Although the chemical industry appellant, Elementis Chromium Inc., prevailed in its appeal of a $2.5 million penalty under the Toxic Substances Control Act (TSCA), a ruling by EPA’s Environmental Appeals Board (EAB) indicates that violations of Section 8(e) of TSCA are continuing, and therefore not subject to the general 5-year federal statute of limitations. In re: Elementis Chromium Inc., March 13, 2015. EPA initiated an enforcement action against Elementis for its failure to send EPA a 2002 industry study showing increased risk of lung cancer to workers exposed to hexavalent chromium (Cr6).  EPA contended that Section 8(e) of TSCA, which generally requires chemical manufacturers, distributors, and importers to report information showing that their chemicals or mixtures pose substantial health or environmental risks, unless EPA has been “adequately informed” of such information, mandated that Elementis forward the study to EPA.  Elementis contended that a prior study by EPA established the lung cancer risk to workers, and therefor Elementis was not required to send the 2002 study to EPA. Elementis also contended that the enforcement action was barred by the general federal 5-year statute of limitations because it was initiated more than 5 years after the alleged violation. The administrative law judge sided with EPA and imposed a penalty of $2.5 million.

The EAB reversed the ruling, however, deciding that the 2002 study merely corroborated known information, and therefore was not required to be provided to EPA. However, the EAB sided with EPA on the statute of limitations issue. It held that violations of the reporting requirement of Section 8(e) are continuing, and therefore not subject to the 5-year statute of limitations. The ruling is consistent with prior rulings of the EAB, and the issue has not been ruled upon by a court. The D.C. Circuit Court of Appeals has ruled, in 3M v. Browner (1994), that the 5-year statute of limitations is applicable to an alleged failure to submit a premanufacture notice before importing a chemical, and that the statute begins to run on the day the violation began.

Chemical manufacturers, importers, and distributors should take note of the continuing violation theory regarding Section 8(e) reporting requirements. For more information, contact Steve O’Day.