RCRA Enforcement and the Statute of Limitations

Doris K. Nagel

Editors' Summary: EPA's RCRA enforcement program will face a serious threat as defendants begin to raise statute of limitations defenses. The five-year federal statute of limitations is now expiring for many RCRA violations. Many statute of limitations issues remain unresolved, including what, if any, is the proper statute of limitations in civil or criminal court actions and when does it begin running, and whether administrative proceedings toll the statute. The author explores the application of the federal five-year statute of limitations in states with and without EPA-approved RCRA programs and discusses EPA's options for responding to the statute of limitations defense. She concludes that EPA may be able to assert the discovery rule or characterize violations as ongoing, but suggests that EPA consider regulatory changes to fully protect its causes of action. Further, Congress should clarify the issue during the reauthorization of RCRA, as it did in the 1986 CERCLA amendments.

[18 ELR 10431]

The Resource Conservation and Recovery Act of 1980 (RCRA)¹ as amended in 1984,² created a detailed and comprehensive framework for the regulation of hazardous wastes. RCRA provides a number of broad governmental enforcement avenues but contains no express statute of limitations. The lack of statutory guidance on this issue raises a series of questions related to enforcement actions seeking civil or criminal penalties:³ Is the Environmental Protection Agency (EPA) or the state subject to any time limitations for either civil or criminal court actions? If so, what is the proper statute of limitations and when does it begin running? If the administrative option is chosen, does initiation of these proceedings toll the statute of limitations? What implications does the relevant limitations period have on the assessment of civil or criminal penalties?

The same issues have been raised but never clarified under the Clean Water Act (CWA)⁴ and the Clean Air Act (CAA),⁵ which also contain no limitations period. This issue is likely to arise more frequently under RCRA, however, because of several major differences between these statutes and RCRA. First, violators without the required air or water permits are often readily detectable with the naked eye or through the CWA's and CAA's extensive pollution monitoring. Facilities outside the RCRA system, in contrast, may not be discovered for many years because they are usually located on private property, and there are no extensive monitoring networks to identify contaminated soil and groundwater. Second, RCRA storage and disposal violations remain capable of causing environmental harm almost indefinitely, making government enforcement against past actions more likely. A third difference stems from RCRA's statutory and regulatory complexity, due in part to the statute's indirect protection of soil and groundwater without the specific standards that exist for air and water, instead regulating those who might adversely affect the soil and groundwater. Finally, RCRA's heavy reliance on administrative enforcement, coupled with RCRA's complexity, focuses particular attention on whether administrative proceedings toll the limitations period.

The stakes are potentially high, because unfavorable rulings to the government could severely limit its otherwise broad RCRA enforcement powers. A statute of limitations defense has been raised in at least one state hazardous waste enforcement case⁶ and one EPA administrative enforcement action,⁷ and has been threatened in others. Questions have also been raised about the need for states to specifically adopt the federal limitations period to receive hazardous waste program authorization. Because the five-year federal statute of limitations is only now beginning to expire for many RCRA violations, more challenges can be expected.

I. Types of RCRA Enforcement Actions

RCRA provides the EPA Administrator with broad enforcement powers. For violations occurring in states without authorized RCRA programs, the Administrator may immediately commence a civil action in federal district court, or may issue an order assessing a civil penalty or suspending or revoking any permits issued under RCRA.⁸ Civil penalties are assessable up to $ 25,000 per day of non-compliance [18 ELR 10432] for each violation,⁹ and if a violator fails to comply with the order, the Administrator may assess an additional civil penalty of up to $ 25,000 per day.¹⁰

States with authorized programs may also enforce violations of RCRA requirements. The Administrator must approve a state's program if it is equivalent to and not inconsistent with the federal program, and provides adequate enforcement.¹¹ A state program may also provide stricter standards and be broader in scope than RCRA. These authorized state programs "shall be in the form of lawfully adopted State statues [sic] and regulations … fully effective by the time the program is approved."¹² Once the state program is codified and authorized by EPA, a state may enforce any part of the RCRA-mandated program,¹³ and any enforcement action taken by a state pursuant to an authorized program "shall have the same force and effect as action taken by the Administrator…."¹⁴ The Administrator may enforce RCRA requirements in authorized states in the proper circumstances, and then has again the choice of administrative or judicial action.¹⁵

EPA administrative proceedings may entail a number of intermediate steps.¹⁶ EPA first issues a complaint to the violator and files it with an administrative law judge (ALJ). If the respondent chooses to contest the complaint and the ALJ issues an order after a hearing assessing a civil penalty, the violator may choose to pay or appeal to the EPA Administrator.¹⁷ EPA enforcement personnel may also appeal the ALJ's decision to the Administrator. The Administrator's decision becomes "final agency action" appealable under the Administrative Procedures Act (APA).¹⁸ If the violator neither appeals nor complies with the administrative order, EPA may enforce the penalty in federal court or administratively issue a noncompliance order, as noted above. This order is likewise subject to internal appeal,¹⁹ and the EPA must ultimately file suit to enforce this subsequent order if the fine is not paid.

The U.S. Department of Justice may seek criminal indictments of RCRA violators who "knowingly" violate any of several specified requirements,²⁰ including the more serious crime of "knowing endangerment."²¹ Maximum criminal penalties are $ 50,000 per each day of violation and/or up to two years in prison for knowing violations,²² or up to $ 250,000 and/or 15 years of imprisonment for knowing endangerment.²³

II. Civil Enforcement Limits in Non-Authorized States

The starting point for an analysis of statute of limitations problems is a garden-variety EPA civil enforcement action of a RCRA violation in a nonauthorized state. An initial question is whether the government is subject to any time limits in bringing RCRA enforcement actions. The answer: EPA actions are subject to a five-year statute of limitations. When a federal statute contains no limitations provision, courts apply the "most appropriate" statute of limitations provided by state law, unless there is a "relevant federal statute of limitations,"²⁴ or unless reliance on a state statute of limitations would frustrate federal policy.²⁵ There is a relevant limitations statute for RCRA; further, application of state statutes would frustrate federal goals.

A relevant federal statute appears in 28 U.S.C. § 2462, the general five-year statute of limitations for government actions. This section states:

Except as otherwise provided by Act of Congress, an action, suit, or proceeding for the enforcement of any civil fine, penalty, or forfeiture … shall not be entertained unless commenced within five years from the date when the claim first accrued….

This statute of limitations applies to actions by the federal government for "the enforcement of any civil … penalty."

Although no court has addressed the relevancy of 28 U.S.C. § 2462 to RCRA,²⁶ the statute has been applied to Clean Water Act enforcement actions.²⁷ While all of these [18 ELR 10433] cases were citizen suits, several courts expressly concluded that EPA enforcement actions under the CWA would also be subject to 28 U.S.C. § 2462.²⁸ Indeed, it can be argued that all of the courts applying § 2462 to citizens must first conclude that EPA is subject to this statute — which on its face applies only to government actions — and then make the further assumption that citizens are subject to the same limitations because they are acting for the government as private attorneys general.

Another court, relying on these CWA citizen suit cases, concluded that § 2462 applies to EPA enforcement actions under the Clean Air Act.²⁹ In addition, 28 U.S.C. § 2462 has been applied as the relevant limitations period for other environmental statutes,³⁰ and for other federal laws assessing civil penalties,³¹ indicating the courts' willingness to apply 28 U.S.C. § 2462 to federal regulatory enforcement actions.

Application of "analogous" state statute of limitations to RCRA enforcement actions would also frustrate federal hazardous waste management goals. As one court reasoned in addressing application of state statutes under the CWA:

It could not have been the intent of Congress to have the federal courts borrow statutes of limitations and certainly not statutes as short as one year…. If courts were to borrow the state statutes of limitations, the enforcement would vary from state to state. Some states could choose to have a very brief statute of limitations, and thus be very hospitable to industries that violate the Act, while others could adjust their limitations periods to provide a more hostile attitude towards possible polluters. By simply adjusting their statutes of limitations, states could frustrate the aims of the [CWA].³²

This reasoning is particularly relevant in the RCRA context, since a primary goal was to ensure uniformity among state hazardous waste regulations.³³ Application of state statutes of limitations would frustrate this goal of uniform enforcement.³⁴

Thus, courts are likely to apply 28U.S.C. § 2462 to EPA RCRA enforcement actions. However, EPA's current recordkeeping requirements under RCRA, set uniformly at three years,³⁵ may in practice limit the government to less than five years.

III. EPA Civil Enforcement in Authorized States

After EPA authorizes a state's hazardous waste program, RCRA's requirements become codified as state laws and regulations, and application of 28 U.S.C. § 2462 becomes more complicated. The states become the primary enforcer of their own hazardous waste laws, which operate "in lieu of the Federal program…."³⁶ EPA, however, retains the right to enforce — at least under some circumstances — some RCRA requirements even in authorized states. In doing so, EPA utilizes its own enforcement procedures, of which the statute of limitations may be considered one aspect, thus suggesting that the five-year limitation applies to all EPA enforcement actions.

A. Relationship of RCRA to State-Authorized Programs

Regardless of the status of state authorization, EPA has maintained the right to enforce, or "overfile," any part [18 ELR 10434] of the state program that is a RCRA Subtitle C requirement.³⁷ The agency's position is that this authority stems from RCRA § 3008(a)(2), which states:

In the case of a violation of any requirement of this subtitle where such violation occurs in a State which is authorized to carry out a hazardous waste program under section 3006, the Administrator shall give notice to the State in which such violation has occurred prior to issuing an order or commencing a civil action.³⁸

On the face of the statute, the only prerequisites to EPA enforcement actions in authorized states are a violation of the authorized state program and notice to the state of EPA's intent to take action. Once EPA fulfills these requirements, the agency argues, it may take any of the enforcement actions provided by RCRA,³⁹ even though it is enforcing state substantive laws,⁴⁰ including those aspects that are more stringent than RCRA.

EPA's enforcement of state programs has fostered litigation.⁴¹ Some have argued that EPA has no authority to enforce violations of any requirements that are part of the authorized state programs, because the state programs operate "in lieu of" the federal scheme, while others believe that EPA has authority to enforce when the state has failed to take enforcement action,⁴² but not when a state has already initiated enforcement that EPA believes is inadequate or inappropriate.

Without resolving these controversial issues, or the related questions of whether state or federal requirements were violated,⁴³ any EPA enforcement in authorized states conforms to federal law, not state law.⁴⁴ First, EPA must file its judicial enforcement actions in federal court, not state court.⁴⁵ Second, EPA may issue an administrative order even if the state program provides no administrative option,⁴⁶ and this order is ultimately enforceable only in federal court. Third, EPA follows the civil and criminal penalty limits established by RCRA and calculates penalties based on its own penalty policy,⁴⁷ even though states may have enacted higher or lower penalty limits, or even different types of penalties.⁴⁸ EPA also reserves the right to file a separate enforcement action if it believes the penalties assessed by the state are "substantially inadequate."⁴⁹ Citizens may still utilize RCRA's citizen suit authority to file in federal court,⁵⁰ even though states need not provide separate citizen suit authority.⁵¹ Finally, EPA has the right to withdraw a state's authorization.⁵² These factors suggest that 28 U.S.C. § 2462 applies to EPA actions in authorized states as well as nonauthorized states.

B. Civil Enforcement and State Program Authorization

A related series of questions arises in the context of state authorization. States are required to provide "adequate enforcement," but the applicable EPA regulations are silent on the statute of limitations.⁵³ Since states may enact substantive provisions that are more stringent than the federal RCRA requirements, may they also apply a state statute of limitations that is longer than five years? Alternatively, if a state enacts a shorter statute, does that jeopardize authorization status by failing to provide "adequate enforcement"?

The answer to the first question is unclear. It would appear that a shorter statute than five years would be ineffective, since the state program is not as stringent as [18 ELR 10435] RCRA, and thus, the federal statute of limitations would prevail. Whether a longer statutory period is valid is unclear. Since state courts follow their own procedures in enforcing the state authorized programs, the statute of limitations may be considered procedural law. However, if a primary rationale for applying the federal five-year statute to EPA's actions is to ensure uniform enforcement,⁵⁴ this goal can only be achieved by applying the same time period to state actions, both judicial and administrative.

At the same time, EPA's regulations currently give the agency no power to require enactment of a state five-year limitations period as a condition to receiving RCRA authorization. Similarly, EPA has no authority to deny authorization or to withdraw authorization if a state fails to enact such a statute. EPA probably has the power under the broad language of "adequate enforcement" to amend its regulations to require a five-year statute, or one not less than five years. In any case, the states, like EPA,⁵⁵ may be limited in practice to a shorter period by a lack of evidence on which to base an enforcement action because EPA's model "Memorandum of Agreement," which is part of the authorization process,⁵⁶ requires states to keep records for only three years.

IV. When the Cause of Action Accrues: Continuing Violations and the Discovery Rule

Assuming 28 U.S.C. § 2462 is the applicable statute of limitations for all types of RCRA enforcement actions, any "action, suit or proceeding for the enforcement of any civil fine, penalty, or forfeiture" must be "commenced within five years from the date when the claim first accrued…." A central issue is determining when the claim "first accrued." Possible options include accrual when the underlying action occurs, when the agency discovers the violation, or on each day the violation continues.

A. Continuing Violations

For many violations, the date on which the statute of limitations begins to run is clear. A single act causing a discernible effect results in accrual of a cause of action. Violations of hazardous waste regulations present more complex problems. These violations may not be discovered for many years because illegal landfills are located on private property, may be buried underground, may not be apparent during a visual inspection, and result in telltale effects that may manifest themselves only after a long delay. If EPA can successfully argue that the violator has a continuing obligation to comply with the law, the statute of limitations begins running anew each day the obligation to comply continues.

This reasoning was adopted in United States v. Advance Machine Co.,⁵⁷ which held that violators of the Consumer Product Safety Act had a continuing obligation to report violations. In that case, the government sought civil penalties for the defendant's defective baseball pitching machines manufactured between 1962 and January of 1974. The Consumer Product Safety Commission first suspected the defects in April of 1976, verified the defects in June of 1977, and, after a series of settlement attempts, filed a court action in February of 1982. The defendant claimed that the statutory duty to notify occurred on the date of the product's manufacture, and the statute of limitations, 28 U.S.C. § 2462, began running on that date. The court disagreed, holding that the duty to notify continued until the manufacturer reported the defects:

In enacting [the defect reporting requirement of the Consumer Product Safety Act], Congress intended to increase the likelihood that a substantial product hazard will come to the attention of the Commission in a timely fashion so that it could act swiftly to protect the consuming public [citation omitted]. Under defendant's interpretation, this goal would be frustrated since a manufacturer could violate the reporting requirement without fear of punishment if it could successfully hide the evidence of the product defect from the Commission for five years. A manufacturer's incentive would thus be to obfuscate rather than to inform.⁵⁸

This rationale seems equally applicable to RCRA's reporting requirements, designed to ensure swift government response to protect human health and the environment. Under Advance Machine's approach, RCRA's numerous reporting requirements⁵⁹ could all be construed as continuing violations.

EPA's past successes in characterizing both "storage"⁶⁰ and "disposal"⁶¹ as continuing acts supports the agency's ability to characterize violations involving disposal of hazardous waste without a permit as continuing as well. At least one state has adopted this rationale. In DeHart v. Indiana,⁶² the state of Indiana claimed that the defendant stored and disposed of hazardous wastes without a permit. The defendant asserted that Indiana's statute of limitations barred the action because he placed the waste on site several years earlier. The court never reached the issue of whether the state or federal statute of limitations applied, instead holding that the state's claim was not barred because the defendant's continuing duty to obtain a permit constituted a new offense each day the hazardous waste remained in place unpermitted.⁶³ If EPA can similarly [18 ELR 10436] characterize the bulk of RCRA violations as continuing, the agency will successfully avoid statute of limitations defenses and assert claims for penalties based on underlying violations that occurred many years earlier.

This continuing violation theory has succeeded in the CWA and CAA contexts, but, as those cases show, it also limits the agency in its assessment of civil penalties. In SCM Corp.⁶⁴ and Friends of the Earth v. Archer Daniels Midland Co.,⁶⁵ both EPA enforcement cases in which the statute of limitations was raised as a defense, the courts held that § 2462 limited the assessment of civil penalties to violations occurring within the five years prior to suit.

EPA's RCRA penalty policy permits assessment of penalties for multi-day offenses,⁶⁶ but it has not been implemented with limitations problems in mind. Enforcement personnel to date have often been reluctant to seek penalties calculated on a per-day basis for continuous violations because unpalatably high penalties would result. Attempts to assess these penalties may bankrupt many small RCRA-regulated entities. Efforts to avoid this could result in settlements that are considerably lower than the amounts assessed on a daily basis — also a politically undesirable outcome, since the agency may then be viewed as being too "soft" on violators. The result has been the assessment of penalties on a per-incident basis, which may not be consistent with a continuing violation theory designed to avoid statute of limitations problems.

B. Viability of the "Discovery Rule"

Another option for defining "when the claim first accrues" is the date on which the agency discovers the violation. The "discovery rule" became prominent in toxic tort and consumer product safety cases to protect plaintiffs who were unable to discover the latent harmful effects of their exposure to hazardous substances within the relatively short statute of limitations period.⁶⁷

The discovery rule was applied in an environmental enforcement context in the Al Tech Specialty case, in which the court held that a citizen's cause of action under the CWA accrues not when the violations occurred, but when the reports documenting the violations were filed with EPA.⁶⁸ The court reasoned that, until the reports were filed, it was impossible for the enforcer to discover when the violations occurred and that he/she had a cause of action. The court also looked to the purpose of the CWA and construed the statute in a manner designed to achieve its desired remedial benefits.⁶⁹ This case may have limited applicability, however, because the time delay between the reports and the violations themselves is relatively short.⁷⁰ RCRA violations, in contrast, may not be discovered until several years after the illegal activity first occurred.

The discovery rule has been adopted, however, in other contexts construing 28 U.S.C. § 2462. In United States v. Advance Machine Co.,⁷¹ the court held that the statute of limitations on civil penalties assessed under the Consumer Product Safety Act violation began when the agency discovered the failure to report the defective products, not when the underlying safety violations occurred. The extent of this holding is also somewhat in doubt, however, since application of the discovery rule may have been based on specific language in the Consumer Product Safety Act which focused on the government's actual knowledge of the violations.⁷² The discovery rule was also adopted in United States v. Hughes House Nursing Home, Inc.,⁷³ which held that the statute of limitations on a claim to recover Medicaid overpayments began when the government's final audit was complete, not when the violator wrongfully received the Medicaid money several years earlier.⁷⁴ This case did not involve civil penalties, however.

Other support for application of the discovery rule in the hazardous waste regulation context is found in Congress' 1986 amendment to CERCLA,⁷⁵ which expressly limits natural resources damages claims to three years from discovery,⁷⁶ thereby resolving litigation on the issue. CERCLA's discovery rule suggests Congress' recognition of the difficulty in discovering hazardous waste problems and the delay between the defendant's acts and the resulting harm to the environment. However, this CERCLA language arguably indicates that Congress knew how to expressly adopt the discovery rule when that was its intent.

[18 ELR 10437]

Other support for the discovery rule comes from a line of cases which hold that, even if a state statute of limitations applies, when the cause of action accrues is a matter of federal law.⁷⁷ These cases hold that the cause of action accrues when the plaintiff first has knowledge of the causal connection between the wrongful action and the harm that results.⁷⁸

This rule suggests the courts' willingness to apply the discovery rule when knowledge of the violations may occur many years after the original illegal activity. A major difference exists, however, between the remedies under RCRA and those available in the contexts in which the discovery rule has been applied. In toxic tort cases, CERCLA's recovery for natural resources damages, and causes of action to recover wrongful government payments and to redress personal harms, the discovery rule has been used only to keep alive the plaintiff's cause of action. These actions sound in tort or quasi-contract, and thus, the plaintiff's recovery does not increase over time. RCRA's civil penalties, in contrast, are arguably punitive in nature and, to increase deterrence, are designed to reflect the severity of the violation, including the duration of noncompliance.

If the discovery rule is applied to RCRA, courts are thus unlikely to assess civil penalties on activities prior to discovery except on a per-count basis, since any other approach would allow use of the discovery rule to increase the government's recovery. This reasoning thus places the discovery rule at odds with the continuing violation theory.⁷⁹

An additional limitation of the discovery rule is that penalties cannot be sought prior to discovery because the government's cause of action does not accrue until that point. This conclusion accords with Advance Machine Co., one of only two cases applying the discovery rule to 28 U.S.C. § 2462 in the context of civil penalties,⁸⁰ which held that the government's cause of action did not accrue until the government discovered the violations.⁸¹ The government may be able to assert the discovery rule to extend its cause of action and then attempt to seek penalties thereafter based on a continuing violation theory, an approach consistent with Al Tech Specialty, but may also be subject to claims that the discovery rule is generally used only to extend a cause of action, not to increase the recovery. In any case, courts are likely to be sensitive to the government's delay in enforcing once it has discovered the violation if the government attempts to seek civil penalties thereafter on a per-day basis.⁸²

Aside from the remedy, there are also problems of determining when discovery occurs. Since EPA is charged with inspection and regulation of hazardous waste activities under RCRA,⁸³ courts may apply relatively stringent standards in determining when the government knew or should have known of the violations.⁸⁴ EPA may be able to counter this argument by demonstrating limits on the government's oversight abilities and the reality that some RCRA violations are not readily discernible. Fraudulent concealment is also available as a defense to the statute of limitations, but sufficient proof of this defense is usually difficult to obtain.⁸⁵

EPA may also be imputed with an authorized state's earlier knowledge of a violation if EPA later decides to take enforcement action. If a state is acting as EPA's partner in enforcing RCRA while EPA retains ultimate enforcement and oversight authority, then a state's discovery of a violation should logically result in accrual of a cause of action, regardless of which sovereign enforces. This conclusion is bolstered by EPA's state authorization regulations, which provide that "[a]ny information obtained or used in the administration of a State program shall be available to EPA upon request without restriction."⁸⁶ In addition, a recent CWA case held that state enforcement barred a subsequent EPA enforcement action on the same violation because the state and EPA were "in privity" and constituted "substantial identity" of parties, thus indicating the court's willingness to view the states and EPA as partners in environmental enforcement.⁸⁷

In summary, EPA may be able to assert the discovery rule under RCRA, but the continuing violation approach is less problematic and is consistent with the agency's position under the CWA and CAA.

V. Does Administrative Enforcement Toll the Statute?

Whether RCRA administrative proceedings toll the statute of limitations is a significant issue. Unlike CWA and CAA enforcement, over 90 percent of RCRA violations are pursued first through the optional administrative proceedings, which are frequently lengthy.⁸⁸ Since a significant period [18 ELR 10438] may elapse between the agency's discovery of a violation and the filing of an enforcement action,⁸⁹ the added time of the administrative process would almost certainly extend many enforcement actions beyond the five year limitations period. The general rule is that agency administrative action that is a prerequisite to judicial review tolls the statute of limitations.⁹⁰ Existing case law, however, suggests that administrative proceedings initiated by the government that are not statutorily required do not toll the statute.

In one of the few cases addressing tolling during optional administrative proceedings, the U.S. Supreme Court in Unexcelled Chemical Corp. v. United States⁹¹ held that the government's administrative enforcement action seeking liquidated damages for illegal child labor employment under the Walsh-Healey Act was barred by the relevant two-year time limitation, even though the agency had begun administrative proceedings within that period. The Court's focus on the optional nature of the administrative proceedings is clear from its later holding that mandatory proceedings do toll the statute:

Unexcelled does not control this case…. [I]n Unexcelled, where the statutory period was held to run from the date of the breach of statutory duty under the Walsh-Healey Act … rather than from the date of the administrative determination of the liquidated damages due the Government, it seems apparent that the United States, to which damages were payable, could have brought suit without first resorting to administrative remedies.⁹²

The Court concluded that, if its holding prejudiced the power of the United States to safeguard the public interest, that prejudice resulted from Congress' failure to toll the statute during administrative proceedings.⁹³

Unexcelled, however, can be distinguished from RCRA enforcement issues. Most importantly, the case did not construe 28 U.S.C. § 2462, and the Supreme Court itself has noted that "[c]ases dealing with other limitations statutes are of extremely limited value."⁹⁴ In Unexcelled, the relevant statute of limitations states that the government "action is commenced … on the date when the complaint is filed," language that the Court felt had specific legal meaning.⁹⁵ Section 2462, on the other hand, refers to a limitation on "an action, suit, or proceeding," suggesting that other actions besides the filing of a complaint may toll the statute.

A second possible argument is that EPA may in fact have two causes of action — one to prosecute the violation and assess civil penalties if necessary, and a separate action to collect on those assessed penalties if the violator refuses to pay. Two federal circuits focused on § 2462's applicability to an action "for the enforcement of any civil penalty" to conclude that the statute begins running from the date the penalties are administratively assessed. In both of these cases, however, the statutes construed required the administrative assessment of civil penalties.⁹⁶ The First and Seventh Circuits thus reasoned that the government could have no cause of action to judicially enforce a civil penalty until it was administratively assessed. It is not clear that this reasoning is applicable when the administrative penalties are optional.

Further, not all courts are in agreement that the government gets an additional five-year period to enforce penalties assessed even when the administrative proceedings are statutorily required. In United States v. Core Laboratories, Inc.,⁹⁷ the Fifth Circuit interpreted the Export Administration Act, the same statute the First Circuit construed in the discussion above, and concludedthat 28 U.S.C. § 2462 was not tolled during the required administrative proceedings. The court relied on an earlier case under the Agricultural Adjustment Act holding that § 2462 began running from the date of harvesting, not from the date the government administratively assessed the overproduction penalties:

If the penalty does not accrue until the United States makes an administrative determination that it is due, the United States has within its power to prolong the period of limitations and the [alleged violator] "would remain indefinitely under the hazard of having penalties imposed upon him…."⁹⁸

The strongest counterargument to this reasoning is a statutory one. Section 2462 states that the time limit runs until the "action, suit, or proceeding" is commenced, language that strongly suggests that the statute can be tolled by action other than a court-filed complaint. This reading is supported by the legislative history of the section, which states that the limitation "is applicable to administrative as well as judicial proceedings."⁹⁹

Second, the statute of limitations is designed to ensure notice to the defendant and to force plaintiffs to act promptly to avoid stale claims.¹⁰⁰ Administrative proceedings serve both of these purposes. Courts may be more sympathetic to this rationale, however, if the Agency can provide some assurance of timely administrative review and resolution. As the process now exists, an alleged violator's action may hang in limbo for years while it wends its way through the EPA administrative process.¹⁰¹

The Agency can also argue that Congress provided for administrative enforcement to avoid burdening the federal courts with large numbers of complex enforcement actions. In addition, courts have been willing to interpret statute [18 ELR 10439] of limitations issues so as to effectuate the purposes of the substantive law being enforced,¹⁰² and public health and safety statutes are generally to be construed liberally.¹⁰³

There are at least two counterarguments, however. First, although the issue is not entirely resolved, a majority of courts have held that the government is not "diligently prosecuting" an environmental enforcement action "in a court of the United States, or a State" when it commences administrative proceedings.¹⁰⁴ These rulings have arisen in the context of citizen suits, which uniformly prohibit citizen action if the state or EPA is "diligently prosecuting" the same action.¹⁰⁵ Those courts concluding that administrative proceedings do not constitute a "court action" reasoned that administrative proceedings differ in the scope of relief and cannot be enforced without subsequent judicial action, do not allow intervention, and lack the same procedural safeguards.¹⁰⁶ A counterargument is that this provision serves a different purpose than a statute of limitations, and further, that the "diligently prosecuting" provision refers specifically to "court action," while § 2462 applies to "an action, suit or proceeding."

A second argument is that administrative proceedings are not the equivalent of a judicial complaint because they do not fully provide the full array of constitutional protections. The Supreme Court in United States v. Tull¹⁰⁷ held that government suits seeking civil penalties trigger the right to a jury trial. Although the Court held that the Seventh Amendment is inapplicable to administrative proceedings,¹⁰⁸ Tull leaves unanswered many questions about the equivalency of judicial and administrative proceedings. Courts may thus look with disfavor upon agency attempts to avoid the statute of limitations through optional administrative proceedings.

In summary, the law is unclear. One possible approach to avoid litigation on the issue is to use optional administrative proceedings if the defendant waives the statute of limitations. This has the advantage of flexibility and allays some due process concerns, but the waiver may not be effective in subsequent judicial proceedings.¹⁰⁹ A more reliable approach is for the EPA to simply file a parallel court action on violations which are near the expiration of the five-year statute of limitations.

VI. Criminal Enforcement

RCRA also provides for criminal enforcement.¹¹⁰ Based on the analysis above for civil enforcement, the natural conclusion is that 18 U.S.C. § 3282, the general federal criminal statute of limitations, applies to these actions:

Except as otherwise provided by law, no person shall be prosecuted, tried, or punished for any offense, not capital, unless the indictment is found or the information is instituted within five years next after such offense shall have been committed.¹¹¹

There is no case law, however, to support this assumption, and there is case law to the contrary.

In a suit for criminal penalties under the Rivers and Harbors Act, the Seventh Circuit held that 28 U.S.C. § 2462 was the applicable statute of limitations, and failed to mention 18 U.S.C. § 3282.¹¹² In a second case addressing criminal penalties under the Sherman Anti-Trust Act, the court held that no time limitations applied to court actions enforcing administratively-assessed criminal penalties. Again, 18 U.S.C. § 3282 was not discussed, but the court did conclude that 28 U.S.C. § 2462 was inapplicable because that statute applied on its face only to civil fines.¹¹³

Despite the case law, 18 U.S.C. § 3282 appears analytically sound as the relevant criminal statute of limitations. The lack of case law is indicative that limitation problems are rarely encountered in the criminal context. While the continuing violation analysis and the discovery rule are theoretically still relevant, in practice, government prosecutors seldom seek indictments based on activities occurring years earlier, due to problems of proof and the higher standards for criminal conviction. Assuming sufficient proof is available, the continuing violation approach appears equally defensible in the criminal context. Again, the agency's procedure of seeking criminal penalties on a per-count basis could produce potential conflicts, if the issue ever arises. Since all criminal enforcement is by indictment, administrative tolling is not relevant in this context.¹¹⁴

[18 ELR 10440]

Conclusion

The law surrounding the statute of limitations under RCRA is thus unclear in many respects. EPA may be able to assert the discovery rule, but this approach is problematic because of difficulties in determining when the government should have discovered the violation and in calculating the proper civil penalties. The government is more likely to be successful in characterizing many violations as on-going in order to avoid the statute of limitations, but the lack of clarity surrounding the administrative tolling issue may lead to unnecessary future litigation. EPA may wish to consider administrative or regulatory changes to fully protect its causes of action from statute-of-limitation challenges, and Congress should consider clarifying its intent on the issue when it takes up RCRA reauthorization in 1989.

Ms. Nagel is an associate with the firm of Sidley & Austin in Washington, D.C. The author would like to give special thanks to Lisa K. Friedman at EPA, Office of General Counsel. The author also wishes to thank Angus MacBeth of Sidley & Austin; Anne Allen at EPA, Office of Compliance, Enforcement, and Monitoring; and the staff at EPA. The views expressed in this Article are those of the author and do not necessarily represent the views of EPA.

1. 42 U.S.C. §§ 6901-6991i, ELR STAT. RCRA.

2. Hazardous and Solid Waste Amendments of 1984 (HSWA), Pub. L. No. 98-616, 98 Stat. 3224 (1984).

3. EPA may also seek injunctive relief in addition to, or in lieu of, civil penalties, but this remedy is not likely to be subject to statute of limitations challenges. See infra note 8.

4. 33 U.S.C. §§ 1251-1387, ELR STAT. FWPCA, as amended by the Water Quality Act of 1987, Pub. L. No. 100-4, 101 Stat. 76 (1987).

5. 42 U.S.C. §§ 7401-7642, ELR STAT. CAA.

6. Indiana v. DeHart, 471 N.W.2d 312 (Ind. App. 1984).

7. Respondent's Motion to Dismiss, In re Babcock & Wilcox Co., No. RCRA-III-162 (filed April 10, 1987).

8. RCRA § 3008(a), 42 U.S.C. § 6928(a). ELR STAT. RCRA 019. As noted in n.3, supra, injunctive relief is also available, but is less likely to raise statute of limitations problems. An action underlying the violation need not be ongoing for an injunction to issue if there is a substantial likelihood that the misconduct will recur, see, e.g., City of Mesquite v. Alladin's Castle, Inc., 455 U.S. 283 (1982). EPA often does seek injunctive relief in addition to civil penalties when the violation has immediate consequences. However, defendants raising the statute of limitations are more likely to focus on the penalty aspects of enforcement actions because of the financial consequences. As a result, this paper focuses solely on civil and criminal penalties.

9. RCRA § 3008(a)(3), 42 U.S.C. § 6928(a)(3), ELR STAT. RCRA 020.

10. Id. 42 U.S.C. § 6928(c).

11. RCRA § 3006(b). 42 U.S.C. § 6926(b), ELR STAT. RCRA 018. See also 40 C.F.R. §§ 271.1 to .25 (1987).

12. 40 C.F.R. § 271.7(a).

13. See RCRA § 3006(b), 42 U.S.C. § 6926(b), ELR STAT. RCRA 018. This section explains the authorization process for "[a]ny State which seeks to administer and enforce a hazardous waste program pursuant to [Subtitle C of RCRA]…." (emphasis added).

14. Id. 42 U.S.C. § 6926(d).

15. RCRA § 3008(a)(1)(2), 42 U.S.C. § 6928(a)(1)(2), ELR STAT. RCRA 019. The circumstances under which EPA enforcement in an authorized state is proper is subject to some dispute. See discussion infra note 36 and accompanying text.

16. 40 C.F.R. § 22 (1987). For a discussion by EPA's Chief Administrative Law Judge of the procedures followed in EPA administrative hearings, see Harwood, Hearings Before an EPA Administrative Law Judge, 17 ELR 10441 (Nov. 1987).

17. 40 C.F.R. §§ 22.13 to .30.

18. See 40 C.F.R. § 22.31-32; APA § 557(b), 5 U.S.C. § 557(b), ELR STAT. ADMIN. PROC. 005.

19. See 40 C.F.R. § 22.01(a)(4).

20. RCRA § 3008(d), 42 U.S.C. § 6928(d), ELR STAT. RCRA 020. These violations generally are those most basic to RCRA's regulatory scheme, such as knowingly operating as a treatment, storage, and disposal facility without a permit, knowingly transporting a hazardous waste without a manifest, knowing omission or material falsification of required information, or knowing exportation of hazardous wastes without consent of the receiving country.

21. Id. 42 U.S.C. § 6928(e). "Knowing endangerment" is essentially a "knowing" violation, as above, coupled with knowledge that at the time of the violation, the resulting action placed another person "in imminent danger of death or serious bodily injury."

22. Id. 42 U.S.C. § 6928(d).

23. Id. 42 U.S.C. § 6928(e). An organization convicted of knowing endangerment is subject to a maximum fine of $ 1,000,000. Id.

Authorized states also have criminal enforcement authority. EPA's standards for state authorization require enactment of criminal remedies obtainable at a minimum of $ 10,000 per day for each violation and imprisonment for at least six months. 40 C.F.R. § 271.16(a).

24. Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 462 (1975).

25. See, e.g., Occidental Life Insurance Co. v. EEOC, 432 U.S. 335, 367 (1977); Monarch Long Beach Corp. v. Soft Drink Workers, 762 F.2d 228, 230-231 (2d Cir. 1985).

26. One federal circuit, while not directly addressing the issue, implied that RCRA has an applicable statute of limitation by transferring RCRA action to district court rather than dismissing it "because the statute of limitation or filing period may have expired so as to preclude a filing in the district court at this date." Hempstead County & Nevada County Project v. United States Environmental Protection Agency, 700 F.2d 459, 463, 13 ELR 20385, 20387 (8th Cir. 1983).

27. See, e.g., Sierra Club v. Chevron USA, Inc., 834 F.2d 1517, 1521-22, 18 ELR 20237, 20239-41 (9th Cir. 1987); Atlantic States Legal Foundation v. Al Tech Specialty, 635 F. Supp. 284, 287, 17 ELR 20125, 20127 (N.D.N.Y. 1986); Chesapeake Bay Foundation v. Bethlehem Steel Corp., 608 F. Supp. 440, 446-50, 15 ELR 20785, 20787-89 (D. Md. 1985); Connecticut Fund for the Environment v. Job Plating Co. 623 F. Supp. 207, 211-13, 16 ELR 20596, 20598 (D. Conn. 1985); Friends of the Earth v. Facet Enterprises, Inc., 618 F. Supp. 532, 536, 15 ELR 20106, 20107 (W.D.N.Y. 1984).

Only the District of New Jersey has concluded that no statute of limitations applies to citizen suit enforcement actions under the CWA. See, e.g., Student Public Interest Research Group of New Jersey (SPIRGNJ) v. Anchor Thread, 15 ELR 20964 (D.N.J. Oct. 1, 1984); SPIRGNJ v. AT&T Bell Laboratories, 617 F. Supp. 1190, 15 ELR 21051 (D.N.J. 1985); SPIRGNJ v. Monsanto Corp., 600 F. Supp. 1474, 15 ELR 20294 (D.N.J. 1985). Although the New Jersey court at first expressly refused to rule on whether § 2462 applied to EPA enforcement actions, see SPIRGNJ v. Tenneco Polymers, 602 F. Supp. 1394, 1399, 15 ELR 20309, 20310-11 (D.N.J. 1985), the court later stated that EPA would not be subject to any statute of limitations. SPIRGNJ v. P.D. Oil & Chemical Storage, Inc., 627 F. Supp. 1074, 1084, 16 ELR 20517, 20518 (D.N.J. Jan. 13, 1988). The New Jersey court did agree, however, that applying a state statute of limitations would frustrate federal environmental enforcement policies.

28. See, e.g., Sierra Club v. Chevron USA, Inc., 834 F.2d at 1521, 18 ELR at 20239 ("This section [28 U.S.C. § 2462] clearly applies to enforcement actions brought by the EPA; such actions are by the government and 'for the enforcement of [a] civil fine.'"); Chesapeake Bay Foundation v. Bethlehem Steel Corp., 608 F. Supp. at 448, 15 ELR at 20788 ("Proceedings initiated by the EPA would almost certainly be subject to a five-year statute of limitations, 28 U.S.C. § 2462 …").

29. See United States v. SCM Corp., 667 F. Supp. 1110, 1123, 18 ELR 20073, 20080 (D. Md. 1987).

30. See, e.g., United States v. Central Soya, Inc., 697 F.2d 165, 169 (7th Cir. 1982) (Rivers and Harbors Act); United States v. C & R Trucking Co., 537 F. Supp. 1080, 1083, 12 ELR 20966, 20967-68 (N.D. W. Va. 1982) (CWA oil spill civil penalty provisions).

In C & R Trucking, supra, the court also refused to apply a state statute of limitations to the government's action to recover clean-up costs. The court held that this action sounded in restitution, or quasi-contract, and therefore was subject to 28 U.S.C. § 2415(a), the six-year general federal statute of limitations for federal actions on contracts. Accord United States v. DaeRim Fishery Co., 794 F.2d 1392, 16 ELR 20793 (9th Cir. 1986); United States v. Poughkeepsie Housing Authority, CA No. 80-1998, slip op. at 8-9 (N.D.N.Y. Oct. 16, 1981).

The propriety of applying 28 U.S.C. § 2462 to the Rivers and Harbors Act provision at issue in Central Soya is somewhat in doubt, however, since it actually involved criminal fines. See infra note 106 and accompanying text.

31. See, e.g., United States v. Advance Machine Co., 547 F. Supp. 1085 (D. Minn. 1982) (Consumer Product Safety Act); United States Department of Labor v. Old Ben Coal Co., 676 F.2d 259 (7th Cir. 1982) (Coal Mine Health and Safety Act); United States v. Core Laboratories, Inc., 759 F.2d 480 (5th Cir. 1985) (Export Administration Act); United States v. Appling, 239 F. Supp. 185 (S.D. Tex. 1965) (Agricultural Adjustment Act).

32. Chesapeake Bay Foundation v. Bethlehem Steel Corp., 608 F. Supp. at 447-48, 15 ELR at 20788 (citation omitted).

33. See RCRA § 1002(a)(4), 42 U.S.C. § 6901(a)(4), ELR STAT. RCRA 003. See also H.R. REP. NO. 94-1491, 30 (1976) (need for uniformity among state regulation of hazardous waste to simplify compliance for industry and to prevent businesses from moving from more stringent states to less stringent ones).

34. Congress is aware of the potential problems in applying state statutes of limitations in the hazardous waste context. In the 1986 amendments to CERCLA, Congress resolved numerous lawsuits involving CERCLA statute of limitations issues by enacting an express CERCLA statute of limitation which limited cost recovery suits to six years after clean up has been completed, and limited suits for natural resources damages to three years from the date of discovery of the injury. CERCLA § 112(d), 42 U.S.C. § 9612(d), ELR STAT. CERCLA 44040. One could hypothesize that Congress thereby intended to apply a uniform federal statute of limitations to hazardous waste enforcement actions. However, Congress has not addressed the statute of limitations as applied to RCRA, and it is possible to argue that the differing purposes of RCRA and CERCLA make this analogy uncertain.

35. See, e.g., 40 C.F.R. § 262.40 (Generators required to keep records for only three years, unless a record is required for an enforcement action); id. § 263.22 (same, transporter recordkeeping); id. § 264.73 (same, operators' records and results of inspections).

36. RCRA § 3006(b), 42 U.S.C. § 6926(b), ELR STAT. RCRA 018.

37. States may adopt hazardous waste programs that are broader than RCRA, or more stringent than RCRA, § 3009, 42 U.S.C. § 6929. EPA has maintained the right to enforce the "more stringent than" aspects of the program, but not the "broader than" aspects, taking the position that this is not part of the approved RCRA program.

38. 42 U.S.C. § 6928(a)(2), ELR STAT. RCRA 019.

39. See supra notes 8-23 and accompanying text.

40. See "Guidance on RCRA Overfiling" Memorandum from James A. Barnes, EPA Deputy Administrator, May 19, 1986.

41. See Wyckoff v. Environmental Protection Agency, 796 F.2d 1197, 1200-01, 16 ELR 20866, 20867-68 (9th Cir. 1986) (EPA authority to issue RCRA substantial hazard orders not superseded by state authorization); United States v. T & S Brass and Bronze Works, Inc., 681 F. Supp. 314, 316, 18 ELR 20905, 20907 (D.S.C. 1988) (EPA retains authority to enforce entire RCRA-based program in authorized states); United States v. Conservation Chemical Co. of Illinois, 660 F. Supp. 1236, 1244-45, 17 ELR 20970, 20974-75 (N.D. Ind. 1987) (EPA may enforce RCRA requirements in authorized states when state has decided not to enforce). But see Northside Sanitary Landfill, Inc. v. Thomas, 804 F.2d 371, 17 ELR 20215 (7th Cir. 1986) (RCRA facility owner has no standing to challenge EPA's comments on closure of facility since EPA has no authority to enforce RCRA if the authorized state has acted reasonably); CID-Chemical, No. RCRA-V-W-86-R-77 (Apr. 13, 1987) (summary dismissal of EPA enforcement attempt in authorized state).

42. This reading finds support in RCRA's legislative history:

This legislation permits the state to take the lead in the enforcement of the hazardous waste laws. However, there is enough flexibility in the act to permit the Administrator, in situations where a state is not implementing a hazardous waste program, to actually implement and enforce the hazardous waste program against violators in a state that does not meet the federal minimum requirements. Although the Administrator is required to give notice of violations of this title to the states with authorized state hazardous waste programs, the Administrator is not prohibited from acting in those cases where the state fails to act, or from withdrawing approval of the state hazardous waste plan and implementing the federal hazardous waste program pursuant to Title III of this Act.

5 U.S. CODE CONG. & ADMIN. NEWS at 6238, 6239 (1976).

43. Because of the constant flux of state programamendments and updates, this may raise questions of determining whether federal requirements or state requirements (or both) were violated. This determination in turn depends on whether one focuses on the date or dates of the actions underlying the violation, or whether some other date is appropriate under the continuing violation theory. See infra § V.A.

44. See cases cited above, supra, note 39.

45. RCRA § 3008(a)(1), 42 U.S.C. § 6928(a)(1), ELR STAT. RCRA 019.

46. Id. States are not required to provide for administrative enforcement in order to receive RCRA program authorization. See 40 C.F.R. § 271.16.

47. RCRA Civil Penalty Policy, ELR ADMIN. MATERIALS 35089 (May 8, 1984).

48. Compare RCRA § 3008(d), (e), (g), 42 U.S.C. § 6928(d), (e), (g) with 40 C.F.R. § 271.16(a). See also Note, at 40 C.F.R. § 271.16(c) (1987). As part of the authorization process, EPA has outlined minimal requirements to ensure that the state program provides "adequate enforcement." These regulations require only that the state provide authority for civil penalties of at least $ 10,000 per day and criminal remedies of up to $ 10,000 per day and imprisonment up to six months.

49. See Note, at 40 C.F.R. § 271.16(c).

50. RCRA § 7002, 42 U.S.C. § 6972, ELR STAT. RCRA 033.

51. See 40 C.F.R. § 271.16, wherein EPA delineates its minimum requirements on adequate enforcement by authorized states. The provision makes no mention of citizen suits.

52. RCRA § 3006(e), 42 U.S.C. § 6926(e), ELR STAT. RCRA 018, requires the Administrator to withdraw a state's authorization if, after a hearing, he/she determines that the state is not administering or enforcing RCRA properly, and the state then fails to take appropriate corrective action within 90 days.

53. See 40 C.F.R. § 271.16.

54. See supra notes 32-34 and accompanying text.

55. See supra note 35 and accompanying text.

56. 40 C.F.R. § 271.8(a).

57. 547 F. Supp. 1085, 1089-91 (D. Minn. 1982).

58. Id. at 1090.

59. See, e.g., RCRA §§ 3002, 3003, 3004, 42 U.S.C. §§ 6922, 6923, 6924, ELR STAT. RCRA 011.

60. See RCRA § 1004(33), 42 U.S.C. § 6903(33), ELR STAT. RCRA 004; 40 C.F.R. § 260.10 ("storage" is "the containment of hazardous waste, either on a temporary basis or for a period of years, in such a manner as not to constitute disposal of a hazardous waste."); see also Environmental Defense Fund v. Lamphier, 714 F.2d 331, 335, 13 ELR 21094, 21095-96 (4th Cir. 1983).

61. See, e.g., United States v. Waste Industries, Inc., 743 F.2d 159, 164, 14 ELR 20461, 20463 (4th Cir. 1984) (disposal under RCRA has a range of meanings to include a physical state of repose in addition to specific acts of conduct such as dumping); United States v. Price, 688 F.2d 204, 214, 12 ELR 21020, 21024 (3d Cir. 1984) (holding that disposal need not result from any affirmative action, but may be the result of passive inaction); United States v. Solvents Recovery Service of New England, 496 F. Supp. 1127, 1139-40, 10 ELR 20796, (D. Conn. 1980); Jones v. Inmont Corp., 584 F. Supp. 1425, 1435-36, 14 ELR 20485, 20490 (S.D. Ohio 1984). See also H.R. REP. NO. 198, 98th Cong., 1st Sess. 48 (1983); S. REP. NO. 284, 98th Cong., 2d Sess. 58 (1983) (RCRA legislative history suggesting Congress' adoption of the definition of passive disposal in 1984 RCRA amendments).

62. 471 N.E.2d 312 (Ind. App. 1984).

63. Id. at 317.

64. United States v. SCM Corp., 667 F. Supp. 1110, 18 ELR 20073 (D. Md. 1987).

65. No. 84-CV-413 (D.N.J. June 16, 1986).

66. The current penalty policy merely states that "[i]n the case of continuing violations, the Agency has the authority to calculate penalties based on the number of days of violation since the effective date of the requirement and up to the date of coming into compliance," and that "[m]ulti-day penalties should generally be calculated in the case of continuing egregious violations." RCRA Civil Penalty Policy, at 12, ELR ADMIN. MATERIALS 35092(May 8, 1984). EPA's authority to assess penalties on a per-day basis is derived directly from the statute. RCRA § 3008(a)(3), 42 U.S.C. § 6928(a)(3), ELR STAT. RCRA 020.

67. See, e.g., Urie v. Thompson, 337 U.S. 163 (1949) (silicosis); United States v. Kubrick, 444 U.S. 111, 100 S. Ct. 352 (1979) (medical malpractice); Wilson v. Johns-Manville Sales Corp., 684 F.2d 111 (D.C. Cir. 1982) (asbestosis); Stoleson v. United States, 629 F.2d 1265 (7th Cir. 1980) (nitroglycerin exposure).

68. Atlantic States Legal Foundation v. Al Tech Specialty Steel Corp., 635 F. Supp. 284, 287-88, 17 ELR 20125, 20127 (N.D.N.Y. 1986).

69. Id.

70. It may also be argued that this reasoning should not be applied to EPA, since EPA, not private citizens, has primary enforcement responsibility under the CWA. This argument should not be dispositive, however, because EPA itself relies almost exclusively on these reports to enforce the CWA.

71. 547 F. Supp. 1085, 1089-91 (D. Minn. 1982).

72. The Consumer Product Safety Act, 15 U.S.C. § 2402(b), requires manufacturers to report the defect unless they have "actual knowledge that the Commission has been adequately informed of such defect or failure to comply."

73. 710 F.2d 891 (1st Cir. 1983).

74. See also United States v. Reinhardt College, 597 F. Supp. 522 (D.C. Ga. 1983) (six-year federal statute of limitations applied to government's discovery of VA education benefit overpayments); United States v. President, 591 F. Supp. 1313 (D.C. Ill. 1984) (six-year limitation begins with government's discovery of fraudulent Workers' Compensation payments); United States v. Bragg, 493 F. Supp. 470 (D.C. Fla. 1980) (six-year limitation begins with government's discovery of Medicare overpayments).

75. 42 U.S.C. §§ 9601-9675, ELR STAT. CERCLA 44001.

76. CERCLA § 112(d), 42 U.S.C. § 9612(d), ELR STAT. CERCLA 44040, as amended, now reads:

(d) Statute of Limitations. —

(2) Claims for Recovery of Damages. — No claim may be presented under this section for recovery of the damages referred to in section [107(a)] unless the claim is presented within 3 years after the later of the following:

(A) The date of the discovery of the loss and its connection with the release in question.

(B) The date on which final regulations are promulgated under section [301(c)].

77. See, e.g., FDIC v. Petersen, 770 F.2d 141, 142 (10th Cir. 1985); Kalmich v. Bruno, 553 F.2d 549, 553 (7th Cir.), cert. denied, 434 U.S. 940 (1977); Bourrias v. Atlantic Maritime Co., 220 F.2d 152, 154-55 (2d Cir. 1955).

This approach avoids problems in applying state laws for when the action accrues, since not all states have enacted or recognized the discovery rule. See F. GRAD. TREATISE ON ENVTL. L. §§ 4A-4A.05, at 154-58 (1982).

78. See, e.g., United States v. Kubrick, 444 U.S. 111, 100 S. Ct. 352, 359 & n.8 (1979) (statute of limitations under Federal Tort Claims Act begins running when the plaintiff is in possession of the "critical facts that he has been hurt and who has inflicted the injury"); Trotter v. Longshore & Warehousemen's Union, 704 F.2d 1141, 1143 (11th Cir. 1983) (Labor Management Reporting and Disclosure Act); Cline v. Brusett, 661 F.2d 108, 110 (9th Cir. 1981) (§ 1983 of Civil Rights Act).

Although these cases addressed statutes of limitations under various laws, one court concluded that the rationale has been applied uniformly among these laws, and "[w]e must therefore assume that the federal standard for accrual of claims does not vary among these statutes and we are fully justified in relying on cases under these other acts." Lavellee v. Listi, 611 F.2d 1129, 1131 & n.4 (5th Cir. 1980).

79. See infra note 66 and accompanying text.

80. 547 F. Supp. 1085 (D. Minn. 1985).

81. Id. at 1091.

82. This delay can be lengthy. See infra note 85 and accompanying text.

83. See, e.g., RCRA § 3007, 42 U.S.C. § 6927, ELR STAT. RCRA 019 especially § 6927(e) (inspection authority).

84. When the plaintiff knew or, with reasonable diligence, should have known, is a question of fact. See, e.g., NLRB v. Don Burgess Construction Co., 695 F.2d 378, 384 (9th Cir.), cert. denied, 444 U.S. 940, 100 S. Ct. 392 (1979).

85. See, e.g., Pitts v. Unarco Industries, Inc., 712 F.2d 276, 279 (7th Cir. 1983); United States v. Firestone Tire & Rubber, 518 F. Supp. 1021, 1036 (N.D. Ohio 1981).

86. 40 C.F.R. § 271.17(a). See also id. § 271.8(b) (memorandum of agreement provisions on reporting, inspection, and monitoring).

87. See United States v. ITT Rayonier, 627 F.2d 996, 10 ELR 20945 (9th Cir. 1980). This case can be distinguished in that it involved issues under the CWA — and specifically the 404 portion of the CWA — not RCRA. The case also dealt with the power of both sovereigns to enforce; imputing one sovereign with the knowledge of the other was not at issue.

88. Unofficial EPA estimates suggest that administrative settlements that never even reach an ALJ generally take one to two years; if the case proceeds to an ALJ, the process takes a minimum of two to three years, and a few have taken up to six years to fully resolve.

89. GAO Report (draft) (1988).

90. Nicholas v. Hughes, 721 F.2d 657 (9th Cir. 1983) (time within which to challenge wrongful discharge tolled during statutorily required administrative appeals); Atlantic States Legal Foundation v. Al Tech Specialty, 635 F. Supp. 284, 17 ELR 20125 (N.D.N.Y. 1986) (time limitation for filing CWA citizen suit tolled during statutorily required 60-day notice provision).

91. 345 U.S. 59, 73 S. Ct. 580 (1953).

92. Crown Coat Front Co. v. Unitd States, 386 U.S. 503, 517, 87 S. Ct. 1177, 1186 (1967), quoted in Meyer, 808 F.2d at 917.

93. 345 U.S. at 66; 73 S. Ct. at 584.

94. Core Laboratories, 759 F.2d at 481, citing Crown Coat Front Co. v. United States, 386 U.S. 503, 517, 87 S. Ct. 1177, 1185 (1967).

95. 345 U.S. 66; 73 S. Ct. at 66.

96. United States v. Meyer, 808 F.2d 912 (1st Cir. 1987) (Export Administration Act); United States Dept. of Labor v. Old Ben Coal Co., 676 F.2d 259 (7th Cir. 1982) (Coal Mine Health and Safety Act).

97. 759 F.2d 480 (5th Cir. 1985).

98. United States v. Appling, 239 F. Supp. 185, 194 (S.D. Tex. 1965), citing United States v. Lynn, 132 F. Supp. 605, 607 (E.D. Ky. 1955).

99. S. REP. No. 363, 89th Cong., 1st Sess. 7, reprinted in 1965 U.S. CONG. CODE & ADMIN. NEWS 1826, 1832.

100. See Crown Coal Front Co. v. United States, 386 U.S. 503, 517, 87 S Ct. 1177, 1185 (1967); Old Ben Coal, 676 F.2d at 261.

101. See supra note 88 and accompanying text. Ironically, many defendants likewise have no assurance of speedy judicial resolution of their claims in the frequently lengthy court calendars. Thus, many alleged violators may willingly follow the administrative route to avoid court-related legal costs.

102. See, e.g., Atlantic States Legal Foundation v. Al Tech Specialty, 635 F. Supp. 284, 287-88, 17 ELR 20125, 20127 (N.D.N.Y. 1986); United States v. Hughes House Nursing Home, 710 F.2d at 894; United States v. Advance Machine Co., 547 F. Supp. at 1089-90.

103. See, e.g., United States v. Johnson & Towers, Inc., 741 F.2d 662, 666, 14 ELR 20634, 20636 (3d Cir. 1984) (RCRA); United States v. Dotterweich, 320 U.S. 277, 280-81, 284-85 (Food & Drug Act); United States v. Advance Machine Co., 547 F. Supp. 1085, 1089 (D. Minn. 1982) (Consumer Product Safety Act).

104. See, e.g., Friends of the Earth v. Consolidated Rail Corp., 768 F.2d 57, 62, 15 ELR 20674, 20677 (2d Cir. 1985) (consent orders resulting from state agency action are not court proceedings); Student Public Interest Research Group of New Jersey v. Fritzche, Dodge & Olcott, Inc., 759 F.2d 1131, 1132, 15 ELR 20427, 20429-31 (3d Cir. 1985) (EPA administrative enforcement action not a court proceeding); Sierra Club v. Chevron USA, Inc., 834 F.2d 1517, 1525, 18 ELR 20237, 20241-42 (9th Cir. 1987) (administrative enforcement proceeding cannot ever constitute a "court proceeding"); SPIRGNJ v. Tenneco Polymers, Inc., 602 F. Supp. 1394, 1398, 15 ELR 20309, 20310 (D.N.J. 1985); Friends of the Earth v. Archer Daniels Midland Co., No. 84-CV-413 (N.D.N.Y. June 16, 1986).

But see Atlantic States Legal Foundation v. Tyson Foods, Inc., 682 F. Supp. 1186, 1187-89, 18 ELR 20924, 20925 (N.D. Ala. 1988) (State administrative proceedings constitute a court action).

105. See, e.g., CWA § 505(b)(1)(B), 33 U.S.C. § 1365(b)(1)(B), ELR STAT. FWPCA 059; RCRA § 7002(b)(1)(B), 42 U.S.C. § 6972(b)(1)(B), ELR STAT. RCRA 033; CAA § 304(b)(1)(B), 42 U.S.C. § 7604(b)(1)(B), ELR STAT. CAA 044.

106. See, e.g., SPIRGNJ v. Fritzche, Dodge & Olcott, 759 F.2d at 1137-39.

107. 481 U.S. __; 107 S. Ct. 1831, 17 ELR 20667 (1987).

108. 481 U.S. __ n.4; 107 S. Ct. 1831 n.4; 17 ELR 20669 n.4 (citing Atlas Roofing Co. v. Occupational Health and Safety Review Commission, 430 U.S. 442, 454 (1977)).

109. See, e.g., Kindrew v. United States, 352 F. Supp. 277 (D. Fla.), aff'd, 479 F.2d 49 (5th Cir. 1972) (United States cannot extend statute of limitations by waiver, even when suit is against the government); Martin v. Grace Line, Inc., 322 F. Supp. 395 (E.D. Cal. 1970).

110. RCRA § 3008(d), (e), 42 U.S.C. § 6928(d), (e), ELR STAT. RCRA 020. See supra notes 20-33 and accompanying text.

111. 18 U.S.C. § 3282.

112. United States v. Central Soya, Inc., 697 F.2d 165 (7th Cir. 1982). See also Anderson on Behalf of United States v. Norfolk & Western Railway, 349 F. Supp. 121 (E.D. Va. 1972) (section 411 penalties are criminal in nature).

113. United States v. Memphis Retail Package Store Association, 334 F. Supp. 686, 688-89 (W.D. Tenn. 1971).

114. Criminal enforcement may, however, toll civil enforcement proceedings, at least if the civil proceedings are initiated by complaint. The court in United States v. Hugo Key & Sons, Inc., 672 F. Supp. 656 (D.R.I. 1987), held that the civil action would be stayed until conclusion of the criminal proceedings because the more liberal FRCP discovery rules available to the defendant if the civil proceeding was litigated first might allow the defendant to expose the government's criminal prosecution strategy — an outcome which would be unlikely if the criminal proceedings went first because of the more narrow scope of discovery in criminal actions.

There is no case law suggesting that an administrative civil proceeding is tolled by a companion criminal enforcement case.