Amicus Curiae Brief — Steel Co. v. Citizens for Better Environment

No. 96-643

I

Supreme Court of the

OcTOBER TERM, 1996

THE STEEL COMPANY, a/k/a

CHICAGO STEEL AND PICKLING COMPANY,

Petitioner,

Vv.

CITIZENS FOR A BETTER ENVIRONMENT,

Respondent.

On Petition for Writ of Certiorari to the United

States Court of Appeals for the Seventh Circuit

BRIEF AMICI CURIAE OF THE MID-AMERICA LEGAL

FOUNDATION, NATIONAL ASSOCIATION OF

MANUFACTURERS, ILLINOIS MANUFACTURERS’

ASSOCIATION, PETROLEUM MARKETERS ASSOCIATION

OF AMERICA AND WESTERN STATES PETROLEUM

ASSOCIATION IN SUPPORT OF PETITIONER

William F. Moran III James T.

Stratton & Nardulli Counsel of Record

725 South Fourth Street William A. Price, General Counsel

IL 62791 Mid-America Legal Foundation

(217) 528-2183 120 West Forest Avenue

Counsel for Illinois Manufacturers’ Wheaton, IL 60187

ying ose for Petroleum Marketers

Gregory R. McClintock item of Ament

Maleohn C. Weiss Association of America

McClintock, Weston, Benshoof, Jan S. Amundson, General Counsel

Rochefort, Rubalcava Quentin Riegel, Deputy

& MacCuish, LLP General Counsel

444 South Flower St., 43d Floor National Association of Manufacturers

Los Angeles, CA 90071 1331 Pennsylvania Avenue, N.W.

(213) 623-2322 Suite 1500 — North Tower

Counsel for Western States Washington, D.C. 20004-1790

Petroleum Association (202) 637-3000

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

i

TABLE OF CONTENTS

PAGE

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

IDENTITY AND INTEREST

OF THE AMICI CURIAE ................... 1

SUMMARY OF ARGUMENT ................ 3

GEER UE, eka cChae kaka cciaacgetitinc dts, 4

I

CITIZEN SUITS FOR PAST PAPERWORK

VIOLATIONS ARE ONLY A SMALL PART OF

THE REGULATORY PICTURE THIS COURT

CE on Finca es nnad'e bid0se0 000 7

C. Private Prosecutions Favor Dollar Pay-

ments, Not Compliance ............... )

II

PRIVATE ACTIONS ARE LIMITED BY PUB-

LIC POLICIES EXPRESSED IN FEDERAL

AND STATE STATUTES .................. 12

A. Modern Environmental Statutes Show

Concern With The Possible

Abuse Of Citizen Suit Authority ...... 12

B. Congress Did Not Choose To Permit

Citizen Suits For Past Violations Of

SURI 6 Pinel bill o'4adtiietind oth noeties ¢< 13

C. Illinois Law Favors Self-Reporting And

Efforts To Come Into Compliance, Not

Paperwork Prosecutions .............. 15

EE ies cbebudches dons eceaes es 15

ee ee as uae apa b dn Op infra

TABLE OF AUTHORITIES

Cases PAGE

Atlantic States Legal Found., Inc. v. United Musi-

cal Instruments, Inc., 61 F.3d 478 (6th Cir.

BOOED kicicceeviccdastcloeecavebaterns Cerateuss 7

U.S. 49 (1987) ....... pce tormmmpant 5% 13

Chew Heong v. United States, 112 U.S. 549 (1884). 14

Sierra Club v. Simkins Indus., 617 F. Supp. 1120

(D. Md. 1985), aff'd, 874 F.2d 1109 (4th Cir.

1988), cert. denied 491 U.S. 904 (1989) ..... 9

United States v. Fausto, 484 U.S. 439 (1988) .... 14

Wood v. United States, 16 Pet. 342, 10 L. Ed. 987

COR. Soe aed aed ce ke hotter chaos 14

Statutes

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

OS TED on nc ncceted codbeadivadcshataere "TT 14

Emergency Planning and Community Right-to-

Know Act, 42 U.S.C. §§ 11001-11050 ...... 8, 10, 15

Illinois Environmental Protection Act, 415 ILCS

ET ka ccs cha hd nn $0 Bhaaie ca bAnene oe 15

Miscellaneous

Barry Boyer and Errol Meidinger,

Chemical Marketing Reporter, Vol. 250, No. 9

(August 26, 1996) ........cccccscceereceees 6

iii

EPA EPCRA Section 313 Penalty Policy (Aug. 10,

PR ee Soe Ae Ot 11

EPA Press Release, EPA Moves Toward Major

General Accounting Office, EPA’s Toxic Release

Is Useful but Can Be Improved,

(June 1991) GAO/RCED 91-121 ............ 6

105 (Praeger Publishers 1992)......... 8, 10, 11, 12

Pesticide and Toxic Chemical News,

cS, ERS A pa 5

Petition for Certiorari ..................... 10, 12, 14

60 Fed. Reg. 35201 (July 6, 1995) ............. 6

61 Fed. Reg. 38588 (June 27, 1996) ........... 6

61 Fed. Reg. 51322 (Oct. 1, 1996) ............. 7

Paul G. Wallach and Dan Levin, Using Govern-

ment’s Guidance to Structure a Compliance

Plan, National Law Journal, Aug. 30, 1993 ... 8

enfin

Pursuant to Supreme Court Rule 37.2, the Mid-Amer-

ica Legal Foundation, National Association of Manu-

facturers, Illinois Manufacturers’ Association, Petroleum

Marketers Association of America and Western States

Petroleum Association respectfully submit this brief as

amici curiae in support of the Petitioner, The Steel Com-

pany. The members of the amici are typically subject to

the environmental reporting requirements at issue in

this case. Written consent was granted by counsel for all

parties and filed with the Clerk of the Court.

Amicus Mid-America Legal Foundation (MALF) was

organized in 1975 as an Illinois non-profit corporation to

engage in study, analysis, and legal advocacy for the

benefit of the general public. MALF endeavors to address

evolving concepts of law as they affect free enterprise

and our democratic institutions, especially where the out-

come of litigation could potentially cause disruption to

our national commerce, and to provide legal represen-

tation on matters of public interest on all levels of the

judicial process. MALF takes a special interest in actions

that originate in or have a direct effect on the Midwest

region. —

Amicus the National Association of Manufacturers (the

NAM) is the nation’s oldest and largest broad-based

industrial trade association. Its more than 14,000

member companies and subsidiaries, including 10,000

small manufacturers, employ approximately 85 percent

of all manufacturing workers and produce over 80

percent of the nation’s manufactured goods. More than

158,000 additional businesses are affiliated with the

a

a

NAM through its Associations Council and National

Industrial Council.

Amicus Illinois Manufacturers’ Association (IMA) is an

Illinois not-for-profit corporation founded in 1893 and is

the oldest and largest statewide manufacturing associa-

tion in the United States. IMA’s membership numbers

more than 4,700 Illinois manufacturing companies which

employ over 80 percent of the total Illinois manufactur-

ing work force.

Amicus the Petroleum Marketers Association of Amer-

ica (PMAA) is the national organization representing the

nation’s independent petroleum marketers. PMAA is a

federation of state and regional trade associations from

the 48 continental states and the District of Columbia.

PMAA was formed in the early 1900's to provide an ad-

vocacy group on federal legislative and regulatory issues

affecting petroleum marketers. PMAA represents over

10,000 marketers of petroleum products nationwide. Col-

lectively, these marketers sel] nearly half the gasoline,

over 60 percent of the diesel fuel, and approximately 85

percent of the home heating oil consumed in the U.S.

annually.

Amicus the Western States Petroleum Association

(WSPA) is a trade association consisting of approximate-

ly 31 individual companies engaged in the production,

refining and marketing of petroleum and petroleum prod-

ucts. Its members are responsible for more than 90

percent of the production of oil and gas on the Pacific

coast of the United States.

pS

If not reviewed and reversed by this Court, the Sev-

enth Circuit decision will, in conflict with a decision by

the Sixth Circuit and decisions interpreting similar pro-

visions of cognate environmental laws by this Court,

expose businesses nationwide outside of the Sixth Circuit

to the risk of citizen suits for past violations under the

Emergency Planning and Community Right-to-Know Act

(EPCRA), 42 U.S.C. § 11046, which were cured before

the citizen suit was filed. The decision of the Seventh

Circuit also presents broad policy questions of concern to

the amici curiae and those whose interests they repre-

sent, which only this Court can satisfactorily address.

The Court should grant the writ to determine the ap-

propriate role for private citizen prosecutions for past

and already cured EPCRA reporting violations. As it does

so, it should consider the extensive network of govern-

ment control mechanisms which limit and penalize re-

porting failures. Congress did not, and the Court should

not, extend the activity of private prosecutors under

EPCRA beyond that of assuring continued compliance. If

the decision below is allowed to stand, self-auditing

efforts by the huge number of companies subject to

EPCRA will be discouraged.

Congress left to public prosecutors, not citizens, the

discretion to pursue past violations. In many cases, a

governmental agency may be satisfied that a company

has come into compliance with EPCRA’s complex report-

ing requirements, however late, and elect not to seek

penalties for the past violations. The I]linois legislature

has even gone so far as to formally recognize that failure

to report under EPCRA is not as serious as other envi-

a

ronmental violations and requires the Illinois Environ-

mental Protection Agency to allow a party 30 days to

cure an EPCRA reporting violation before initiating an

enforcement action. Contrary to that pro-compliance goal,

and in the absence of any congressional authority, the

Seventh Circuit’s decision encourages private citizen

prosecutors to clog the courts by pursuing any past

EPCRA violation, however trivial, in an attempt to maxi-

mize their attorneys’ fees. The Court should carefully

consider the differences between public and private en-

forcement of past environmental violations, the policy im-

plications in allowing citizens to sue for past violations,

along with Congress’s decision not to authorize citizens

to sue for past EPCRA violations, and grant Petitioner's

request for a writ of certiorari.

ARGUMENT

L

CITIZEN SUITS FOR PAST PAPERWORK VIOLATIONS

ARE ONLY A SMALL PART OF THE REGULATORY

PICTURE THIS COURT SHOULD CONSIDER

A. Large And Small Industrial Facilities Have Signifi-

cant Reporting Burdens

The Court should consider the scope and variety of

reporting burdens currently imposed by environmental

statutes as it considers whether or not to set private

prosecutors on the trail of organizations which cure and

report past EPCRA paperwork lapses. A Chemical Manu-

facturers Association study released this year estimated

that U.S. industry is required to spend over $2.9 billion

wider

each year to prepare and submit reports under eight

ents baw omarmentw draenei

and Rodenticide Act, Resource Conservation and Recov-

ery Act, Comprehensive Environmental Response, Com-

pensation and Liability Act, EPCRA, Clean Water Act

and Safe Drinking Water Act. 2,982,052 reports were

submitted in 1994 pursuant to the 37 reporting programs

mandated by these laws. The United States Environ-

previ nen earn toyn du pan

, time are required for

out and submitting the reports. At the EPA’s estimated

$53.00/hour cost for report preparation, the regulatory

burden of this 1994 paperwork preparation is more than

$2.9 billion. Pesticide and Toxic Chemical News, April

17, 1996, at 6-8. In fact, the CMA found that EPCRA’s

Section 313 reporting requirements are the most onerous

among all environmental reporting requirements. Jd.

The study also details the “extensive duplication” of

EPA’s requirements, along with those of the Occupation-

al Safety and Health Administration and the Chemical

Diversion and Trafficking Act, which have resulted in 37

different lists of chemicals with nearly 7,000 separate

reporting requirements. These lists include more than

2,400 regulated chemicals and chemical categories. /d.

Some confusion as to which reports are required, and

when they are due, is both possible and probable, even if

GUE feat tihuae hax eae in-

Because so many reports are required from so many

facilities, and because a party’s good faith efforts are no

defense to an EPCRA citizen prosecution , EPCRA offers

a

talline

citizen plaintiffs a huge number of potential litigation

targets. EPA has estimated that 866,285 industrial facil-

ities are subject to EPCRA Section 312 reporting require-

ments. 60 Fed. Reg. 35201 (July 6, 1995). Approximately

30,000 facilities are required to submit Section 313 toxic

release inventory forms. See General Accounting Office,

EPA’s Toxic Release Inventory Is Useful but Can Be Im-

proved, (June 1991) GAO/RCED 91-121. Once a citizen

group identifies a company which has missed a reporting

deadline (a rather easy process), the company finds itself

compelled ‘to settle on the citizen group’s terms because

EPCRA is a strict liability statute.

Moreover, the burdens associated with proper reporting

and regulatory compliance under EPCRA are not static.

EPA is intent on expanding EPCRA reporting require-

ments and imposing ever more regulatory burdens on

industry. See EPA Press Release, EPA Moves Toward

Major Expansion of Community Right-to-Know Informa-

tion About Chemical Use by Industry, Sept. 25, 1996.

Recent Federal Register notices include:

* An EPA proposal to add over 6,400 facilities to the

30,000 now required to submit Section 313 toxic

release inventory reports under EPCRA. The in-

manufacturing facilities which receive wastes from

ment or disposal. 61 Fed. Reg. 33588 (June 27,

250, No. 9, August 26, 1996, at 7.

‘ei,

* An EPA Advance Notice of Proposed Rulemaking

proposing extensive new accounting and tracking

requirements and occupational exposure estimates

for raw and finished materials brought to, used in,

and shipped or disposed of from EPCRA reporting

sites. 61 Fed. Reg. 51322 (Oct. 1, 1996).

Such reporting requirements are, of course, only part

of the responsibilities associated with federal, state, and

local environmental regulation. Comprehensive systems

of statutes, regulations, and permits govern permissible

discharge limits, required control technologies, operator

certification, and a wide variety of other requirements

designed to reduce or control air, water, and waste dis-

charges. Civil and criminal sanctions may be imposed if

the various mandates are violated. Government enforce-

ment actions can and do deter companies from violating

paperwork requirements because a party is always sub-

ject to government sanctions for past violations. Such en-

forcement obviously would remain in full force and effect

if the Court agrees with the Sixth Circuit’s reasoning in

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

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

cides that Congress intended to limit private prosecu-

tions to these involving continuing violations.

B. Public, Instead Of Private, Control Over Prosecuto-

rial Discretion Can Encourage Compliance

Enforcement policy is likely to significantly influence

the type and extent of voluntary compliance efforts by

regulated organizations. When the Department of Justice

issued a 1991 guidance statement listing “regular in-

ternal or external compliance and management audits to

7 ee ae eee

- : - =

a

evaluate, detect, prevent, and remedy circumstances such

as those that led to the non-compliance” as a factor

which should influence a prosecutor’s decision as to

whether to seek criminal sanctions against a party in

violation of pollution control laws, it encouraged compa-

nies to conduct such audits. Paul G. Wallach and Dan

Levin, Using Government’s Guidance to Structure a

Compliance Plan, National Law Journal, Aug. 30, 1993.

Private counsel are often of two minds about such

activity. On the one hand, an audit program can help in

enforcement negotiation. On the other, it can provide

evidence of violations which can be the basis of both

government and citizen enforcement actions.

The Department of Justice has in the past expressed

concern about who controls enforcement policy. DOJ

testimony offered during the 1987 consideration of re-

authorization of the Clean Water Act argued that the

flood of private enforcement actions under the Act was

coming dangerously close to producing the result Con-

gress apparently meant to prevent—a shift of control

over enforcement from the government to private parties.

See Michael S. Greve, Private Enforcement, Private

Rewards: How Environmental Citizen Suits Became an

Entitlement Program, in Environmental Politics: Public

Costs, Private Rewards 105, 120 (Praeger Publishers

1992). Those concerns are even more relevant here be-

cause the Seventh Circuit’s decision grants citizen plain-

tiffs the same enforcement authority as the govern-

Current trends in industrial activity and in governmen-

tal policy favor active and voluntary compliance assur-

ance programs. The International Standards Organiza-

—_s

tion (ISO), which creates various standards used as

corporate benchmarks for quality assurance, is in the

process of developing its ISO 14,000 standards series.

These standards encourage companies to go beyond the

letter of the law. Such efforts may require permit and.

reportable violations or previously undiscovered toxic

emissions.

Companies will have little incentive to conduct volun-

tary audits, identify environmental compliance improve-

ment opportunities, update missing paperwork or self-

report environmental violations if citizen groups are

allowed to use these actions as the basis for citizen suits.

If the Court allows the Seventh Circuit’s decision to

stand, or if it interprets EPCRA as authorizing citizen

suits for past paperwork problems, it will discourage

proactive compliance on the part of U.S. industry.

C. Private Prosecutions Favor Dollar Not

Payments,

Paperwork violations, unlike fugitive discharges’ un-

permitted emissions, nonpoint source toxic runoffs, or

deliberate and concealed releases of pollutants into the

environment, are relatively easy to prove. Courts have

held that records compiled and submitted pursuant to

regulatory requirements constitute admissions of punish-

able violations. See, e.g., Sierra Club v. Simkins Indus.,

617 F. Supp. 1120, 1130 (D. Md. 1985), aff'd, 874 F.2d

1109 (4th Cir. 1988), cert. denied, 491 U.S. 904 (1989).

Private enforcement efforts have, in the past, focused on

such paperwork violations, with effective bounties to the

environmental community in the form of settlements

a

containing attorney’s fees at market rates (which may or

rnay not match the actual costs incurred by the citizen

organizations) and “credit projects,” which may finance

ants to local or regional environmental organizations,

grants for land acquisition, or research activity. See

Greve, Private Enforcement, at 109-110.

Private enforcers possess enormous leverage in settle-

ment negotiations. Violations of Sections 312 and 313 are

punishable by civil penalties of up to $25,000 per viola-

tion. Every day that a facility does not comply with the

requirements of these sections is considered a separate

violation. Additionally, Section 312 reports are submitted

to three government agencies, 42 U.S.C. § 11022(aX 1),

and Section 313 reports to two, 42 U.S.C. § 11023(a).

EPA considers each agency not reported to a separate

violation so that an overlooked report is more than one

violation. EPA penalty policies assess a base amount for

the first day of violation determined by statutorily

mandated factors, including the seriousness of the vio-

lation, the size of the violator, the quantity of toxic

chemicals used, prior history of violations, the violator’s

“attitude,” ability to pay, and other factors. This base

amount is assessed for the first day of violation, and sub-

sequent days are also penalized. See Petition for Certio-

rari at A7.

Where an enforcement agency is involved, “attitude”

and the organization’s history of compliance efforts is

relatively easily determined. Other compliance invest-

ments, the reputation and activity of the violator, and

the number and types of violations encountered may be

given great weight in settlement, with future compliance

assurance and prospective later permit and other negoti-

=] j—

ations between the parties always a main focus. Where

a private prosecutor pursues a violation, however, sim-

ilar concerns are not present. The citizen organization

simply has no economic interest in settling for less than

the maximum possible penalty. See Greve, Private En-

forcement, at 109-113. |

The subject case indicates the injustice of permitting

private, rather than public, prosecutions. According to

EPA’s Section 313 policy, EPA will reduce a penalty by

30% if a party cooperates with EPA and quickly complies

with reporting requirements once it is informed of the

violation. EPA EPCRA Section 313 Penalty Policy (Aug.

10, 1992), at 18. The Steel Company’s quick compliance

would entitle it to the reduction if the EPA were bringing

an action.

On the other hand, when a private prosecutor sends a

notice of intent to sue, parties who do not settle quickly

on the prosecuting group’s terms and choose to defend

their rights are likely to face increased settlement de-

mands. The tactics of Citizens for a Better Environment

(CBE) illustrate how these “citizen” groups operate. The

day after the Seventh Circuit announced its decision,

CBE sent letters to several companies which had earlier

received CBE notices of intent to sue. CBE threatened to

file suit unless the companies made “acceptable” settle-

ment offers “taking into account your attitude of failing

to settle earlier . . . along with CBE’s increased costs.”

CBE July 24, 1996 Correspondence at Al-A2. (The com-

pany’s and its attorney's names have been deleted be-

cause several companies have either been sued or are in

settlement negotiations with CBE.)

=

The Seventh Circuit was obviously mistaken that

Congress intended the 60-day notice period to allow “a

would-be champion to try negotiation before litigation.”

Petition for Certiorari at Al4 (citation omitted). To the

contrary, there is no arm’s length negotiation in an

EPCRA citizen action, and citizen groups use the notice

period to attempt to intimidate parties into generous

settlements. The Court should consider the economic

incentives and motives which apply to private prosecu-

tions, and limit their scope to no more than what Con-

gress specifically intended.

IL.

PRIVATE ACTIONS ARE LIMITED BY PUBLIC POLI-

CIES EXPRESSED IN FEDERAL AND STATE STAT-

UTES

A. Modern Environmental Statutes Show Congres-

sional Concern With The Possible Abuse Of Citizen

Suit Authority

As Petitioner details, Congress has permitted and the

Court has upheld limited private prosecutions under

various federal environmental statutes. Petition for Cer-

tiorari at 8, 19-20. Commentators have noted that the

legislative histories of these statutes “indicate some con-

gressional caution about giving private parties the power

to enforce regulatory statutes.” Barry Boyer and Errol

Meidinger, Privatizing Regulatory Enforcement, 34 Buff.

L. Rev. 833, 846 (1985). Explicit limitations on citizen

suits include provisions directing fines to the U.S. Trea-

sury, and not to citizen plaintiffs. See Greve, Private

Enforcement, at 106. Whatever the practical results (and

commentators like Mr. Greve have argued that the set-

— SS

tlement process in citizen suits already provides a nonap-

propriated entitlement program for the environmental

movement), it is clear that Congress can and has estab-

lished a policy of limitation of private activity in and

profit from environmental enforcement action. In Gwalt-

ney v. Chesapeake Bay Found., Inc., 484 U.S. 49, 60

(1987), thie Court noted that:

If citizens could file suit, months or years later, in

order to seek the civil penalties that the Administra-

tor chose to forgo, then the Administrator's discretion

to enforce the Act in the public interest would be cur-

tailed considerably. The same might be said of state

authorities. Respondents’ interpretation of the scope

of citizen suit would change the nature of the citi-

zen’s role from interstitial to poten intrusive.

Se ee such a re-

The same concerns that this Court had with citizen

suits for past Clean Water Act violations are present in

EPCRA actions. Citizen plaintiffs should not be permit-

ted to file suit for past violations that EPA chose to

resolve with little or no penalty. The Court should take

this case to determine whether the concerns it had re-

garding the Clean Water Act control here as they did in

Gwaltney.

B. Congress Did Not Choose To Permit Citizen Suits

For Past Violations Of EPCRA

Respondents below suggested, and the Seventh Circuit

agreed, that Congress’s inclusion of a 60-day notice

period, along with explicit permission for citizen suits for

some past violations, in the Clean Air Act Amendments

litt

of 1990, 42 U.S.C. § 7604(a), means that a court should

hold that citizens should be able to sue for past EPCRA

violations even without such explicit permission. Petition

for Certiorari at Al3. Leaving aside the constitutional

question of citizen standing to sue for past violations

even with such explicit permission, Petition for Certiorari

at 16-19, the legal argument suggested is inconsistent

with ordinary principles of statutory interpretation. The

first question is, of course, whether an amendment to a

statute on a different subject (Clean Air) would have any

effect on one concerned with emergency planning. Absent

any explicit cross-reference, or specific repeal, the usual

principle of common law, that the law does not favor

repeal or amendment of an older statute by a newer one

by mere implication, applies. See, e.g., United States v.

Fausto, 484 U.S. 439, 453 (1988). This Court decided ear-

ly that repeal or amendment by implication is possible

only if it arises out of a clear repugnancy between two

laws, and that the newer law abrogates the older only to

the extent that it is inconsistent and irreconcilable with

it. Chew Heong v. United States, 112 U.S. 535, 549

(1884); Wood v. United States, 16 Pet. 342, 362-63, 10 L.

Ed. 987, 995 (1842).

No amendment by implication is possible here. Con-

gress could have chosen to amend all environmental

statutes to explicitly permit suits for past violations after

this Court’s Gwaltney decision. It did not do so. It could,

and did, insert explicit permission for suits for some past

violations in the Clean Air Act Amendments of 1990.

Absent such explicit permission, the 60-day notice re-

quirement of EPCRA should be given the meaning in-

tended by Congress and determined by the Court in

— =

Gwaltney. The Seventh Circuit should be directed to con-

form its interpretation to that of the Court, and of Con-

gress.

C. Hlinois Law Favors And Efforts To

pes dal he

If the Court decides that federal law permits private

enforcement even when a paperwork violation has been

cured and despite a 60-day notice period, it will ignore

the policy implications of recent Illinois law. The Illinois

General Assembly recognized that the failure to report

under EPCRA is not as serious as other environmental

violations and therefore amended the Illinois Environ-

mental Protection Act to require the Illinois EPA to give

a party 30 days’ opportunity to bring EPCRA paperwork

into compliance. 415 ILCS 5/25b-6, eff. Jan. 1, 1994. The

Illinois legislature has not provided a similar grace

period if actual harm to the environment such as con-

tamination to the air, water, or land is involved. As a

matter of public policy, private prosecutors should not be

given more opportunity to enforce EPCRA than the State

of Illinois chooses to permit itself.

A careful limitation of citizen prosecutions to instances

where significant or continuing harm to the public is

likely is a rational choice, and serves important public

policy interests. Petitioner has suggested that Congress

intended such a limitation in 42 U.S.C. § 11046, a posi-

tion the Sixth Circuit has endorsed. The Court should

=_— Ss

grant the Petition for a Writ of Certiorari, overrule the

Seventh Circuit, and restore the appropriate interpreta-

tion.

i

{

:

;

i

|

{

:

ert.

i

:

i

|

Al

APPENDIX

HUNDLEY & BRUSSLAN

JOHN T. HUNDLEY sii tile dollicee Heetiean Telephone (312) 427-3777

JAMES D. BRUSSLAN Suite 1320 Facsimile (312) 427-7236

Chicago, [linois 60604-2212

July 24, 1996

VIA FACSIMILE

(COMPANY'S ATTORNEY]

Re: Fecra Violations by [COMPANY]

Dear [COMPANY'S ATTORNEY):

This letter relates to (COMPANY'S) EPCRA violations

J

P

-

¢

#

4

a

*

.

{

|

‘

A2

into account your attitude of failing to settle earlier (and

failing to improve the environment by promptly initiating

a Supplemental Environmental Project), along with

CBE’s increased costs, we will take action on or before

August 7, 1996. In such case, penalties will go to the

US. Treasury.

Sincerely,

/s/

James D. Brusslan

JDB/Ak

cc: Stefan A. Noe

Pe STE REPEAL, Leh ee Ta ee, Pe Ee ee dee fe