The continuing nature of notification violations under environmental statutes.

• Author: Klein, Roger M.

1. Introduction

   Several federal environmental statutes and the regulations implementing them contain notification provisions. The provisions generally require covered persons to provide the U.S. Environmental Protection Agency (EPA) with specified types of information concerning releases of hazardous substances. One interpretive question that has arisen under such provisions is: If a notification provision is triggered but the covered person fails to provide the required notice, for how long should that person's violation of the provision be deemed to continue?

   The question is important because it affects the outcome of several issues. First, each day a violation continues, a new cause of action accrues, starting a new clock for statute of limitations purposes. Thus, interpreting a violation as continuing may effectively eliminate the statute of limitations for that violation. Second, the length of time a violation continues may influence the penalty. Third, the continuation of an offense may determine the availability of a remedy under statutory injunctive provisions, some of which are triggered only by the current occurrence of a violation. Finally, the temporal extent of a violation may affect constitutional, venue, and other issues.(1)

   This Article begins by describing the nature and purposes of notification provisions in five federal environmental statutes and the regulations issued under them. It examines judicial and administrative decisions that consider whether violations of the provisions should be deemed to continue beyond their initial trigger date, and shows that the cases are split between those holding that such violations are one-time events and those holding that violations may continue indefinitely. The Article then contends that similarities in the notification provisions make it reasonable to expect similar results in these cases and attempts to explain why the cases have reached contrary results. Finally, after discussing flaws in the reasoning in some of the decisions, this Article argues that the approach used in two cases taking a continuing view of notification violations is most faithful to the structure and purpose of these provisions.

2. Decisions Addressing the Continuing Nature of

   Notification Violations

   This Article examines notification provisions in five environmental statutes: the Clean Air Act (CAA),(2) the Toxic Substances Control Act (TSCA),(3) the Resource Conservation and Recovery Act (RCRA),(4) the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA),(5) and the Emergency Planning and Community Right-to-Know Act (EPCRA).(6) These provisions, which are described in detail below, share a common purpose: they seek to ensure that EPA receives information adequate to enable it to perform the functions assigned to it under each of these statutes.(7) They do this by mandating that EPA receive this information before or promptly after the occurrence of the triggering event - generally a release or threatened release of a hazardous substance - so that EPA may prevent or limit the effects of the event as soon as possible, because Congress believed that delay would raise the cost and reduce the effectiveness of response measures.(8)

   The provisions approach this goal in a common manner: self-reporting. They put the burden on members of the public to ascertain whether they are within a statute's ambit, and, if so, to assemble and provide the requisite information to the appropriate EPA office in the proper form.(9) Congress chose the self-identification approach even though it granted EPA authority to obtain the same information by inspection, subpoena, and similar techniques.(10) The choice of self-identification grew in part from Congress's belief that EPA's limited resources made it unrealistic to expect the agency to investigate the countless facilities where hazardous substances might be present(11) and in part from the fact that, for some types of potentially hazardous activities, there is simply no alternative to self-identification.(12)

   As shown below, the decisions interpreting the continuing nature of notification provisions divide into two categories. Cases falling into the first category view notification as a one-time obligation. They conclude that the obligation to notify begins and ends upon the occurrence of the event specified in the provision. If a person covered by the provision fails to provide the requisite notice at this time, he is deemed to have violated the statute at that time, but on the next day he is no longer "in violation" of the provision. Judicial and administrative decisions under the CAA fall within this category.

   Decisions in the second category conclude that violations of notification provisions continue indefinitely. The violation commences on the trigger date, but also occurs on each subsequent day until notice is given. Judicial decisions under CERCLA, EPCRA, RCRA, the Consumer Product Safety Act, and one administrative decision under TSCA fall within this category. The decisions are discussed below.

   1. The Clean Air Act

      The CAA authorizes EPA to identify hazardous air pollutants and establish emission standards for them.(13) The regulations EPA has issued implementing this provision include detailed rules governing the manner of removing asbestos (a CAA hazardous air pollutant)(14) from buildings, because such removal activities may result in releases of asbestos into the air.(15) One provision of these regulations requires that EPA be notified of any plan to renovate a structure containing asbestos.(16) Such notice is to be submitted "[a]s early as possible."(17) The CAA authorizes EPA to recover civil penalties "of not more than $25,000 per day for each violation."(18)

      The recent case of United States v. Trident Seafoods Corp.(19) considered whether a failure to notify EPA as required under the CAA's asbestos removal regulations constitutes a continuing violation. Trident had removed asbestos from a fish cannery during five days in August and September 1988, but never submitted notice of such removal as required by the CAA regulations.(20) EPA sought civil penalties for Trident's notification violation, as well as requirements of TSCA. The district court granted summary judgment for the government, concluding that Trident's failure to give notice began ten days before the removal work began(21) and continued for forty-four days, until a state official learned of the removal activity.(22) The court rejected Trident's argument that failure to give notice is a single violation occurring on a single day and assessed a penalty for each day of the violation period.(23) Its decision was based in part on its analysis of the policy behind the regulation, which, it found, is "to enable the enforcement agency to monitor asbestos removal and assure effective compliance with work rules."(24) Prior notice is necessary, the court reasoned, since "once the renovation is completed, it may be impossible to determine whether or not proper methods were employed."(25)

      The Ninth Circuit reversed, holding Trident should have been penalized for only a single day of violation.(26) The court framed the question as one of regulatory interpretation, but determined that this was "not a case where limpid prose puts an end to all dispute."(27) The court found that EPA regulations did not "state clearly in its regulations either that there is a continuous duty to notify or that a failure to notify gives rise to a penalty based on the length of time that the breach exists."(28) The court held that when "violation of a regulation subjects private parties to criminal or civil sanctions, a regulation cannot be construed to mean what an agency intended but did not adequately express."(29) Although the agency had "both the opportunity and the obligation to state clearly" in its regulations what the defendant's obligations were, it did not.(30) The court held that this failure outweighed the district court's "unassailable" analysis of countervailing policy considerations.(31)

      The dissent argued that the majority had read the words "per day of violation" out of the statute's penalty provision.(32) The dissent found it "illogical to claim that a requirement of notice occurs and somehow ceases on a single day."(33) If notice is not given on the first required day, "the violation is not cured"(34) and "each day that Trident failed to notify the EPA resulted in a separate harm from the dangers of asbestos exposure."(35)

   2. The Toxic Substances Control Act

      TSCA(36) requires that, at least ninety days before a new chemical is imported, an importer must provide EPA with certain information about the chemical on a form called a Premanufacture Notice.(37) Any person who violates this section is "liable to the United States for a civil penalty in an amount not to exceed $25,000 for each such violation. Each day such a violation continues shall, for purposes of this subsection, constitute a separate violation. . . ."(38)

      In 3M Co. v. Browner,(39) the violation was an importer's failure to provide EPA with a Premanufacture Notice as required under TSCA. 3M had imported new chemicals on several occasions between 1980 and 1986, and in each case failed to notify EPA until afterwards.(40) When EPA brought an administrative action seeking penalties for the notification failures, 3M contended that the general federal statute of limitations for civil penalties(41) barred the proceeding because its importation occurred more than five years before the filing of the administrative complaint.(42)

      An EPA administrative law judge (ALJ) ruled that, even assuming the general federal statute of limitations applied, each day 3M failed to submit a Premanufacture Notice constituted a separate violation of TSCA, effectively defeating the statute of limitations defense.(43) In the alternative, the ALJ ruled that, even without a continuing interpretation of the notification...