The continuing nature of notification violations under environmental statutes.

I. 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.

II. 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.

A. 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)

B. 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 obligation, the statute of limitations defense would fail under the "discovery rule" - a judicial rule which, in EPA's view, should have delayed accrual of the agency's claim for statute of limitations purposes until EPA discovered the violation at issue.(44)

On appeal, the D.C. Circuit resolved the case by addressing the ALJ's discovery-rule holding without reaching the issue of the continuing nature of the violation.(45) However, although the court stated that the continuing-violation issue was not before it, the court noted that it had "considerable doubt about this aspect of the ALJ's opinion."(46) To support this statement, the court cited a pair of cases in which courts rejected continuing-violation arguments in unrelated statutory areas.(47)

C. The Emergency Planning and Community Right to Know Act

and the Comprehensive Environmental Response,

Compensation, and Liability Act

Section 103 of CERCLA(48) and section 304 of EPCRA(49) contain overlapping notice provisions. Section 103 of CERCLA requires a person in charge of a facility to immediately notify EPA's National Response Center as soon as she has knowledge of a release of a hazardous substance from such facility in an amount equal to or greater than the "reportable quantity" of that substance.(50) Section 304 of EPCRA requires an owner or operator of a facility to provide written notices(51) to state and local emergency coordinators as soon as practicable after a release of an "extremely hazardous substance."(52) Some releases may be subject to both notification provisions.(53) Each statute provides for penalties of up to $25,000 per day "for each day during which the violation continues."(54)

All Regions Chemical Labs, Inc. v. EPA(55) addressed the continuing nature of both of these notification requirements. On June 17, 1988, two fires broke out at an All Regions chemical plant, resulting in releases of large clouds of chlorine gas and forcing the evacuation of approximately 30,000 people.(56) The first fire began at 10 a.m. and the second at 11 p.m.(57)

There was no dispute that AR Regions failed to "immediately" notify EPA of the releases as required by section 103 of CERCLA; EPA found out about the first fire when a citizen called it at 3 p.m. on June 17 (five hours after it began), and it found out about the second fire at 1 am. on June 18 (two hours after it began) when a state environmental agency called EPA.(58) All Regions submitted its CERCLA notice several months later.(59) In addition, there was little dispute that All Regions violated section 304 of EPCRA, because it failed to provide complete written notice of the releases to state and local authorities until 145 days after the releases.(60)

Following a hearing, an EPA ALJ assessed a penalty for every day of the 145 days of delay in providing the EPCRA notice, but penalized All Regions for only one day of delay in submitting the CERCLA notice.(61) Concluding that All Regions provided state and local authorities with some, but not all, of the information required under EPCRA before the time when it provided a complete notice, the ALJ assessed reduced penalties for the 145 days of delay in submitting the EPCRA notice.(62) In reaching this conclusion, the ALJ relied on EPCRA's statutory purpose of providing state and local authorities with detailed information about releases as soon as possible, so as to enable them to evaluate releases, respond to them promptly, and minimize their effects.(63)

On appeal to the First Circuit, All Regions challenged only the single-day penalty assessed under CERCLA, choosing to accept the multi-day penalty assessed under EPCRA.(64) The continuing violation issue was thus not before the First Circuit. Nevertheless, in an opinion written by Judge Stephen Breyer, the court accepted the view that, had EPA not received a third-party notice, All Regions' violation of section 103 of CERCLA would have continued until it submitted such notice.(65)

D. The Resource Conservation and Recovery Act

2. Statutory and Regulatory Framework

RCRA(66) imposes detailed requirements on persons owning or operating facilities that store, dispose of, or treat hazardous waste.(67) In passing RCRA, Congress stated that "inadequate controls on hazardous waste management will result in substantial risks to human health and the environment."(68) Congress observed that if such management "is improperly performed in the first instance, corrective action is likely to be expensive, complex, and time consuming."(69)

RCRA requires that any person who owned or operated a facility where hazardous waste was treated, stored, or disposed of on or after November 19, 1980 notify EPA of this activity.(70) RCRA's notification provision is the first step toward bringing a facility into the group of sites the statute directs EPA to inspect and regulate in order to effectuate Congress's goal of "cradle-to-grave"' controls for hazardous wastes.(71)

The statute provides for penalties of up to 25,000 per day for each violation of its provisions or its implementing regulations.(72) In addition, RCRA contains a citizens' suits provision that allows any person to commence an action "against any person ... who is alleged to be in violation of any permit, standard, regulation, condition, requirement, prohibition, or order which has become effective pursuant to [RCRA]."(73)

2. Judicial a Administrative Decisions Considering Whether Violations of RCRA's Notification Provision Should Be Considered Continuing Violations

Courts have uniformly treated the failure to notify EPA under RCRA's notification provision as a continuing violation. Perhaps the most expansive example of this approach is City of Toledo v. Beazer Materials & Services,(74) a case brought under RCRA's citizens suits provision.(75) The defendant had disposed of hazardous waste at a site but had ceased all disposal long before the suit was brought and had sold the site to the plaintiff, retaining no control of or other connection with the site.(76) Although the plaintiff owned and operated the facility at the time of suit, the plaintiff claimed the defendant remained liable for compliance with RCRA's notification provision and other RCRA requirements.(77)

The court agreed with the plaintiff, holding that the defendant remained "in violation" of RCRA's notification and other requirements, and thereby satisfied the predicate for operation of RCRA's citizens' suits provision.(78) In reaching & conclusion, the court stated: [T]he disposal of wastes can constitute a continuing violation as long as no proper disposal procedures are put into effect or as long as the waste has not been cleaned up and the environmental effects remain remediable."(79)

In DeHart v. Indiana,(80) the Indiana Court of Appeals agreed that failure to notify is a continuing violation in the context of criminal enforcement.(81) This court held that unpermitted storage of hazardous waste constituted a continuing crime under a state law similar to RCRA, finding the defendant liable even though the defendant had placed containers of hazardous waste at the site before the applicable regulations became effective and regardless of whether defendant had owned or operated the site since then.(82) On this basis, it rejected defendant's statute of limitations and ex post facto defenses.(83)

The Fourth Circuit, in Environmental Defense Fund v. Lamphier,(84) reached the same conclusion. The defendants had begun disposing of hazardous waste at a site in 1974,(85) burying some in drums and disposing of other waste directly onto land and in lagoons.(86) They continued receiving the waste on site until March 1980, but in December 1979, following receipt of a state order, they began storing it above ground rather than disposing of it.(87) Thus, the defendants contended that they neither received nor disposed of hazardous waste on or after August 19, 1980, the date RCRA's notification and permitting requirements took effect.(88)

The defendants never submitted the required RCRA notice. They partially cleaned up the site sometime after August 1980, but did not remove all of the drums containing hazardous waste.

The State of Virginia and two private environmental groups brought suit, alleging violation of RCRA's notification and permitting requirements.(89) The plaintiffs sought penalties and an injunction compelling defendants to comply with these requirements, although they voluntarily dismissed the penalty claim.(90) The district court held that defendants had violated RCRA,(91) ordering them to comply with RCRA by submitting notice, applying for a permit, and complying with EPA's regulations governing operation of hazardous waste facilities.(92)

On appeal, the defendants attacked the district court's order by arguing that RCRA no longer applied to them because they had ceased storing and disposing of wastes at the site and thus were no longer operating a waste facility.(93) The Fourth Circuit upheld the district court order, indicating that it would view the defendants as still engaged in the storage of hazardous waste within the meaning of RCRA(94) until no drums of waste remained on site and defendants proved they had "indeed left the waste disposal business" by demonstrating there was no longer any "risk of environmental contamination either from undisclosed barrels still buried on the [site] or from the residue of wastes formerly present."(95)

Finally, an EPA administrative case, Harmon Electronics, Inc.,(96) reached the same conclusion. Harmon had disposed of hazardous waste at a site from 1973 to 1987.(97) In 1991, EPA charged Harmon with RCRA violations including failure to notify EPA of this activity.(98) The defendant took the position that its offenses were "instantaneous" - that its obligation to notify EPA began and ended in 1980, when the applicable RCRA notification section took effect, so that the statute of limitations barred EPA's claim for penalties.(99) The ALJ found that the violation continued until the defendant had submitted the requisite notice to EPA.(100)

E. The Consumer Product Safety Act

The Consumer Product Safety Act (CPSA)(101) seeks to protect consumers from hazardous products.(102) The Consumer Product Safety Commission (CPSC) administers the CPSA, although it shares authority with EPA for certain products.(103) One of the CPSA's provisions requires that manufacturers immediately inform the CPSC of defects in consumer products that could create a substantial hazard.(104)

The District Court of Minnesota, in United States v. Advance Machine Co.,(105) considered a statute of limitations defense to a civil prosecution for failure to report a product defect under the notification provision of CPSA. Advance Machine manufactured baseball pitching machines. On February 22, 1977, CPSC inspected its manufacturing facility and studied the machine.(106) In June 1977, the CPSC determined that the machine had a dangerous defect.(107) on February 19, 1982, the CPSC filed suit seeking civil penalties for failure to immediately notify it of the defect.(108)

The court based its decision on an examination of the notification provision's purpose, which it construed to be "to increase the likelihood that a substantial product hazard will come to the attention of the [CPSC] in a timely fashion so that it could act swiftly to protect the consuming public."(109) The court reasoned that unless the reporting obligation continued after the initial trigger date, "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 [CPSC] for five years."(110) The court held the notification obligation continued indefinitely until the provision's exception was met - the manufacturer had actual knowledge that CPSC had otherwise acquired the same information.(111) It rejected the Advance Machine's argument that this occurred in 1976, when CPSC had possession of a newspaper article discussing defects in the pitching machines, since on this date Advance Machine did not have knowledge that CPSC knew of the defect.(112) Advance Machine had such knowledge only on the date of CPSC's inspection of its facility, making the suit timely by three days.(113)

III. CAN THE CASES BE RECONCILED?

Because the notification provisions discussed above differ in their statutory and regulatory context and their exact language, it might be argued that a comparison of the decisions described above is inappropriate. Yet, there are several reasons to expect these provisions to be interpreted similarly.

First, the various provisions are similar in language and structure. Each requires that, before or upon the occurrence of a triggering event, specified persons provide certain information to EPA. There is a high degree of overlap between the types of substances covered by the statutes.(114) For two provisions, the event triggering the notification obligation is a "release" of such substances;(115) a third provision is triggered by "disposals,"(116) the definition of which is very similar to that of release."(117) In each case, the person obligated to submit notice under the provision is the operator and/or owner of the facility at which the release/disposal occurred or the person who engaged in the other triggering activity.(118)

Second, all of the notification provisions share a common purpose.(119) There appears to be no significant legislative history supporting either continuing or noncontinuing interpretations of any of the provisions.

Third, the provisions are all found in environmental statutes having similar goals.(120) Because of these similar goals, courts have held that such statutes are to be interpreted liberally, and that interpretations under one statute can be used in interpreting others of these statutes.(121)

Fourth, claims for penalties for violations of each of the provisions are governed by the same statute of limitations.(122)

Fifth, the penalty provisions applicable to each of the notification provisions at issue are very similar.(123) Each statute's penalty provision contains language authorizing the imposition of penalties for continuing violations.(124)

Sixth, each of the statutes examined contains similar provisions authorizing citizens' suits.(125) Several of the citizens' suits provisions limit the issuance of injunctions to persons who are "in violation" of a provision of the statute (including a notification provision).(126) For citizens' suits brought under each of these statutes, the same threshold question (whether a person who failed to provide, notice for a past event is still "in violation") must be decided.

The similarity in form and purpose of these statutes makes it appropriate to question the conflicting holdings on whether violations are continuing. To some extent, the conflicts result from the different analytical approaches taken. Courts viewing RCRA notification violations as continuing have generally relied on the following findings: 1) the released substance remains in the environment, continuing to cause harm,(127) and 2) the defendant has the power to correct the violation by making the required notification and/or removing the released substance.(128) Courts rejecting a continuing-violation argument have instead directly or indirectly supported their conclusions by reference to doctrines that require ambiguity in penal statutes be resolved in favor of the defendants.(129)

The factors cited in the RCRA decisions accepting a continuing interpretation are questionable. First, these courts have failed to explain the basis for their adoption of the factors identified. Because none of the underlying statutory provisions require proof of environmental harm as an element of the offense, the authority to require such proof to establish continuation of the violation is unclear.(130)

Second, application of the continuing-harm test raises problems. For instance, what standard should be employed to determine the continued existence of harm? Is the harm caused by the failure to provide notice fully corrected once notice is provided? If notice has not been given, is ongoing harm to be presumed from the continued presence of hazardous substances?(131) If a defendant could show that despite the continued presence of a detectable amount of the disposed hazardous waste, no environmental or public health harm continued to occur, or that no existing technological process could eliminate all environmental harm or remove all detectable amounts, would this terminate its notification obligation because the violation is not correctable?(132) Is not the purpose of notification provisions to enable complex technical questions of these types to be addressed by the agency with expertise in such issues, rather than courts?(133)

Similar flaws exist in the All Regions Chemical Labs, Inc. v EPA(134) holding that the notification obligation ceases when EPA acquires knowledge of the facts the defendant was to have submitted.(135) The basis for this exclusion is unclear. Like the RCRA cases terminating liability when the released waste has been removed,(136) this approach seems to make the mistake of equating a violation with the harm it causes. This seems unwarranted, because in some cases information submitted by a third party will not be of the same quality or completeness as that possessed by the person responsible for the release. This discrepancy seems to be at odds with the legislative emphasis on the need for prompt and effective responses to hazardous substance releases.(137) This approach also seems to create a windfall for some violators based on actions of unrelated persons.(138)

The reasoning cited by the two courts that have rejected a continuing violation argument also appears flawed. Because the United States v. Trident Seafoods Corp. (139) court and, indirectly, the 3M v. Browner(140) court, perceived ambiguity in notification provisions, they turned to the maxim that statutory and regulatory provisions imposing penalties be narrowly interpreted in favor of the defendant.(141) Yet, Such ambiguity might as appropriately have been resolved by use of two other maxims of statutory interpretation that would yield a contrary conclusion. The first maxim is that civil statutes designed for the protection of the public health and welfare (such as TSCA and CAA, at issue in Trident and 3M) must be interpreted broadly to effectuate their remedial purposes.(142) The second is the Supreme Court rule that statutes of limitations "must receive a strict construction in favor of the Government."(143) These doctrines were clearly relevant to the issues in Trident and 3M, because the question of when a cause of action first "accrues" under a statute of limitations must be answered "in light of the general purposes of the [underlying substantive] statute and of its other provisions."(144)

The 3M court's reliance on Toussie v. United States(45) and United States v. McGoff(146) to support its "considerable doubt" as to the continuing nature of TSCA notification violations is questionable, because the 3M court made no attempt to explain why interpretation of the statutes at issue in Toussie and McGoff-a draft registration law and a law requiring registration of foreign agents-shed light on the interpretation of TSCA. Reliance on Toussie also seems questionable in view of Congress's prompt overruling of the case.(147)

Neither analytical approach adequately distinguishes the categories. The doctrine favoring narrow interpretations of penal provisions should apply to RCRA, EPCRA, CERCLA, and the CPSA (where continuing violation conclusions are reached) with the same force as it does to TSCA or CAA. Similarly, application of the continuing harm test would seemingly reverse the result in those cases in which a continuing violation theory was rejected. For example, it may be argued, with regard to the notices due in Trident and 3M, that failure to give the required notice caused an ongoing harm by preventing EPA from evaluating and possibly acting on the information due. Such EPA action might have involved remedying any environmental harm already caused or preventing future harm by banning or controlling further importation of a new chemical found to be dangerous or addressing the health effects of an improperly performed asbestos removal under the CAA. In addition, a defendant continues to have the power to correct the violation and remedy some or all of the resulting harm by giving the required notice.

IV. An Evaluation

The decisions in All Regions Chemical Labs, Inc. v. EPA(148) and United States v. Advance Machine Co.,(149) Which held the violations at issue continue until notice was given, seem to best serve the purposes of notification provisions. As discussed above,(150) the purpose of notification provisions is to ensure that the regulating agency receives relevant information as soon as possible so it can act to protect public health and the environment. This purpose indicates that an agency's late receipt of information may still help it to perform its assigned tasks; indeed, there is no reason to think that Congress would find all the benefits of reporting ceased after the deadline.(151) The language of each statute's penalty provision supports this view of Congress's intent.(152) The approach in United States v. Trident Seafoods Corp.(153) and 3M Co. v. Browner(154) approach undermines this goal by providing identical treatment for a defendant who missed a notification deadline by a day and one who never notified. It also might result in identical treatment of a defendant who discovered a violation three months late and notified EPA promptly following discovery and one who discovered the same violation the day after notice was due and intentionally waited three months to report it.(155) In contrast, the approach in All Regions Chemical Labs, Inc. v. EPA(156) and United States v. Advance Machine Co.(157) preserves compliance incentives even after the reporting deadline because a non-notifier can reduce its penalty exposure and start the statute of limitations clock by notifying late.(158)

The All Regions/Advance Machine approach also seems superior to those RCRA cases requiring proof of continuing harm or continuing presence of hazardous substances before a violation will be found to continue.(159) It thus avoids the thorny evidentiary issues raised by those cases.

One objection to the All Regions/Advance Machine approach is that it threatens to eviscerate the statute of limitations because a new claim accrues each day, restarting the limitations clock. It has been argued that this result conflicts with Congress's purpose in establishing a statute of limitations.(160) This concern may have motivated the courts in the RCRA cases to define the date that wastes are removed as the temporal end of a defendant's obligation.(161) It may also have motivated EPA to take the position that the notification obligation ends when the agency acquires knowledge of the information the responsible party was obligated to submit.(162)

There are several responses to this argument. First, because the limitations, provision leaves to the underlying statute the task of defining "accrual" of a claim, the conflict is not a real one. The mere existence of a general federal statute of limitations does not of itself imply a legislative decision to limit all offenses temporally.

To the extent that reliance on statutory purposes is deemed necessary due to ambiguity in the notification provision or the statute of limitations, the purposes of limitations provisions provide some support for the All Regions/Advance Machine approach. One of the judicially identified purposes of limitations provisions is the granting of repose to defendants.(163) The policy of repose derives from the theory that defendants' "right to be free of stale claim in time comes to prevail over the right to prosecute them."(164) Yet, the courts have fashioned an exception to the repose principle for persons who fraudulently conceal evidence giving rise to the claims against them.(165) Because persons failing to comply with a statutorily imposed notification obligation meet some or all of the elements of fraudulent concealment,(166) they may fit within this exception.(167)

Moreover, a violator still able to undo an offense seems less deserving of repose because he retains the power to free himself from lingering Claims.(168) The Supreme Court recognized this in Hyde v. United States when it found conspiracy to be a continuing violation.(169) The defendant, after joining the conspiracy, had done nothing in furtherance of it during the limitations period. In rejecting the defendant's contention that the continuing interpretation would eliminate the limitations defense, the Court said:

This view does not, as it is contended, take the defense of the statute of limitations from conspiracies. It allows it to all, but makes its application different. Nor does it take from a conspirator the power to withdraw from the execution of the offense or to avert a continuing criminality. It requires affirmative action, but certainly that is no hardship. Having joined in an unlawful scheme, . . . until he does some act to disavow or defeat the purpose he is in no situation to claim the delay of the law. As the offense has not been terminated or accomplished he is still offending. And we think, consciously offending, offending as certainly, as we have said, as at the first moment of his confederation, and consciously through every moment of its existence.(170)

Thus, although it is difficult to define when a violation is fully "corrected,"(171) the All Regions/Advance Machine approach appeals to a sense of fairness because notification violations are to some extent correctable.(172)

A continuing interpretation permits judicial consideration of the concerns embodied in the repose principle in the penalty assessment phase.(173) The same is true of such other issues as the extent to which the agency's ongoing need for the information(174) is fulfilled (which may be affected by the agency's receipt of such information from another source) and the extent to which the released substance and associated health threats remain.(175) Penalty assessment appears a better forum for consideration of these equitable issues because, unlike a decision on a motion to dismiss for statute of limitations or jurisdictional reasons, it allows for a graduated reflection of these subtle equitable issues - for example, by assessing penalties at a lower per-day level for extended failures to comply or for partial compliance.(176)

V. CONCLUSION

While differences exist in the language of the notification provisions considered here, the similarities are sufficient to make a profitable comparison of the cases addressing the continuing nature of violations of those provisions. Such a comparison reveals inconsistencies in these decisions as well as flaws in their reasoning. The proper reading of these provisions is that their violation continues indefinitely until notice is provided by the person specified in the statute. Penalty assessment is the appropriate forum for consideration of such equitable issues as the extent of continuing harm from the violation. (1) See, eg., United States v. Cores, 356 U.S. 405, 409-10 (1988) (an alien crewman who remains in the United States after his permit expires is guilty of a continuing offense and may be prosecuted in any district in which he remains); United States v. Bailey, 444 U.S. 394, 413 (1980) (escape from federal custody is a continuing offense and may be prosecuted in any district in which the escapee is or has been); Armour Packing Co. v. United States, 209 U.S. 56, 73-74 (1908) (interstate transportation at prohibited rates may be prosecuted in any district in which transport occurred); United States v. Corn, 836 F.2d 889, 890 (5th Cir. 1988) (in a conspiracy to defraud, a defendant may be ordered to pay restitution only for losses after the effective date of the Victim and Witness Protection Act); United States v. Barnette, 800 F.2d 1558, 1570-71 (11th Cir. 1986) (in a conspiracy continuing beyond the effective date of the Victim and Witness Protection Act, the court may order restitution for victims defrauded prior to the effective date), cert denied, 480 U.S. 935 (1987); see generally Douglas J. Kepple, 7he Victim and Witness Protection Act of 1982. Retroactive Application for Continuing Crimes, 58 Fordham L. Rev. 87 (1989). (2) 42 U.S.C. [subsections] 7401-7671q (1994). (3) 42 U.S.C. [subsections] 2601-2692 (1994). (4) 42 U.S.C. [subsections] 6901-6992k (1994). (5) 42 U.S.C. [subsections] 9601-9675 (1994). (6) 42 U.S.C. [subsections] 11001-11050 (1994). This Article also discusses a case under the Consumer Product Safety Act (CPSA), 15 U.S.C. [subsections] 2051-2084 (1994), whose statutory purpose is similar to that of the environmental statutes. The CPSA's stated purpose is to safeguard consumers from risks that they are unable to anticipate or adequately safeguard against. Id. [sections] 2051; see infra part II.E. (7) For example, CERCLA [sections] 103 reporting requirements are "an important part of [the statute] for they ensure that the government, once notified, will be able to move quickly to check the spread of a hazardous release." United States v. Carr, 88 F.2d 1550, 1552-53 (2d Cir. 1989). See also All Regions Chem. Labs, Inc. v. EPA, 932 F.2d 73, 76 (1st Cir. 1991) (stressing EPA's need for notification to fulfill its statutory obligations); Environmental Defense Fund v. Lamphier, 714 F.2d 331, 336 (4th Cir. 1983) (requiring compliance with EPA's formal notification procedures and holding that permitting EPA inspection is inadequate notification under RCRA); United States v. Advance Mach. Co., 547 F. Supp. 1085, 1090 (D. Minn. 1982) (Congress's goal in enacting the CPSA was to ensure that product hazards come to the attention of the Consumer Product Safety Commission.). The required information also facilitates private enforcement actions. See Leroy C. Paddock Environmental Enforcement at the Turn of the Century, 21 Envtl. L. 1509, 1524 (1991) (discussing relationship between industry self-reporting requirements and citizen suits). (8) For example, among Congress's stated reasons for enacting RCRA was its finding that if hazardous waste management "is improperly performed in the first instance, corrective action is likely to be expensive, complex, and time consuming." 42 U.S.C. [sections] 6901(b)(6) (1994); see also infra note 37 (discussing purposes of TSCA notification provision); infra notes 66-73 and accompanying text (discussing purpose of RCRA); infra notes 24-25 and accompanying text (discussing purpose of CAA asbestos regulations); infra notes 52, 63 and accompanying text (discussing purpose of EPCRA); United States v. Mobil Oil Corp., 464 F.2d 1124, 1127 (5th Cir. 1972) (finding that Clean Water Act provision requiring notification of oil releases was intended to "facilitate the implementation of measures calculated to minimize pollution damage. Absent a requirement to report, the discharges of small amounts of oil . . . might well go undetected or, at least, the possibility of abatement would be lessened"). But cf. United States v. Ward, 448 U.S. 249, 258-60 (1980) (Stevens, J., dissenting) (contending that the purpose of Clean Water Act's notification provision was not to facilitate governmental response to spins but to simplify collection of penalties for spills). (9) One problem with reliance on self-reporting is that the relatively minor penalties for violation of such requirements may be outweighed by the hope of avoiding regulatory attention, with its concomitant increase in inspections, public scrutiny (potentially leading to citizens' suits and other private litigation), and other burdens. (10) See 1 Environmental Law Inst., Law of Environmental Protection [sections] 7.02[6] (Sheldon M. Novick et al. eds., 1994) (discussing EPA's authority to enter and inspect facilities under "virtually all" federal environmental laws). (11) The number of sites potentially subject to regulation is so vast that a self-reporting requirement is needed to alert EPA as to which facilities to inspect. The Clean Water Act, for example, regulates more than 66,000 point sources discharging hundreds of different pollutants. Robert V. Percival Et Al., Environmental Regulation 985 (1992); see also United States v. Aluminum Co. of Am., 824 F. Supp. 640, 647 (E.D. Tex. 1993) (acknowledging that Congress was aware of EPA's limited resources when requiring permittees to self-monitor and report). The RCRA notification requirement was intended to inform EPA as to the universe of waste facilities and thereby enable the agency to perform the functions assigned to it in RCRA's other provisions. See, e.g., Hazardous Substances: Notification of Treatmeant, Storage, and Disposal Facilities, 46 Fed. Reg. 22,144 (Apr. 15, 1981). Knowledge of a facility's existence enables EPA to inspect the facility and determine its compliance with RCRA operating regulations and whether releases of hazardous wastes have occurred, taking enforcement actions if appropriate. See generally Joel A. Mintz, Abandoned Hazardous Waste Sites and the RCRA Imminent Hazard Provision: Some Suggestions for a Sound Judicial Construction, 11 Harv. Envtl. Rev. 247, 250-55 (1987) (discussing passage of RCRA and CERCLA as a means to address perceived risks resulting from hazardous wastes generated by more than 14,000 firms and present at more than 30,000 disposal sites).

Even knowledge that a given facility is subject to regulation may be inadequate to enable EPA to inspect it effectively due to financial and technical constraints on the agency's ability to conduct sampling and monitoring. Clifford S. Russell Et Al., Enforcing Pollution Control Laws 10 (1986). (12) Only the operator of a hazardous substance storage facility, for example, is realistically able to provide immediate notification of hazardous substance releases to EPA. Congress, federal agencies, and state legislatures have recognized the importance of notification provisions to effective governmental cleanup response and enforcement actions by granting immunity to notifying parties in some cases. See, e.g., United States v. Mobil Oil Corp., 464 F.2d at 1128 (finding that the Clean Water Act grant of immunity from criminal prosecution to persons who notify of oil spills "is an essential feature of the statutory scheme"); David. R. Erickson & Sarah D. Mathews, Environmental Compliance Audits: Analysis of Current Law, Policy, and Practical Considerations to Best Protect Their Confidelity, 63 UMKC L. Rev. 491 (1995) (summarizing enacted and proposed federal and state laws and policies of EPA and the U.S. Department of Justice that provide immunity or reductions in penalties for environmental audits; one condition of qualification for the benefits of such laws and policies generally is that the regulated entity notify appropriate agencies of discovered violations); Memorandum from William W. Carter, Assistant Secretary for Law Enforcement, California Environmental Protection Agency 4 (Mar. 8, 1993) (setting forth the California/EPA General Policy on Environmental Auditing); Michael S. Greve, The Private Enforcement of Environmental Law, 65 Tul. L. Rev. 339, 351-55 (1990) (describing the process by which environmental organizations search corporate reports to EPA for possible citizens' suits claims, resulting in increased enforcement of environmental statutes against companies that comply with reporting requirements). A more extreme technique is to waive penalties for violations discovered and corrected after environmental self-audits - an approach taken by some states but opposed by EPA. No Audit Privilege in Interim EPA Policy, 25 Env't Rep. (BNA) 2411 (Apr. 7, 1995). (13) 42 U.S.C. [sections] 7412 (1994). (14) Id. [sections] 7412(b) (including asbestos in the initial list of polutants). (15) 40 C.F.R. [subsections] 61.140-.157 (1995). (16) Id. [sections] 61.145(b)(1). (17) Id. [sections] 61.145(b)(3)(iii) (requiring notification "[a]s early as possible before, but no later than, the following working day"). (18) 42 U.S.C. [sections] 7413(b) (1994). (19) 60 F.3d 556 (9th Cir. 1995). (20) Id. at 557. (21) Id. at 558. The district court appears to have chosen this date based on evidence that the decision to commence work had been made at this time, making it possible under the regulatory provision to submit notice to EPA. (22) Id. (23) Id. (24) Id. at 558-59. (25) Id. at 559. (26) Id. (27) Id. at 558 (quoting Gwaltney v. Chesapeake Bay Found., 484 U.S. 49, 57 (1987)). (28) Id. at 559. (29) Id. (quoting Phelps Dodge Corp. v. Federal Mine Safety & Health Comm'n, 681 F.2d 1189, 1193 (9th Cir. 1982)). (30) Id. (31) Id. (32) Id. at 561 (Ferguson, J., dissenting); see also 40 C.F.R. [sections] 61.145(6)(3)(iii) (1995). (33) Trident, 60 F.3d at 561 (Ferguson, J., dissenting). (34) Id. (Ferguson, J., dissenting). (35) Id. at 562 (Ferguson, J., dissenting). (36) 15 U.S.C. [subsections] 2601-2629 (1994). (37) Id. [sections] 2604(a)(1). This section reflects congressional recognition that the most desirable time to determine the health and environmental effects of a substance, and to take action to protect against any potential adverse effects occurs before commercial production begins. Not only is human and environmental harm avoided or alleviated, but the cost of any regulatory action in terms of loss of jobs and capital investment is minimized. H.R. Conf. Rep. No. 1679, 94th Cong., 2d Sess. 65 (1976), reprinted in 1976 U.S.C.C.A.N. 4539, 4550. TSCA defines "manufacture" to include import. 15 U.S.C. [sections] 2602(7) (1994); see also 40 C.F.R.[sections] 720 (1995) (containing regulations on Premanufacture Notification). (38) 15 U.S.C. [sections] 2615(a)(1) (1994). (39) 17 F.3d 1453 (D.C. Cir. 1994). (40) Id. at 1454-55. (41) 3M cited 28 U.S.C.[sections] 2462 (1994), which provides a general purpose statue of limitations, such that "[e]xcept as otherwise provided by Act of Congress, an action, suit, or proceeding for the enforcement of any civil fine, penalty, or forfeiture, pecuniary or otherwise, shall not be entertained unless commenced within five years from the date when the claim first accrued." Id. (42) 3M, 17 F.3d at 1455. (43) Id. at 1455 n.2. Another EPA ALJ decision took the same position. See Union Carbide Corp., TSCA-85-H-02, 1995 TSCA Lexis 58, at *11 (EPA Oct 3, 1985). However, in Bethlehem Steel Corp., TSCA-III-322, 1991 TSCA Lexis 63, at *8 (EPA Dec. 23, 1991), an ALJ rejected this reasoning, holding that TSCA's penalty provision referred only to how penalties might be assessed and did not serve to make all TSCA's violations continuing violations. Bethlehem Steel held that, because the TSCA notification provision required reporting by a certain date, violations of it do not continue. Bethlehem Steel, 1991 TSCA Lexis at *9-*10. The complaint dismissed in Bethlehem Steel was reinstated after the EPA decided in 3M Co., TSCA-88-H-06, 1992 TSCA Lexis 500 (EPA Feb. 28, 1992), that the general statute of limitations did not apply to administrative penalties under TSCA. Bethlehem Steel Corp., TSCA-III-322, 1992 TSCA Lexis 506, at *2-*3 (EPA May 12, 1992). (44) The discovery rule provides that a claim does not accrue until the plaintiff has or should have had knowledge of the harm giving rise to the claim. The rule has been applied in the context of personal injury, environmental, and other claims. See, e.g., Public Interest Research Group of N.J., Inc. v. Powell Duffryn Terminals, Inc., 913 F.2d 64 (3d Cir. 1990) (Clean Water Act citizen suit); Cox v. Stanton, 529 F.2d 47 (4th Cir. 1975) (medical malpractice). (45) 3M, 17 F.3d at 1460. The court rejected the discovery-rule holding. It reasoned that the discovery rule had been adopted by courts to address the problem of latent or difficult-to-detect injuries, for example in tort actions brought by workers exposed to dangerous chemicals. Id. It found that the policies underlying these cases did not apply to the instant case, in which penalties attached immediately upon occurrence of the violation. Id. at 1462. Injuries or damages are not part of a TSCA cause of action. It also noted that acceptance of EPA's proposed discovery of violations rule (which, as interpreted by EPA, would have tolled the statute unless "in the exercise of due diligence" EPA should have discovered the violation) would require the court to inquire into the practical impediments to the agency's discovery of violations in every case, and that such an inquiry was both bad policy and unsupported by statute. Id. at 1460-61. (46) Id. at 1455 n.2. (47) Id. (citing Toussie v. United States, 397 U.S. 112 (1970); United States v. McGoff, 831 F.2d 1071 (D.C. Cir. 1987)). In Toussie, the Supreme Court confronted a statute of limitations challenge to the prosecution of a 26-year-old man for failure to register for the draft. Toussie, 397 U.S. at 112. He had violated the Universal Military Training and Service Act, 50 U.S.C. app. [sections] 453 (1988), which required that each male citizen register for the draft within five days of his eighteenth birthday. Toussie, 397 U.S. at 113. The regulations stated that the registration obligation "shall continue at all times." Id. at 116 (citing 32 C.F.R. [sections] 1611.7(c) (1967)). Despite this and other indications of congressional intent, the majority found the statute "at best highly equivocal" and held than the offense did not continue after the man's eighteenth birthday, enabling him to avoid prosecution under the statute of limitations. Id. at 122. Shortly after this decision, Congress amended the draft law to reverse the Toussie result. Pub. L No. 92-129, 85 Stat. 348, 352-53 (1971) (codified at 50 U.S.C. app. [sections] 462(d) (1988)); see United States v. Kerley, 838 F.2d 932, 935 (7th Cir. 1988) (observing that the amended statute implies a continuing duty to register).

In McGoff, the court considered a statute of limitations challenge to a prosecution under the Foreign Agents Registration Act, 22 U.S.C. [subsections] 611-621 (1994), which required that persons representing foreigners in the United States file a registration statement within 10 days of commencing such activities. McGoff, 831 F.2d at 1072. Congress appeared to specify the Act's continuing nature with the following provision: "Failure to file any such registration statement . . . as is required by [the operative section of the Act] shall be considered a continuing offense for as long as such failure exists, notwithstanding any statute of limitations, or other statute to the contrary." Id. at 1077-78 (citing 22 U.S.C. [sections] 618 (1982 & Supp. III 1985)). The defendant in McGoff had acted as an agent of South Africa for a period ending in 1979, but had never registered as such. Id. at 1073. He argued his obligation to register as a foreign agent ended in 1979, making the criminal complaint filed against him in 1986 untimely under the five-year statute of limitations. Id.

The court, finding the statutory provisions quoted above to be "ambiguous," held that a person's obligation to register as a foreign agent ceases the day the person stops serving as such. Id. at 1090. The court relied partly on the "common-law principle that continuing offenses do not continue indefinitely" and on a concern that an indefinitely continuing offense might violate the due process clause. Id. at 1093.

A vigorous dissent dissent the existence of such a common-law principle and noted the lack of precedential support for the majority's constitutional observation. Id. at 1106 (Bork, J., dissenting). (48) 42 U.S.C. [sections] 9603 (1994). (49) 42 U.S.C. [sections] 11004 (1994). (50) The section states:

Any person in charge of ... an onshore facility shall, as soon as he has knowledge of any release ... of a hazardous substance from such ... facility in quantities equal to or greater than those determined pursuant to section 9602 of this title, immediately notify the National Response Center ... of such release. 42 U.S.C. [sections] 9603(a) (1994). (51) Notice is defined:

Notice ... shall include each of the following (to the extent known at the time of the notice and so long as no delay in responding to the emergency results):

(A) The chemical name or identity of any substance involved in the release.

(B) An indication of whether the substance is on the list referred to in section 11002(a) of this title.

(C) An estimate, of the quantity of any such substance that was released into the environment.

(D) The time and duration of the release.

(E) The medium or media into which the release occurred.

(F) Any known or anticipated acute or chronic health risks associated with the emergency and, where appropriate, advice regarding medical attention necessary for exposed individuals.

(G) Proper precautions to take as a result of the release, including evacuation (unless such information is readily available to the community emergency coordinator pursuant to the emergency plan).

(H) The name and telephone number of the person or persons to be contacted for further information. 42 U.S.C. [sections] 11004(b)(2) (1994). (52) Section 304 provides:

(a)(1) If a release of an extremely hazardous substance referred to in section 11002(a) of this title occurs from a facility at which a hazardous chemical is produced, used, or stored, and such release requires a notification under section 103(a) of [CERCLA], the owner or operator of the facility shall immediately provide notice

(b)(1) Notice ... shall be given immediately after the release by the owner or operator of a facility (by such means as telephone, radio, or in person) to the community emergency coordinator for the local emergency planning committees,... for any area likely to be affected by the release and to the State emergency planning commission of any State likely to be affected by the release. 42 U.S.C. [sections] 11004 (1994). (53) See Emergency Planning and Release Notification Requirements, 52 Fed. Reg. 13,378, 13,386 (Apr. 22, 1987). (54) CERCLA provides that "[a] civil penalty of not more than $25,000 per day for each day during which the violation continues may be assessed by the President in the case of any of the following - (1) A violation of the notice requirements of section 9603(a) or (b) of this title." 42 U.S.C. [sections] 9609(b) (1994). EPCRA provides that "[a] civil penalty of not more than $25,000 per day for each day during which the violation continues may be assessed by the Administrator in the case of a violation of the requirements of section 11004 of this title." 42 U.S.C. [sections] 11045(b)(2) (1994). (55) 932 F.2d 73 (1st Cir. 1991), aff'g All Regions Chem. Labs, Inc., CERCLA-I-88-1089, 1989 CERCLA Lexis 1 (EPA Dec. 1, 1989). (56) All Regions Chem. Labs, Inc., CERCLA-I-88-1089, 1989 CERCLA Lexis 1, at *20, *27 (EPA Dec. 1, 1989). (57) Id. at *20, *23. (58) Id. at *23, *27. (59) Id. at *37. (60) Id. at *67. (61) Id. at *50, *67. EPA had sought only one day of penalties for the CERCLA violation. Id. at *7-*8. (62) Id. at *66. (63) Id. at *39. (64) All Regions Chem. Labs, Inc. v. EPA, 932 F.2d 73, 75 (1st Cir. 1991). (65) In its discussion of the proceeding's background, the court stated: Because All Regions itself ... failed to notify [EPA], EPA has assessed a penalty against All Regions. Acting under the authority of a statutory provision that permits it to assess penalties of up to $25,000 per day for continuing violations of notification requirements, EPA decided that (in light of the notice it received from others) All Regions' violation took place on one, day. All Regions, 932 F.2d at 75 (citation omitted); see also Atlantic States Legal Found. v. Whiting Roll-Up Door Mfg. Corp., 772 F. Supp. 745, 753 (W.D.N.Y. 1991) (implying EPCRA notification violations may be viewed as continuing); Mobil Oil Corp., EPCRA 91-0120, 1994 EPCRA Lexis 8, *71 (EPA Sept. 29, 1994) (holding that a failure to comply with EPCRA was a continuing violation and assessing a per day penalty). (66) 42 U.S.C. [sub sections] 6901-6992 (1994). (67) Id. [sections] 6902(b). (68) Id. [sections] 6901(b)(5). (69) Id. [sections] 6901(b)(6). (70) Id. [sections] 6930(a) (section 3010 of RCRA). Such notice is required to contain detailed information concerning the nature and location of the hazardous waste activities. Id. (71) Id. [sections] 6902. (72) "Any person who violates any requirement of this subchapter shall be liable to the United States for a civil penalty in an amount not to exceed $25,000 for each such violation. Each day of such violation shall ... constitute a separate violation." Id. [sections] 6928(g). (73) Id. [sections] 6972(a)(1)(A). (74) 833 F. Supp. 646, 656 (N.D. Ohio 1993). (75) 42 U.S.C. [sections] 6972 (1994). (76) 833 F. Supp. at 649. (77) Id. (78) Id. at 656. (79) Id. (80) 471 N.E.2d 312 (Ind. Ct. App. 1984). (81) Id. at 315-16. (82) Id. at 315. (83) Id. (84) 714 F.2d 331 (4th Cir. 1983). (85) Id. at 333. (86) Id. (87) Id. (88) Id. at 335. (89) Id. (90) Id. at 336. (91) Id. at 335. (92) Id. (93) Id. (94) Storage is "the holding of hazardous waste for a temporary period, at the end of which the hazardous waste is treated, disposed of or stored elsewhere." 40 C.F.R. [sections] 260.10 (1995). (95) 714 F.2d at 335, 338 n.5. (96) Harmon Electronics, Inc., RCRA-VII-91-H-0037, 1994 RCRA Lexis 31 (EPA Dec. 12, 1994). (97) Id. at *7. (98) 42 U.S.C. [sections] 6930(a) (1994). (99) Harmon Electronics, Inc., 1994 RCRA Lexis 31, at *29 (discussing application of 28 U.S.C. [sections] 2462 (1994)). (100) Id. at *41. (101) 15 U.S.C. [sub sections] 2051-2094 (1994). (102) Id. [sections] 2051(a)(1), (3). (103) Id. [sections] 2053(a), 2078(c). But see id. [sections] 2080(a) (denying the CPSC the authority to regulate where risks could be reduced under other statues such as the Clean Water Act). (104) The CPSA requires:

Every manufacturer of a consumer product distributed in commerce, and every distributor and retailer of such product, who obtains information which reasonably supports the conclusion that such product - (1) fails to comply with an applicable consumer product safety rule ...; (2) contains a defect which could create a substantial product hazard ...; or (3) creates an unreasonable risk of serious injury or death, shall immediately inform the Commission of such failure to comply, of such defect, or of such risk, unless such manufacturer, distributor, or retailer has actual knowledge that the Commission has been adequately informed of such defect, failure to comply, or such risk. Id. [sections] 2064(b). (105) 547 F. Supp. 1085, 1089-91 (D. Minn. 1982). (106) Id. at 1088. (107) Id. (108) Id. at 1092. (109) Id. at 1090. (110) Id. (111) Id. (112) Id. (113) Id. at 1091. (114) For example, CERCLA defines "hazardous substance" to include substances identified by RCRA, CAA, CWA, and TSCA. 42 U.S.C. [sections] 9601(14) (1994); see also Pottstown v. P.T.I. Servs., Inc., 1992 U.S. Dist. LEXIS 3256, at *22 (E.D. Pa. Mar. 10, 1992) holding that citizens may sue under both TSCA and RCRA for the same illegal disposal of hazardous waste). As another example, both CERCLA and TSCA regulate releases of polychlorinated biphenyls. See 40 C.F.R. [sub sections] 302.4, 761.125(a)(1) (1995). The CPSA also regulates certain "hazardous substances," although such substances were not at issue in United States V. Advance Machine Co. See 15 U.S.C. [sections] 2079 (1994). (115) 42 U.S.C. [sections] 9603(a) (1994) (CERCLA); 42 U.S.C. [sections] 11004 (1994) (EPCRA). (116) 42 U.S.C. [sections] 6930(a) (1994) (RCRA). (117) For example, CERCLA defines "release" to include "disposal." 42 U.S.C. [sections] 9601(22) (1994); see, e.g., 54 Fed. Reg. 33,441 (Aug. 14, 1989) (making reportable quantities under CERCLA applicable to CWA [sections] 311). Courts have held that these terms must be interpreted in light of each other. See, e.g., Nurad, Inc. v. William E. Hooper & Sons Co., 966 F.2d 837, 845 (4th Cir. 1992); Stanley Works v. Snydergeneral Corp., 781 F. Supp. 659 (E.D. Cal. 1990); see generally Mark Mininberg, Hazardous Substance Spills: What and When to Tell the Government (and Others), 63 Conn. Bar J. 69 (1989). (118) See supra notes 7-8,16 (CAA), 37 (TSCA), 50 (CERCLA), 70 (RCRA), 104 (CPSA) and accompanying text; see generally James H. Andreasen, Reporting Emergency Environmental Releases in Missouri, 63 UMKC L Rev. 615, 617-18 (1995). (119) See supra notes 7-8 and accompanying text. (120) The Consumer Product Safety Act, though not an environmental statute, has a public health protection purpose similar to that of the environmental statutes examined herein. See, e.g., Consumer Prod. Safety Comm'n v. Chance Mfg. Co., 441 F. Supp. 228 (D.D.C. 1977) (holding that the CPSC had jurisdiction over an amusement park ride alleged to present an unreasonable risk of injury to the public). As noted above, the CPSC regulates hazardous substances and shares jurisdiction with EPA for some substances. See supra note 104. (121) See, e.g., United States v. Alcan Aluminum Corp., 964 F.2d 252, 259 n. 11 (3d Cir. 1992) CERCLA liability has the same standard as liability under CAA section 311); United States v. Aceto Agric. Chems. Corp., 872 F.2d 1373, 1383 (8th Cir. 1989) (CERCLA and RCRA should be interpreted liberally); Lincoln Properties, Ltd. v. Higgins, 823 F. Supp. 1528, 1541 (E.D. Ca. 1992) (using case law under CWA to interpret "sole cause" language in RCRA). (122) See supra note 41. (123) For example, Congress appears to have patterned RCRA's civil penalty provisions on the civil penalty provisions of the CAA and the Clean Water Act. Compare 42 U.S.C. [sections] 6928(g) (1994) (RCRA) with 42 U.S.C. [sections] 7413(b) (1994) (CAA) and 33 U.S.C. [sections] 1319(d) (CWA); see also United States v. Crown, Roll Leaf, Inc. 19 Envtl. L. Rep. (Envtl. L. Inst.) 20,262, 20,264 (D.N.J. Oct. 20, 1988); United States v. Liviola, 605 F. Supp. 96, 100 (N.D. Ohio 1985). The penalty provision of the Clean Water Act is "worded almost exactly like the penalty provision of the Clean Air Act." United States v. Trident Seafoods Corp., 60 F.3d 556, 561 (9th Cir. 1995). (124) See supra note 123. (125) TSCA, 15 U.S.C. [sections] 2619 (1994); RCRA, 42 U.S.C. [sections] 6972 (1994); CAA, 42 U.S.C. [sections] 7604 (1994); CERCLA, 42 U.S.C. [sections] 9659 (1994); EPCRA, 42 U.S.C. [sections] 11046(a)(1) (1994). (126) See, e.g., Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., 484 U.S. 49, 53 (1987) ("[P]rivate citizens may commence civil actions against any person `alleged to be in violation of the conditions of either a federal or state NPDES permit. If the citizen prevails in such an action, the court may order injunctive relief and/or impose civil penalties ...." (citations omitted)). (127) See supra notes 79, 95 and accompanying text. A similar approach is taken in a California statute that requires reporting of releases of a specified quantity of hazardous substances. Cal. Health & Safety Code [sections] 25359.4(d) (West Supp. 1996). The statute provides that "[e]ach day on which the released hazardous substance remains is a separate violation unless the person has either filed the report or is in compliance with an order issued by a local, state, or federal agency with regard to the release." Id. (128) Environmental Defense Fund v. Lamphier, 714 F.2d 331, 338 (4th Cir. 1983); City of Toledo v. Beazer, 833 F. Supp. 646, 656 (N.D. Ohio 1993); cf. United States v. Ekco Housewares, Inc., 853 F. Supp. 975,988 (N.D. Ohio 1994), aff'd in part, rev'd in part, 62 F.3d 806, 816-17 (6th Cir. 1995); Fallowfield Dev. Corp. v. Strunk, 1990 U.S. Dist. Lexis 4820, at *29 (E.D. Pa. 1990). (129) See United States v. Trident Seafoods Corp., 60 F.3d 556, 559 (9th Cir. 1995) (citing Phelps Dodge Corp. v. Federal Mine Safety & Health Review Comm'n, 681 F.2d 1189, 1193 (9th Cir. 1982)) (refusing to resolve ambiguity in favor of government because violator would be subject to sanctions); see also 3M, 17 F.3d at 155 n.2, discussed supra at notes 39-47 and accompanying text. In citing Toussie v. United States and United States v. McGoff, the 3M court seemed to be expressing support for a preference against continuing offenses due to hardship on the defendants. Toussie v. United States, 397 U.S. 112, 122 (1970) (citing United States v. Universal C.I.T. Credit Corp., 344 U.S. 218 (1952) (forwarding the rule of lenity); United States v. McGoff, 831 F.2d 1071, 1093 (D.C. Cir. 1987) (suggesting that the purpose, of statute of limitations is to protect against indefinitely continuing violations). The rule of lenity demands that ambiguity in criminal statutes should be resolved in favor of the defendant See, e.g., Tanner v. United States, 483 U.S. 107, 131 (1987) (applying rule of lenity in interpreting conspiracy statute); see also Union Carbide Corp., TSCA-85-H-02, 1985 TSCA Lexis 58, *8 (EPA Oct. 3, 1985) (rejecting application of Toussie to TSCA civil prosecution because TSCA contains language "indicating that the failure to notify is a continuing violation" and that civil penalties, unlike the criminal penalties in Toussie require continuing violation treatment to have a proper enforcement effect). (130) See United States v. Kissel, 218 U.S. 601, 607 (1910) (the mere continuance of the result of a crime does not continue the crime"). But cf. Developments in the Law, Statute of Limitations, 63 Harv. L. Rev. 1177, 1206-07 (1950) (noting that if defendant is able to "remove the harmful condition or cease his wrongful conduct," the limitations period should not begin "[s]ince the amount of future harm will vary with the extent of the later wrongful conduct"). (131) Cf. Gwaltney of Smithfield v. Chesapeake Bay Found., 484 U.S. 49, 57 (1987) (treatment facilities do not remain in violation of Clean Water Act merely because pollutants from the violating discharges remain in the environment, but rather only if the discharge continues to exceed applicable limits each day); United States v. Ciampitti, 669 F. Supp. 694, 700 (D.N.J. 1987) (placement of fill material in a wetland constitutes illegal discharge under Clean Water Act until removed); United States v. Cumberland Farms of Conn., 647 F. Supp. 1166, 1183 (D. Mass. 1986), aff'd, 826 F.2d 1151 (1st Cir. 1987), cert. denied, 484 U.S. 1061 (1988). (132) See, e.g., Genicom Corp., EPCRA App. 92-2,1992 EPCRA Lexis 102, *13 (EPA Oct. 15, 1992) (rejecting the argument that obligation to notify under EPCRA should depend on continuing likelihood of environmental harm from release because this might encourage regulated entity to delay notification until harm had occurred).

A related but more problematic drafting technique that sought to limit the temporal extent of a notification violation is found in the 1993 version of California's hazardous substance reporting statute. Cal. Health & Safety Code [sections] 25359.4 (West Supp. 1996) (historical and statutory notes). Until 1993, this provision in effect terminated the obligation to report a release at such time as the reporting person no longer knew that the released substance remained in the environment. For a discussion of the relation of a defendant's ability to cure a violation to the temporal extent of the violation in the antitrust context, see United States v. ITT Continental Baking, 420 U.S. 223, 226 (1975) (holding that "violation of [a Federal Trade Commission] consent order is a continuing violation subject to daily penalties"). (133) See, e.g., Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 377 (1989) (noting that a reviewing agency's scientific determination must generally be at its most deferential" quoting Baltimore Gas & Elec. Co. v. Natural Resource Defense Council, 462 U.S. 87, 103 (1983))); Chemical Mfrs. Ass'n v. Natural Resources Defense Council, 470 U.S. 116, 125 (1985) (noting EPA's interpretation of actions to implement the Clean Water Act is entitled to "considerable deference"); United States v. Princeton Gamma-Tech, Inc., 31 F.3d 138, 149 (3d Cir. 1994) (In environmental cases, "a reviewing court should give deference to the scientific expertise of the agency .... [T]his is a situation where an administrative agency does possess expert knowledge in a factual and scientific field"); United States v. Hardage, 982 F.2d 1436, 1442 (10th Cir. 1992) ("[T]he choice of a particular clean-up method is a matter within the discretion of EPA." (quoting United States v. Northern Pharmaceutical & Chem. Co., 810 F.2d 726, 748 (8th Cir. 1986), cert. denied, 484 U.S. 848 1987))). (134) All Regions Chem. Labs, Inc. v. EPA, 932 F.2d 73 (1st Cir. 1991), aff'g All Regions Chem. Labs, Inc., CERCLA-I-88-1089, 1989 CERCLA Lexis 1 (EPA Dec. 1 1989). (135) Id. at 75. (136) See supra notes 79, 95. (137) See supra notes 7-8. (138) As noted above in the text accompanying supra note 58, in All Regions, notice of one release was submitted by a citizen and that as to the second was submitted by a state agency. Cf. United States v. Advance Machine Co., 547 F. Supp. 1085, 1091 (D. Minn. 1982) (rejecting argument that publication of newspaper article should absolve defendant of notification obligation). This objection is partly eliminated by the drafting approach of the CPSA notification provision, which exonerates the responsible party only when it knows the agency has knowledge of the requisite information. See supra note 111 and accompanying text. (139) 60 F.3d 556 (9th Cir. 1995). (140) 17 F.3d 1453 (D.C. Cir. 1994). (141) Trident Seafoods Corp., 60 F.3d at 559 (holding that "[t]he responsibility to promulgate clear and unambiguous standards is on the [agency]" (quoting Marshall v. Anaconda Co., 596 F.2d 370, 377 n.6 (9th Cir. 1979) (brackets in original)); 3M, 17 F.3d at 1461 (holding that a court has a limited role in interpreting statutes and generally cannot expand the wording of the statute to account for EPA's difficulty in enforcing TSCA). (142) See, e.g., Tcherepnin v. Knight, 389 U.S. 332, 336 (1967) (broadly construing the term "security" in the Security Exchange Act); United States v. Aceto Agric. Chems., 872 F.2d 1373, 1379 (8th Cir. 1989) (interpreting CERCLA broadly); United States v. Johnson & Towers Inc., 741 F.2d 662, 666 (3d Cir. 1984) (holding that "criminal penalties attached to regulatory statutes intended to protect public health, in contrast to statutes based on common law crimes are to be construed to effectuate the regulatory purpose"), cert. denied, 469 U.S. 1208 (1985); United States v. Price, 688 F.2d 204, 214 (3d Cir. 1982) ("Congress, in the endangerment provisions of RCRA ... sought to invoke nothing less than the full equity powers of the federal courts in the effort to protect public health, the environment, and public water supplies from the pernicious effects of toxic wastes. Courts should not undermine the will of Congress by either withholding relief or granting it grudgingly."). (143) Badaracco v. Commissioner, 464 U.S. 386, 391 (1984) (quoting E.I. du Pont de Nemours & Co. v. Davis, 264 U.S. 456, 462 (1924)) (broadly construing the Internal Revenue Code statute of limitations in favor of the IRS); see also Connors v. Hallmark & Son Coal Co., 935 F.2d 336, 343 (D.C. Cir. 1991) (interpreting District of Columbia limitations period for breach of contract claims in light of "Congress' intent in ERISA to provide broad remedies' and `to remove jurisdictional and procedural objections which in the past appear to have hampered effective ... recovery of benefits due to participants" quoting S. Rep. No. 127, 93d Cong., 1st Sess. 35 (1973)); Sage v. United States, 908 F.2d 18, 24 (5th Cir. 1990) (broadly construing the Internal Revenue Code statute of limitations in favor of the IRS); Atlantic States Legal Found. v. Al Tech Specialty Steel, 635 F. Supp. 284, 288 (D.N.Y. 1986) (broadly construing statute of limitations under CWA). (144) Crown Coat Front Co. v. United States, 386 U.S. 503, 517 1967) (holding cause of action first accrues when administrative action in dispute is final (quoting Reading Co. v. Koons, 271 U.S. 58, 62 (1926)); see also Havens Realty Corp. v. Coleman, 455 U.S. 363, 380 (1982) (finding violations to be continuing based on the broad remedial intent" of the Fair Housing Act). (145) 397 U.S. 112 (1970). (146) 831 F.2d 1071 (D.C. Cir. 1987). (147) See United States v. Kerley, 838 F.2d 932, 935 (7th Cir. 1988) ("Congress quickly over-ruled Toussie ... by enacting 50 U.S.C. App. & 462(d) ...."). (148) 932 F.2d 73 (1st Cir. 1991), aff'g All Regions Chem. Labs, Inc., CERCLA-I-88-1089,1989 CERCLA Lexis 1 (EPA Dec. 1 1989). (149) 547 F. Supp. 1085 (D. Minn. 1982). (150) See supra text accompanying notes 7-12. (151) EPA has recognized that late notifications by regulated entities may still help the agency accomplish statutory goals. See, e.g., Incentives for Self-Policing: Discovery, Disclosure, Correction and Prevention of Violations: Final Policy Statement, 60 Fed. Reg. 66,706, 66,708 (Dec. 22, 1995) [hereinafter EPA Final Audit Policy]. (152) For example, penalty provisions state that [e]ach day of such violation shall ... constitute a separate violation." 15 U.S.C. [sections] 2615(a)(1) (1994). "A civil penalty of not more than $25,000 per day for each day during which the violation continues may be assessed." 42 U.S.C. & 7413(b) (1994). Some judges have found that this language indicates legislative intent to have notification violations continue. See, e.g., United States v. Trident Seafoods Corp., 60 F.3d 556, 559 (9th Cir. 1995) (Ferguson, J., dissenting); see also Harmon Electronics, Inc. RCRA-VII-91-H-0037,1994 RCRA Lexis 31 (EPA Dec. 12, 1994); Union Carbide Corp., TSCA-85-H-02, 1985 TSCA Lexis 58 (EPA Oct. 3, 1985). While the language clearly supports this conclusion, it does not appear to seal the case because, arguably, the language indicates only that some but not necessarily all) violations of the statute may occur over a multi-day period. See, e.g., Bethlehem Steel Corp., TSCA-III-322, 1992 TSCA Lexis 506 (EPA May 12, 1992). It is certainly possible to conclude that notification obligations continue even without reliance on this language. See United States v. Advance Mach. Co. 1085, 1089 (D. Minn. 1982) (accepting continuing interpretation even though another provision of the CPSA stated that penalties were to be assessed for each day the violation continued, but the penalty provision applying to the notification violation at issue did not). (153) 60 F.3d 556 (9th Cir. 1995). (154) 17 F.3d 1453 (D.C. Cir. 1994). (155) This is so because, under an instantaneous theory, the statute of limitations would apply identically to both defendants and both defendants would face the same maximum penalty ($25,000 - the maximum per day penalty applicable under the statutes). (156) 932 F.2d 73 (1st Cir. 1991), aff'g All Regions Chem. Labs, Inc., CERCLA-I-1988-1089, 1989 CERCLA Lexis 1 (EPA Dec. 1, 1989). (157) 547 F. Supp. 1085 (D. Minn. 1982). (158) See, e.g., Bloomfield Foundry Inc., RCRA-VII-88-H-0017, 1989 RCRA Lexis 41, at *34 (EPA July 14, 1989). (159) Environmental Defense Fund v. Lamphier, 714 F.2d 331 (4th Cir. 1983); City of Toledo v. Beazer Materials & Servs., 833 F. Supp. 646 (N.D. Ohio 1993); Harmon Electronics, Inc., RCRA-VII-91-H-0037,1994 RCRA Lexis 31 (EPA Dec. 12, 1994). (160) See, e.g., United States v. McGoff, 831 F.2d 1071, 1093-94 (D.C. Cir. 1987) (discussing purposes of a statute of limitations). (161) See supra part II.D.2. (162) See supra text accompanying notes 96-100. (163) See, e.g., United States v. Meyer, 808 F.2d 912, 921 (1st Cir. 1987) (stating that the purpose of a statute of limitations is to ensure fairness to the defendant by preventing evidence from becoming stale); Department of Labor v. Old Ben Coal Co., 676 F.2d 259, 261 (7th Cir. 1982) (stating that the purpose of a statute of limitations is to provide notice to the defendant of prosecution and to prevent loss of evidence); see generally Teresa A Holderer, Note, Enforcement of TSCA and Federal Five-Year Statue of Limitations for Penalty Actions, 91 Mich. 1. Rev. 1023, 1045-50 (1993) (discussing purposes of statutes of limitations). (164) Order of R.R. Telegraphers v. Railway Express Agency, 321 U.S. 342, 348-49 (1944); see also United States v. Core Labs, Inc., 759 F.2d 480, 483 (5th Cir. 1985 . (165) 3M v. Browner, 17 F.3d 1453, 1461 n.15 (D.C. Cir. 1994). (166) See, e.g., Holmberg v. Ambrecht, 327 U.S. 392 (1946). (167) Another purpose of statutes of limitation is to protect defendants and the courts from having to deal with cases in which the search for truth may be seriously impaired by the loss of evidence, whether by death or disappearance of witnesses, fading memories, disappearance of documents, or otherwise." United States v. Kubrick, 444 U.S. 111, 117 (1979). Because the principal evidence in a prosecution for a notification violation generally relates to the event that triggered the notification obligation, this concern may apply to continuing interpretations of notification obligations. On the other hand, some evidence in such a prosecution might be more current For example, current evidence may include information related to the agency's ongoing operation, information submitted by another source, and the continuing harm caused by the triggering event. See infra notes 173-76. (168) See Reading Co. v. Koons, 271 U.S. 58, 64-65 (1926) (rejecting an interpretation of a wrongful death statute of limitations that would permit plaintiff to indefinitely delay its running). (169) 225 U.S. 347 (1911). (170) Id. at 369 (emphasis added). (171) See supra notes 130-33 and accompanying text. (172) See, e.g., United States v. Blizzard, 27 F.3d 100, 102-03 (4th Cir. 1994) (finding that stealing government property is a "continuing offense" because "there is a temporal relationship between the offense of retaining [government property] and culpability"). (173) It may he appropriate to grant penalty reduction for entities that notify promptly even though they are merely complying with legal obligations. See, e.g., EPA Final Audit Policy, supra note 151, at 66,708 (granting penalty reduction for environmental audits even if entity is legally required to disclose the violation). These issues may also be relevant to the court's fashioning of injunctive remedies. (174) See, e.g., Guidelines for Assessment of Civil Penalties Under Section 16 of the Toxic Substance Control Act; PCB Penalty Policy, 45 Fed. Reg. 59,770, 59,772 (Sept. 10, 1980) (EPA's civil penalty policy for TSCA violations, which considers the effects a failure to notify has on the agency's ability to monitor or evaluate chemicals). (175) Such issues may be considered due to their relevance to the extent of harm caused by the violation or to the violator's good faith, factors courts are authorized to consider under the relevant statutes and administrative interpretations. See, e.g., United States v. Ekco Housewares, Inc., 853 F. Supp. 975 (N.D. Ohio 1994), aff'd in part, rev'd in part, 62 F.3d 806, 816-17 (6th Cir. 1995) (considering the risk of future harm posed by Ekco's non-compliance with RCRA in assessing Ekco's civil penalty); United States v Bethlehem Steel, 829-F. Supp. 1047, 1055 (N.D. Ind. 1993) (citing cases holding that good faith and extent of harm are factors to consider in assessing civil violations). (176) Cf. All Regions Chem. Labs, Inc. v. EPA, 932 F.2d 73 (1st Cir. 1991), aff'g All Regions Chem. Labs, Inc., CERCLA-I-88-1089, 1989 CERCLA Lexis 1 (EPA Dec. 1, 1989); Mobil Oil Corp., EPCRA 91-0120, 1994 EPCRA Lexis 8, at *66 (EPA Sept. 29, 1994) (holding that, under EPA policy, the length of delay in submitting EPCRA notification should result in increase in penalty).