Opposition Brief — Steel Co. v. Citizens for Better Environment

| Supreme Court, US.

ya FILED

JAN 21 1997

No. 96-643 Se

In THE

Supreme Court of the United States

OcToBER TERM, 1996

THE STEEL COMPANY, a/k/a

CHICAGO STEEL AND PICKLING COMPANY,

Petitioner,

vs.

CITIZENS FOR A BETTER ENVIRONMENT,

Respondent.

On Petition for Writ of Certiorari to the United

States Court of Appeals for the Seventh Circuit

RESPONDENT’S BRIEF IN OPPOSITION

JAMES D. BRUSSLAN

Counsel of Record

HUNDLEY & BRUSSLAN

14 East Jackson Boulevard

Suite 1320

j , Illinois 60604

(312) 427-3777

STEFAN A. NOE

CITIZENS FOR A BETTER

ENVIRONMENT

407 South Dearborn Street

Suite 1775

j , Illinois 60605

(312) 1530

Counsel for Respondent

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

aie

i

QUESTION PRESENTED

Whether a company that has violated the Emergency

Planning and Community Right-to-Know Act of 1986

(“EPCRA”) for eight years may avoid a citizen suit for

penalties by filing late reports, after receiving formal

notice that a citizen intends to file suit, but before a

complaint is filed.

ii

TABLE OF CONTENTS

QUESTION PRESENTED ...................

TABLE OF AUTHORITIES .................

BRIEF IN OPPOSITION .............+00005:

REASONS FOR DENYING THE PETITION ...

STATEMENT OF THE CASE ...............

A. The Emergency Planning and Community

Right-to-Know Act of 1986 ...........

B

C.

D. The Position of the United States ....

E. Subsequent District Court Decisions ....

A. The Seventh Circuit’s Ruling is Correct .

B. There Are No Conflicts With This Court .

C. The Issue Should Percolate Among the

SED. GED 6 koe tntdccdhncednscsius

D. Petitioner Misconstrues the Seventh Cir-

cuit’s Holding and Its Implications ....

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13

16

—EE

iii

TABLE OF AUTHORITIES

Cases PAGE

Atlantic States Legal Foundation, Inc. v. Buffalo

aan 823 F. Supp. 1065 (W.D.N.Y.

po States Legal Foundation, Inc. v. United

Musical Instruments, 61 F.3d 473 (6th Cir.

Atlantic States Legal Foundation, Inc. v. Whiting

Roil-Up Door Mfg. Co., 772 F. Supp. 745 (W.D.

Sn PP Ebids ddtith bbecéllcedestdeesiiecsoes 7

Caminetti v. United States, 242 U.S. 470 (1916) .. 10

Chevron U.S.A. v. Natural Resources Defense Coun-

cil, 467 U.S. 847 (1984) .......27.......000-- 10

Citizens for a Better Environment v. The Steel Co.,

90 F.3d 1237 (7th Cir. 1996) ............... 2,6

Consumer Product Safety Comm'n v. GTE Syl-

vania, Inc., 447 U.S. 102 (1980) ............ 6

Delaware Valley Toxics Coalition v. Kurz-Hast-

ings, Inc., 813 F. Supp. 1132 (E.D. Pa. 1993) . 12

Don’t Waste Arizona, Inc. v. McLane Foods, Inc.,

Civ-95-1808-PHX-ROS (D. Az. December 17,

1996) 1996 U.S. Dist. LEXIS 19068 ........ 10, 12

Gwaltney of Smithfield, Ltd. v. agg Bay

Foundation, Inc., 484 U.S. 49 (1987) .... 3, 4, 6, 8, 11

Idaho Sporting Congress v. Computrol, Inc., No.

96-0027-S-BLW (D. Id. December 17, 1996),

1996 U.S. Dist. LEXIS 19642............. 10

Statutes

E

iv

and Community Right-to-

mergency Planning

Know Act of 1986, 42 U.S.C. §§ 11001 et seq.

Clean Air Act Amendments of 1990, 42 U.S.C.

pe Oe MO cicoens csacvapnconesonnined

ee Se ae eee

and Compensation Act, 42 U.S.C. § 9659 ..

Other Authorities

H.Rep. No. 962, 99th Cong., 2d Sess. (1986) .....

——

1

BRIEF IN OPPOSITION

Respondent Citizens for a Better Environment (“CBE”)

respectfully requests the Court to deny the petition for

writ of certiorari to review the judgment of the United

States Court of Appeals for the Seventh Circuit.

This case concerns the interpretation of a section of a

statute. The Seventh Circuit used this Court’s methodol-

ogy for interpreting statutes and relied on the clear

language of EPCRA to arrive at its decision. There is no

conflict with any decision of this Court. To date, only two

circuits, the Sixth and the Seventh, have ruled on the

question presented. All eight district courts that have

addressed the issue, including two courts which have

issued decisions after the Seventh Circuit ruled, unani-

mously agree with the Seventh Circuit’s opinion. The

Sixth Circuit, the sole court disagreeing with the Sev-

enth Circuit, stands alone, and may revisit its ruling in

the future. The Court should allow the issue to percolate

further among the circuits to determine if a broad and

enduring circuit court split emerges.

STATEMENT OF THE CASE

A. The Emergency Planning and Community Right-

to-Know Act of 1986

The Bhopal tragedy, in which more than 200,000

people were killed or injured from the unexpected release

of toxic gas, and a series of smaller incidents closer to

home prompted Congress to enact the Emergency Plan-

ning and Community Right-to-Know Act of 1986, 42

a

U.S.C. §§ 11001 et seg. EPCRA focuses on citizens. Its

purpose is to “provide the public with important informa-

tion on the hazardous chemicals in their communities,

and to establish emergency planning and notification

requirements which would protect the public in the event

of a release of hazardous chemicals.” H.Rep. No. 962,

99th Cong., 2d Sess. (1986). (emphasis added).

Each year, EPCRA requires industrial facilities using

or storing threshold levels of specified hazardous chemi-

cals, on dates certain, to file comprehensive reports with

local, state and federal authorities reflecting the use and

release into the environment of these chemicals. Time-

ly EPCRA reporting is of the essence. See EPCRA

§ 312(aX2), 42 U.S.C. § 11022(aX2) (March 1 annual

deadline for inventory reports); § 313(a), 42 U.S.C.

§ 11023(a). (July 31 annual deadline for release reports);

Citizens for a Better Environment v. The Steel Co., 90

F.3d 1237, 1243, n. 2 (7th Cir. 1996) (A12, n. 2) (citing

Senate and House reports and statement of Rep.

Sikorski).’

EPCRA requires government authorities to make in-

formation required by EPCRA available to the public in

a comprehensible form. Each day in which a company

fails to report its toxic chemical use deprives citizens of

their statutory right to know about the toxic chemicals

to which they are, or may be, exposed. When companies

fail to file reports by the statutory deadline, citizens are

' The Seventh Circuit’s slip opinion in Citizens for a Better

Environment v. The Steel Co. is attached to the Petition as

ix A. Citations herein to the Seventh Circuit’s decision

refer to the relevant page of the Appendix (referred to

hereafter as “A”).

3

deprived of the information that they gather under

EPCRA to identify and respond to environmental con-

cerns and to encourage industry to reduce the use of

hazardous chemicals. Local authorities use information

required by EPCRA to work with citizens to formulate

response plans intended to limit damage resulting from

the accidental release of toxic chemicals. When a report

is not filed on time, the local response plans are skewed

and inaccurate. Government bodies also rely on timely

information submitted under EPCRA to set regulatory

priorities. Industry uses the data to identify opportuni-

ties for savings by reducing the use of toxic chemicals. In

fact, since 1988, releases of toxic chemicals among those

companies reporting under EPCRA have decreased near-

ly 43 percent. A2.

Recognizing that a major purpose of EPCRA is to

inform citizens in a timely manner of industrial use of

toxic chemicals, and penalize those who fail to comply,

Congress drafted a unique citizen suit provision in

EPCRA. With one exception,’ all other environmental

laws, including CERCLA’s citizen suit provision® which

Congress enacted as part of the same legislation as

EPCRA, imply that the citizen must allege an ongoing

violation by authorizing citizen suits only against per-

sons “alleged to be in violation” of these laws. See Gwalt-

ney of Smithfield, Ltd. v. Chesapeake Bay Foundation,

* The exception is the Clean Air Act Amendments of 1990 dis-

cussed below.

* Congress enacted the citizen suit provision for the Com-

ive Environmental Response, Compensation and Lia-

ility Act (“CERCLA” in text), 42 U.S.C. § 9659 (October 17,

1986), as the same Public Law as EPCRA, Pub. L. 99-499.

4

Inc., 484 U.S. 49 (1987) (interpreting the Clean Water

Act).

In stark contrast to the citizen suit provision in the

Clean Water Act and other environmental laws, EPCRA’s

citizen suit provision, 42 U.S.C. § 11046, does not contain

the present tense “to be in violation” language. Instead,

EPCRA’s citizen suit provision authorizes citizens to file

suit against persons “for failure” to cubmit information

“under” various sections of EPCRA, ircluding those sec-

tions requiring filing by dates certain.

Section 326 of EPCRA, 42 U.S.C. § 11046, states that,

sixty days after notifying, among others, the violator,

“any person may commence a civil action . . en:

[ajn owner or operator of a facility for failure to.

(iii) [c}omplete and submit an inventory form under

section 11022(a). ..

(iv) [clomplete and submit a toxic chemical release

form under section 11023(a).. .”

Sections 11022(a) and 11023(a) require filing by dates

certain. An owner or operator who has not met the statu-

tory filing deadlines has failed to complete and submit

the forms under §§ 11022(a) and 11023(a). In section

325(c) of EPCRA, 42 U.S.C. § 11045(c), Congress provides

penalties payable to the United States of as much as

$25,000 per day against a person who violates EPCRA.

B. Factual Background

For eight years, by its own admission, The Steel Com-

pany violated EPCRA. The Steel Company is not an in-

significant polluter or EPCRA violator. It released tons

of extremely hazardous chemicals into Chicago's air, and

5

stored other hazardous chemicals at its Chicago facility

for eight years, without submitting any § 312 or 313

reports informing citizens and the government as re-

quired by EPCRA.

As a result of The Steel Company’s failure to file

reports for eight years, the Chicago fire department, the

Illinois Emergency Planning Commission, the United

States Environmental Protection Agency, the citizens of

Chicago and members of CBE have suffered and continue

to suffer. For eight years, any citizen seeking to inspect

The Steel Company’s §, 312 and 313 EPCRA reports

would have been told, “there are none.” That citizen

would have assumed (wrongly) that The Steel Company

was not using threshold quantities of toxic chemicals at

its facility. The citizen would (falsely) have been led to

believe that The Steel Company was not releasing tons

of hydrochloric acid—an “extremely hazardous sub-

stance” as defined by EPA—into Chicago’s air. Addition-

ally, The Steel Company’s failure to file its reports

skewed Chicago’s emergency response plan, which is

based in part on § 312 reports. The company’s violations

render inaccurate the national toxic chemical release

inventory, which is based on timely § 313 reports.

Only after CBE notified The Steel Company of its

intent to file this lawsuit, did The Steel Company file its

reports, as many as eight years after the statutory filing

deadline. During its eight year period of non-compliance,

The Steel Company’s releases into Chicago’s air of hydro-

chloric acid increased almost every year. By contrast,

those companies who complied with EPCRA during this

same time frame decreased their toxic releases by an

average of 43 percent. A2.

C. Decision Below

The Seventh Circuit applied this Court’s “interpretive

methodology” to determine the statute’s scope. It read

EPCRA’s citizen suit provision according to its “most

plain and natural meaning,” relying on “ ‘the language of

the statute itself.’ ” Citizens for a Better Environment v.

The Steel Co., 90 F.3d 1237 (7th Cir. 1996) (A10), citing

Gwaltney, 484 U.S. at 56 (quoting Consumer Product

Safety Comm’n v. GTE Sylvania, Inc., 447 U.S. 102, 108

(1980). The Seventh Circuit focused on the contrast in

the language between the Clean Water Act’s citizen suit

provision (interpreted in Gwaltney) and EPCRA’s citizen

suit provision. In Gwaltney, the Court focused on “the

undeviating use of the present tense” in the Clean Water

Act. Jd. at 59. By contrast, the Seventh Circuit found

that “the language of EPCRA contains no temporal lim-

itation.”

The plain language of the EPCRA citizen suit provi-

sion does not clearly point to the present tense as its

counterpart does in the Clean Water Act. In fact, it

does just the opposite. The language of EPCRA con-

tains no temporal limitation; “failure to do” some-

thing can indicate a failure past or present. All.

The Seventh Circuit noted that EPCRA authorizes

citizens to sue “ ‘for failure to complete and submit’

forms ‘under’ Sections 312 and 313.” (emphasis added).

If an owner or operator has failed to meet the statutory

deadlines required under EPCRA, it has failed to submit

the forms under EPCRA and a citizen action lies:

Congress must be assumed to have included the

words “under” Sections 312 and 313 for a reason. The

most natural reading of “under” a section is “in ac-

cordance with the requirements of” that section. . .

7

We read the provision as authorizing citizen suits not

only for failure to complete and submit forms, but for

failure to complete and submit forms in accordance

with the requirements set forth in the referenced

sections. One of these requirements is the statutory

mandate that forms filed under Section 312 “shall be”

submitted annually by March 1. Section 313 forms

“shall be” submitted by July 1 of each year. These are

not guidelines or suggestions; they are essential ele-

ments of the provisions citizens have authority to

enforce. Any other interpretations “would render

gratuitous the compliance dates for initial submis-

sions which Congress placed in EPCRA’s reporting

provisions.” Atlantic States Legal Foundation, Inc. v.

Whiting Roll-Up Door Mfg. Co., 772 F. Supp. 745,

750 (W.D.N.Y. 1991). A11-A12.

While the Court in Gwaltney concluded that the Clean

Water Act employed an “undeviating use of the present

tense,” the Seventh Circuit found that “the enforcement

provisions of EPCRA are not likewise cast in the present

tense.” Instead, EPCRA’s citizen suit provision refers to

past violations:

The absence of language limiting citizen suits to

ongoing violations, and Congress’ choice of language

specifically referring to past violations, are strong

indicators that a cause of action exists under EPCRA

for violations that are not ongoing at the time a

citizen suit is filed. A13.

The Seventh Circuit added that every court that looked

at the citizen suit provisions prior to Atlantic States

Legal Foundation, Inc. v. United Musical Instruments, 61

F.3d 473 (6th Cir. 1995) held that citizens are authorized

to sue for failure to file reports within the statutory

deadlines. See also “Subsequent District Court Deci-

sions,” section of this opposition, infra.

8

The Seventh Circuit addressed the Court’s dicta in

Gwaltney regarding the notice provision. In his 1987

Gwaltney opinion, Justice Marshall theorized that Con-

gress would not have (1) required citizens to wait 60

days to file suit after giving notice to the violator, if (2)

on the other hand Congress had intended to allow citi-

zens to file suit for “wholly past” violations. The Seventh

Circuit noted that “(tJhis line of reasoning is no longer as

compelling as it was when Gwaltney was decided [in

1987). Since then, Congress has expressly intended that

result.” A13. In 1990, Congress enacted the Clean Air

Act Amendments, which indeed (1) require a 60 day

notice period, but (2) at the same time allow a citizen

suit for past violations. Jd., citing The Clean Air Act, 42

U.S.C. §§ 7401 et seq.* Since the 1987 Gwaltney decision,

Congress has spoken: a notice period is consistent with

a suit for past violations. The Seventh Circuit held that

EPCRA’s notice period does not preclude a suit for late

filing.

The Seventh Circuit pointed out that “Congress placed

great importance on the timing element of the reporting

requirements.” Al2, n.2. It added that due to the rather

minimal effort required to comply with EPCRA, virtually

all companies who receive notices then file late reports

before the notice period expires. To prevent citizen suits

for late-filed reports, in effect, would eviscerate EPCRA’s

citizen suit provision, “shift{ing] the cost of EPCRA com-

pliance from regulated industrial users to private citi-

zens. . . This scenario is impossible to reconcile with the

* The Clean Air Act citizen suit provision is codified at 42

U.S.C. § 7604.

9

clearly expressed intent of Congress, or with the very

existence of the citizen enforcement provision.” A15.

D. The Position of the United States

The United States filed an amicus brief and presented

oral argument before the Seventh Circuit in support of

CBE’s right to proceed. The United States reviewed the

language of EPCRA’s citizen suit provision and §§ 312

and 313 of EPCRA and concluded that these sections

“authorize a citizen suit whenever an owner or operator

has failed to complete and submit the required forms by

the statutory deadlines.” Br. at 6. The United States re-

viewed the Clean Water Act’s (“CWA”) citizen suit pro-

vision interpreted in Gwaltney and contrasted it with

EPCRA’s citizen suit provision:

EPCRA’s citizen suit provision is fundamentally dif-

ferent—in text, history, and purpose—from that of

the CWA and several environmental statutes. Thus,

despite the district court’s reliance, Gwaltney is inap-

posite.

Br. at 10. The United States emphasized that citizen

suits increase EPCRA compliance and aid EPA enforce-

ment:

[T]he district court’s holding eviscerates the deterrent

effect of citizen enforcement. Unless reversed, this

holding will undermine EPCRA compliance, place

additional burdens on EPA’s enforcement resources,

and diminish the reliability of critical information

generated by the statutory reporting requirements.

Br. at 3. The United States “urge[d] the Court to re-

verse,” which it did, holding that citizens may sue for

failure to file timely reports. Jd. at 20.

10

E. Subsequent District Court Decisions

Since the Seventh Circuit’s ruling and the filing of the

Petition, two additional district courts have agreed with

the Seventh Circuit and specifically rejected the Sixth

Circuit’s United Musical Instruments decision. Don’t

Waste Arizona, Inc. v. McLane Foods, Inc., Civ-95-1808-

PHX-ROS (D. Az. December 17, 1996) 1996 U.S. Dist.

LEXIS 19068, *13 (“Analysis of the plain language of the

statute and the policies driving the enactment of the

EPCRA compels the conclusion that the Citizens [Sev-

enth Circuit] court has embraced the better reasoned

approach to statutory construction.”); Idaho Sporting

Congress v. Computrol, Inc., No. 96-0027-S-BLW (D. Id.

December 17, 1996), 1996 U.S. Dist. LEXIS 19642, *8

(“The Court therefore chooses to follow Steel Co., not

UMI, in holding that EPCRA does permit citizen suits

alleging only historical violations of the statute.”). There

are now nine decisions agreeing with the Seventh Circuit

and one decision—United Musical Instruments (UM]I)—

going the other way.

ARGUMENT

A. The Seventh Circuit’s Ruling is Correct

The Seventh Circuit’s decision is correct. Petitioner and

the amicus parties ignore the controlling language in

EPCRA’s citizen suit provision. They focus on subsidiary

issues, none of which are relevant in view of the unam-

biguous language of the statute. See Chevron U.S.A. v.

Natural Resources Defense Council, 467 U.S. 847, 842-43

(1984); Caminetti v. United States, 242 U.S. 470, 485

(1916) (Where the language of a statute is plain and

11

unambiguous on its face, “the sole function of the courts

is to enforce it according to its terms.”). There is no rea-

son for the Court to consider a well-reasoned decision by

the Seventh Circuit.

B. There Are No Conflicts With This Court

The Seventh Circuit applied the very methodology used

to interpret statutes by the Court in Gwaltney and

numerous other cases—it focused on “the language of the

statute itself.” Gwaltney at 56. The Seventh Circuit

pointed out how EPCRA’s citizen suit provision language

differs from the language of the Clean Water Act inter-

preted in Gwaltney. The mere fact that EPCRA, inter-

preted by the Seventh Circuit, affords citizens different

rights than the Clean Water Act, interpreted by the

Court, does not present any conflicts.

Nor are there any Constitutional issues before the

Court, let alone any conflicts with the Court’s interpreta-

tion of the Constitution. This case presents an issue of

statutory interpretation and no more. The Steel Compa-

ny’s reference to “standing” is an undeveloped after-

thought with no basis. Not only did The Steel Company

fail to argue standing at the trial court level, but its

petition fails to explain why CBE has no standing. Its

argument appears to be a facial challenge to the lan-

guage of EPCRA’s citizen suit provision with no indica-

tion how the statute’s language conflicts with any opin-

ion of the Court. In any event, courts are clear that per-

sons experiencing a loss of information under EPCRA

and who seek penalties for late-filing have suffered an

injury conferring standing. Atlantic States Legal Foun-

dation, Inc. v. Buffalo Envelope Co., 823 F. Supp. 1065,

12

1071 (W.D.N.Y. 1993); Don’t Waste Arizona, Inc. v.

McLane Foods, Inc., Civ-95-1808-PHX-ROS (D. Az. De-

cember 17, 1996) 1996 U.S. Dist. LEXIS 19068; Delaware

Valley Toxics Coalition v. Kurz-Hastings, Inc., 813 F.

Supp. 1132, 1138-42 (E.D. Pa. 1993).

C. The Issue Should Percolate Among the Lower

Courts

The issue before the Court is not one in which lower

courts are hopelessly divided. Of the ten decisions that

have addressed citizen’s authority to file suit for failure

to meet the statutory deadlines, only one court has

denied citizens that right—the Sixth Circuit in Atlantic

States Legal Foundation, Inc. v. United Musical Instru-

ments, 61 F.3d 473 (6th Cir. 1995). United Musical

Instruments stands alone. It was incorrectly decided. The

Sixth Circuit dismisses the controlling language of

EPCRA’s citizen suit provision and its variation from

other environmental statutes as “hypertechnical parsing

of the language”. Jd. at 477. The Sixth Circuit's analysis

ignores this Court’s mandate in Gwaltney and other

cases “to read a statute according to its most plain and

natural meaning.” Al0. The mere fact that the Sixth

Circuit issued an incorrect decision does not mean that

the Court should review a separate case that arrived at

the correct decision.

Moreover, the Court should allow other courts to ex-

press their views to determine if a significant conflict

between circuits exists. As only two circuits and six

district courts (eight district court decisions) have in-

terpreted EPCRA’s citizen suit provision, denial of the

petition will allow additional lower courts to consider the

13

issue. If the Sixth Circuit recognizes that its decision

continues to stand alone, it can reexamine its ruling.

Amicus Pacific Legal Foundation’s claim (at 6) that it is

unfair to allow EPCRA citizen suits in one jurisdiction

and not another is no reason to grant the petition.

Amicus can avoid “disparate treatment” by complying

with the law.

D. Petitioner Misconstrues the Seventh Circuit's

Holding and Its Implications

The Seventh Circuit explained that to eliminate suits

for late-filing “is impossible to reconcile with the clearly

expressed intent of Congress, or with the very existence

of the citizen enforcement provision.” A8. Congress made

it clear that timely EPCRA filing is of the essence. The

Sixth Circuit’s decision would, in effect, eviscerate

EPCRA’s citizen suit provision. Rather than addressing

the implications of the Sixth Circuit’s decision, Petitioner

and amicus misconstrue the impact of the Seventh Cir-

cuit’s decision.

Petitioner overstates the Seventh Circuit’s holding in

asserting that citizens will now “exhume” violations

when parties have filed forms late without the prompting

of citizen action. This is not the holding of the Seventh

Circuit. The issue before the Seventh Circuit was

“whether citizens may seek penalties against EPCRA

violators who file after the statutory deadline, after re-

ceiving notice of intent to sue, but before a complaint may

be filed in the district court.” A9. (emphasis added). If, as

Petitioner claims, a citizen discovers late-filed reports

two years after they were submitted, the reports would

have been filed before, not “after receiving notice of

14

intent to sue.” Id. Here, by contrast, when The Steel

Company received CBE’s notice of intent to sue, for eight

years it had failed to file any reports required by §§ 312

and 313 of EPCRA.

Petitioner and amicus refer to the burdens and penal-

ties imposed by EPCRA.* This is a matter to address

with Congress.* In any event, the penalties are not

“potentially ruinous.” The Seventh Circuit made it clear

that ability to pay is always a factor in assessing the

penalty. A7. Petitioner and amicus Mid-America Legal

Foundation criticize citizens who identify their EPCRA

violations. EPCRA does not unduly reward citizens. It

does authorize courts to award citizens their costs in-

curred as the prevailing party. If companies want to

avoid these costs, they, rather than citizens, can monitor

their own chemical use and comply with EPCRA. Compa-

° Petitioner has no basis for its claim (at 12-13) that

“EPCRA’s effect on the environment is far less direct than

{other statutes).” As the Seventh Circuit points out, those com-

ies (unlike Petitioner) who have complied with EPCRA,

ve reduced their releases of toxic chemicals into the environ-

ment by an average of 43 percent since 1988.

* Petitioner and amicus Mid-America Legal Foundation cite

a 1994 Illinois statute that allows companies to avoid Illinois

EPA prosecution in state court if the file reports

within a 30 day “grace period” after Illinois EPA notifies them

of their failure to file. This is irrelevant as it relates to a state

law, not EPCRA. In a serious omission, Petitioner and amicus

have failed to inform the Court that the Illinois has

cpactad 0 cliieen oh guatiaen Sint Sania ’s citizen

suit provision. After giving 60 days notice, citizen suit

vision authorizes citizens to file suit under the Ilinois

The Illinois EPCRA citizen suit statute does not include any

“grace whatsoever. 430 Illinois Compiled Statutes

100/17.

15

nies who are caught violating EPCRA by citizens have no

Se ee

OU a

decision “flings open the doors of federal courthouses to

those actions.” Since the first decision addressing the

issue in 1991, every court other than the Sixth Circuit's

1995 United Musical Instruments ruling has authorized

suits for failure to meet the statutory deadlines. The

majority (and until 1995, unanimous) view has autho-

rized EPCRA citizen suits for past violations. Yet there

are very few casee in which courts have issued an opin-

ion relating to EPCRA citizen suits. If a decision autho-

rizing suits for failure to meet statutory deadlines would

fling open the doors of courthouses, this would have al-

ready happened. It has not.

The parties supporting review are also incorrect in

asserting that citizen suits for late-filing interfere with

government enforcement discretion. The Seventh Circuit

decision does not give citizens the same enforcement

authority as the United States. Among other things, the

United States can always preempt a citizen lawsuit by

diligently pursuing an administrative or judicial action,

42 U.S.C. § 11046(e), and unlike citizens can pursue an

administrative action. 42 U.S.C. § 11045. Under the

ruling of the Seventh Circuit, citizens still supplement,

rather than supplant, government enforcement. Finally,

the United States—the most qualified party to speak

about any interference with its own enforcement discre-

tion—strongly encourages citizen suits under EPCRA for

failure to file reports in a timely manner. If the United

States felt any threat that citizens were, or might in the

16

future, interfere with its enforcement discretion, it would

not support CBE’s position.’

CONCLUSION

For the reasons stated above, this Court should deny

the petition for writ of certiorari.

Respectfully submitted,

JAMES D. BRUSSLAN

Counsel of Record

HUNDLEY & BRUSSLAN

14 East Jackson Boulevard

Suite 1320

Illinois 60604

(312) -B777

STEFAN A. NOE

CITIZENS FOR A BETTER

ENVIRONMENT

407 South Dearborn Street

Suite 1775

, Illinois 60605

(312) 1530

Counsel for Respondent

” To the extent that it was ever a concern, rejected

the notion that citizen suits for historical would

suhusistan dhe anata datanatin tiled iain tn

1990 when it amended the Clean Air Act and gave citizens the

right to sue for past violations.