CWM Chemical Services, Inc., et al. (Board decision, March 23, 1992)

Plain-English summary

This interlocutory appeal arose from an Administrative Law Judge's ruling that the five-year statute of limitations in 28 U.S.C. § 2462 applied to administrative penalties under TSCA. The ruling dismissed a large portion of an EPA Region II complaint. The Environmental Appeals Board relied on its recent decision in 3M Company and held that the limitations period did not apply to TSCA administrative penalties. It reversed the applicable portions of the ALJ's order, reinstated the dismissed portions of the complaint, and vacated the stay of proceedings.

Decision snapshot

• Cited authorities: 15 U.S.C. § 2615; 28 U.S.C. § 2462; 40 C.F.R. §§ 22.22 and 22.29
• Outcome: Procedural. The limitations ruling was reversed, dismissed complaint portions were reinstated, and the stay was vacated.
• Key point: The general five-year limitations period in 28 U.S.C. § 2462 does not apply to administrative penalty assessments under TSCA.

Full text (EPA EAB public release)

CWM CHEMICAL SERVICES, INC., ET AL. 1

IN THE MATTER OF CWM CHEMICAL SERVICES, INC.,
ET AL.

TSCA Appeal No. 91-6

DECISION ON INTERLOCUTORY APPEAL

Decided March 23, 1992

Syllabus

This is an interlocutory appeal from a November 6, 1991 Order by Administrative Law Judge Thomas B. Yost. In that Order, Judge Yost held that the five-year statute of limitations in 28 U.S.C. § 2462 applies to the assessment of administrative penalties under TSCA. As a result, a large portion of the complaint filed by the Director of the Environmental Services Division, EPA Region II, was dismissed. On November 18, 1991, Judge Yost certified this issue for interlocutory appeal pursuant to 40 C.F.R.
§ 22.29. Because the identical issue was under consideration in another case, 3M Company (Minnesota Mining and Manufacturing), TSCA Appeal No. 90-3, the Chief Judicial Officer stayed all proceedings to allow sufficient time to properly consider the issue in the context of this case as well as 3M.

Held: In light of the recent decision in 3M Company (Minnesota Mining and Manufacturing), TSCA Appeal No. 90-3 (CJO, February 28, 1992), holding that the statute of limitations in 28 U.S.C. § 2462 does not apply to the assessment of adminis- trative penalties under TSCA, Judge Yost's November 6, 1991 Order is reversed, the dismissed portions of the complaints are reinstated, and the stay is vacated.

Before Environmental Appeals Judges Ronald L. McCallum and Timothy J. Dowling (Acting). Judge Edward E. Reich did not participate in this case.

Per curiam:

On November 18, 1991, Administrative Law Judge Thomas B. Yost, pursuant to a motion by Complainant, Director of the Environ- mental Services Division, EPA Region II, certified an issue for inter- locutory appeal to the Administrator in the above-referenced case. See 40 C.F.R. § 22.29. The appeal arises from Judge Yost's November 6, 1991 order holding that the five-year statute of limitations con- tained in 28 U.S.C. § 2462 applies to the assessment of administrative penalties under the Toxic Substances Control Act (TSCA). See Order on Motion for Leave to File Response (ALJ Yost, Nov. 6, 1991).

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2 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

On appeal, Complainant seeks reversal of that determination and the resulting dismissal of a large portion of the complaint.

On December 13, 1991, all proceedings in this matter were stayed pending resolution of the issue on interlocutory appeal. In light of the recent decision in 3M Company (Minnesota Mining and Manufac- turing), TSCA Appeal No. 90-3 (February 28, 1992), holding that the five-year statute of limitations in 28 U.S.C. § 2462 does not apply to the assessment of administrative penalties under TSCA, we reverse the applicable portions of Judge Yost's November 6, 1991 order. The reasoning of the 3M decision applies with equal force to this case. See 3M at 22-29. Accordingly, none of the allegations in the com- plaint are time barred, the dismissed portions of the complaint are reinstated, and the December 13th stay is hereby vacated.¹

So ordered.²

¹Complainant's request for oral argument is denied.

²The Environmental Appeals Board, as the Administrator's delegatee, has the authority to issue decisions in proceedings on interlocutory appeal. See 57 Fed. Reg. 5324-25 (Feb. 13, 1992) (revising 40 C.F.R. §§ 22.04(a) & 22.29).

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