondent was not on EPA's mailing list for EPCRA forms until after May 1995. Tr. 75, 77-78. The record shows that Respondent responded to EPA's Notice of Technical Error on Respondent's 1993 Form Rs by correcting them within a month. Tr. 78.

There is no testimony or evidence in the exhibits, such as the inspection report, stating that Respondent was or was not cooperative during the inspection or settlement process. In fact, none of the participants in the inspection testified at the hearing. However, Respondent appears to have been reasonably prepared for the inspection and forthcoming in supplying Complainant with information. Ex. 1, 5. Respondent generally asserts that it has been "most cooperative" once it learned of the reporting requirements, and Complainant has not denied this assertion. Respondent's Post-Hearing Brief at 11.

It is clear that after the initial violations occurred, the steps undertaken by Respondent to prevent further violations after the inspection were far from thorough, in that apparently the President/majority stockholder was never even informed of the inspection and EPCRA issues by his father/minority stockholder so he could be aware of the need to take steps to assure compliance. Moreover, Respondent did not timely respond to a Notice of Noncompliance it received on June 26, 1992 in that it was still outstanding during the course of this litigation in 1997. Ex. 26 (Stip. 25).

In consideration of all these factors, a reduction of 20% will be made to the penalties for Counts III through VI, for Respondent's cooperation and good faith efforts to comply with EPCRA.

2. Other Factors as Justice May Require

The ERP provides that gravity-based penalties may be reduced up to 25% based upon "other factors as justice may require," including such matters as "new ownership for history of violations," 'significant-minor' borderline violations, and "lack of control over the violation." Ex. 2, p. 18.

Respondent argues that it is entitled to the full 25% "other factors" reduction based upon new ownership and lack of control over the violations.

As to new ownership, it is true that the Form Rs for calendar year 1989 were due prior to the time that Steeltech's current owners (Gary and Armand Salerno) acquired the company. Thus, a judgment against Steeltech for the 1989 violations could be seen as penalizing the current owners for a violation that is attributable solely to the misfeasance of the prior owner, Michael F. Farmer. Normally, this might be a reasonable basis for a reduction in the penalty as to these counts. However, because of the existing indemnification arrangements between Mr. Farmer, Steeltech's prior owner, and Gary Salerno, one of Steeltech's current owners, Steeltech and its current owners will not have to pay the penalty for Mr. Farmer's misfeasance. Therefore, I see no basis for reducing the penalty on 1989 counts the basis of the change of ownership.

Respondent also asserts it is entitled to a reduction because of lack of control over the violations based upon employee turnover. However, the record clearly indicates that the employee turnovers were not sudden, unexpected, or so numerous such that Respondent could not have easily transferred responsibility for filing the Form Rs in the ordinary course of business. After the inspection occurred in February 1992, Armand Salerno, one of Steeltech's owners, took it upon himself to bring the company into compliance. He then turned over the responsibility for filing the Form Rs to Ron Wells, who timely filed the form Rs for 1991 by July 1, 1992. Ex. 14, 16, 17; Tr. 45-47, 56-57, 75. In late 1992 or early 1993, Mr. Wells position was changed to technical director of Respondent company, where he did not have responsibility for filing Form Rs. Tr. 49, 75. Neither Mr. Wells nor anyone else in the company informed the employee taking Mr. Wells place of the duty to file Form Rs. Tr. 49-50, 54. Steeltech's failure to appropriately train Mr. Wells replacement and transfer corporate duties does not constitute an understandable and/or excusable "lack of control" over the violations due to employee turnover or otherwise warranting a reduction in the penalty on the basis of "other factors as justice may require."

Another factor Respondent insists on having considered is EPA's lack of diligence in pursuing this action. Respondent points out that Complainant waited over two years after the inspection to file the Complaint, and did not correspond with Respondent during that time. If Complainant had promptly filed the Complaint after the inspection, Respondent asserts that it could have raised an inability to pay defense.

First, it is unclear that had the case been timely filed, Respondent would have been able to successfully raise an inability to pay defense. The earliest the case could have been reasonably filed would be about February, 1992, immediately after the inspection which revealed the 1988, 1989 and 1990 violations. As to the 1988 and 1989 violations, in light of the indemnification provision, it would arguably not simply be Steeltech's own inability to pay which would be at issue, but also Mr. Farmer's ability to pay for those years. There is no evidence that Mr. Farmer could not pay the penalty sought for the four violations charged in those years (totalling $44,000), in accordance with the indemnification agreement. As to the remaining year, 1990, the total penalty sought for the violations occurring for that year total approximately $16,000. Mr. Pews testified that in 1992, Steeltech started to make money and has done so ever since. In 1993, the company made a profit of about $100,000. Thus, Respondent may not have had a viable "inability to pay" defense in any year. On the other hand, it is noted that the delay in filing this case clearly economically benefitted Respondent and Intervenor, at least in one way, since it resulted in two counts of the Complaint being withdrawn/dismissed on statute of limitations grounds.

Second, EPA did contact Steeltech after the inspection and before this action was instituted. In June of 1992, EPA sent Steeltech a Notice of Noncompliance as to its 1989 Form R for nickel. Steeltech never responded to that Notice and never filed a corrected Form R for 1989. Ex. 26 (Stips. 24 and 25). Thus, in terms of contact during the interim period after the inspection and before the lawsuit, the ball was in Steeltech's court.⁽²⁶⁾

In sum, I find that the only adjustments which should be made to the gravity-based penalty derived from application of the ERP is 20% for attitude as to Count III, IV, V, and VI and 42% for voluntary disclosure as to Counts VII, VIII, IX, X and XI.

Therefore, the penalties appropriate for the violations alleged in the Complaint for which Respondent is liable are calculated to be as follows:

Count III:     $17,000  gravity-based penalty 
               -   20%  less adjustment for attitude 
               $13,600

Count IV:      $17,000  gravity-based penalty
               -   20%  less adjustment for attitude
               $13,600

Count V:       $12,811  gravity-based penalty
               -   20%  less adjustment for attitude
               $10,249

Count VI:      $ 3,477  gravity-based penalty
               -   20%  less adjustment for attitude
               $ 2,782

Count VII      $17,000  gravity-based penalty
               -   42%  less adjustment for voluntary disclosure 
               $ 9,860

Count VIII     $ 5,000  gravity-based penalty
               -   42%  less adjustment for voluntary disclosure
               $ 2,900

Count IX       $10,099  gravity-based penalty
               -   42%  less adjustment for voluntary disclosure
               $ 5,857

Count X        $ 2,490  gravity-based penalty
               -   42%  less adjustment for voluntary disclosure
               $ 1,444

Count XI       $ 2,490  gravity-based penalty
               -   42%  less adjustment for voluntary disclosure
               $ 1,444

I find that Respondent, Steeltech failed to file Toxic Chemical Release forms as to chromium and nickel for calendar years 1989, 1990, 1992 and 1993, and as to cobalt for calendar year 1993, in violation of Section 313 of the Emergency Planning and Community Right-To-Know Act of 1986, 42 U.S.C. §11023. As a result, I find the imposition of a civil penalty in the amount of $61,736 is appropriate in light of all the factors in this case.

1. Respondent is assessed a civil penalty of $61,736.

2. Payment of the full amount of this civil penalty shall be made within 60 days of the date this Initial Decision becomes the Final Order of the Agency, by submitting a certified or cashier's check in the amount of $61,736, payable to the Treasurer, United States of America, and mailed to:

3. A transmittal letter identifying the subject case and the EPA docket number, as well as Respondent's name and address must accompany the check.

4. If Respondent fails to pay the penalties within the prescribed statutory period after entry of the Order, interest on the penalty may be assessed.

5. Pursuant to 40 C.F.R. §22.27(c), this Initial Decision shall become the Final Order of the Agency forty-five (45) days after service upon the parties and without further proceedings, unless an appeal is taken pursuant to 40 C.F.R. §22.30 or the Environmental Appeals Board elects, sua sponte, to review this decision. An appeal must be filed within twenty (20) days after service of this Initial Decision upon the parties. 40 C.F.R. § 22.30(a).

________________________________

Susan L. Biro
Chief Administrative Law Judge

Date: May 27, 1998
Washington, D.C.

1. The Director's authority to institute the action was delegated to her by the Regional Administrator of EPA Region V, who, in turn, was delegated such authority by the Administrator of the Environmental Protection Agency. See, EPA Region V Manual, Delegation No. 22-3 (August 15, 1989) (Ex. 6) and EPA Administrator Delegation Manual, Delegation No. 22-3-A (October 31, 1989 ed.) (Ex. 7).

2. Respondent requested and was granted leave to file an Amended Answer.

3. This case was originally initially assigned to Judge Daniel M. Head. Upon Judge Head's retirement, in January 1997, the case was reassigned to the undersigned Presiding Judge.

4. Thereafter, the Respondent filed a Motion for Reconsideration and Complainant filed a Motion to Strike Defenses and both Motions were denied on September 17, 1997.

5. At the hearing, the parties unequivocally represented that a total of twenty-six sequentially numbered joint exhibits were being moved into evidence. However, upon review after the hearing, only twenty-three exhibits were actually offered and admitted into evidence, including one exhibit (Exhibit 18) produced after the hearing. Missing from the evidence introduced were exhibits 15, 21 and 22.

6. Citation to the transcript will be in the following form: "Tr. __."

7. On December 16, 1997, Respondent filed a Motion to Strike Complainant's Reply Brief as untimely. Pursuant to an Order issued by the undersigned on October 20, 1997, reply briefs were due to be filed 20 days after receipt of the opposing party's initial post-hearing brief. The Order stated that "[b]riefs filed after the deadlines established will not be considered unless an extension for time was previously granted." Respondent's initial post-hearing brief was sent to Complainant via Federal Express on November 13, 1997, and was delivered to EPA's mailroom on November 14, 1997. Respondent asserts that Complainant was required to file its reply by December 4, 1997, which is twenty days from November 14th.

Complainant opposed Respondent's Motion to Strike on the basis that its reply brief was filed in response to both Respondent's brief and Intervenor's brief, since they raised similar issues. Complainant asserts that it received Intervenor's initial brief on November 18, 1997 by regular mail making the December 6th filing timely. Complainant further asserts that a relocation of counsel's office resulted in counsel's delay in receiving Respondent's initial brief until November 18, 1997. For the reasons stated in Complainant's opposition, Respondent's Motion to Strike Complainant's Reply Brief will be denied.

8. EPCRA, enacted as Pub.L. 99-499, Title III, §§ 300-330, became effective as of October 17, 1986 (100 Stat. 1733). Section 313 required that covered entities submit Toxic Chemical Release Forms (Form Rs) on or before July 1, 1988 and annually thereafter. See, 42 U.S.C. §11023(a).

9. Mr. Farmer testified that he first learned about the filing requirements under EPCRA in 1994, when the current owners asserted their indemnification rights against him under the sales agreement. Tr. 29. Mr. Salerno testified that Steeltech was only one of Mr. Farmer's many businesses and the time he spent at Steeltech was "very limited." Tr. 60.

10. The parties did not introduce into evidence the final executed sale agreement between the Intervenor and Armand Salerno. The draft agreement presented (Ex. 12) did not contain the same indemnification provision as included in Intervenor's agreement with Gary Salerno.

11. Both Mr. Farmer and Mr. Salerno testified that they were represented in the sale by law firms familiar with environmental laws and regulations who did a due diligence review of the company's compliance with environmental laws before including the indemnification provision in the contract. Despite hiring such experts, both gentlemen claimed that the due diligence review never uncovered the EPCRA filing violations or the application of EPCRA to the business and the indemnification provision with its peculiar amount ($153,500) was included as a "normal clause." Tr. 33-34, 61-62.

12. Gary Salerno testified at the hearing that upon purchasing the company, he took responsibility for sales and marketing and was away from the facility most of the time, while his father ran the day to day plant operations. Tr. 46, 62. Although Armand Salerno held a significant, but minority (40%) shareholder position in the company, and worked therein for 3-4 years, Gary Salerno claimed his father never held a "title of vice president or manager or anything like that" and never received any renumeration for his work. Tr. 47-48, 62. A number of exhibits, however, indicate that Armand Salerno held himself out as having the title of "Director, Corporate Planning." Ex. 1, 16

13. Gary Salerno testified that, in about 1993 or 1994, his father "retired," that is, he stopped actively working in the business, but did not specifically indicate that his father's status as the minority stockholder changed at any point. Gary Salerno stated that his father never contemporaneously informed him of the EPCRA inspection, the violations found, or the future filing requirements. Tr. 64-65. Armand Salerno did not testify at the hearing.

14. Although the Form Rs introduced into evidence do not reflect any releases of toxic chemicals from Respondent's facility (Ex. 16-20), Mr. Pews testified that a minimal amount of fumes containing toxic chemicals are released from the processing system into the air and into sand used in the molding process that is removed by a third party hauling company. Tr. 81-83, 90-93. Mr. Farmer also testified that a minimal amount of fumes containing toxic chemicals were released from the processing system into the air. Tr. 37-38. See also, Tr. 13. Mr. Pews testified that the non-reporting of these releases on the original 1993 Form R triggered issuance of a Notice of Technical Error and the corrected 1993 Forms were refiled in May of 1995. Tr. 78, 81.

15. Both Mr. Pews and Mr. Salerno testified as to the fact that Steeltech has not been annually receiving from EPA the Form Rs instructions and blank form package, even though the Company had requested that it be placed on EPA's mailing list. Tr. 75, 44

16. Some judges have relied upon criteria for other types of EPCRA violations to guide their administrative penalty assessments for violations of Section 313. See e.g., Catalina Yachts, Inc., EPA Docket No. EPCRA-09-94-0015 (ALJ, Feb. 2, 1998); TRA Industries Inc., EPA Docket No. EPCRA-1093-11-05-325 (ALJ, Oct. 11, 1996); GEC Precision Corp., EPA Docket No. EPCRA-7-94-T-3 (ALJ, Aug. 28, 1996). EPCRA §325(b)(1)(C) (42 U.S.C. §11045(b)(1)(C)), provides, with respect to Class I violations of the emergency notification requirements of Section 304 (42 U.S.C. §11004), for which a penalty of not more than $25,000 per violation may be assessed, that in determining the exact amount of the civil penalty to be imposed in a specific case, the Administrator shall take into account the "nature, circumstances, extent and gravity of the violation or violations and, with respect to the violator, ability to pay, any prior history of such violations, the degree of culpability, economic benefit or savings (if any) resulting from the violation, and such other matters as justice may require." EPCRA §325(b)(2) (42 U.S.C. §11045(b)(2)), covering Class II violations of EPCRA's emergency notification provisions provides for a penalty of up to $25,000 per day for violations of EPCRA § 304. Section 325(b)(2) incorporates by reference the penalty assessment procedures and provisions of Section 16 of the Toxic Substances Control Act ("TSCA"), 15 U.S.C. §2615. A comparison of the two penalty assessment criteria reveals, however, that the penalty factors listed in TSCA Section 16 are nearly identical to those in EPCRA Section 325(b)(1)(C), except that the factor of "effect on ability to continue to do business" is substituted for "economic benefit or savings." Neither of these factors is an issue in this case.

17. The page citations to the ERP are to the page numbers used in the document itself and not to the number of pages of the exhibit counting chronologically.

18. Violations committed by businesses with over 10 million dollars in corporate sales and 50 employees or more, which used in the applicable calendar year more than 10 times the reporting threshold of the chemical, are designated as "extent level A."

19. The Rules also require that "The dollar amount of the proposed civil penalty shall be determined in accordance with . . . any civil penalty guidelines issued under the Act." However the Rules do not define such "civil penalty guidelines." An EPA policy entitled, "Incentives for Self-Policing: Discovery, Disclosure, Correction, and Prevention of Violations," 60 Fed. Reg. 66706 (December 22, 1995) (Self-Policing Policy), provides for 100% elimination or reduction by 75% of the gravity-based penalty for voluntary disclosure. The Self-Policing Policy states that it supersedes any inconsistent provisions in other penalty and enforcement policies, but to the extent that they are not inconsistent, they apply in conjunction with the Self-Policing Policy. 60 Fed. Reg. at 66712. However, that Policy also states that it is not intended for use in pleading, at hearing or at trial. Id. Therefore, and further, because the Self-Policing Policy has not been relied upon by the Complainant in calculating the penalty in this case, it will not be considered herein. See, Harmon Electronics, RCRA (3008) Appeal No. 94-4, slip op. at 59-60 (EAB, March 24, 1997); cf. Bollman Hat, EPA Docket No. EPCRA-III-182 (ALJ, Apr. 17, 1998).

20. It is noted, however, that EPA could have argued that Steeltech should be classified as a company with over 10 million dollars in gross sales as to at least some of the Counts. The Dun and Bradstreet report indicates that as of December 31, 1995, Steeltech had increased its annual sales to approximately $11.3 million dollars. Ex. 8. Thus, if EPA had characterized the company's size as of the date of the Amended Complaint (March 1995), when it added Counts VII-XI, it could have fallen into category A providing for a higher gravity-based penalty. However, to Respondent's benefit, even as to the subsequently added Counts, EPA calculated Steeltech's size as of the date of the original Complaint.

21. There is no explanation in the record as to why Complainant did not include the 1992 and 1993 violations in the original Complaint filed in September 1994. One would have assumed that, as a matter of course, before an action is filed and a penalty proposed, EPA would take a few moments to determine if there are any additional similar violations which have occurred since the original inspection, especially where EPA has waited two years from the inspection to file suit.

22. Furthermore, EPA says that the data can be used to "compare facilities or geographic areas, to identify hot spots, to evaluate existing environmental programs to more effectively set regulatory priorities . . . to track pollution control and waste reduction progress . . . and identify potential environmental justice concerns." Office of Pollution Prevention and Toxics, EPA Public Data Release, 1993 Toxic Release Inventory (March 1995) p. 4.

23. Respondent and Intervenor assert that there was only one violation, of failure to know the EPCRA reporting requirements. Sections 313 and 325(c) of EPCRA are clear, however, that a separate penalty may be assessed for each Form R that was not timely filed. Section 313 provides that a separate "form . . . for each toxic chemical . . . processed . . . during the preceding year" must be submitted for each year that it was processed in excess of the threshold amount. Section 325(c) provides, "Any person who violates any requirement of section [313]. . . shall be liable . . . for a civil penalty in an amount not to exceed $25,000 for each such violation" (emphasis added). Moreover, the argument that Respondent simply did not know of its legal obligations cannot reasonably be applied to the violations occurring after the 1992 inspection, which provided direct personal notice of EPCRA's filing requirements to Respondent.

24. The parties do not dispute that Steeltech has no prior violations and that no delisted chemicals are at issue, and Respondent has not claimed inability to pay the proposed penalty, so the penalties will not be adjusted for those factors. See, New Waterbury, Ltd., 5 E.A.D. 529, 541, TSCA Appeal No. 93-2, at 15 (EAB, Oct. 20, 1994)("where a respondent does not raise inability to pay as an issue in its answer, or fails to produce any evidence to support an inability to pay claim after being apprised of that obligation during the pre-hearing process . . . the presiding officer may conclude that any objection to the penalty based upon ability to pay has been waived under the Agency's procedural rules and thus this factor does not warrant a reduction of the proposed penalty").

25. In that "voluntary disclosure" (prior to litigation) and positive "attitude" (during the inspection/litigation) can encompass different positive responses to violations, both of which the Agency should reward, its decision to treat them always as "mutually exclusive" seems questionable. However, since in this case, EPA considered Steeltech's mere confirmation of information told to it by the Agency as "voluntary disclosure," for which I have found Steeltech entitled to a 42% reduction as to five counts, I find an additional adjustment based upon attitude as to those Counts unwarranted.

26. Complainant could have included in the original Complaint filed in this case an additional violation for Respondent's failure to respond to the Notice of Noncompliance as to the 1989 Form R, but apparently, within its prosecutorial discretion, chose not to. The ERP classifies failure to respond to a Notice of Noncompliance as a Level 5 violation warranting up to a $5,000 penalty. Ex. 2, pp. 11-12.