In January, the federal Environmental Protection Agency (EPA) filed administrative complaints against three wireless communications providers (Cincinnati Bell, Covergys Customer Management and PrimeCo Personal Communications) for violating a federal law known as the Emergency Planning and Community Right to Know Act (EPCRA). The companies are alleged to have not reported storage of significant quantities of sulfuric acid in battery packs used for backup power at computerized switching centers and hubs. The EPA initially proposed fines ranging from $42,000 to $620,000 against the three companies, but has substantially reduced the penalties in each of the cases due to the companies' voluntary self-disclosure of the violations.
An Enforcement Initiative
The complaints follow a 1997 settlement between GTE and the EPA, stemming from a similar voluntary disclosure by GTE of many instances of failing to disclose the presence of sulfuric acid in batteries. GTE settled by paying a $35,000 fine. After the agreement, the EPA sent letters to companies in the personal wireless communications industry, explaining the need for sulfuric acid reporting. These letters were a clear signal to communications companies that they need to know what chemicals they store and how those chemicals may be covered by EPA reporting requirements.
The EPA's most recent complaints suggest that the agency is willing to seek heavy penalties against communications companies, some of which may be unaware that the presence of common battery acids inside backup batteries can trigger federal reporting requirements. Under EPCRA, any company that owns or operates a facility storing 500 pounds (approximately 60 gallons) or more of sulfuric acid -- even if it is contained in batteries -- must file reports with federal, state and local officials. Many other hazardous chemicals are also covered by these requirements.
Required Reports Include Acids in Battery Packs
EPCRA requires companies to report on the storage or use of certain hazardous chemicals and on hazardous chemical releases to the environment. The 1986 law, passed in the wake of the tragic chemical accident in Bhopal, India, is aimed at informing the general public and emergency planning authorities of potential chemical hazards. It sets up four separate reporting requirements of which communications companies should be aware:
- emergency planning;
- emergency release notification;
- community right-to-know reporting; and
- toxic chemical release reporting.
Under the emergency planning provisions, facilities that store sulfuric acid or other "extremely hazardous substances" in quantities equal to or greater than specified threshold planning quantities are required to notify the state emergency planning commission. Separate emergency release provisions require immediate notification to emergency planning commissions in the event of a release exceeding a reportable quantity established for that substance. The community-right-to-know provisions require owners and operators that are required to maintain OSHA material safety data sheets (MSDSs) onsite, to submit copies of those MSDSs or a list of hazardous chemicals to the emergency planning commissions and the fire department. Finally, the toxic chemical release provisions require annual reporting of routine and accidental chemical releases. Unless there is an accident, this requirement is unlikely to apply to a switching facility, but might apply to manufacturing or other facilities having 10 or more employees.
Stiff Penalties
Penalties under EPCRA can be large -- as high as $25,000 for each day of violation. Criminal penalties may apply in egregious cases. EPCRA also authorizes private citizens to sue the owner or operator directly to enforce the law.
Compliance Checks Recommended
Before your company receives a "knock on the door" from the EPA, we recommend that it review its facilities' compliance with EPCRA. Before undertaking any such review, the company should have a plan for maintaining audit confidentiality and for dealing with any violations it might identify.
The EPA and states provide incentives for conducting internal audits of this nature and offer mitigated penalties for any violations that are identified, voluntarily reported and promptly corrected. Counting the cases described above and seven other recent cases involving telecommunications companies, the EPA has waived a total of $4.2 million in penalties for violations of EPCRA and the Clean Water Act (spill prevention control and countermeasures provisions). Each of the companies had voluntarily reported and corrected the violations. The EPA assessed an aggregate total of $129,000, the agency's estimate of the amount saved by the companies' delayed compliance.