ELR Citation: ELR 21020
No(s). 86-E-1 (N.H. Super. Ct. Apr 26, 1988)

The court holds that an action brought by New Hampshire for civil penalties for national pollutant discharge elimination system permit violations by the past and present owners of a paper mill is barred by a two-year state statute of limitations. The statute of limitations provides that all suits founded on any penal statute must be brought within two years of the commission of the offense. However, this statute of limitations was originally enacted almost a century ago to apply to qui tam actions, which were abolished in New Hampshire in 1899, and has never been held to apply in any reported case. The court holds that the language of the statute clearly and unambiguously applies to all suits based on any penal statute and that the New Hampshire Water Pollution Control Act is a penal statute. The legislature intended the statute of limitations to apply to actions other than qui tam proceedings, since it was not repealed when qui tam actions were abolished and the statute was applied to more than qui tam actions prior to 1899. The statute of limitations does not apply only to criminal or quasi-criminal penalties, since the statute states that it applies to all actions based on any penal statute. Although the statute appears in a chapter that was originally intended to apply to minor local actions, the words of the statute are not so limited. Although the penalty provisions of the New Hampshire Water Pollution Control Act were amended to conform with the provisions of the Federal Water Pollution Control Act, which is governed by the five-year statute of limitations in 28 U.S.C. §2462, the court assumes the legislature was aware of the existence of the two-year state statute of limitations and intended state and federal law to differ on this issue. The court observes that a longer statute of limitations for environmental enforcement would be sensible public policy, but declines to substitute its judgment for that of the legislature.

Counsel for Plaintiff
Peter G. Beeson, Ass't Attorney General
25 Capitol St., State House Annex, Concord NH 03301
(603) 271-3658

Counsel for Defendants
Thomas D. Rath
Rath & Young
Box 709, One Eagle Square, Concord NH 03301
(603) 226-2600

James A. Rogers
Skadden, Arps, Slate, Meagher & Flom
919 18th St. NW, Washington DC 20006
(202) 371-7000