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Statute of Limitations No Defense in TSCA Violation
The penalty was the result of a complaint filed by the Environmental Protection Agency (EPA) against the chromium manufacturer who failed to “immediately inform EPA’s Administrator of substantial risk information it obtained on October 8, 2002, via receipt of a report entitled ‘Collaborative Cohort Mortality Study of Four Chromate Production Facilities, 1958-1998 – FINAL REPORT.’” According to EPA, the Report contained information that “filled a gap” in scientific information available concerning the relationship between exposure to hexavalent chromium and respiratory cancer in modern manufacturing facilities.
The violation pertained specifically to TSCA Section 8(e) that requires manufacturers, processors and distributers of chemical substances or mixtures to submit within 30 days to EPA “information which reasonably supports the conclusion that such substance or mixture presents a substantial risk of injury to health or the environment.”
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According to the complaint, the company missed the 30-day deadline by several years but argued that it did not submit the information because it understood the EPA was already aware of the Report and furthermore, that EPA’s claim was “barred by the applicable statute of limitations,” which, under United State Code Section 2462 and thus TSCA Section 8(e), is five years. However, the Administrative Law Judge presiding over the case denied the company’s Motion for Judgment on the Pleadings, instead finding that “the TSCA Section 8(e) disclosure requirement is continuing in nature and therefore was not barred by the applicable statute of limitations.”
In explaining the decision, the EPA contended that “the running of the statute turns on when the claim ‘first accrued,’” and that according to the doctrine of continuing violations that applies to TSCA Section 8(e), the claim first accrued on the last day of the violative act. In this case, that date was determined by EPA to be November 17, 2008, the day the company provided the information in response to a subpoena. As a result, the statute of limitations clock did not actually start ticking until that date and would have expired on November 16, 2013.
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Moreover, in its response, the EPA provided several supporting assertions:
1) Due to the serious nature of TSCA Section 8 (e) violations, EPA has long treated them as continuing and “places no cap on the number of years for which a penalty can be assessed,”
2) There is a “continuing duty to inform” on the part of the regulated community because new chemicals are constantly being developed and it is industry’s responsibility to develop data concerning human health effects of their products,
3) TSCA was originally created to require the chemical industry to report such information since it historically was not doing so on its own, and
4) For TSCA to fulfill its intended role as the EPA’s “early warning system” the flow of such information as it is developed is essential.
While this is a simplification of the case which included citing many other cases and complex legal arguments from both sides, the Judgment on Pleadings concluded, “…the harm from a chemical presenting a substantial risk of injury to health or the environment does not dissipate over time. Rather, its continued use, if not by the chemical company with the information, by the others without such information, perhaps under other circumstances and/or without taking the necessary precautionary measures, may spread or increase the risk and/or resultant damage. Moreover, unlike an annual filing obligation, there is no subsequent event which necessarily overtakes such disclosure, making it moot.”