As noted, the D.C. Circuit Court of Appeals has held that the general five-year statute of limitations under 28 U.S.C. § 2462 should be applied to administrative cases. 3M v. Browner, 17 F.3d 1453 (1994). In the aftermath of this decision, the issue as to whether environmental violations are continuous violations, effectively tolling the five-year statute of limitations, has been a source of ongoing contention between EPA and the regulated community. Accordingly, the issue here, is whether an EPCRA § 313 reporting violation is, by law, a continuous violation. For the reasons set forth below, the undersigned concludes that it is not.

The doctrine of continuing violations provides a special rule for determining when a violation first accrues. Toussie v. United States, 397 U.S. 112, 115 (1970). The phrase "first accrued" as used in 28 U.S.C. § 2462, refers to the point in time at which a violation is complete for purposes of maintaining an action by the plaintiff against a defendant. Generally, a cause of action accrues when a defendant commits an act that injures the plaintiff. Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 338 (1971). The continuing violations doctrine is an exception to this general rule of accrual. The effect of a continuing violation is to restart the statute of limitations. Airweld, Inc. v. Airco., Inc., 742 F.2d 1184, 1189 (9th Cir. 1984).

Various circuit court decisions have attempted to describe a continuing violation. "A continuing violation accrues when the course of illegal conduct is complete, not when an action to enforce the violation can first be maintained. "A 'continuing offense' is, in general, one that involves a prolonged course of conduct; its commission is not complete until the conduct has run its course...the limitations period for a continuing offense does not begin until the offense is complete..." United States v. Rivera-Ventura, 72 F.3d 277, 281 (2d Cir. 1995). "'Continuing wrongs,' however, are repeated instances or continuing acts of the same nature...", Sisseton-Wahpeton Sioux Tribe v. United States, 895 F.2d 588, 597 (9th Cir. 1990) cert. denied, 498 U.S. 824 (1990).

The 7th Circuit has held that "The continuing violation doctrine does not apply 'where the harm is definite and discoverable, and nothing prevented the plaintiff from coming forward and seeking redress' at any earlier time." Further, "The exception as to continuing, ongoing acts does not apply where the alleged tortious acts...caused direct damages that occurred at a certain point in time--resulting in immediate and direct injury...with consequential effects." S. Speiser, C. Krause & A. Gans, The American Law of Torts, @ 5:27 at 890 (1983) cited in Wilson v. Giesen, 956 F.2d 738, 743 (7th Cir. 1992); 1992 U.S. App. LEXIS 1958.

The Supreme Court in Toussie, 397 U.S. at 115, recognized that the continuing violations doctrine should be applied only in limited circumstances because "...for all practical purposes, [the continuing violation doctrine] extends the statute beyond its stated term." As an exception to the general rule, it should be used only in circumstances which are best suited to the violation through analysis of the statute and Congressional intent. "The language of the statute of limitations must be interpreted in the light of the general purposes of the statute and its other provisions, and with due regard to those practical ends which are to be served by any limitation of the time within which an action must be brought." U.S. v. Core Labs, 759 F.2d 480, 481 (5th Cir. 1985), citing Reading Co. v. Koons, 271 U.S. 58 (1926).

From an environmental perspective, the EAB in Harmon, addressed the issue of whether violations of various RCRA provisions were deemed to be continuing in nature. The EAB's analysis involved examinations of 1) the language of the overall statute; 2) the language of the provision(s) at issue; 3) the regulations and preamble; 4) the legislative history; and 5) an examination of words and phrases connoting continuity as an indication of congressional intent. The EAB similarly employed this methodology in Lazarus to determine whether Congress intended various provisions of TSCA to be continuing violations.

This analytical approach is particularly useful for purposes of addressing the instant case and to determine whether the alleged EPCRA § 313 violations are continuing in nature. A discussion of the language of EPCRA follows.

Analysis of EPCRA

EPCRA is Title III of the "Superfund Amendments and Reauthorization Act of 1986" (SARA). Title III of SARA is a free standing statute titled "The Emergency Planning and Community Right-To-Know Act of 1986". The purpose of EPCRA is to provide communities with information on potential chemical hazards within their boundaries and to foster state and local emergency planning efforts to control any accidental releases.

To achieve this end, EPCRA imposed a system of notification requirements on industrial and commercial facilities and mandated that state emergency response commissions and local emergency planning committees be created. The local emergency planning committees were charged with developing emergency response plans based on the information provided by facilities. Huls America Inc., v. Browner 317 U.S. App D.C. 333, 446 (1996).

Generally, EPCRA has three subchapters and contains inter alia, major requirements involving emergency planning and notification (§§ 301-303); emergency release notification (§ 304); community right-to-know reporting (§§ 311-312); and toxic chemical release inventory reporting (§ 313).

Section 313 requires owners and operators of certain facilities that manufacture, process, or otherwise use certain toxic chemicals in quantities exceeding the toxic threshold established during the preceding calendar year, to report annually their releases of listed chemicals. The reporting form is referred to as a Toxic Chemical Release Inventory Reporting Form, or "Form R". These reports are required to be submitted annually, each July 1 and must contain data reflecting releases during the preceding calendar year.

In addition, the regulations at 40 C.F.R. § 372.10(a) require the owner or operator of a facility covered by the § 313 reporting requirements to retain Form R records for three years from the date each report was submitted. These records must be readily available for inspection by EPA officials.

The statutory language of EPCRA does not explicitly indicate that violations under the Act are continuing in nature. Because the continuing violations doctrine effectively extends the term of the violation, courts have refused to apply the continuing violations doctrine where the language of a statute and its implementing regulations are vague or ambiguous. In U.S. v. Trident Seafoods Corp., 60 F.3d 556 (9th Cir. 1995), the Ninth Circuit held that failure to notify EPA of asbestos removal as required under the Clean Air Act asbestos removal regulations, is not a continuing violation. While the penalty provision authorized the EPA to recover civil penalties "of not more than $25,000 per day for each violation", the court found that EPA 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."

Trident further held that when "violations 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." Citing Phelps Dodge Corp. v. Federal Mine Safety & Health Commission, 681 F.2d 1189, 1193 (9th Cir. 1982). The Ninth Circuit noted that this lack of clear intent in the statute and regulations outweighed countervailing policy considerations upon which the district court's finding of a continuing violation was based.

This finding of ambiguous and vague statutory language as evidence of a lack of Congressional intent is further exemplified in two criminal cases⁽³⁾, Toussie, supra, and United States v. McGoff, 831 F.2d 1071 (D.C. Cir. 1987), cited in the 3M decision. ⁽⁴⁾

In Toussie, despite the fact that the regulations stated that the registration obligation "shall continue at all times", and other indications of Congressional intent, the Supreme Court found the statute "at best highly equivocal". Toussie, 397 U.S. at 122.

Although the language of EPCRA does not provide clear evidence of Congressional intent to apply the continuing violations doctrine, the penalty provision for reporting violations, § 325(c)(3), indicates the propriety of applying a continuous penalty, in line with the remedial purposes of the statute. Section 325(c)(3) states "Each day a violation described in paragraph (1) or (2) continues shall, for purposes of this subsection, constitute a separate violation."⁽⁵⁾

Administrative Law Judge (ALJ) decisions have addressed similar language in environmental statutes and whether such language operates to extend the statute of limitations. In In the Matter of Umetco Minerals Corporation, Docket No. CAA-(133)VIII-92-03, 1996 CAA LEXIS 2 (Order Denying Respondent's Motion for Accelerated Decision, March 29, 1996), the ALJ noted that whether an obligation is complete for purposes of the statute of limitations is not determinative of the question of whether daily penalties may be assessed for the violation of that obligation.

In the Matter of Bethlehem Steel Corporation, TSCA-III-322, 1991 TSCA LEXIS 63 (Order Granting Motion to Dismiss, Dec. 23, 1991), later remanded on other grounds in light of the 3M decision, the ALJ noted, "While Section 16(a)(1) does suggest that a violation continues, such reading is limited by the phrase, 'for purposes of this subsection.' It is clear that for purposes of proposing the assessment of civil penalties, complainant may consider the length of time during which the violation went on. That does not mean, however, that Section 16(a)(1) should be construed to create a continuing violation for purposes of tolling a statute of limitations." 1991 TSCA LEXIS at *7-8.

The EAB in Harmon confronted similar language under RCRA's § 3008 penalty provision. While it was not completely clear whether RCRA violations were continuing violations, upon examining this penalty language, the EAB concluded that it clearly "contemplates the possibility of continuing violations". Harmon, 1997 RCRA LEXIS at *51. Nevertheless, the above-stated penalty provision at most, refers only to the "possibility" of a continuing violation, with no finding by the EAB that such language clearly indicated Congressional intent to find a continuing violation. See also Lazarus, slip. op. at 67, 1997 EPA App. LEXIS at *112.

Language of Section 313

Turning to the specific language of § 313, the provision fails to make any direct reference to the application of continuing violations. Instead, it requires owners and operators to comply within a specific annual deadline:

§ 11023 Toxic Chemical release forms [EPCRTKA § 313]

(a) Basic requirement

The owner or operator of a facility subject to the requirements of this section shall complete a toxic chemical release form as published under subsection (g) of this section for each toxic chemical listed under subsection (c) of this section that was manufactured, processed, or otherwise used in quantities exceeding the toxic chemical threshold quantity established by subsection (f) of this section during the preceding calendar year at such facility. Such form shall be submitted to the Administrator and to an official or officials of the State designated by the Governor on or before July 1, 1988, and annually thereafter on July 1 and shall contain data reflecting releases during the preceding calendar year. (emphasis added).

(b) Covered owners and operators of facilities

    (1) In general

    (A) The requirements of this section shall apply to owners and operators of facilities that have 10 or more full-time employees and that are in Standard Industrial Classification Codes 20 through 39 and that manufactured, processed, or otherwise used a toxic chemical listed under subsection (c) of this section in excess of the quantity of that toxic chemical established under subsection (f) of this section during the calendar year for which a release form is required under this section. (emphasis added).

The language of § 313 sets a clear July 1 annual deadline for submissions of Form Rs. The reporting period for each Form R is the preceding calendar year, from January 1 through December 31. Applying the 7th Circuit's rationale in Wilson, 956 F.2d at 743, this deadline requirement reveals an "immediate" and direct "point-in-time" violation, which for purposes of the running of the statute of limitations, can be seen as having a distinct beginning and end. As such, a violation is complete and separate penalties first accrue on the annual July 1 reporting date of each Form R. The undersigned thus rejects Respondent's argument that any claim against it accrues on December 31st, upon the termination of the reporting year. The statutory obligation subjects Respondent to violation on the July 1 deadline, and not on December 31st, which is merely the close of the reporting period. See Lazarus, slip. op. at 82, 1997 EPA App. LEXIS at *136.

An examination of the words and phrases utilized in § 313, such as "was manufactured, processed, or otherwise used...during the preceding calendar year" refer to past-tense activities. Such words connote a sense of separateness from present and future activity, with each annual act of compliance constituting a discrete requirement, distinct from other years.

In contrast, EAB's analysis of the words and phrases of RCRA § 3005(a)⁽⁶⁾ in Harmon, indicate that the present-tense word "have," in "to have a permit" "contemplates a continuing course of conduct, rather than a discrete act." The EAB held that the word "have," in addition to the phrase indicating that disposal of hazardous waste is prohibited "except in accordance with such a permit," indicates "that Congress intended the obligation to have a permit to be a continuing one." Harmon, 1997 RCRA LEXIS at *54-55. The EAB similarly reasoned that the ordinary meaning of the present-tense word "monitoring"⁽⁷⁾ connotes an ongoing activity.

Regulations

The implementing regulations⁽⁸⁾ also use the words "manufactured, processed or otherwise used...for a calendar year" throughout § 372.30. Further, in § 372.85, Subpart E "Forms and Instructions" for submitting Form R information, the language emphasizes the requirement for the submission of such information relevant to a distinct time, using words such as "reporting year" and "annual reportable amount". Thus, the regulations, similar to the statutory language used in § 313, do not contain any words or phrases that provide for continuing violations. Rather, the words utilized indicate that compliance with these provisions begins and ends on a scheduled time, and are not continuing in nature.

Legislative History

The legislative history of EPCRA in general, and § 313 in particular, emphasizes the annual aspect of the reporting provision. Words such as "annual quantities", "annual report", and "annual availability"⁽⁹⁾ relate the yearly information requirement of § 313. The legislative history does not indicate any further extended responsibility under this provision. Each annual report is separate and distinct and has no correlation to the preceding or the subsequent reports.

One-Time Filing Obligation Versus Filing Within A Certain Time Frame

In Harmon, the EAB contrasted RCRA's ongoing, continuous obligations of requiring a permit and conducting groundwater monitoring with obligations or requirements which must be performed within a specific time frame. Harmon, 1997 RCRA LEXIS at *79-80. In Lazarus, the EAB further enunciated on this distinction:

"The RCRA requirements in Harmon that were found to be continuing in nature were distinguished from obligations in other cases that were complete upon certain dates. Harmon, slip op. at 42, 46, 48. See Toussie, 397 U.S. at 119 (obligation to register for the military draft arises at a specific time and is not continuing); Del Percio, 870 F.2d at 1097 (regulations that required submission of plans and schedules by a date certain were not found to be inherently continuing in nature.)" Lazarus, slip. op., fn. 86 at 66, 1997 EPA App. LEXIS at *110.

In Harmon, the EAB examined the Supreme Court's two prong-test in Toussie, (1) whether there is language in the Act that clearly contemplates a prolonged course of conduct; and (2) whether the "nature of the crime involved is such that Congress must assuredly have intended that it be treated as a continuing one." The Supreme Court, applying this test to the statute before it, concluded that although the regulation implementing the Act clearly imposed a continuing obligation to register, nothing in the statute suggested that the obligation to register continued beyond the deadline for registering. Toussie 397 U.S. at 119-122.

Applying the first-prong of the Toussie test to EPCRA § 313, it is noted that a failure to submit an annual report for one reporting year does not contemplate a prolonged course of conduct because the required conduct is complete, whether filed or not, by a specified date. Further, a Form R violation does not impose an ongoing obligation which affects the continuing operation of Respondent's facility, as did the RCRA violations in Harmon. Because of § 313's annual requirement, each submission is particular to the operations of that year only. Once the year has passed, a new obligation begins that is particular to the operations of the next year. Therefore, it is clear under this facet of the Toussie analysis that § 313 does not contemplate a prolonged course of conduct. By its nature, the conduct cannot continue.

Section 313 similarly fails the second prong of the Toussie test. As previously noted, an analysis of the language of the statute, the regulations, and legislative history, demonstrate lack of Congressional intent to impose a continuing violation. A violation for failure to file a Form R for 1991 cannot continue beyond July 1, 1992, as a new obligation begins in 1992, particular to the circumstances of the facility during the course of that year. Thus, although the basic requirement to file a Form R may be the same each year, a violation for failing to file in any given year is incapable of continuing into the next year, as each new year holds the possibility of a change in chemical operations. Compare this requirement to an obligation which remains the same such as registering a pesticide under FIFRA § 3, filing an Material Safety Data Sheet (MSDS) form under § 311 EPCRA, or obtaining a permit for hazardous waste operations under RCRA § 3005. The obligations under these provisions do not change from year to year, rather, they remain the same.

Decisions pertaining to environmental reporting violations have generally been consistent with this one-time filing requirement versus the certain time frame filing obligation approach. Violation of a one-time obligation is the result of a "prolonged course of conduct" which usually involves serious public health and environmental consequences. Violation of a certain time frame reporting requirement has typically been held to be complete on a certain date provided in the statute.⁽¹⁰⁾

The most recent case which distinguishes the one-time filing requirement versus filing within a certain time frame approach is In the Matter of Mafix, Inc., Docket No. EPCRA-III-113, 1998 EPA App. LEXIS 6 [sic], (Order Granting in Part, and Denying in Part, Respondent's Motion for Judgment on the Pleadings, February 12, 1998). Respondent was charged with failure to file an MSDS in violation of EPCRA § 311 and failure to file certain hazardous chemical filings with the Local and State planning commissions in violation of EPCRA § 312. With regard to the § 311 violation, the ALJ concluded that given the continuing nature of the violations in Counts I, II, and III, EPA's Complaint was not barred by the statute of limitations. The ALJ examined the remedial purpose of EPCRA Section 311 and concluded:

"Thus, the fact that the MSDS filing required by Section 311 is essentially a one-time event, and the fact that this filing serves as an important public safety and health purpose, supports the holding that the Section 311 violations...are continuing violations. In other words, the legal requirement to file the MSDS with the LEPC, SERC, and the fire department remains until the statutory filing requirements are satisfied....Therefore, only the actual filing of the MSDS will satisfy the requirements of EPCRA Section 311 and begin the running of the five-year statute of limitations " 1998 EPA App. LEXIS [sic] at *11,12.

In contrast, the ALJ distinquished Counts IV, V, and VI cited under EPCRA Section 312 which requires the filing of emergency and hazardous chemical inventory forms. Unlike Section 311, however, the ALJ held that the chemical inventory form submission is not a one-time event. Rather, Section 312, requires that this filing be performed annually...on or before March 1, 1988, and "annually thereafter on March 1."

Relying on Lazarus, supra, slip op. at 66 ("a continuing nature may be negated by requirements that must be fulfilled within a particular time frame"), the ALJ concluded that a "plain reading of Section 312, particularly in light of that section's annual filing requirement, supports a holding that the violations cited in Counts IV, V, and VI are not continuing violations". The ALJ further held:

"If the owner or operator of a covered facility fails to make a chemical inventory form submission by the March 1 filing date, then a violation of Section 312 accrues....failure to satisfy this March 1 filing obligation does not relieve the responsible party from compliance. It simply marks the end of the period for which the preceding year's...form was required to be submitted.... ....Continued failure to submit....forms for future years will expose the owner or operator to additional Section 312 liability. For each separate failure, however, the five-year statute of limitations of a 2462 must be measured from the date that each separate violation accrued. Given the annual filing requirement of Section 312, the the statute of limitations contained in a 2462 begins to run from the time that the owner or operator should have filed the ....inventory form, but didn't." 1998 EPA App. LEXIS at 13, 14.

Similar to a § 312 violation, a § 313 violation is not continuing in nature. Rather, the public information aspect of the Form R requirement, although very important in the statutory scheme, does not create increasing levels of risk to the environment and the public each day the Form R is not filed, and for this reason, does not warrant invoking the exception to the general rule of accrual as does §§ 311 and 304.⁽¹¹⁾

If the continuing violations doctrine were to apply to such EPCRA reporting requirements, it would essentially expand the scope of the violation. While the deterrent effect of the continuing violations doctrine upon EPCRA reporting requirements would no doubt ensure greater compliance, it would be inherently unfair to the regulated public. From an enforcement perspective, the severity of the punishment would not fit the violation, and there is no evidence that Congress intended such a result.

Recordkeeping violations

Complainant asserts that Respondent's inability to maintain and produce records at the time of inspection, pursuant to the record-keeping requirements of 40 C.F.R. § 372.10⁽¹²⁾ effectively extends the date at which EPA can maintain an action until the end of the three-year record-keeping requirement.

Complainant's argument is without merit. The record-keeping requirement, by definition, would require initial compliance with the statutory obligation to file Form Rs before it could take effect. Thus, the requirement to maintain records infers the generation and existence of such records in the first instance. Nothing in EPCRA's language, or legislative history indicates that failure to file a Form R constitutes a continuing violation. As such, the recordkeeping requirement cannot by itself, operate to toll the five-year statute of limitations where failure to generate a timely filed Form R would not have done so.

The EAB addressed this issue in Lazarus.

"...the obligation to maintain documents cannot logically be separated from the obligation to prepare the documents in the first instance. Preparation and maintenance of annual documents are examples of 'completely dependent' acts of compliance similar to those described in EPA's PCB penalty policy...Maintenance of the documents is impossible unless they have first been prepared. Given the dependent nature of the two prongs of the annual document regulation...the extended maintenance period does not transform the requirement into a continuing obligation." Lazarus, slip. op. at 82, 1997 EPA App. LEXIS at *135.

In Lazarus the EAB further speaks to the effect of the statute of limitations on annual reporting requirements. In addressing the TSCA PCB records requirements, the EAB concluded: "A separate limitations period begins to run each year that an annual document has not been prepared by July 1. An action for penalties may be initiated any time within the five-year period following each July 1." Lazarus, slip. op. at 82, 1997 EPA App. LEXIS at *136.

The EAB's conclusion reinforces the ruling herein, that the continuing violation doctrine does not apply to the annual reporting requirements of EPCRA § 313 and that the five-year statute of limitations begins to run when the claim first accrues, which in this case is the annual July 1 submission date. Therefore, EPA can only bring an action within five years of the July 1 statutory reporting deadline.