Petition for Writ of Certiorari — Steel Co. v. Citizens for Better Environment

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Supreme Court, U.S.

FILED

OF 643 OCI 2 1 199%,

No. OFFICE OF We CLERK

In THE

Supreme Court of the United States

OCTOBER TERM, 1996

THE STEEL COMPANY, a/k/a

CHICAGO STEEL AND PICKLING COMPANY,

Petitioner,

vs.

CTTIZENS FOR A BETTER ENVIRONMENT,

Respondent.

On Petition for Writ of Certiorari to the United

States Court of Appeals for the Seventh Circuit

PETITION FOR WRIT OF CERTIORARI

SANFORD M. STEIN

Counsel of Record

LEO P. DOMBROWSKI

WILDMAN, HARROLD, ALLEN

& DIXON

225 West Wacker Drive

Chicago, Illinois 60606-1229

(312) 201-2000

Counsel for Petitioners

Midwest Law Printing Co., Chicago 60610, (312) 321-0220

QUESTION PRESENTED

The Emergency Planning and Community Right-to-Know

Act (“EPCRA”) allows citizen suits against parties “for fail-

ure to... complete and submit” certain forms. The district

court, agreeing with the Sixth Circuit Court of Appeals,

found that once the forms were completed and submitted,

citizen enforcement options ended. The Seventh Circuit

Court of Appeals reversed, holding that citizen suits are

also authorized for historical violations. The Seventh Cir-

cuit did not follow the reasoning of the Supreme Court of

the United States, which has held that the similar citizen

suit provision of the Clean Water Act does not authorize

citizens to sue for historical violations.

The question presented for review is:

Whether, in enacting the citizen suit provision of EPCRA,

42 U.S.C. § 11046, Congress intended to authorize citizens

to seek penalties for violations that were cured before the

citizen suit was filed, thereby granting EPCRA citizen suit

plaintiffs greater enforcement authority than that granted

to other citizen suit plaintiffs under other federal environ-

mental statutes.

STATEMENT PURSUANT TO RULE 29.6

The Steel Company, a corporation, has no parent compa-

nies or non-wholly owned subsidiaries.

REASONS FOR GRANTING THE PETITION ....

THE COURT OF APPEALS’ INTERPRETATION

OF 42 U.S.C. §11046 CONFLICTS WITH THE

SIXTH CIRCUIT’S INTERPRETATION AND

ALSO FAILS TO FOLLOW APPLICABLE DECI-

SIONS OF THE SUPREME COURT ..........

tee oat

Il.

THE DECISION OF THE COURT OF APPEALS

IS ERRONEOUS .........seeeeceeceeenenees

Than a “Minimal Effort” ...............

III.

THE QUESTION PRESENTED IS IMPORTANT .

CONCLUGION 2... ccccccccccccccdcccccccccccecs

TABLE OF AUTHORITIES

Cases Page

Atlantic States Legal Found., Inc. v. United Musical

Instruments, Inc., 61 F.3d 473 (6th Cir. 1995),

reh'g denied, 1995 U.S. App. LEXIS 309383 (Oct.

Es EP Soeeboovsscucecseanecconeteus 5, 8, 11, 14, 16

California v. Department of Navy, 431 F. Supp. 1271

(N.D. Cal. 1977), aff'd, 624 F.2d 885 (9th Cir.

SE eh Gdditbkas Vewededcccucescedccodecoteus 12

City of Highland Park v. Train, 519 F.2d 681 (7th

Din dniteddtdes onegedédcnetacottrees 12

Coalition for Health Concern v. LWD, Inc., 60 F.3d

§ BS rye Terr 21

Connecticrt Coastal Fishermen’s Ass'n v. Remington

Arms Co., Inc., 989 F.2d 1305 (2nd Cir. 1993) .. 21

Dague v. City of Burlington, 935 F.2d 1343 (2d Cir.

1991), rev’d in part on other grounds, 505 US.

Ge Se chnascccesececceasacceels bedeebeos 10, 11

Gwaltney v. Chesapeake Bay Found., Inc., 484 U.S.

GP EE Bh bebe ee nscdcdoccesscccccveaccececcce passim

Hallstrom v. Tillamook County, 844 F.2d 598 (9th

Cir. 1987), aff'd, 498 U.S. 20 (1989).......... 12

Hallstrom v. Tillamook County, 493 U.S. 20 (1989) .

voredcvasieredeeee coéveconnnovs¥udedéeeeds 8, 10, 19, 20

Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) .

sdécndnnontesésnodnebseentitedinadasdstdes 7, 17,18

Meghrig v. KFC Western, Inc., 116 S. Ct. 1251

DE trhithe tie attntMiechbtnedeaimennsn o¢en 12

Moreco Inc. v. Penberthy-Houdaille, 682 F

National Oilseed Processors Ass'n v. Browner, 924

F. Supp. 1198 (D.C.C. 1996) ............-455-

Proffitt v. Commissioners, Township of Bristol, 754

F.2d 504 (8d Cir. 1985) ............ceeeeeeees

MDD corde ccvdggooddebovteiscxesctcesbedtbix

Valley Forge Christian College v. Americans United

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3B U.S.C. § 19GB(CM1) ... 1... cece eee e eee eeeees

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42 U.S.C. § GOT2aXINB) .... «2... eee e cence eeee

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42 U.S.C. § 11046(aXIMA) ............0 0. cece eee.

42 U.S.C. §11046(bM1) .... 2.0.0... cece cece eee.

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ian ae

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at 4 U.S.C. § T60M(a)) .... 0... . cece eee eccees

Federal Rule of Civil Procedure 12(bX1) .........

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viii

Legislative History

S. Conf. Rep. No. 1286, 92d Cong., 2d Sess. (1972)

reprinted in 1972 U.S.C.C.A.N. 8776.........

Miscellaneous

ical Regulation Reporter, Aug. 17, 1990......

| BITTTITITITITITITT LITT

EPA Eyes Changes to EPCRA Regulations to Clari-

fy “Gray Areas,” Increase Compliance, Toxic

Law Reporter, March 9, 1994 ..............+.

General Accounting Office, EPA’s Toxic Release In-

ventory Is Useful but Can Be Improved, (June

1991) GAO/RCED 91-121 ...........0eceeeues

Greve, The Private Enforcement of Environmental

Law, 65 Tulane L. Rev. 339 (1990) ...........

Lawsuits for Past EPCRA Violations Valid, Court

Says, Creating Federal Circuits Split, Toxics Law

Journal-Phoenix, Jume 21, 1996 ...............

Tn DED ocoscckenansdaseetetadepebtsoocnnocs

Title III List of Lists: Consolidated List of Chemicals

Subject to EPCRA, EPA, June 1994.........

17, 19

PETITION FOR WRIT OF CERTIORARI

Petitioner The Steel Company respectfully petitions for a

writ of certiorari to review the judgment and opinion of the

United States Court of Appeals for the Seventh Circuit in

this case.

OPINIONS BELOW

The opinion of the Court of Appeals for the Seventh

Circuit is reported at 90 F.3d 1237, and is reprinted with

the court’s order in the Appendix hereto at pages Al to

Al6. The order and opinion of the United States District

Court for the Eastern District of Illinois is reported at 42

Env't Rep. Cas. (BNA) 1186, and is reprinted in the

Appendix at pages Al7 to A27.

JURISDICTION

The judgment of the Seventh Circuit Court of Appeals

was entered on July 23, 1996. Petitioner invokes the jur-

isdiction of this Court under 28 U.S.C. § 1254(1).

STATUTORY PROVISIONS INVOLVED

Section 326 of EPCRA, 42 U.S.C. § 11046, provides in

pertinent part:

(aX 1) Except as provided in subsection (e) of this section,

any person may commence a civil action on his own behalf

against the following:

(A) An owner or operator of a facility for failure to do

any of the following:

(i) Submit a followup emergency notice under sec-

tion 11004(c) of this title.

atin

(ii) Submit a material safety data sheet or a list

under section 11021(a) of this title.

(iii) Complete and submit an inventory form under

section 11022(a) of this title containing tier I infor-

mation as described in section 11022(d\1) of this

title unless such requirement does not apply by rea-

See of section 11022(aX2) of

(iv) Complete and submit a toxic chemical release

form under section 11023(a) of this title.

(bX1) Any action under subsection (a) of this section

against an owner or operator of a facility shall be brought

in the district court for the district in which the alleged vio-

lation occurred.

brought under subsection (a) of this section against an

owner or operator of a facility to enforce the requirement

concerned and to impose any civil penalty provided for vio-

lation of that requirement.

(dX1) No action may be commenced under subsection

(aX1\(A) of this section prior to 60 days after the plaintiff

has given notice of the alleged violation to the Administra-

tor, the State in which the alleged violation occurs, and the

alleged violator.

(e) No action may be commenced under subsection (a) of

this section against an owner or operator of a facility if the

Administrator has commenced and is diligently pursuing an

administrative order or civil action to enforce the require-

ment concerned or to impose a civil penalty under this

chapter with respect to the violation of the requirement.

STATEMENT OF THE CASE

The jurisdiction of the district court was invoked under

Section 326(a) of EPCRA, 42 U.S.C. § 11046(a), and 28

U.S.C. § 1331 (general federal question jurisdiction).

A. The Structure of EPCRA

In 1986, Congress enacted EPCRA, which included cer-

main purposes of EPCRA are twofold: 1) to compile infor-

mation on the presence and release of chemical substances

and make that information available to the public; and 2)

to use the reported information to help formulate emergen-

cy response plans to react to accidental releases of chemi-

cals. App. at A2-A4.

Of the six EPCRA reporting requirements applicable to

industry, two are at issue here. Section 312 of EPCRA re-

quires certain facilities to submit inventory forms, which

provide information regarding the amount and location of

“hazardous chemicals” at a facility, to state and local

agencies. 42 U.S.C. §§ 11022(a), 11022(d). The inventory

forms for a given calendar year are due the first of

March in the following year. 42 U.S.C. § 11022(a).

Section 313 of EPCRA requires certain facilities using

any of 651 specified “toxic chemicals” to submit forms which

provide information about the amount of those chemicals

present at a facility and their release, if any, into the en-

vironment. Section 313 forms are submitted to the United

' States Environmental Protection Agency (“EPA”) and a

designated state official. 42 U.S.C. §§ 11023(a), 11023(g); 40

C.F.R. § 372.65. EPA has created the “Form R” as its uni-

form chemical release form. 40 C.F.R § 372.85. Form Rs for

a given calendar year are due on July 1 of the following

year. 42 U.S.C. § 11023(a).

Violators of Sections 312 and 313 may be liable to the

United States for civil penalties up to $25,000 for each day

of violation. 42 U.S.C. § 11045(cX1 & 3). EPA may seek civil

penalties either in an administrative action or in federal

court. 42 U.S.C. § 11045(cX4).

EPCRA authorizes private citizens to bring enforcement

actions regarding four of the six reporting requirements. In

pertinent part, EPCRA provides that “any person may com-

mence a civil action on his own behalf against . . . an owner

or operator of a facility for failure to . . . [clomplete and

submit an inventory form under section [312] [or] a toxic

chemical release form under section [313]. . . .” 42 U.S.C.

§ 11046(aX 1X AXiii & iv). A citizen plaintiff may not bring

a lawsuit without waiting at least sixty days after providing

notice of the alleged violation to EPA, the state, and the

alleged violator. 42 U.S.C. § 11046(d\(1). A citizen suit is

barred if EPA is pursuing the violator administratively or

in court. 42 U.S.C. § 11046(e). In presiding over a citizen

suit, a district court has jurisdiction “to enforce the require-

ment concerned and to impose any civil penalty provided

for a violation of that requirement.” 42 U.S.C. § 11046(c). A

court may award costs of litigation, including attorney's and

expert witness fees, “to the prevailing or substantially pre-

vailing party whenever the court determines such an award

is appropriate.” 42 U.S.C. § 11046(f).

B. Proceedings Below

On March 16, 1995, Citizens for a Better Environment

(“CBE”) sent to the EPA, the Illinois Environmental Protec-

tion Agency (“IEPA”), and The Steel Company an EPCRA

60-day notice of intent to sue alleging that The Steel Com-

pany had not submitted certain forms as required by Sec-

tions 312 and 313 of EPCRA. On May 1, 1995, before the

60-day notice period had expired, The Steel Company sub-

sy ae

mitted Section 312 and 313 forms to the following statutori-

ly-designated authorities: EPA, IEPA, the Illinois Emergen-

cy Management Agency, and the Chicago Fire Academy.

App. at Al9, A25.

Notwithstanding The Steel Company’s compliance within

the 60-day period, on August 7, 1995, CBE filed suit

against The Steel Company alleging reporting violations of

EPCRA. CBE alleged only past EPCRA violations, and,

significantly, CBE did not seek injunctive relief ordering

The Steel Company to comply with EPCRA. App. at A19,

A25. The Steel Company filed a motion to dismiss pursuant

to Federal Rules of Civil Procedure 12(bX1) and 12(b\6)

arguing that Congress did not authorize citizen suits for

past EPCRA violations. Relying on the Sixth Circuit’s opin-

ion in Atlantic States Legal Found., Inc. v. United Musical

Instruments, Inc., 61 F.3d 473 (6th Cir. 1995), the district

court granted The Steel Company’s motion

This Court concludes that § 326(a) of EPCRA does not

provide the right for a citizen to sue for historical viola-

tions of the Act. The “complete and submit” language of

that section, along with the purpose of the notice provi-

sion and Congress’ intended role for the citizen-plaintiff,

leads the Court to that decision. .. . In addition, it is

uncontested that before the Complaint was filed, Steel

Company filed the proper forms with the required agen-

cies for the relevant periods in response [to] CBE’s

notice of intent to sue. If it were not the case it seems

likely that CBE would have included such an allegation

in their complaint; no such allegation is present. Be-

cause the Complaint alleges only a failure to timely file

the required reports, a violation of the Act for which

there is no jurisdiction for a citizen suit, the Court dis-

misses the Complaint.

App. at A24-A26 (footnotes omitted).

CBE appealed the judgment of the district court to the

Seventh Circuit Court of Appeals. On July 23, 1996, the

Seventh Circuit reversed the judgment of the district court.

The Seventh Circuit’s decision creates a clear conflict on

this question with the Sixth Circuit and also conflicts with

relevant decisions of this Court, including several regarding

congressional authority to grant standing to a citizen plain-

tiff.

The Seventh Circuit noted that the district court’s re-

liance on the Sixth Circuit’s decision “was not misplaced—

United Musical Instruments is factually indistinguishable

from this case.” App. at A8. The court also noted that the

Sixth Circuit in turn had relied upon Gwaltney v. Chesa-

peake Bay Found., Inc., 484 U.S. 49 (1987), in which this

Court held that citizens could not sue for past violations of

the Clean Water Act. App. at A9.

Nevertheless, the Seventh Circuit chose not to follow the

Sixth Circuit’s reasoning in United Musical or this Court’s

decision in Gwaltney. With respect to United Musical, the

Seventh Circuit squarely disagreed. With respect to Gwalt-

ney, the Seventh Circuit chose to focus on a difference in

statutory wording to conclude that Congress must have in-

tended EPCRA citizen plaintiffs to sue for historical vio-

lations: the Clean Water Act authorizes a citizen wo sue a

facility “alleged to be in violation” of its permit, while

EPCRA authorizes a citizen to sue “for failure to” comply

with certain reporting requirements. App. at All. The court

also failed to follow this Court’s reasoning that one purpose

of the 60-day citizen notice period is to allow an alleged

violator an opportunity to come into compliance, thereby

rendering a citizen suit unnecessary. App. at Al3. The

court of appeals chose not to examine Congress’s reasons

for establishing the notice period, and apparently dismissed

this Court’s reasoning in Gwaltney on the sole ground that

‘iden:

because Congress amended the Clean Air Act in 1990 to

permit citizen suits for some past violations, yet left the

notice provision intact, Congress must have intended to

delete the opportunity to come into compliance within 60

days from all environmental citizen suits. Jd.

The court also failed to recognize that Congress modelled

EPCRA’s citizen suit provision after long-standing princi-

ples found in all environmental citizen suit provisions, and

thus did not intend to have EPCRA’s provision operate dif-

ferently from those of other statutes. The Seventh Circuit's

decision granting citizens the right to sue for past EPCRA

violations also conflicts with decisions of this Court regard-

ing standing of citizens to bring suit for environmental

violations. Lujan v. Defenders of Wildlife, 504 U.S. 555

(1992); Valley Forge Christian College v. Americans United

for Separation of Church and State, Inc., 454 U.S. 464

(1982).

REASONS FOR GRANTING THE PETITION

Although Congress did not expressly authorize citizens to

sue for past violations of EPCRA, the Seventh Circuit

granted citizens that right. In so doing, the court of appeals

decided an important federal question in an extremely

active area of environmental law. Since EPCRA’s enact-

ment, citizen groups have sent hundreds of letters to

industry announcing their notice of intent to sue. Such

letters are sent and received nationwide, affecting industry

throughout the country. This case provides an opportunity

to decide whether Congress intended to authorize citizens

to sue for past EPCRA violations.

THE COURT OF APPEALS’ INTERPRETATION OF 42

U.S.C. § 11046 CONFLICTS WITH THE SIXTH CIRCUIT'S

INTERPRETATION AND ALSO FAILS TO FOLLOW AP-

PLICABLE DECISIONS OF THE SUPREME COURT

A. This Court Has Held That Congress Provided a

Allow tho Abagel Visiater en Gupeteaiin te Game

Allow the Alleged Violator an Opportunity to

into Compliance

In United Musical, the Sixth Circuit faced the same issue

as did the Seventh Circuit in this case. The Sixth Circuit

held that:

We discern nothing in the legislative history that indi-

cates that Congress intended to allow citizens to sue

(for past violations). Although civil penalties for purely

historical violations may be appropriate in some cases,

the congressional scheme leaves to the EPA, with its

broad perspective on the entire spectrum of enforcement

and compliance, discretion to determine those violators

whose conduct warrants such penalties.

United Musical, 61 F.3d at 477. The Seventh Circuit ex-

pressly rejected the Sixth Circuit’s holding. App. at A10.

The Sixth Circuit based much of its conclusion on the

Supreme Court’s interpretations of environmental citizen

suit provisions as set forth in Gwaltney and Hallstrom v.

Tillamook County, 493 U.S. 20 (1989). United Musical, 61

F.3d at 475-77. In Gwaltney, this Court was faced with de-

ciding whether Congress intended to authorize citizen suits

for past violations of the Clean Water Act. The Court’s

examination of the mandated 60-day waiting period led it

to conclude that Congress could not have intended such

suits. Justice Marshall, writing for a unanimous Court, ex-

plained the purpose of the notice provision:

If [EPA] or the State commences enforcement action

within that 60-day period, the citizen suit is barred,

presumably because governmental action has rendered

it unnecessary. It follows logically that the purpose of

notice to the alleged violator is to give it an opportunity

to bring itself into complete compliance with the Act

and thus likewise render unnecessary a citizen suit. If

we assume, as respondents urge, that citizen suits may

target wholly past violations, the requirement of notice

to the alleged violator becomes wholly gratuitous.

484 U.S. at 59-60.

The Court also found that the legislative history of the

Clean Air Act, which created the first citizen right to sue,

and that of the Clean Water Act, supported its interpreta-

cause Congress clearly intended citizen suits to be injunc-

tive in nature. “These sorts of citizen suits—in which a citi-

zen can obtain an injunction but cannot obtain money dam-

ages for himself—are a very useful additional tool in en-

forcing environmental protection laws.” Jd. at 61 (statement

of Sen. Bayh). Other members of Congress supported this

limitation on citizen enforcement authority. Jd. at 61-62.

This Court also acknowledged Congress’s fear that the fed-

eral courts not be burdened with unnecessary citizen suits

where, as here, the violation had already been corrected, id.

at 59-61, yet the Seventh Circuit chose to ignore this con-

cern.

The court of appeals dismissed this Court’s Gwaltney rea-

soning regarding the notice period solely on the basis that

three years after Gwaltney, Congress amended the Clean

Air Act “to permit citizen enforcement actions for past vio-

lations, yet left the notice provision intact.” App. at Al3.

But the Seventh Circuit failed to recognize that Congress

addressed its Gwaltney concerns carefully and with limita-

tion. Under the amended Clean Air Act, a citizen may sue

for past violations only “if there is evidence that the alleged

violation has been repeated.” 42 U.S.C. § 7604(a\1). Some-

~~ =

how the Seventh Circuit discerned in this amendment a

wholesale repudiation of Gwaltney finding that the notice

period no longer functions as an opportunity to cure, and

applied that flawed reasoning to EPCRA, a statute Con-

gress did not amend. Aro. at Al3.

In reiterating its Gwaltney reasoning two years later in

Renee tat CR ae ee ont

Recovery “RCRA”), Court again sought guidance

cl provision found that “the legislative history

(of the Clean Air Act) indicates an intent to strike a balance

between encouraging citizen enforcement of environmenta!

regulations and avoiding burdening the federal courts with

excessive numbers of citizen suits.” Hallstrom, 493 U.S. at

29. As it had in Gwaltney, this Court acknowledged that

Congress intended the notice period to stimulate action

either by the government or the alleged violator. First, the

notice period allows the government to bring an enforce-

ment action “thus obviating the need for citizen suits.” Jd.

Second, the notice period gives the alleged violator an

opportunity to bring itself into compliance and likewise

“render a citizen suit unnecessary.” /d., citing Gwaltney

484 U.S. at 60. . ;

As further evidence that Congress knew what it was

doing when it established the various citizen suit provi-

sions, this Court noted that “Congress has addressed the

Coneome of delay in cotaln chesemstanere andl made on

ceptions required notice periods accordingly.” Jd. at

30 (noting that citizens may sue immediately for certain,

more serious, violations of the Clean Air and Clean Water

Acts). This Court acknowledged that although “potential

damage to the environment . . . could ensue during the 60-

day waiting period, this problem arises as a result of the

balance struck by Congress in developing the citizen suit

provisions.” Hallstrom, 493 U.S. at 30; see also Dague v.

= =

City of Burlington, 935 F.2d 1343, 1351 (2d Cir. 1991), rev'd

in part on other grounds, 505 U.S. 557 (1992) (Congress

carved out an exception to RCRA’s notice period allowing

citizens to sue immediately for hazardous waste violations

because it “determined that with hazardous wastes the

dangers of delay and the potential for greater damage to

public health or the environment outweigh the justifications

of the pre-suit delay periods.”)

The court of appeals also failed to acknowledge that, if

Congress had intended to authorize citizen suits for past

EPCRA reporting violations, “it could easily have done so.”

See United Musical, 61 F.3d at 475. In Gwaltney, this Court

was persuaded by the same argument:

Congress could have phrased its requirements in lan-

guage that looked to the past . . . but it did not choose

this readily available option. . .. Congress has demon-

Gwaltney at 57 & n.2 (referring to Congress’s 1984 RCRA

amendment authorizing citizen suits against any “past or

present” generator, transporter, owner or operator “who has

contributed or who is contributing” to the “past or present”

handling, storage, treatment, transportation or disposal of

certain wastes.) Another example of Congress's specifically

targeting past violations is its 1990 amendment which first

authorized citizens to sue for past Clean Air Act violations.

As Congress refrained from adding this language to other

citizen suit provisions, the Seventh Circuit was wrong to

use the Clean Air Act amendment to distinguish this

Court’s decision in Gwaltney.’

' Originally, the Clean Air Act provided solely injunctive relief to

a citizen plaintiff. In 1990, Congress also amended the Clean Air

(continued...)

Prior to Gwaltney, several lower courts had examined the

legislative history of citizen suits and reached the same

conclusion. Proffitt v. Commissioners, Township of Bristol,

754 F.2d 504, 506 (3d Cir. 1985) (the purpose of the Clean

Water Act’s and RCRA’s notice provisions “is to obviate the

need for resort to the courts by prompting either” govern-

ment enforcement or voluntary compliance); City of High-

pore seve be Tang F.2d 681, 690-91 (7th Cir. 1975) (in

Air Act’s notice provision, “Congress

intended to provide for citizens’ suits in a manner that

would be least likely to clog already burdened federal

courts.”); California v. Department of Navy, 431 F. Supp.

1271, 1278 (N.D. Cal. 1977) (the purpose of the Clean Air

Act’s notice is to encourage voluntary compliance “with a

view toward relieving already overburdened federal courts

of precipitate litigation”), aff'd, 624 F.2d 885 (9th Cir.

1980). “Litigation should be a last resort only after other

efforts have failed.” Hallstrom v. Tillamook County, 844

F.2d 598, 600-01 (9th Cir. 1987), aff'd, 493 U.S. 20 (1989).

In its most recent ruling interpreting environmental citi-

zen suits, this Court reinforced its line of reasoning first

announced in Gwaltney and Hallstrom and held that the

“imminent and substantial endangerment” section of

RCRA’s citizen suit provision, 42 U.S.C. § 6972(aX 1B),

“was designed to provide a remedy that ameliorates present

or obviates the risk of future ‘imminent’ harms... .”

Meghrig v. KFC Western, Inc., 116 S. Ct. 1251, 1255 (1996).

The citizen suit provision at issue here should not be

accorded any greater meaning. EPCRA’s effect on the en-

oti

vironment is far less direct than that of RCRA and other

environmental statutes, which regulate actual harm to our

nation’s air, water and land. In contrast, EPCRA requires

the filing of information. The Seventh Circuit’s strained

reading of EPCRA’s citizen suit provision erroneously led it

to conclude that Congress must have intended citizens to

pursue actions for past information reporting violations,

while this Court found no such intent for violations that

involve actual harm to the environment. This Court's re-

view is required to clarify its reasoning in Gwaltney.

B. The Seventh Circuit Elevated Citizen Plaintiffs to

an Enforcement Level Equal to That of EPA, a Re-

sult Congress Clearly Did Not Intend

The Seventh Circuit also failed to appreciate the crucial

distinction between government and citizen enforcement of

EPCRA: Congress simply did not intend to provide citizens

with the same enforcement authority it gave to the govern-

ment. This Court has recognized this significant difference

and found that the citizen’s role in environmental enforce-

ment “is meant to supplement rather than to supplant gov-

ernmental action.” Gwaltney, 484 U.S. at 60. This Court ex-

pressed understandable concern regarding the possibility

that citizen suits could hamper the government’s enforce-

ment discretion:

to forgo, then the Administrator's discretion to enforce

the Act in the public interest would be curtailed consid-

erably. The same might be said of the discretion of state

enforcement authorities. Respondents’ interpretation of

the scope of the citizen suit would change the nature of

the citizens’ role from interstitial to potentially intru-

sive. We cannot agree that Congress intended such a

witifiene

Id. at 61. The Sixth Circuit was also rightly concerned that

allowing EPCRA citizen suits for past violations could in-

hibit EPA’s enforcement discretion. United Musical, 61 F.3d

at 476.

If the Seventh Circuit’s decision is allowed to stand, a

citizens group, at least in the Seventh Circuit, can chal-

lenge any EPA settlement under EPCRA as not having

been “diligently pursued.” See 42 U.S.C. 11046(e). For ex-

ample, if EPA agrees to forgo assessing penalties against an

EPCRA violator and instead requires an environmentally

beneficial project, a citizens group, under the decision be-

low, can file suit seeking to overturn that settlement.? The

court’s decision also impairs EPA’s ability to develop long-

standing, cooperative relationships with the regulated com-

every EPCRA violation, no matter how trivial or remote, an

incentive not shared by EPA.

Moreover, in finding that Congress did not intend to

authorize citizen suits for past Clean Water Act violations,

this Court in Gwaltney heavily relied on the language of the

Clean Water Act’s citizen suit provision which grants dis-

lead to litigation EPCRA violations that settling parties

(and SPA) nover could have imagined was later bo often ts

—_) =

trict courts jurisdiction “to enforce such an effluent stan-

dard . . . and to apply any appropriate civil penalties... .”

(citing 33 U.S.C. § 1365(aXemphasis added)). The Court

reasoned:

(The Clean Water Act’s citizen suit provision] does not

authorize civil penalties separately from injunctive

relief: rather, the two forms of relief are referenced to

in the same subsection, even in the same sentence. The

citizen suit provision suggests a connection between

injunctive relief and civil penalties that is noticeably

absent from the provision authorizing agency enforce-

ment. A comparison of [the relevant Clean Water Act

sections] thus supports rather than refutes our conclu-

sion that citizens, unlike the Administrator, may seek

civil penalties only in a suit to enjoin or otherwise abate

an ongoing violation.

Gwaltney, 484 U.S. at 58-59 (emphasis added).

EPCRA’s citizen suit provision is identical; it does not

authorize civil penalties separately from injunctive relief.

Once suit is filed, a district court has jurisdiction only:

to enforce the requirement concerned and to impose any

civil penalty provided for a violation of that require-

ment.

42 U.S.C. § 11046(c) (emphasis added). This is perhaps

Congress’s most telling indication that EPCRA citizen

plaintiffs, like all other citizen plaintiffs, may not seek

penalties separately from injunctive relief. The legislative

history of citizen suit provisions, on which EPCRA’s is

based, also supports the conclusion that Congress did not

intend citizen plaintiffs to bring penalty-only actions

against parties that attain compliance before a suit is filed.

The Sixth Circuit was likewise influenced by the differences

between citizen and EPA enforcement mechanisms:

This difference between the grants of authority to the

EPA and citizen plaintiffs is significant because it in-

oulitive

dica tes a congressional intent to limit citizen suits to

ongoing violations and to give EPA sole authority

United Musical, 61 F.3d at 475, 477.° The court be

C. Citizens Plaintiffs Lack

EPCRA Standing to Sue for Past

citing Gwaltney, 484 U.S. at 59. The

Clean Water Act defines “citizen” as pare re no

an interest which is or may be adversely affected.” App. at

A12 (emphasis in original). Because EPCRA does not con-

tain a definition of “citizen,” the court appeared to suggest

that, unlike with the Clean Water Act, Congress could not

have intended EPCRA citizen suits to have only prospective

application. App. at Al2-A13.

It is not surprising that iti it di

in the Clean Water Act. ia rates ep eta pha

defined to bring an action, Congress intended to codify the

liberalized grant of standing articulated by the Supreme

Court in Morton v. Sierra Club, 405 U.S. 727 (1972). See

S. Conf. Rep. No. 1236, 92d Cong., 2d Sess. (1972), reprint-

ed in 1972 U.S.C.C.A.N. 3776, 3823; see also Boyer & Meid-

inger, Privatizing Regulatory Enforcement, 34 Buff. L. Rev.

833, 848 (1985). That EPCRA authorizes “any person” to

bring a citizen suit does not change the fact that citizen

suits must be prospective in nature because inherent in

every congressional grant of standing are the constitutional

requirements that a plaintiff suffer a concrete injury-in-fact

and that the injury be redressable by a favorable decision.

Valley Forge, 454 U.S. at 472.* This constitutional “core” of

standing is a minimum requirement “which not even Con-

gress can eliminate.” Scalia, Doctrine of Standing, 17 Siuf-

folk U. L. Rev. 881, 885 (1983); see also Warth v. Selcin,

422 U.S. 490, 498-501 (1975). Consequently, the require-

ment that a person have standing, i.e., “an interest w/aich

is or may be adversely affected,” necessarily underlies every

citizen suit provision, including EPCRA’s, even though

EPCRA explicitly authorizes “any person” to sue. 42 U.S.C.

§ 11046(a).

If there had been any doubt as to citizen standing re-

quirements, a recent Court pronouncement resolves the

question and solidifies the conclusion that citizen suits

cannot target past violations. Lujan v. Defenders of Wildlife,

504 U.S. 555 (1992). In Lujan, this Court clarified that no

* Only in the Clean Water Act did use the term

“citizen.” Like EPCRA, the Clean Air Act, yee mayo

authorize BA wy to bring a citizen action. 42 U.S.C.

§ 7604(a); 42 C. § 6972(a); 42 U.S.C. § 965%a); 15 U.S.C.

§ 2619%a). There are other environmental citizen provisions, see

Hallstrom, 493 U.S. at 23 n. 1, but those mentioned here have

spawned the vast majority of citizen actions.

longer may Congress grant standing to sue to “any person”

without also requiring a showing of injury-in-fact. Thus, a

person who files suit seeking to require a government

agency to undertake some action required by law must

show something more than an ideological interest in the

outcome. Id. at 562-571. Although Lujan involved a citizen

suit against the government, this Court’s reasoning applies

with equal force to citizen suits against industry because a

defendant’s identity cannot alter Article III's requirements

of injury and redressability:

As government programs and policies become more

complex and far-reaching, we must be sensitive to the

articulation of new rights of action that do not have

clear analogs in our common-law tradition. . . . Con-

gress has the power to define injuries and articulate

chains of causation that will give rise to a case or con-

troversy where none existed before. . . . In exercising

this power, Congress must at the very least identify the

injury it seeks to vindicate and relate the injury to the

class of persons entitled to bring suit.

Id. at 580 (citations omitted) (Kennedy, J., concurring). If

Congress has simply given standing to “any person,” this

requirement is not met. A would-be citizen plaintiff must

point to a concrete injury, and not merely to a general con-

gressional grant of standing. Jd. at 580-81.

By its very nature, a past EPCRA violation lacks the im-

mediacy and redressability necessary to confer standing on

a citizen plaintiff. Nor does this case present a situation

where Congress “has created a concrete private interest in

the outcome of a suit against a private party for the gov-

ernment’s benefit, by providing a cash bounty for the vic-

torious plaintiff” who brings suit addressing past acts of

fraud on the government. Jd. at 572-73. Moreover and im-

portantly, citizen suit provisions essentially vest prosecu-

torial authority in persons who, unlike state or federal

—19—

authorities, are not accountable to the electorate. See also

Scalia, 17 Suffolk U. L. Rev. at 897-88 (the essential ele-

ment that links the “intimately related” doctrines of stand-

ing and separation of powers is “the requirement of distinc-

tive injury not shared by the entire body politic.” (emphasis

in original)). In light of such serious questions surrounding

citizen suits for past EPCRA violations, the court should

not have found implied authorization for such suits.

THE DECISION OF THE COURT OF APPEALS IS ERRO-

NEOUS

A. The Seventh Circuit Ignored the Similarities Be-

tween EPCRA and Other Environmental Citizen

Suit Provisions

The Seventh Circuit erroneously concluded that EPCRA’s

citizen suit provision points to past violations. App. at Al1-

A13. The court of appeals sought to distinguish Gwaltney,

but its efforts to do so—particularly its side-by-side compar-

ison of the language of EPCRA’s and the Clean Water Act’s

citizen enforcement provisions—are unconvincing. The

question presented must be answered by analyzing Con-

gress’s reasons for establishing citizen suit provisions and

then determining whether Congress intended to treat

EPCRA differently.

The Seventh Circuit failed to acknowledge that Congress

was not working off a blank slate when it drafted EPCRA’s

citizen suit provision. Using the citizen suit provision it

created in the Clean Air Act amendments of 1970 as a

_ model, Congress has included such provisions in virtually

every piece of federal environmental legislation. Conse-

quently, the citizen suit provisions in federal environmental

laws resemble each other almost completely. See Hallstrom,

— =

493 U.S. at 22-23 & n. 1; Boyer & Meidinger, 34 Buff. L.

Rev. at 847-51.

Congress used its customary citizen suit model when it

wrote EPCRA. As in the Clean Air Act, Clean Water Act,

and RCRA,” EPCRA requires a would-be citizen plaintiff to

provide “notice of the alleged violation” to EPA, the state in

which the alleged violation “occurs,” and the alleged vio-

lator at least 60 days prior to filing suit. Like other envi-

ronmental statutes, EPCRA prohibits citizen suits if the

government has already brought an action to require com-

pliance with the requirement at issue. EPCRA, like these

other laws, provides for federal court jurisdiction without

regard to the citizenship of parties or the amount in con-

troversy, authorizes awards of attorneys’ and expert

witness fees, and allows intervention by the government

and interested parties. Thus, EPCRA’s citizen provisions

are essentially the same as those in other statutes, includ-

ing the Clean Air Act, the Clean Water Act, and RCRA.

Ignoring these similarities, the Seventh Circuit erred sig-

nificantly in its interpretation of EPCRA’s venue and notice

provisions. The court rightly noted that Congress’s use of

the present tense in the Clean Water Act helped convince

this Court that Congress did not intend to allow citizens to

sue for past Clean Water Act violations. App. at Al2-A13.

However, the Seventh Circuit erroneously found support for

its holding that EPCRA must be different in its simple

assertion that, “The enforcement provisions of EPCRA are

not likewise cast in the present tense.” App. at A13. First,

The other 14 citizen suit provisions (one has since been repealed)

also all contain a notice period provision and a bar to suit if the

government is pursuing the matter.

en ee

the Seventh Circuit seized on EPCRA’s venue provision,

which provides that citizen suits “shall be brought in the

district court for the district in which the violation

occurred.” App. at A13 (citing 42 U.S.C. § 11046(bX1), em-

phasis in original). But the Seventh Circuit ignored the fact

that Congress used this exact language in the venue pro-

visions of RCRA, CERCLA, and TSCA,' and yet courts have

uniformly held, relying on Gwaltney, that these statutes do

not allow citizen suits for past violations. See, e.g., Coalition

for Health Concern v. LWD, Inc., 60 F.3d 1188, 1193 (6th

Cir. 1995) (CERCLA citizen suit must allege continuing vio-

lation); Connecticut Coastal Fishermen’s Ass’n v. Remington

Arms Co., Inc., 989 F.2d 1305, 1315 (2nd Cir. 1993) (same

for RCRA); Moreco Energy, Inc. v. Penberthy-Houdaille, 682

F. Supp. 931, 932 (N.D. Ill. 1988) (same for TSCA).’

The Seventh Circuit next focussed on the notice provision

itself, which requires that the citizen send the notice of

intent to sue to EPA, the alleged violator, and the state “in

which the alleged violation occurs.” App. at A13 (citing 42

U.S.C. § 11046(d\(1), emphasis in original). Again, the court

ignored the fact that Congress has used this exact language

in the seven environmental citizen suit provisions which

require notice to a state, including those that this Court

found cannot support an action for past violations. Aston-

ishingly, the court of appeals even went so far as to find

that the word “occurs” is somehow not “cast in the present

tense.” App. at Al3. This is an obviously strained reading

of the differences between the Clean Water Act and

EPCRA, and an unfair parsing of language to reach a con-

® 42 U.S.C. § 6972(a); 42 U.S.C. § 9659(bX 1); 15 U.S.C. § 2619%a).

’ The Clean Water Act and the Clean Air Act provide for suit

in the district “in which such source is located,” (33 U.S.C.

§ 1365(cX1); 42 U.S.C. § 7604(cX1)), which is simply another

way of phrasing “in which the violation occurred.”

—22—

clusion unsupported by this Court’s previous holdings and

the intent of Congress in establishing citizen suits.

In further explaining its reasoning not to apply Gwaltney,

the court noted that the Clean Water Act allows citizens to

sue for violations “of a permit which is in effect” and also

permits a state’s governor to sue if a violation “is occurring

in another State and is causing an adverse effect on the

public or welfare in his State.” App. at Al2 (emphasis in

original). The Seventh Circuit’s analysis stopped there,

however, and it failed to realize that Congress could not

have used such language in EPCRA because: 1) EPCRA

does not require permits; and 2) since EPCRA requires only

the submission of information, an EPCRA violation neces-

sarily could not involve the kinds of migrating contamina-

tion regulated under the Clean Water Act as might affect

another state. “EPCRA does not restrict the manufacturing,

processing, use or disposal of any chemical; it is simply a

reporting statute. . . .” National Oilseed Processors Ass'n v.

Browner, 924 F. Supp. 1193, 1197 (D.C.C. 1996). The Sev-

enth Circuit thus failed to comprehend the differences be-

tween EPCRA and the Clean Water Act and that Gwaltney

prohibits a citizen suit for a cured violation, but not for one

that is continuing.

B. Complying with EPCRA Takes Much More Than a

“Minimal Effort”

The court below reasoned that Congress must have in-

tended a citizen to sue for past violations because, if the

Sixth Circuit were correct, “citizen suits could only proceed

when a violator receives notice of intent to sue and still

fails to spend the minimal effort required to fill out the

forms and send them in.” Citizens therefore would have no

reason “to incur the costs of learning about EPCRA... .”

App. at Al4.

~~ =

Contrary to the court’s assertion, completion of EPCRA

forms is no simple matter. It is also a more laborious mat-

ter for those companies, especially small businesses, that

cannot assign personnel to deal solely with environmental

compliance. Completing the forms, especially the Sec-

tion 313 Form R, requires the collection and computation of

detailed information regarding a company’s operations and

practices. EPA itself estimates the public reporting burden

for Section 313 familiarization, compliance determination,

calculation, completion and recordkeeping to be 124.5 hours

in the first year, 61 Fed. Reg. 33588, 33617 (June 27, 1996),

or over three working weeks for a single employee, not

considering that employee's other duties, hardly a simple

matter. EPA recognizes that large facilities may require

even more than the average time to comply. Jd. at 33614.

The completion of Section 312 forms also requires col-

lection and recording of detailed information because some

chemicals fall into more than one hazard category and also

the reporting of chemical] mixtures may complicate the proc-

8 Fa Sarre e creer ener 2 Senties & past of 0

mixture, a party may report “either the weight entire

mixture or only the portion that is a particular hazardous

chemical. .. .”) EPA admits that even its rule explaining

how to calculate chemical mixtures under Section 312 “may

have confused the regulated community. . . .” Confusion

About EPCRA Rule Acknowledged, Chemical Regulation

Reporter, Aug. 17, 1990, at 802. EPA estimates that there

are over 500,000 chemicals or products which are subject to

the Section 312 reporting requirements. Title III List of

Lists: Consolidated List of Chemicals Subject to EPCRA,

EPA, June 1994, at 1 n. 1. And EPA attributes many

—4—

EPCRA compliance problems to “gray areas in the law” that

make reporting requirements confusing for both EPA and

industry. EPA Eyes Changes to EPCRA Regulations to

Clarify “Gray Areas,” Increase Compliance, Toxics Law Re-

porter, March 9, 1994, at 1132.

Because of EPCRA’s complexity, companies that receive

an EPCRA notice letter may not be able to easily comply

and submit the required forms within the 60-day notice

period. To those companies, including the Petitioner, whose

burden is great and resolve to cure the violation is strong,

Congress offers an opportunity to come into compliance

during the 60-day period, thus avoiding a citizen suit and

leaving to EPA’s “broad perspective” whether enforcement

is truly necessary. This makes EPCRA no different from

other environmental statutes where, if a violation is cured

within 60 days, citizen enforcement is barred.

EPCRA is also no different from other environmental

statutes in that Congress did not guarantee citizens re-

covery of their costs of identifying alleged violators. A citi-

zen group always runs the risk that a party will be able to

cure the alleged violation before the group files suit. The

Seventh Circuit’s decision guarantees EPCRA plaintiffs the

possibility of recovering their costs in any EPCRA suit,

however trivial, a result that Congress could not have in-

tended.

Moreover, should a company simply “throw” reports to-

gether in an attempt to fend off a citizen suit, it opens itself

up to a wide range of civil and criminal penalties. EPA con-

siders the submitting of incomplete forms to be serious vio-

lations, which can bring penalties as high as $16,500 per

day. EPA EPCRA Section 312 Policy at 15-20; EPA EPCRA

Section 313 Policy at 11-12. In addition to running the risk

of civil penalties for filing incomplete or misleading forms,

a company also runs the risk of criminal prosecution. 18

- =

U.S.C. § 1001; Section 313 Policy at 7; see also United

States v. Murphy, 935 F.2d 899, 900 (7th Cir. 1991) (sub-

mitting false information under a federal statute to a state

agency also supports under 18 U.S.C. § 1001;

Section 312 forms are submitted only to state and local

agencies. )

THE QUESTION PRESENTED IS IMPORTANT

Numerous reporting deadlines exist under other environ-

mental statutes, and, if a party receives a citizen notice

regarding a failure to report and then complies within the

60-day notice period, no citizen suit is authorized under the

direction of this Court in Gwaltney.’ It does not make sense

that Congress, without explicitly mandating such a result,

would authorize citizens to sue for past EPCRA reporting

violations but not for past violations under other statutes.

One absurd result of the Seventh Circuit’s decision is that

U.S.C. §§ 11004(aX1 & 3), 11046(a1AXi) (certain releases

require reporting under both EPCRA and CERCLA).

. ., 33 U.S.C. §§ 1321(bX5), 1342(aX2) (requirements for

ae oil discharges and violations of i effluent lim-

itations under Clean Water Act); 42 U.S.C. § 7414 (Clean Air

Act); 42 U.S.C. § 9603 (CERCLA requirements for reporting re-

—26—

ceedings brought for violations of the voluminous paper-

work requirements of the Clean Water Act generate tens of

thousands of dollars in attorneys’ fees but no discernible

environmental benefits.” Jd. at 366. This lack of environ-

mental benefit is even more pronounced under EPCRA be-

cause EPCRA does not restrict the use or disposal

substance; it is simply a reporting statute. vainnd

Contrary to Congress’s concern that the federal courts not

be flooded with unnecessary citizen suits, the Seventh Cir-

cuit’s opinion flings open the doors of federal courthouses to

such actions. Not only can citizen groups file suit if a com-

pany, like the Petitioner, achieves compliance within the

60-day notice period, but a citizen group can also search old

government records to determine which companies fi'rd late

EPCRA reports and then sue.

For example, a smal! manufacturer, in compliance with

numerous environmental, health and safety requirements,

is not in compliance with EPCRA because it does not know

EPCRA exists. The company then discovers it is subject to

EPCRA and submits the required reports. A year or two

later, in searching government records, a citizen group

finds the company’s EPCRA filings and sends a notice alleg-

ing that the company has violated EPCRA. If the company

does not settle on the terms demanded by the citizen group,

it must defend a lawsuit in federal court. Morec er, if suit

bility statute, and, according to the Seventh Circuit, an

EPCRA violation even if cured remains sufficient to allow

a citizen suit in federal court. The citizens group has an

ironclad lawsuit and will seek to recover its costs and fees

as the “prevailing party.” 42 U.S.C. § 11046(f).

Congress could not have intended to permit citizen groups

to exhume past violations and then bring penalty actions

based on those violations. Yet that is what the decision

below allows. Such actions do not abate any violation—by

definition, the violation has already been corrected. Nothing

is gained by such a suit (with the exception of the citizen

group possibly recovering hefty attorneys’ fees). A party's

resources will be consumed defending an unnecessary law-

suit—resources that could be used to create jobs and benefit

the community. The federal judiciary should not be bur-

dened by hearing such moot controversies and instead

should concentrate on live disputes in need of resolution.

If the decision below is allowed to stand, it will doubtless

precipitate a substantial increase in the volume of EPCRA

citizen suits. Immediately after the Seventh Circuit an-

nounced its decision, counsel for CBE predicted “a continua-

tion of citizen suits as a result of the Seventh Circuit’s

ruling.” Lawsuits for Past EPCRA Violations Valid, Court

Says, Creating Federal Circuits Split, Toxics Law Rep., July

31, 1996, at 267. Not surprisingly, in only the first month

following the Seventh Circuit’s decision, CBE sent out at

least seven new EPCRA notices of intent to sue to com-

panies in Chicago and northern Illinois alone. If other citi-

zen groups throughout the country follow suit, as they are

likely to do, there will be hundreds, and perhaps thousands,

of new EPCRA notice letters and potential federal court

actions.

Even before the Seventh Circuit’s decision, citizen organ-

izations were extremely active in pursuing EPCRA litiga-

tion. Ten such groups filed a joint amicus brief in support

of CBE’s appeal to the Seventh Circuit stating that they re-

search “public files to identify companies which have failed

to file required EPCRA reports and have brought citizen

suits against such companies.” The Seventh Circuit's deci-

sion makes their pursuit of EPCRA litigation much easier

and will certainly spur more activity.

Unlike the plethora of other environmental and health

and safety statutes, EPCRA is a lesser known statute, espe-

cially among small businesses, perhaps reflecting EPA's

priorities. EPA has estimated that of the approximately

30,000 facilities required to file Section 313 reports, over

one-third did not do so. General Accounting Office, EPA’s

Toxic Release Inventory Is Useful but Can Be Improved, at

49 (June 1991) GAO/RCED 91-121. Citizen groups therefore

have seized upon EPCRA as a fail-safe, guaranteed funding

mechanism. One such group, Don’t Waste Arizona, has sent

over 90 EPCRA notices to companies in Arizona since 1992,

filed at least 12 complaints in federal court, settled with

several companies before filing suit, and has yet to resolve

its disputes with another 40."° Nonprofit Cashing in on

Lawsuits, The Business Journal-Phoenix, June 21, 1996, at

1, 38. Because proving EPCRA violations is no difficult

task, the head of Don’t Waste Arizona:

has latched onto another strategy to pay his bills: He

sues unsuspecting small businesses and forces them to

meet stringent Environmental Protection Agency guide-

lines that most didn’t even know existed... . It’s a

strategy that’s given Don’t Waste Arizona an annual

budget of close to $80,000. . . .

Id. at 38.

Given the prospect of potentially ruinous penalties for

what is an easily-proved strict liability offense, in addition

to a possible award of a plaintiff's attorney's fees, business

entities invariably find themselves compelled to yield to the

citizen group’s demands. The judicial extension of citizen

suit jurisdiction to past violations makes this practice so

lucrative because there is nothing a defendant, having al-

joined in an amicus brief in support of CBE’s appeal to Sev-

enth Circuit.

—229—

ready achieved compliance, can do to defeat the plaintiff's

action. Citizen groups thus have enormous leverage, and

little to lose and much to gain simply by reviewing govern-

ment records to determine which companies are easy liti-

gation targets.

A regulation recently proposed by EPA will add seven

major industry groups to the list of facilities already subject

to Section 313 reporting requirements and EPA estimates

that 6,400 additional facilities will now be faced with this

additional reporting burden. 61 Fed. Reg. 33588, 33610. If

history is a guide, many of these facilities, already highly-

regulated, will be caught unaware of the new requirements

and provide citizen groups with a vastly increased number

of facilities to sue.

Review of the decision below is also important because of

the burden it places on the already highly regulated com-

munity. If the court below is correct in determining that

Congress intended a past EPCRA violation, however small

or remote, and since corrected, to be sufficient to subject a

company to a citizen suit, then industry should have a de-

finitive answer so it will not expend resources litigating

whether such a suit is proper in the first instance. Congress

enacted uniform and comprehensive environmental laws to

operate nationwide without difference as to a state or re-

gion. The split in the circuits now upsets that national bal-

ance. This Court’s jurisdiction is required to resolve the un-

certainty created by the conflict between the circuits and to

interpret the decisions of this Court as they apply to

EPCRA.

—30—

CONCLUSION

Wherefore, for the foregoing reasons, the petition for writ

of certiorari should be granted.

Respectfully submitted,

SANFORD M. STEIN

Counsel of Record

Leo P. DoMBROWSKI

WILDMAN, HARROLD, ALLEN

& DIXON

225 West Wacker Drive

Chicago, Illinois 60606-1229

(312) 201-2000

Counsel for Petitioners

APPENDIX

IN THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

No. 96-1136

CITIZENS FOR A BETTER ENVIRONMENT,

a not for profit corporation,

Plaintiff-Appellant,

Arcuep May 29, 1996—Decipep JuLy 23, 1996

Before Eecunace, Rovwen, and Evaye, Circuit Judges.

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UNITED STATES COURT OF APPEALS

For the Seventh Circuit

Chicago, Illinois 60604

JUDGMENT — WITH O

Date: July 23, 1996

BEFORE:

Honorable Jesse E. Escupacu, Circuit Judge

Honorable ILANA DiaMOND Rovner, Circuit Judge

Honorable TERENCE T. Evans, Circuit Judge

No. 96-1136

CITIZENS FOR A BETTER ENVIRONMENT,

a not for profit corporation,

Plaintiff- Appellant

Vv.

STEEL COMPANY, a co also known

as CHICAGO STEEL & PICKLING COMPANY,

Defendant-Appellee

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(Dated December 19, 1995]

Plaintiff,

No. 95 C 4534

Know Act (“EPCRA”), 42 U.S.C. § 11001. et

. , . Steel

Company now moves to dismiss the action under Fede,al

Rules of Civil Procedure 12(bX1) and 12(bX6). For the

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requires industrial firms to inventory and report their

emissions to the United States Environmental Protechion

Agency (“EPA”) and designated state officials. 42 U a

§§ 11022, 11023. Because these agencies use these

closures to identify polluters that need to be stopped

from further damaging the environment, the failure to

Gils the reports required ty EPCRA may eas ese eek

plying firms to the possibility of prosecution by ;

inchuding civil penalties of up to $25,000 for each viola-

tion. 42 U.S.C. § 11045(cX1).

Additionally, if the EPA chooses not to prosecute,

§ 326(a) of EPCRA provides for citizen enforcement DY

allowing them to sue offending firms directly in the

trict Court. 42 U.S.C. § 11046(a). Prevailing parties may

recover reasonable costs and attorneys’ fees. 42 U.S.C.

§ 11046(f). A citizen suit may not be commenced, how.

ever, until sixty days after the citizen provides notice &!

the alleged violation to the EPA, designated state

cials, and the alleged violator. 42 U.S.C. § 11046(d). If

the EPA chooses to address the alleged violation either

administratively or in federal court, the citizen may not

bring her action. 42 U.S.C. § 11046(e).

into their communities.

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Steel Company is an Illinois corporation that operates

industrial steel manufacturing facilities on Chica go’s

South Side. As a part of its operations, Steel Company

removes rust from steel coils, a process known as “steel

pickling.”

CBE alleges that by virtue of its use and disposal of

certain chemical agents, including Hydrochloric Acid,

Sodium Hydroxide, and Ferrous Chloride, Steel Company

falls under the parameters of § 312 and § 313 of EPCRA,

42 U.S.C. $§ 11022, 11023 and is therefore required to

file annual reports. CBE alleges that in spite of this

requirement, Steel Company had not filed any EPCRA

reports from 1987 to 1995.

On March 16, 1995, CBE gave notice of Steel Com-

pany’s alleged violation of the Act and of CBE’s intent to

sue to the EPA, the Illinois EPA, the Illinois Governor,

and Steel Company. Because the EPA had not initiated

an enforcement proceeding after the mandatory waiting

period, CBE filed suit against Steel] Company under

§ 326(a) of EPCRA. 42 U.S.C. § 11046(a), on August 7,

1995.

ceiving CBE’s intent to sue in March 1995, it filed the

required reports with the appropriate agencies, bringing

itself up to date through 1995. With the filing of the re-

ports prior to CBE’s initiation of the suit, Steel Company

claims that it has cured its previous non-compliance with

the Act, thereby denying this Court jurisdiction to en-

tertain a suit by CBE, a citizen, for any present report-

ing violation. The only remaining allegations, that of late

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filings, is considered a “historical” violation, which is not

authorized as a citizen suit under the Act.

Il. DISCUSSION

Steel Company seeks to dismiss CBE’s complaint pur-

suant to Federal Rule of Civil Procedure 12(bX1) on the

ground that it fails to state a basis for jurisdiction, as

well as under Rule 12(b\6) on the ground that it fails to

state a basis upon which relief may be granted.

CBE’s complaint consists of two counts of allegations

of EPCRA reporting violations on the part of Steel Com-

pany. Count I alleges that Steel Company failed to com-

ply with § 312(a) of EPCRA, 42 U.S.C. § 11022(a), by

failing to file reports detailing the firm’s use of certain

“hazardous” and “extremely hazardous” chemicals by

March Ist of each year since 1988. Count II alleges Steel

Company’s failure to comply with § 313 of EPCRA, 42

U.S.C. § 11023, by virtue of its not having filed reports

detailing the firm’s release of certain “toxic” chemicals

into the environment by July 1st of each year since 1988.

m, Renertion Vielatt

CBE claims that, by failing to complete and submit

§ 312(a) forms and § 313 forms by the statutory dead-

lines, Steel Company failed to comply with the annual

poses of EPCRA. Pointing out that each day a firm fails

to file an EPCRA report constitutes a separate violation

of the Act, CBE alleges that Steel Company has amassed

over 19,000 violations of § 312(a) and over 2,500 viola-

tions of § 313 since 1988.

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In deciding a motion to dismiss, the Court must accept

as true all facts alleged in the complaint. Madden v.

Country Life Ins. Co., 835 F. Supp. 1081, 1084 (N.D. Il.

hau) Accordingly, the Court must assume as true the

that Steel Company never filed an EPCRA report on

time for seven years, and that it did, indeed, register

over 20,000 violations of the Act. Jd. That j

alone, however, does not end this Court’s inquiry. For

even though § 326(a) of the Act provides the right for

citizens to enforce the reporting requirements of EPCRA,

quirements of §§ 312 and 313.

According to Steel Company § 326(a) of EPCRA limi

> * : ts

citizens’ actions to those situations where a citizen seeks

to force a plaintiff to come into compliance with the Act’s

reporting requirements. In other words, Steel Com

claims that CBE cannot sue it for its failure to file timely

Legal Foundation, Inc. v Whiting Roil-U; .

. p Door Mfg.

Corp., 772 F. Supp. 745, 751-53 (W.D.N.Y. 1991); ~~

liams v. Leybold Technologies, Inc., 784 F. Supp. 765,

768 (N.D. Cal. 1992); Delaware Valley Toxics Coalition v.

Kurz-Hastings, 813 F. Supp. 1132, 1141 (E.D. Pa. 1993).

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CBE claims that these cases show that it may, indeed,

sue Steel Company for its past failures to file EPCRA re-

ports in a timely manner.

A recent Court of Appeals case, however, seems to have

cast doubt on the authority relied upon by CBE. In

Atlantic States Legal Foundation, Inc. v. United Musical

Instruments U.S.A., Inc., 61 F.3d 473 (6th Cir. 1995), the

Sixth Circuit Court of Appeals was faced with a suit by

an environmental organization against an industrial

manufacturer who was alleged to have violated EPCRA’s

reporting regime. Specifically, the Musical Instruments

defendant failed to file its § 313 Form R’s for the years

1988 to 1990 on time, though the defendant filed those

reports after receiving the plaintiff's notice of intent to

sue. Id. at 474. As a result, the plaintiff was left to sue

the manufacturer only for late filing rather than not

filing at all. Id.

To determine whether the statute allows suits by citi-

zens for late filings, or as the court termed them, “histor-

ical” violations of EPCRA, the court began by examining

the plain language of the statute and noted that § 326(a)

allows citizens to sue only for “failure to . . . [clomplete

and submit [Form R’s) under § 313 of this title.” 42

U.S.C. § 11046(aX1XAXiv). The court noted that, while

§ 313 requires the submission of the Form R’s by a cer-

tain date, the citizen suit provision of § 326(a) empha-

sizes only the completing and submitting of the forms,

making no reference to the time deadline for filings. Jd.

at 475. From this difference, the court concluded that

Congress intended to distinguish between failing to file

on time and not filing at all. Specifically, the court recog-

nized that a company that files EPCRA forms after the

required dates, while in violation of §§ 312 and 313, have

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nonetheless “complete(d] and submit{ted)” the

: “Id. t{ted]” required

The court also contrasted the § 326 civil suit provision

to the provision which authorizes the EPA to bring civil

suits. As the court pointed out, the EPA is empowered to

bring actions against any person “who violates any re-

quirement” of § 313, 42 U.S.C. § 11045(cX1), to assess

and collect “any civil penalties for which a person is

liable.” 42 U.S.C. § 11045(cX4). This language stands in

stark contrast to the “complete and submit” language of

the citizen suit provision. Jd. The court deemed signifi-

cant that difference in language because it revealed Con-

gressional intent to limit citizens’ EPCRA role to correct-

ing ongoing violations, while the EPA has the sole auth-

ority to seek penalties for historical violations. Id.

The Musical Instruments court found support for its

decision in a Supreme Court case interpreting the Clean

Water Act, 33 U.S.C. §§ 1251-1387. In Gwaltney of

Smithfield v. Chesapeake Bay Found, Inc., 484 U.S. 49

(1987), the Supreme Court held that the Clean Water

Act’s citizen suit provision did not allow suits for histori-

cal violations of that Act. The Court’s rationale for that

decision was two-fold. First, the Court found that the

Act's sixty-day notice provision would be rendered mean-

ingless by allowing citizen suits for historical violations,

because a violator would receive no benefit from the

supplement rather than supplant governmental action.”

Id. at 60. From this observation, the Court concluded

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that allowing citizen suits for historical violations would

undermine the enforcement discretion that Congress in-

tended for the EPA. Id. at 60-61.

Consistent with the Sixth Circuit’s decision in Musical

Instruments, this Court concludes that § 326(a) of

EPCRA does not provide the right for a citizen to sue for

historical violations of the Act. The “complete and sub-

mit” language of that section, along with the purpose of

the notice period and Congress’ intended role for the citi-

zen-plaintiff, leads the Court to that 4ecision.

CBE’s attempt to uncover a flaw in the Musical Instru-

ments court’s reasoning is also unavailing. CBE argues

that, since Congress amended the Clean Water Act in

1990 to allow citizen suits for historical violations of the

Act, then it must have implicitly meant that statutes

with notice provisions (like the Clean Water Act and

EPCRA) are, indeed, compatible with citizen suits for

historical violations. But as the Musical Instruments

court noted, it is more likely that, by amending only the

Clean Water Act in 1990 and not EPCRA, Congress re-

vealed its intent with regard to citizen suits for historical

violations of EPCRA. Musical Instruments, 61 F.3d at

477.

Thus, to the extent that CBE claims to state a cause of

action for Steel Company’s late filings, or “historical vio-

lations”, the Court holds that CBE has not stated a cause

of action.

B. Present Noncompliance With EPCRA

Having settled the question of whether CBE may seek

penalties for Steel Company’s past violations of the Act,

the Court must now address whether CBE has stated a

ee ———— eS es an SC he .

ee eo

EPA and designated state agency on or befo

re July 1,

1988, and annually thereafter on July 1, 1994.” (Com-

plaint, { 29.) Nowhere does CBE allege that Steel Com-

pany has not “completed and submitted” EPCRA forms

to the required agencies.

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seems likely that CBE would have included such an alle-

gation in their complaint; no such allegation is present.”

Because the Complaint alleges only a failure to timely

file the required reports, a violation of the Act for which

there is no jurisdiction for a citizen suit, the Court dis-

misses the Complaint.

CONCLUSION

For all of the above reasons, the Court grants Steel

Company’s motion to dismiss.

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UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

JUDGMENT IN A CIVIL CASE

CITIZENS FOR A BETTER ENVIRONMENT

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.