The infamous Elementis Chromium Inc. $2.5 million case on failure to report a study under section 8(e) substantial risk that confirmed CrVI causes cancer at higher levels of exposure was successfully appealed – sorta.  The penalty was dropped on appeal to the EPA Environmental Appeals Board (EAB) because Elementis didn’t have new information meeting EPA’s confusing guidance on “corroborative” information.  In the Elementis case, the study showed the same cancer effect also occurs at higher doses than was previously reported. EPA has interpreted corroborative as essentially being identical to the information it has.  EAB told EPA not so.

BUT the EAB said that a violation of 8(e) is a continuing violation worthy of maximum penalties every day for up to 5 years once EPA gets around to catching the failure to submit a study.  I.e., there is only a narrow "statute of limitations" on charging penalties (established by a US Appellate Court, DC TSCA case 3M Co v Browner) and not for the act of violation: every day a company fails to inform the EPA of old information is a new day of violation.  As a statute that's been in place since 1977, being charged for "uh-ohs" that happened decades ago can be quite impossible for a company to deal with.  Memories and records are gone.

The "continuing" violation issue doubtless will be litigated in the future, I hope.  It'd be nice if any TSCA reform bill would extend the statute of limitations, except where a company has intentionally hidden a study from EPA.

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