ELR Citation: ELR 20544
No(s). 92-1126 (D.C. Cir. Mar 4, 1994)

The court holds that 28 U.S.C. §2462's five-year statute of limitations bars an action by the U.S. Environmental Protection Agency (EPA) under Toxic Substances Control Act (TSCA) §16(a)(2) that seeks civil penalties for violations of TSCA's premanufacture notice requirements that occurred more than five years before commencement of the action. The court first holds that §2642 applies to administrative penalty proceedings. The terms "action, suit or proceeding" in §2642 are not limited to judicial prosecutions. Given the reasons for statutes of limitations—concerns over lost evidence, faded memories, and disappearing witnesses after the passage of time—the court finds no rationale for applying §2642 when the penalty action or proceeding is brought in a court, but not in an administrative agency. The court holds that TSCA §16(a)(2) administrative proceedings are proceedings "for the enforcement of" a civil penalty within the meaning of §2642. The addition of the word "enforcement" in a 1948 revision of the statute did not modify the §2642's substance. The court construes "enforcement" to mean "imposition," and since assessment proceedings under TSCA seek to impose civil penalties, §2642 applies. The court holds that a claim for assessment of penalties "accrues" when the violation occurs, rather than when EPA discovers the violation. The court declines to apply a "discovery of violation" rule similar to the "discovery of injury" rule adopted for cases involving latent injuries, because the rationale underlying the "discovery of injury" rule—that a claim cannot realistically be said to accrue until the claimant has suffered harm—is not applicable. The claim for the penalty first accrues at the moment of the violation, because liability for the penalty attaches at that time. Case law interpreting §2642 supports measuring the running of the limitations period in penalty actions from the date of violation. The court finds no reason to interpret §2642 based on EPA's particular difficulties in enforcing TSCA, because §2462 is a general statute of limitations applicable to the entire federal government in all civil penalty cases. Moreover, nothing in §2642's language makes the running of the limitations period turn on the degree of difficulty an agency experiences in detecting violations.

Counsel for Petitioner
Douglas L. Wald
Arnold & Porter
1200 New Hampshire Ave. NW, Washington DC 20036
(202) 872-6700

Counsel for Respondents
Eileen McDonough
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before: BUCKLEY, GINSBURG, and RANDOLPH, Circuit Judges.