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United States v. Trident Seafoods Corp.

ELR Citation: 25 ELR 21419
Nos. No. 94-35178, 60 F.3d 556/40 ERC 2121/(9th Cir., 07/12/1995) Civil penalty assessed

The court holds that a company's failure to notify the U.S. Environmental Protection Agency (EPA) of its intent to remove asbestos was a one-time, not a continuing, violation of Clean Air Act §112(c) and (e) for purposes of determining a lawful civil penalty. The court first notes that the Act and regulation do not specify whether a violation of the notice requirement is either a one-time violation or a continuing violation. The court also determines that EPA had both the opportunity and the obligation to 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. The court concludes that even though the company took 44 days to notify EPA, the company should not be subject to a continuous violation penalty that is not clearly applicable either by statute or by regulation to the company's conduct. Therefore, as a one-day violation, the company's failure to meet the notification requirement gave rise to a civil penalty no greater than the statutory maximum of $25,000.

Counsel for Plaintiff
M. Alice Thurston, Steve Novick
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Counsel for Defendant
Ralph H. Palumbo
Heller, Ehrman, White & McAuliffe
The Southern Bldg.
805 15th St. NW, Ste. 610, Washington DC 20005
(202) 842-1700

Before Skopil, Ferguson, and Thompson, JJ.