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

Supreme Court brief1998

Ask Donna

What actually matters in this document.

Text

No. 96-643 ” Ss

a CLERK

Bupreme Court, U.S.

FILED

i297

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 Writ Of Certiorari To The

United States Court Of Appeals

For The Seventh Circuit

BRIEF FOR THE PETITIONER

SANFORD M. STEIN

Counsel of Record

Leo P. Domsrowsk!

WILDMAN, Harro.p, ALLEN & Dixon

225 West Wacker Drive

Chicago, IL 60606-1229

(312) 201-2000

Counsel for Petitioner

COCKLE LAW BRIEF PRINTING CO., 225-6964

OR CALL COLLECT (402)

————

QUESTION PRESENTED

Whether, in enacting the citizen suit provision of the

Emergency Planning and Community Right-to-Know Act

(EPCRA), 42 U.S.C. § 11046, Congress intended to autho-

rize citizens to seek penalties for violations that were

cured before the citizen suit was filed, thereby granting

EPCRA citizen suit plaintiffs greater enforcement author-

ity than that granted to citizen suit plaintiffs under other

federal environmental statutes.

STATEMENT PURSUANT TO RULE 29.6

The Steel Company, a corporation, has no parent

companies or non-wholly owned subsidiaries.

TABLE OF CONTENTS

Page

QUESTION PRESENTED. ................0ccceesees i

RULE 29.6 STATEMENT .................000eeeeee: ii

TABLE OF AUTHORITIES ...............0000-cueee v

i cctanatecascsasncaeecesseccccces 1

i iscsedcedtecncceecdsccncescececcceces 1

STATUTORY PROVISIONS INVOLVED............. 1

STATEMENT OF THE CASE..................00055 3

A. The Structure of EPCRA...................5. 5

Be PIs ccc ceccccccccccccccscccces 8

SUMMARY OF ARGUMENT...................0055 11

GE 60 detdtedccccsccccocccccsccccecccccess 14

I. THIS COURT’S INTERPRETATION OF THE

CITIZEN SUIT NOTICE PROVISION,

EPCRA’S LANGUAGE, AND LEGISLATIVE

HISTORY SHOW THAT CONGRESS DID

NOT INTEND TO AUTHORIZE CITIZENS

TO SUE FOR PAST VIOLATIONS........... 14

A. This Court Has Held That Congress Pro-

vided a Notice Period in Environmental Cit-

izen Suits to Prompt Either Voluntary

Compliance or Government Enforcement... 14

B. The Seventh Circuit Elevated Citizen

Plaintiffs to an Enforcement Level Equal

to That of EPA, a Result Congress Clearly

is. lone ceas 6 6asbusededeete 20

TABLE OF CONTENTS - Continued

Page

C. The Seventh Circuit Ignored the Sim-

ilari<ies: Between EPCRA and Other Envi-

ronme.atal Citizen Suit Provisions .......

D. The Seventh Circuit Failed to Appreciate

the Differences Between the Clean Water

Act, Which Regulates Contamination, and

EPCRA, Which Is Solely a Reporting Stat-

WOR. cccccccccccccccccccsccccccsesceeeces

Il. PRINCIPLES OF STATUTORY CONSTRUC-

TION COMPEL THE CONCLUSION THAT

CONGRESS DID NOT INTEND TO AUTHO-

RIZE CITIZEN SUITS FOR PAST EPCRA VIO-

Ill. CBE LACKS ARTICLE III STANDING TO SUE

FOR PAST EPCRA VIOLATIONS............

A. CBE Cannot Establish an Injury-in-Fact

Because The Steel C y Was in Com-

pliance with EPCRA CBE Filed Its

COMPOMIRR. . cc cccccccepeccccccccescccce

B. Payment of Penalties to the U.S. Treasury

or an Award of CBE’s Fees Does Not Sat-

isfy Article III's Redressability Require-

IV. COMPLYING WITH EPCRA TAKES MUCH

MORE THAN A “MINIMAL EFFORT” ......

V. NOTHING INDICATES THAT CONGRESS

INTENDED CITIZENS TO HAVE

——

TABLE OF AUTHORITIES

Page

Cases

Adair v. Troy State Univ., 892 F. Supp. 1401 (M.D.

GED, GER ho decdccevestdsccccccssocccccteccscccce: 20

Atlantic States Legal Found., Inc. v. Buffalo Envelope

Co., 823 F. Supp. 1065 (W.D.N.Y. rrr 40

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

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

Bennett v. Spear, 65 U.S.L.W. 4201 (March 19, 1997) .... 35

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

SE GEE GD MEE cs cvecececccccesccccescescccess 26

Connecticut Coastal Fishermen's Ass'n v. Remington

Arms Co., Inc., 989 F.2d 1305 (2d Cir. 1993) ....... 26

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

1991), rev'd in part on other grounds, 505 U.S. 557

ER ee ce ae 19

of Wildlife v. Hodel, 851 F.2d 1035 (8th Cir.

1988), rev'd sub nom. Lujan v. Defenders of Wild-

life, 504 U.S. 555 (1992)... pebSeccccsecsecscovesccodes 41

Delaware Valley Toxics Coalition v. Kurz-Hastings,

Inc., 813 F. Supp. 1132 (E.D. Pa. 1993)............ 41

Diamond v. Charles, 476 U.S. 54 (1986)............... 38

Don't Waste Arizona v. McLane Foods, Inc., 950 F.

SE Geer Gee GEN) Bee cncesececcccceccccccccce 40

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

i cchabansseadaesadbdauleddbnénnenesnovess passim

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

1987), aff'd, 493 US. 20 (1989) .................2.. 18

TABLE OF AUTHORITIES - Continued

Page

Hallstrom v. Tillamook County, 493 U.S. 20

Pe Terre ree 12, 14, 15, 17, 19, 25

Handy Bros. Body Shop, Inc. v. State Farm Mut. Auto.

Ins. Co., 848 F. Supp. 1276 (S.D. Miss. 1994)....... 30

Healy v. Ratta, 292 U.S. 263 (1934)............6cceees 30

Lessee of Brewer v. Blougher, 39 U.S. (14 Peters) 178

GREED ccc coscucesecacovesenscedsnceanesssnsesconcs 30

Lewis Continental Bank v. Lewis, 494 U.S. 472 (1990) .... 38

Los Angeles v. Lyons, 461 U.S. 95 (1983).............. 36

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

sccvevceneseseesenscesencessassncenses 11, 34, 35, 38, 41

Maine v. Taylor, 477 U.S. 131 (1986) ................. 37

Marbury v. Madison, 5 U.S. (1 Cranch) 137, 2 L.Ed.

GD GD oceccccccncccnccccsssccssecccsépececesoes 35

Middlesex County Sewerage Auth. v. National Sea

Clammers Ass'n, 453 U.S. 1 (1981).............. 33, 36

Moreco Energy, Inc. v. Penberthy-Houdaille, 682 F.

Supp. SSE (UD. TE. 19GB)... 2. ccccccccccccccccccce 26

National Oilseed Processors Ass'n v. Browner, 924 F.

SE. BED GE BONED cv ccccccvcsdcccsvcesscces 28

Satterfield v. |.M. Huber Corp., 888 F. Supp. 1561

Eee GE, Be ceces cccccescsecevessescccceccces: 17

Sierra Club v. Morton, 405 U.S. 727 (1972) ........... 29

Simon v. Eastern Ky. Welfare Rights Org., 426 U.S. 26

GIIGED 0 ccvcvessccsccdvevcenetsssodocescocccecceses 35

Sosna v. lowa, 419 U.S. 393 (1974) ...............54.. 36

Sure-Tan, Inc. v. NLRB, 467 U.S. 883 (1984) .......... 37

vii

TABLE OF AUTHORITIES - Continued

SIN. ite ie AAR ANAT BEAL ELIT 44

Valley Forge Christian College v. Americans United

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

tt en ckcccndpadsdsnnnnksenneehsehescedsecs 34, 35

Victory Carriers, Inc. v. Law, 404 U.S. 202 (1971) ..... 30

Warth v. Seldin, 422 U.S. 490 (1975) .............. 35, 40

CONSTITUTIONAL PROVISIONS

U.S. Constitution, Art. II], § 2, Cl. 1

WTTTTTITITITITITITT TTT passim

STATUTES

Federal Insecticide, Fungicide, and Rodenticide Act,

F PR, Be Bec ccccccccccceccccvcccccsescce 14

Toxic Substances Control Act,

Be ee ED cccccccccsccsccocscscoescoss 26, 29

Endangered Species Act,

BS WBE. © BODIED o cccccccccccccccccccccccccscees 29

BD ie icccccccccccccccccccccccccesesecvcces 44

BD TE, © FD cc ccscccccccccvcccsccscesccsoscess 1

Clean Water Act,

BD BG. © BeBe ccccccccccccccccccsnes 15, 19, 22, 31

Resource Conservation and Recov Act,

GB He © Getic ccc cccccccccceccescces 15, 19, 26, 29

Clean Air Act,

GB BR © Pie O ccc ccccsccscccccscss 16, 17, 20, 29, 41

viii

TABLE OF AUTHORITIES - Continued

Page

Comprehensive L ene Response, Compensation

and Liability A

42 U.S.C. § 9659 TOTTI TTT OTT TTT TTC eT 26, 29

ee Planning and Community Right-to-Know Act,

§ 11004(a) pebanecdeaasadseesedeédeeavens 34

GE ls Be a odscortcbisvccecadecnacetes 1, 2, 6

ff 4 § SEES r reset 2, 6, 7, 32

42 U.S.C. § 11045(c) ............. ishpendiesauedeoen 7

BB GK © Foc cccvesccvvcccccccscscccesss passim

Pollution Prevention Act of 1990,

GP Gee AP EE vo case cdtcsacocccaccocccesceess 7

SS Fe Se ED ch co cencensoncasccecoceansoncs 7, 18

Pub. L. No. 101-549, 104 Stat. 2399, 2682 (codified

GD Ge Gis Oe Pn hedcostcddce cilecdicioncs 16, 41

Federal Rule of Civil Procedure 12(b)(1).............. y

Federal Rule of Civil Procedure 12(b)(6).............. 9

REGULATIONS

Ge Oe ie as caccdecdeccnvcccoencencesene 43

SP ey Oe Se oe déctedetedcdcécctissebssiseesitas 6

Leciscative History

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

reprinted in 1972 U.S.C.C.A.N. 3776 .........22445. 29

TABLE OF AUTHORITIES - Continued

Page

H.R. Rep. No. 1146, 91st Cong., 2d Sess. (1970),

reprinted in 1970 U.S.C.C.A.N. 5356 .........00005. 20

S. Rep. No. 414, 92d Cong., 2d Sess. (1972),

reprinted in 1972 U.S.C.C.A.N. 3668 ..........6.05.. 19

Statement by President George Bush Upon Sign-

ing S. 1630 (Clean Air Act Amendments of

1990), reprinted in 1990 U.S.C.C.A.N. 3887-1....... 41

MISCELLANEOUS

61 Fed. Reg. 33588 (June 27, 1996) .............0005. 42

61 Fed. Reg. 38600 (July 25, 1996)..............0000 6

61 Fed. Reg. 67017 (Dec. 19, 1996) ............000eeee 6

Black’s Law Dictionary 534 (5th Ed. 1979)........... 33

Barry Boyer & Errol Meidinger, Privatizing Regula-

tory Enforcement, 34 Buff. L. Rev. 833 (1985)....... 14

Brief of the United States as Amicus Curiae Sup-

porting Affirmance, Gwaltney, 484 U.S. 49 (1987) .... 39

Confusion About EPCRA Rule Acknowledged, Chem.

Reg. Rep. (BNA), Aug. 17, 1990 ............00005. 43

EPA EPCRA Section 312 Penalty Policy (June 13,

Tah geal Spi 9, 24, 44

(aa a oR eRtane aN RT AE A ..9, 24, 44

EPA Eyes Changes to EPCRA Regulations to Clarify

“Gray Areas,” Increase Compliance, Toxics Law

Rep. (BNA), March 9, 1994 ...........60eeceeeeeee 43

TABLE OF AUTHORITIES - Continued

General Accounting Office, EPA’s Toxic Release

Inventory Is Useful But Can Be Improved, (June

BOVE) GEREPF Ea? DEPERE occ ccccccaccescsescess

Michael S. Greve, The Private Enforcement of Envi-

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

Nonprofits Cashing In on Lawsuits, The Business

Journal-Phoenix, June 21, 1996................4.

Title III List of Lists: Consolidated List of Chemicals

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

Michael J. Walker & Jon D. Jacobs, EPCRA Citizens

Suits: An Evolving Opus with a Discordant Note,

The Journal of Environmental Law & Practice,

DL SE GEE ob 660 baneebevetevestass eeeubouns:

Page

OPINIONS BELOW

The opinion of the Court of Appeals for the Seventh

Circuit (Pet. App. Al-A15) is reported at 90 F.3d 1237.

The opinion of the United States District Court for the

Northern District of Illinois (Pet. App. A17-A26) is

reported at 42 Env’t Rep. Cases (BNA) 1186.

JURISDICTION

The judgment of the Seventh Circuit Court of

Appeals was entered on July 23, 1996. Petitioner invoked

the jurisdiction of this Court under 28 U.S.C. § 1254(1) in

a Petition filed on October 21, 1996. This Court granted

the Petition on February 24, 1997.

STATUTORY PROVISIONS INVOLVED

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

pertinent part:

(a)(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 fail-

ure to do any of the following:

* * *

(iii) Complete and submit an inventory

form under section 11022(a) of this title

containing tier I information as described

in section 11022(d)(1) of this title unless

such requirement does not apply by reason

of the second sentence of section

11022(a)(2) of this title.

(iv) Complete and submit a toxic chemi-

cal release form under section 11023(a) of

this title.

* * *

(b)(1) Any action under subsection (a) of this sec-

tion against an owner or operator of a facility shall be

brought in the district court for the district in which the

alleged violation occurred.

7. *. *

actions 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 violation of that requirement.

* * *

(d)(1) No action may be commenced under subsec-

tion (a)(1)(A) of this section prior to 60 days after the

plaintiff has given notice of the alleged violation to the

Administrator, 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 dili-

gently pursuing an administrative order or civil action to

enforce the requirement concerned or to impose a civil

penalty under this chapter with respect to the violation of

the requirement.

STATEMENT OF THE CASE

Petitioner The Steel Company is a small, minority-

owned steel pickler and reduction mill located on the

industrial southeast side of Chicago. It has about 55

employees and has been in business since 1971. The Steel

Company is regulated by several air, water, hazardous

waste, and other environmental requirements. Upon

beginning its operations and regularly since then, The

Steel Company has been inspected by federal, state and

local regulatory agencies. It has willingly complied with

these numerous and appropriate requirements, and yet,

despite all of this regulatory activity, it remained uninfor-

med that in addition it must file forms under EPCRA.

Upon notice, it quickly responded, filing past and current

forms, and since then has remained in timely compliance.

Moreover, much of the information required by

EPCRA is reported to government agencies in other

forms. For example, in 1991, The Steel Company submit-

ted a Chemical Safety Contingency Plan to the Chicago

Fire Department, Chicago Police Department and two

local hospitals detailing the chemicals present at the facil-

ity and their chemical properties and locations.’

The Steel Company’s main process is steel pickling,

which is a finishing operation that removes scale and rust

1 A copy of relevant excerpts of the Contingency Plan has

been lodged with the Court.

from steel coils to ensure uniform shape and provide a

surface that is easily coated or further processed. “Scale”

is a black or gray coating of oxide which forms on steel as

it cools. Rust is a reddish brittle coating formed on steel

as it is attacked by moist air over time.

Steel coils are first unwound and then pulled through

a series of sealed tanks containing diluted hydrochloric

acid or “pickle liquor.” The acid bath removes the scale

and rust, which dissolve in the pickling tanks. The spent

pickle liquor is shipped off-site, according to applicable

regulations, by licensed transporters to licensed facilities

and then recycled in other processes. For example,

municipalities use The Steel Company’s spent liquor in

their wastewater plants to treat sewage. Industry also

recycles the spent liquor as a raw material to make iron

oxide, which is used as a coating for audio, video and

computer tapes.

After passing through the picklirig tanks, the steel is

washed with high-pressure rinse water sprays to remove

any remaining acid and is then air-dried. Most of the

rinse water is recycled back into the pickling tanks.

Excess rinse water is collected in a holding tank and

treated on-site to adjust the pH factor and to remove

dissolved and undissolved solids in accordance with

applicable regulations. Only the neutralized and cleaned

water is discharged to the local Chicago water treatment

works. Over 95 percent of The Steel Company’s waste

hydrochloric acid and waste rinse water is either recycled

off-site or treated on-site. See The Steel Company’s

1992-95 Form Rs at p. 9, attached to its Reply Memoran-

dum in Support of Motion to Dismiss at Exh. B.

A. The Purpose and Structure of EPCRA

In 1986, in response to several chemical releases,

including the tragedy in Bhopal, India and other smaller

incidents in the United States, Congress enacted EPCRA,

which includes certain reporting requirements for indus-

trial facilities. Pet. App. A2. Congress was reacting to a

perceived lack of reliable and accessible information

regarding the location and use of chemicals, and passed

EPCRA to fill “this informational void and improv{[e]

emergency response capabilities.” Id. The main purposes

of EPCRA are thus twofold: 1) to compile information 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 emer-

gency response plans to react to accidental releases of

chemicals. Id. A2-A4. Although Congress realized that

much of industry’s chemical data was already available to

the public, it also knew that the information was listed on

several different forms and located in different places.

Congress thus recognized a need to have the information

readily available to the public in a comprehensible form.?

Id. A3.

While it is difficult to measure EPCRA’s effect on

industry behavior (EPCRA requires no emission controls

or reductions), some claim that EPCRA’s “public release

2 While the Seventh Circuit rightly noted that “most of the

required information must be compiled and reported for other

purposes,” it was severely mistaken that “the cost of compliance

with EPCRA’s reporting requirements is low.” Pet. App. A4. See,

e.g., Amicus Brief of Chemical Manufacturers Association in

Support of Petitioner regarding costs and burdens of EPCRA

reporting.

of information about discharge of toxic chemicals has by

itself spurred competition to reduce releases, quite inde-

pendently of government regulation.” Id. A2 (citation

omitted). Notwithstanding the public’s increased aware-

ness of chemical use, other factors also play a role in

influencing industry. The United States Environmental

Protection Agency (EPA) acknowledges that financial

incentives, in addition to EPCRA’s reporting obligations,

motivate industry to reduce its emissions. 61 Fed. Reg.

38600, 38602 (July 25, 1996). Whatever its role, EPCRA

has contributed to the significant improvement in the

nation’s environmental quality over the past decade.

Of the six EPCRA reporting requirements applicable

to industry, two are at issue here. Section 312 requires

certain facilities to submit inventory forms, which pro-

vide 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 by March 1 of the

following year. 42 U.S.C. § 11022(a). Approximately

870,000 facilities are required to report under Section 312.

61 Fed. Reg. 67017, 67018 (Dec. 19, 1996).

Section 313 requires certain manufacturing facilities

using any of approximately 650 specified “toxic chemi-

cals” to submit forms which provide information about

the amount of those chemicals at a facility and their

release, if any, into the environment, including allowable

releases authorized by agency permits or licensed dis-

posal facilities. Section 313 forms are submitted to the

EPA and a designated state official. 42 U.S.C. §§ 11023(a),

11023(g). EPA has created the “Form R” as its uniform

chemical release form, 40 C.F.R § 372.85, which for a

given calendar year is due by July 1 of the following year.

42 U.S.C. § 11023(a). Approximately 30,000 facilities are

required to file Form Rs. EPA’s Toxic Release Inventory Is

Useful but Can Be Improved, at 49 (June 1991) GAO/RCED

91-121.

In expanding EPCRA’s reporting requirements in

1990, Congress declared that “the national policy of the

United States [is] that pollution should be prevented or

reduced at the source whenever feasible.” 42 U.S.C.

§ 13101(b). As part of the strategy to promote source

reduction, Congress required facilities subject to Section

313 to include “a toxic chemical source reduction and

recycling report” in their annual filings. Id. at § 13106(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 each violation. 42 U.S.C. § 11045(c)(1 & 3). EPA may

seek penalties either in an administrative action or in

federal court. Id. at § 11045(c)(4).

EPCRA authorizes citizens to sue regarding four of

the six reporting requirements. In pertinent part, EPCRA

provides that “any person may commence a civil action

on his own behalf against . . . an owner or operator of a

facility for failure to . . . [clomplete and submit an inven-

tory form under section [312] [or] a toxic chemical release

form under section [313]... .” Id. at § 11046(a)(1)(A)(iii &

iv). A would-be citizen plaintiff is first required to pro-

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

the alleged violator, and must wait at least 60 days before

filing suit. Id. at § 11046(d)(1). If EPA elects to pursue the

violator administratively or in court, however, the citizen

is barred from duplicating that effort and may not file

suit. Id. at § 11046(e). Although EPCRA’s legislative his-

tory is silent on the purpose of the notice period, in

examining the citizen suit notice provision of the Clean

Water Act (CWA), this Court found that one purpose of

the notice was to allow the violator an opportunity to

come into compliance, thus rendering a citizen suit

unnecessary. Gwaltney v. Chesapeake Bay Found., Inc., 484

U.S. 49, 60 (1987).

In presiding over a citizen suit, a district court has

jurisdiction “to enforce the requirement 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 attorneys’ fees, “to the pre-

vailing or substantially prevailing party whenever the

court determines such an award is appropriate.” Id. at

§ 11046(f).

B. Proceedings Below

On March 16, 1995, Citizens for a Better Environment

(CBE) sent to the EPA, Illinois Environmental Protection

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

Sections 312 and 313. Up to that point, The Steel Com-

pany was uninformed about EPCRA. Upon receiving the

notice, The Steel Company tasked its environmental con-

sultant and attorneys to investigate EPCRA’s require-

ments, and on May 1, 1995, before the 60-day notice

period had expired, it submitted Sections 312 and 313

forms for all reporting years to the EPA, IEPA, the Illinois

3 The Seventh Circuit noted that, “Many industrial

facilities subject to the Act remained unaware of its existence

long after it went into effect.” Pet. App. A2 (citation omitted).

Emergency Management Agency, and the Chicago Fire

Department. J.A. 17-18; Pet. App. A19, A25.

Notwithstanding The Steel Company’s compliance

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

suit. CBE alleged only past EPCRA violations, and, signif-

icantly, did not seek injunctive relief ordering The Steel

Company to comply with EPCRA, as compliance had

already been achieved. J.A. 11; Pet. App. A19, A25. While

The Steel Company’s omissions amounted to a failure to

submit the inventory form once each year for eight years

for three chemicals and the Form R once each year for

seven years for one chemical, CBE calculated these omis-

sions as multiple and daily, amounting to 21,500 viola-

tions. At $25,000 per day for each violation, CBE

requested penalties of over $537 million.* J.A. 8-11.

The Steel Company filed a motion to dismiss pur-

suant to Federal Rules of Civil Procedure 12(b)(1) and

12(b)(6) arguing that there was no Article III case or

controversy and also that Sixth Circuit and Supreme

Court precedent barred the action. J.A. 18. Relying on the

Sixth Circuit’s opinion 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:

* In contrast, EPA’s Penalty Policies treat first-time

violations as “one-day” violations. EPA assesses “per day”

penalties only in cases of egregious violators, such as those who

were previously the subject of an EPA enforcement action. EPA

Section 312 Penalty Policy (June 13, 1990) at 8, 20-21. EPA

Section 313 Penalty Policy (Aug. 10, 1992) at 11, 13-14.

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 submit” language of that section, along

with the purpose of the notice provision 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 agencies 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 com-

plaint; 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 dismisses the Complaint.

Pet. App. A24-A26 (footnotes omitted).

The district court noted the Sixth Circuit found sup-

port for its decision in Gwaltney where this Court held

that one purpose of the 60-day non-adversarial notice

period is to allow the alleged violator an opportunity to

come into compliance. Pet. App. A23-A24. This Court

also found that allowing citizen suits for past violations

would undermine EPA’s enforcement discretion.

Gwaltney, 484 U.S. at 60-61.

CBE appealed the judgment of the district court to

the Seventh Circuit Court of Appeals, and on July 23,

1996, the Seventh Circuit reversed. The Seventh Circuit

chose not to follow United Musical or Gwaltney. With

respect to United Musical, the Seventh Circuit squarely

disagreed. With respect to Gwaltney, the Seventh Circuit

chose to focus on a difference in statutory wording to

conclude that Congress must have intended EPCRA citi-

zen plaintiffs to sue for past violations: while the CWA

authorizes citizens to sue a facility “alleged to be in

violation” of its permit or other requirement, EPCRA

authorizes citizens to sue “for failure to” comply with

certain reporting requirements. Pet. App. All.

The court also did not follow this Court's reasoning

that one purpose of the 60-day notice period is to allow

an alleged violator an opportunity to come into compli-

ance, nor did it elect to examine Congress’s reasons for

establishing the notice period. Id. A13. The court appar-

ently dismissed this Court’s reasoning in Gwaltney on the

sole ground that because Congress amended the Clean

Air Act (CAA) in 1990 to permit citizen suits for some

past violations, yet left the notice provision intact, Con-

gress must have intended to remove the opportunity to

come into compliance from all environmental statutes. Id.

The Seventh Circuit also failed to recognize that citizens

do not have Article III standing to sue for past violations,

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

484 U.S. at 70 (Scalia, J., concurring), and that Congress

modeled EPCRA’s citizen suit provision after long-stand-

ing principles found in all environmental citizen suit

provisions, and thus could not have intended to have

EPCRA’s provision operate differently from those of

other, previously enacted, statutes.

SUMMARY OF ARGUMENT

This Court has previously found that one purpose of

the 60-day environmental citizen notice period is to allow

an alleged violator an opportunity to come into compli-

ance, thus rendering a citizen suit unnecessary. Hallstrom

v. Tillamook County, 493 U.S. 20 (1989); Gwaltney, 484 U.S.

49. EPCRA’s notice provision is identical to those already

examined by this Court, and should be accorded the same

purpose. Interpreting the citizen suit provision as allow-

ing an opportunity to cure promotes the purposes Con-

gress intended it to serve and is fully supported by the

legislative history of previously enacted statutes upon

which EPCRA is modeled.

Congress intended citizen suits to be a limited sup-

plement to government actions to secure compliance.

EPCRA thus presupposes the existence of an ongoing

violation before a citizen suit may be filed. Allowing

citizens to seek penalties for past violations would also

undermine EPA’s enforcement discretion, a result this

Court did not find warranted under the CWA.

Although EPCRA contains slightly different language

from the CWA and other citizen suit provisions, Congress

gave no indication that EPCRA should be treated any

differently. In the absence of a contrary congressional

intent, Congress should not be presumed to have made a

substantial change from its customary citizen suit model.

A statute conferring jurisdiction on the federal courts

should also be strictly construed, and any doubts

resolved against jurisdiction. Here there are serious

doubts that Congress intended citizens to sue for past

EPCRA violations, and all citizen plaintiffs can highlight

is a slight difference in language and attempt to stretch

that difference into federal jurisdiction.

To invoke the jurisdiction of the federal courts, a

plaintiff also must satisfy the standing requirernents of

Article III of the Constitution. The constitutional limits on

the exercise of federal jurisdiction are founded in concern

about the properly limited role courts should play in a

democratic society. This Court has therefore interpreted

Article III's “case” or “controversy” clause to require a

plaintiff to have a personal stake, and not a “generalized

interest,” in the outcome of a case.

Allowing a citizens group, like CBE, to seek penalties

for wholly past EPCRA violations is an attack on this

basic constitutional principle. The notion that CBE, at the

time it filed its complaint, had an injury that could be

redressed by its requested relief would open the federal

courts to lawsuits this Court has found unwarranted. As

it may not modify or abrogate the “irreducible constitu-

tional minimum” of standing, Congress could not have

intended to authorize citizen groups to sue for past

EPCRA violations.

Ignoring congressional intent and permitting citizen

suits for past EPCRA violations would expand the lim-

ited, supplemental role of citizen suits and flood the

federal courts with an excessive number of citizen suits, a

result Congress clearly sought to avoid. If citizen suits

may be brought for purely past violations, all that a

citizen plaintiff need do is examine EPCRA filings that

were submitted after the annual filing dates and file suit

seeking penalties of $25,000 per day. Because EPCRA is a

strict liability statute, any EPCRA reporting violation,

even if cured, would support federal jurisdiction, and the

citizen group would stand to recover its attorneys’ fees in

what was a lawsuit without any environmental purpose.

The goal of environmental compliance was achieved

when The Steel Company, upon receiving CBE’s notice,

promptly filed its EPCRA forms. This is exactly what

Congress intended in fashioning EPCRA’s citizen suit

provision. EPCRA’s citizen enforcement scheme, like

those of other environmental statutes, allows citizens to

enforce only against those companies that are unable or

unwilling to comply before suit is filed.

ARGUMENT

I. THIS COURT’S INTERPRETATION OF THE CITI-

ZEN SUIT NOTICE PROVISION, EPCRA’S LAN-

GUAGE, AND LEGISLATIVE HISTORY SHOW

THAT CONGRESS DID NOT INTEND TO AUTHO-

RIZE CITIZENS TO SUE FOR PAST VIOLATIONS

A. This Court Has Held That Congress Provided a

Notice Period in Environmental Citizen Suits

to Prompt Either Voluntary Compliance or Gov-

ernment Enforcement

Using the model it created in the CAA Amendments

of 1970, Congress has included a citizen suit provision in

every piece of federal environmental legislation except

one.5 Consequently, the citizen suit provisions in federal

environmental laws resemble each other almost com-

pletely. See Hallstrom, 493 U.S. at 22-23 & n. 1; Barry Boyer

& Errol Meidinger, Privatizing Regulatory Enforcement, 34

Buff. L. Rev. 833, 847-51 (1985).

5 The Federal Insecticide, Fungicide, and Rodenticide Act

does not have a citizen suit provision. 7 U.S.C. §§ 136-136y.

Congress requires a would-be citizen suit plaintiff to

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

in which the alleged violation “occurs,” and the alleged

violator at least 60 days before filing suit. See, e.g., 33

U.S.C. § 1365(b)(1)(A) (CWA), 42 U.S.C. § 6972(b)(1)(A)

(Resource Conservation and Recovery Act (RCRA)). Con-

gress included an identical notice provision in EPCRA,

which likewise requires a citizen to provide “notice of the

alleged violation” to EPA, the state in which the alleged

violation “occurs,” and the alleged violator at least 60

days before filing suit. 42 U.S.C. § 11046(d)(1).

In addition to requiring the would-be plaintiff to wait

until the notice period expires, Congress bars a citizen

suit if the government has already brought an action to

secure compliance. See, e.g., 33 U.S.C. § 1365(b)(1)(B); 42

U.S.C. § 6972(b)(1)(B). Congress likewise included this

restriction in EPCRA, prohibiting a citizen suit if the

government has brought an action to enforce the require-

ment concerned. 42 U.S.C. § 11046(e).

The purpose of the citizen suit notice period is two-

fold: 1) it gives the alleged violator the opportunity to

bring itself into compliance, thus rendering a citizen suit

unnecessary; and 2) it also gives the government the

opportunity to determine whether it should utilize its

own considerable powers to enforce compliance, thus

barring a citizen suit. Hallstrom, 493 U.S. at 29-31 (inter-

preting RCRA’s notice provision); Gwaltney, 484 U.S. at

60-61 (1987) (CWA); United Musical, 61 F.3d at 475-78

(EPCRA). In Gwaltney, this Court examined for the first

time the purposes of the notice provision. Justice Mar-

shall, writing for a unanimous Court, explained:

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 citi-

zen 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.

Gwaltney, 484 U.S. at 60.

The Court bolstered its conclusion by examining the

legislative history behind environmental citizen suits.

Members of Congress characterized the citizen suit provi-

sions as “abatement” or “injunctive” measures, compel-

ling the Court to conclude that Congress intended a

citizen suit to proceed only if there is a continuing viola-

tion, and thus a violation to enjoin. Id. at 61-62. The Court

also noted that the CWA’s citizen suit provision was

modeled after the CAA’s provision which (at the time)

was “wholly injunctive in nature.” Id. at 62.°

In reiterating its Gwaltney reasoning two years later

in a RCRA citizen suit, this Court again sought guidance

from congressional intent and found that “the [CAA’s]

6 In 1972, in passing the CWA’s citizen suit provision,

Congress added the penalty remedy, providing an extra

incentive to industry to comply. Also, in 1990, Congress

amended the CAA to add the penalty remedy. Pub. L. No.

101-549, 104 Stat. 2399, 2682 (codified at 42 U.S.C. § 7604(a)).

Congress knows how to provide citizens with the enforcement

tools it deems warranted.

legislative history indicates an intent to strike a balance

between encouraging citizen enforcement of environmen-

tal 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 acknowl-

edged that Congress intended the notice period to stimu-

late an enforcement action by the government or

compliance by the alleged violator, “thus obviating the

need for citizen suits.” Id.

The Seventh Circuit dismissed Gwaltney solely

because three years after Gwaltney was decided, Congress

amended the CAA “to permit citizen enforcement actions

for past violations, yet left the notice provision intact.”

Pet. App. Al3. This led the Seventh Circuit somehow to

conclude that Gwaltney’s reasoning that the notice provi-

sion operates as an opportunity to cure “is no longer as

compelling as it was when Gwaltney was decided.” Id. But

the Seventh Circuit failed to recognize that Congress

addressed its Gwaltney concerns with limitation. Under

the amended CAA, 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).7 Somehow the

Seventh Circuit discerned in this amendment a wholesale

7 Under this Court’s Article III jurisprudence, as further

explained below, this provision is unconstitutional if it does not

require a continuing violation. In interpreting the amended

CAA, one court has held that “courts will not allow citizens to

file suits based on violations that have been corrected. The

Clean Air Act citizen suit provision is not intended to be a

windfall for plaintiffs. Rather it is intended to encourage and

enforce compliance with environmental regulations.” Satterfield

v. ].M. Huber Corp., 888 F. Supp. 1561, 1565 (N.D. Ga. 1994).

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 Congress did

not amend. Pet. App. A13.

The Sixth Circuit recognized this and reasoned that

“by amending the Clean Air Act, but failing to amend

EPCRA, Congress intended to limit EPCRA’s citizen suit

provision to violations existing at the time the suit is

filed.” United Musical, 61 F.3d at 477. By discussing

Gwaltney, but by amending only in part the CAA, Con-

gress noted its approval of one purpose of the notice

provision: to allow the alleged violator to come into

compliance.®

By providing notice, citizen groups such as CBE

operate as facilitators of congressional intent that EPCRA

reporting requirements be met. Filing a lawsuit, with its

attendant costs for the parties and burdens on the judicial

system, should be a last resort if quick corrective action

does not follow or if government enforcement lags. The

Steel Company’s compliance makes CBE’s action com-

plete and allows CBE to move on with its goal of prompt-

ing (and where necessary enforcing) environmental

compliance. See also Hallstrom v. Tillamook County, 844

F.2d 598, 600-01 (9th Cir. 1987) (“Litigation should be a

8 As noted above, Congress did amend EPCRA in 1990

(three years after Gwaltney) to expand its reporting

requirements, 42 U.S.C. § 13106(a), but did not amend EPCRA’s

citizen suit provision. Had Congress wanted to specify that

Gwaltney's holding did not govern EPCRA, it could have easily

done so in 1990.

last resort only after other efforts have failed.”), aff'd, 493

U.S. 20.

As further evidence that it knew what it was doing

when it established citizen suits, this Court noted that

Congress has eliminated the 60-day waiting period so

that citizens may file suit immediately after providing

notice in certain cases involving potential serious harm to

health and the environment. Hallstrom, 493 U.S. at 30

(citing CAA and CWA, this Court noted that “Congress

has addressed the dangers of delay in certain circum-

stances and made exceptions to the required notice

periods accordingly.”) For example, a citizen is autho-

rized to sue immediately for violations of RCRA’s hazard-

ous waste regulations. 42 U.S.C. § 6972(b). Congress

carved out this exception to the 60-day notice period

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 justifica-

tions of the pre-suit delay periods.” 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).

A citizen also may sue immediately for violations of

the CWA’s national standards of performance. 33 U.S.C.

§ 1365(b). Congress believed that these standards, which

are “designed to assure that new stationary sources of

water pollution are designed, built, equipped, and oper-

ated to minimize the discharge of pollutants, [are] among

the most significant in the legislation.” S. Rep. No. 414,

92d Cong., 2d Sess. (1972), reprinted in 1972 U.S.C.C.A.N.

3668, 3723-24. Congress emphasized that “enforcement of

these [standards] be immediate, that citizens should be

unconstrained to bring these actions, and that the courts

should not hesitate to consider them.” Id., reprinted in

1972 U.S.C.C.A.N. at 3746. Congress also did away with

the 60-day waiting period in actions addressing viola-

tions of the CAA’s hazardous air pollutant requirements.

42 U.S.C. § 7604(b). Congress created this exception

because it believed that emissions of hazardous air pollu-

tants are “extremely hazardous to health” justifying

immediate citizen action. See H.R. Rep. No. 1146, 91st

Cong., 2d Sess. (1970), reprinted in 1970 U.S.C.C.A.N.

5356, 5365; Adair v. Troy State Univ., 892 F. Supp. 1401,

1406-09 (M.D. Ala. 1995) (examining history of excep-

tion).

There may be other instances where one could argue

that Congress should have provided immediate citizen

access to the courts. In passing EPCRA, however, Con-

gress did not choose this readily available option, and

thus indicated that EPCRA’s notice provision should not

be treated differently from those of other environmental

statutes. While Congress believed that the gathering and

submission of information to the government and the

public is important, Congress did not judge EPCRA’s

reporting requirements to be among those warranting

citizen enforcement prior to an opportunity to remedy,

and thus mandated a 60-day notice period with no excep-

tions.

B. The Seventh Circuit Elevated Citizen Plaintiffs

to an Enforcement Level Equal to That of EPA,

a Result Congress Clearly Did Not Intend

The Seventh Circuit 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 government. This Court recognized that allowing citi-

zens to sue for past violations “would create a second

and more disturbing anomaly. The bar on citizen suits

when governmental enforcement action is underway sug-

gests that the citizen suit is meant to supplement rather

than to supplant governmental action.” Gwaltney, 484

U.S. at 60. This Court expressed understandable concern

that citizen suits based on past violations could hamper

the government’s enforcement discretion:

If citizens could file suit, months or years later,

in order to seek the civil penalties that the

Administrator chose to forgo, then the Adminis-

trator’s discretion to enforce the Act in the pub-

lic interest would be curtailed considerably. The

same might be said of the discretion of state

enforcement authorities. Respondents’ inter-

pretation of the scope of the citizen suit would

change the nature of the citizens’ role from

interstitial to potentially intrusive. We cannot

agree that Congress intended such a result.

Id. at 61.

A comparison of the citizen suit provisions of the

CWA and EPCRA compels the conclusion that Congress,

as under the CWA, did not intend to authorize citizen

suits for past EPCRA violations. If an EPCRA citizen suit

is filed, the federal courts have jurisdiction:

to enforce the requirement concerned and to

impose any civil penalty provided for violation

of that requirement.

42 U.S.C. § 11046(c) (emphasis added). The CWA’s citizen

suit provision likewise gives federal courts jurisdiction

“to enforce such an effluent standard . . . and to apply any

appropriate civil penalties... . ” 33 U.S.C. § 1365(a)(2)

(emphasis added). This Court in Gwaltney found this

language compelling, and in holding that Congress did

not intend to authorize citizen suits for past CWA viola-

tions, reasoned:

[CWA’s citizen suit provision] does not autho-

rize civil penalties separately from injunctive

relief; rather, the two forms of relief are refer-

enced to in the same subsection, even in the

same sentence. The citizen suit provision sug-

gests a connection between injunctive relief and

civil penalties that is noticeably absent from the

provision authorizing agency enforcement. A

comparison of [the relevant CWA sections] thus

supports rather than refutes our conclusion that

citizens, unlike the Administrator, may seek

civil penalties only in a suit to enjoin or other-

wise abate an ongoing violation.

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

As in the CWA, EPCRA’s citizen suit provision does

not authorize civil penalties separately from injunctive

relief. In fashioning EPCRA’s citizen suit provision, Con-

gress intended to authorize a citizen to seek civil penal-

ties only in a suit brought to enjoin an ongoing violation.

Because there was no dispute that The Steel Company

was in compliance with EPCRA before the 60-day notice

period expired, the lower court correctly dismissed CBE’s

suit.

The Sixth Circuit was likewise influenced by the dif-

ferences between citizen and EPA enforcement:

This difference between the grants of authority

to the EPA and citizen plaintiffs is significant

because it indicates a congressional intent to

limit citizen suits to g violations and to

ive EPA sole authority to seek penalties for

istorical violations. .. . Al civil penaitics

for purely historical violations may be a

ate in some cases, the congressional scheme

leaves to the EPA, with its broad perspective on

the entire spectrum of enforcement and compli-

ance, discretion to determine those violators

whose conduct warrants such penalties.

United Musical, 61 F.3d at 475, 477.9 Upon receiving CBE’s

notice kctter, EPA learned that The Steel Company was a

potential EPCRA violator, yet it elected not to pursue

penalties. Nothing in EPCRA indicates that Congress

intended private citizens like CBE to usurp EPA’s discre-

tion and pursue penalties on its behalf if the alleged

violator has come into compliance. CBE has nothing to

pursue, the “congressional goal has been achieved, and

an enforcement suit is unnecessary.” Id. at 477.

In Gwaltney, this Court also posed the hypothetical in

which EPA issued a compliance order and agreed not to

assess penalties “on the condition that the violator take

some extreme corrective action” by installing expensive

pollution control equipment. Gwaltney, 484 U.S. at 60-61.

* EPA’s “broad perspective” is important because EPA is

equipped to fully appreciate whether a company otherwise

compliant with environmental laws should be subject to the

steep penalties that EPCRA provides. EPA does not seek

penalties for every EPCRA violation.

The Court found that if a citizen could file suit months or

years later to seek the penalties that EPA chose to forgo,

EPA’s enforcement discretion would be “curtailed consid-

erably.” Id. at 61. This likewise could occur under EPCRA.

EPA recognizes that a party may install equipment or

perform an environmentally beneficial project and pay

either a reduced or no penalty. Section 312 Penalty Policy

at 30 (“[T]he Agency has used its enforcement discretion

to mitigate proposed penalties for some environmentally

beneficial projects proposed and implemented by the

respondent. In applying this penalty policy, this mitiga-

tion is completely discretionary.”); Section 313 Penalty

Policy at 19.

If the lower court is affirmed, however, citizens will

be able to seek those penalties EPA chose to forgo. While

EPCRA provides that a citizen suit is barred if EPA “has

commenced and is diligently pursuing an administrative

order or civil action,” 42 U.S.C. § 11046(e), citizen groups,

if authorized to sue for past violations, will be able to

challenge any settlement arguing that the terms, espe-

cially EPA’s penalty waiver, were too lenient and there-

fore not “diligently pursued.”

10 The United States filed an amicus brief and also argued in

support of CBE’s appeal to the Seventh Circuit. The government

erroneously concluded that “the hypothetical articulated in

Gwaltney could not occur under EPCRA.” If the lower court is

affirmed, nothing in EPCRA will prohibit a citizen group from

paging through thousands of settlements, however old, and

challenging those the group feels are too lenient. The

government failed to appreciate the ramifications of its position

that certainly could lead to litigation over past EPCRA

violations that the settling parties, including EPA, never could

have imagined would later be subject to challenge.

ee Am

C. The Seventh Circuit Ignored the Similarities

Between EPCRA and Other Environmental Citi-

zen Suit Provisions

The Seventh Circuit erroneously concluded that

EPCRA’s citizen suit provision points to past - . ‘ations.

Pet. App. All-A13. The court of appeals sought to distin-

guish Gwaltney, but its efforts to do so - particularly its

side-by-side comparison of the language of EPCRA’s and

the CWA’s citizen enforcement provisions - are uncon-

vincing.

The court failed to acknowledge that Congress was

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

citizen suit provision. Using the model it created in 1970

under the CAA, Congress has inserted a citizen suit pro-

vision in almost 20 federal environmental statutes,

including EPCRA. As noted above, like other environ-

mental citizen suit provisions, Hallstrom, 493 U.S. at 22-23

& n.1, EPCRA requires a would-be citizen plaintiff to

provide notice of the alleged violation. EPCRA likewise

bars a citizen suit if the government elects to enforce.

Further, EPCRA, like these other laws, provides for fed-

eral court jurisdiction without regard to the citizenship of

parties or the amount in controversy, authorizes awards

of attorneys’ and expert witness fees, and allows inter-

vention by the government and interested parties.

EPCRA’s provisions are thus nearly identical to that of

other federal environmental citizen suit provisions.

Ignoring these similarities, the Seventh Circuit erred

significantly in its interpretation of EPCRA’s venue and

notice provisions. The court rightly noted that the use of

the present tense in the CWA helped convince this Court

that Congress did not intend to allow citizens to sue for

past violations. Pet. App. A12-A13. However, the Seventh

Circuit erroneously found that EPCRA must be different

because “the enforcement provisions of EPCRA are not

likewise cast in the present tense.” Id. A13.

The Seventh Circuit first 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.” Id. A13 (emphasis in original). But the

Seventh Circuit ignored Congress’s use of this exact lan-

guage in the venue provisions of RCRA, the Comprehen-

sive Environmental Response, Compensation and

Liability Act (CERCLA), and the Toxic Substances Control

Act (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 violation); 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).!2 Moreover, the distinc-

tion relates only to venue, and not to the district court's

jurisdiction.

11 42 U.S.C. § 6972(a); 42 U.S.C. § 9659(b)(1); 15 U.S.C.

§ 2619(a).

12 The CWA and CAA provide for suit in the district “in

which such source is located,” which is simply another way of

phrasing “in which the violation occurred.”

The Seventh Circuit next focused on the notice provi-

sion itself, which requires that the citizen send its notice

‘o EPA, the alleged violator, and the state “in which the

alleged violation occurs.” Pet. App. A13 (emphasis in

original). Again, the court ignored Congress’s use of this

exact language in every environmental citizen suit provi-

sion requiring notice to a state, including those that this

Court found cannot support an action for past violations.

Astonishingly, the court of appeals even went so far as to

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

present tense,” id., an obviously strained reading of the

differences between the CWA and EPCRA, and an unfair

parsing of language to reach a conclusion unsupported

by this Court’s previous holdings or the intent of Con-

gress in establishing citizen suits.'

D. The Seventh Circuit Failed to Appreciate the

Differences Between the Clean Water Act,

Which Regulates Contamination, and EPCRA,

Which Is Solely a Reporting Statute

In further explaining why it should not apply

Gwaltney, the court below noted additional use of the

present tense in the CWA. For example, the court noted

that the CWA allows citizens to sue for violations “of a

permit which is in effect” and also permits a state's

13 In Gwaltney, this Court likewise focused on the tense of

the word “occurs.” The Court noted that several provisions of

the CWA are cast in the present tense, including the notice

provision: “Citizen-plaintiffs must give notice to the alleged

violator, the Administrator of EPA, and the State in which the

alleged violation “occurs.” Gwaltney, 484 U.S. at 59 (quotation

marks in original).

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.” Pet. App. A12 (emphasis in origi-

nal). The Seventh Circuit’s analysis stopped there, how-

ever, 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 solely

the filing of information, an EPCRA violation could not

involve the migrating contamination regulated under the

CWA 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 Seventh Circuit thus failed

to comprehend the differences between EPCRA and the

CWA, or that Gwaltney prohibits a citizen suit for a cured

violation, but not for one that is continuing.

In further support of its decision not to apply

Gwaltney, the Seventh Circuit emphasized that this Court

relied on the CWA’s definition of “citizen” to conclude

that “the harm sought to be addressed by the citizen suit

lies in the present or the future, not in the past.” Pet.

App. Al2-A13. The court noted that the CWA defines

“citizen” as a “person . . . having an interest which is or

may be adversely affected.” Id. A12 (emphasis in original).

Because EPCRA does not contain a definition of “citizen,”

the court appeared to suggest that, unlike with the CWA,

Congress could not have intended EPCRA citizen suits to

have only prospective application. Id. A12-A13.

It is not surprising that Congress defined citizen as it

did in the CWA. By authorizing any “citizen” as so

defined to bring an action, Congress intended to codify

the grant of standing articulated by the Court in Sierra

Club v. Morton, 405 U.S. 727 (1972), which was decided

only six months before the CWA was amended. See Conf.

Rep. No. 1236, 92d Cong., 2d Sess. (1972), reprinted in

1972 U.S.C.C.A.N. 3776, 3823. As further explained below,

that EPCRA authorizes “any person” to bring a citizen

suit cannot alter Article III’s requirement that citizen suits

be prospective in nature because inherent in every citizen

suit provision are the constitutional requirements that a

plaintiff suffer a redressable injury.’ Consequently, the

requirement that a person have standing, i.e., “an interest

which is or may be adversely affected,” necessarily

underlies every citizen suit provision, including

EPCRA’s, even though EPCRA authorizes “any person”

to sue. 42 U.S.C. § 11046(a).

The type of violation involved here - untimely

reporting of information —- also argues against authoriz-

ing citizen suits where a party has come into compliance.

There is no basis to conclude that Congress intended to

allow EPCRA citizen suits alleging past violations of a

reporting requirement where other environmental stat-

utes — those regulating discharges of pollutants into the

environment — do not authorize citizen suits if the alleged

violator has come into compliance. If any type of citizen

suit for past violations is warranted, with the imposition

of penalties and payment of a plaintiff's attorneys’ fees, it

14 Only in the CWA did Congress use the term “citizen.”

Like EPCRA, the other major environmental statutes -

Endangered Species Act, CAA, RCRA, CERCLA and TSCA -

authorize “any person” to bring a citizen action. 16 U.S.C.

§ 1540(g); 42 U.S.C. § 7604(a); 42 U.S.C. § 6972(a); 42 U.S.C.

§ 9659(a); 15 U.S.C. § 2619%(a).

is for violations where direct harm to public health or the

environment results, and not for reporting violations.

Il. PRINCIPLES OF STATUTORY CONSTRUCTION

COMPEL THE CONCLUSION THAT CONGRESS

DID NOT INTEND TO AUTHORIZE CITIZEN

SUITS FOR PAST EPCRA VIOLATIONS

The Seventh Circuit did not find that EPCRA unam-

biguously authorizes citizens to sue for past violations.

Rather, it resorted to principles of statutory construction.

Pet. App. A10 (“We examine the statute before us in light

of criteria the Gwaltney Court used to analyze the citizen

suit provisions of the Clean Water Act.”)

But the Seventh Circuit’s alacrity in finding congres-

sional authorization of citizen suits for past violations

runs counter to basic principles of statutory construction.

This Court has long held that statutes conferring jurisdic-

tion on federal courts are to be strictly construed, and any

doubts resolved against federal jurisdiction. Victory Car-

riers, Inc. v. Law, 404 U.S. 202, 212 (1971) (federal courts

should “scrupulously confine their own jurisdiction to

the precise limits which [a federal statute] has defined.”);

Healy v. Ratta, 292 U.S. 263, 270 (1934). Also, legislation

creating liability where none existed at common law

should be construed most favorably to the person or

entity subject to liability. Lessee of Brewer v. Blougher, 39

U.S. (14 Peters) 178, 185, 10 L. Ed. 408, 411 (1840); Handy

Bros. Body Shop, Inc. v. State Farm Mut. Auto. Ins. Co., 848

F. Supp. 1276, 1287 (S.D. Miss. 1994).

Further, in comparing the CWA’s “to be in violation”

to EPCRA’s “failure to do,” the Seventh Circuit found

that, “The language of EPCRA contains no temporal lim-

itation; ‘failure to do’ something can indicate a failure

past or present.” Pet. App. All. Although EPCRA’s legis-

lative history provides no guidance on the issue, it is

logical that Congress used the “failure to . . . complete

and submit” language, without indicating any intent to

allow citizen suits for past violations. While citizens may

enforce hundreds, or even thousands, of different

requirements of the CWA, CAA and RCRA, for example,

EPCRA citizen plaintiffs are authorized to file suit

regarding only four reporting requirements. 42 U.S.C.

§ 11046(a)(1)(A)(i-iv). Congress was therefore able to eas-

ily enumerate the four citizen-enforceable requirements

using “failure to . . . complete and submit,” and it did not

have to use the catch-all “to be in violation” language

used in other statutes to identify the numerous require-

ments subject to citizen enforcement. See, e.g., 33 U.S.C.

§ 1365(a)(1)(A) (under CWA, citizens can sue a facility

“alleged to be in violation” of “an effluent standard or

limitation . . . or order”; “effluent standard or limitation”

has its own lengthy definition, 33 U.S.C. § 1365(f)).

Because EPCRA is not a permitting scheme, unlike the

CWA, CAA or RCRA, Congress used language that natu-

rally accompanies reporting requirements - “failure

to .. . complete and submit” certain forms - but did not

use language that provided jurisdiction over past viola-

tions.

The Seventh Circuit also found that the “failure to

complete and submit” forms “under” Sections 312 and

313 should be read to incorporate those sections’ annual

filing dates. Pet. App. All-A12. The reference to com-

plete and submit forms “under” Sections 312 and 313 is

simply that - a reference to Section 312’s inventory form

and Section 313’s Form R - and not a wholesale incor-

poration of those sections’ requirements. Had Congress

intended EPCRA’s citizen suit provision to operate differ-

ently from its model, it no doubt would have so indicated

either in the statute or the legislative history. The Court

should not assume that Congress meant to institute a

substantive change without explanation.

The Sixth Circuit squarely addressed this language

difference by first contrasting the language of Section

326(a) — “failure to . . . complete and submit” - with the

requirement in Section 313:

Although § 11023(a) requires submission of

Form Rs by a certain date, the citizen suit provi-

sion emphasizes the completing and submitting

of the forms. This language suggests that only

the failure to complete and submit the forms can

provide the basis for a citizen suit. While among

the provisions of § 11023(a) is the requirement

that the form be filed by July 1 for the preceding

calendar year, the citizen suit provision speaks

only of the completion and filing of the form.

The form is completed and filed even when it is

not timely filed. . .. We see no basis upon which

one must conclude that Congress, when contem-

plating citizen enforcement suits, intended such

a late submission to be the equivalent of a com-

plete failure to submit the information.

United Musical, 61 F.3d at 475. The Sixth Circuit then

found that, although a few district courts have held that

EPCRA authorizes citizen suits for past violations, the

language of EPCRA argues against allowing such suits,

and it rejected “this rather hypertechnical parsing of the

language of the statutes in favor of the most natural

reading of EPCRA, which weighs against allowing citizen

suits for purely historical violations.” Id. at 476-77.15 Con-

gress thus preserved its customary prospective implica-

tion of environmental citizen suits in EPCRA and limited

citizen actions to instances of uncorrected past violations

“by emphasizing that it is the failure to submit the requi-

site forms that gives rise to a citizen action.” Id. at 475.

Consequently, when CBE filed suit, The Steel Company

had no longer “failed” to complete and submit the

required forms, and the district court correctly dismissed

CBE’s suit. ,

This Court has held that, “In the absence of indicia of

a contrary congressional intent, we are compelled to con-

clude that Congress provided precisely the remedies it

considered appropriate.” Middlesex County Sewerage Auth.

v. National Sea Clammers, 453 U.S. 1, 15 (1981) (rejecting

claim that the CWA provided an implied remedy for

damages). EPCRA’s legislative history reveals no intent to

allow citizen suits for past violations. An examination of

the legislative history of the provisions upon which

EPCRA is based also shows that Congress did not want to

15 It could also be argued that an EPCRA citizen suit is

proper only where the alleged violator knew of the requirement

and yet failed to comply, for example, after receiving CBE’s

notice letter and either ignoring it or failing to take the

significant effort to comply within the 60-day period. A

common definition of “fail” is “Fault, negligence, or refusal.” .

Black’s Law Dictionary 534 (5th Ed. 1979). One cannot refuse to

complete and submit forms if one is uninformed of the

requirement.

overburden federal courts with citizen actions if compli-

ance could be achieved during the notice period. Hall-

strom, 493 U.S. at 28-29. Had Congress thought a citizen

remedy for past EPCRA violations appropriate, it could

have fashioned such a remedy. This Court should not find

an implied one.

Numerous reporting deadlines exist under other

environmental statutes, and, if a party receives a citizen

notice regarding a failure to report and then complies

within the 60-day notice period, there is no citizen suit

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 if a facility does not immediately

report a release of chemicals into the environment, but

does so upon receiving a notice letter, a citizen plaintiff

could still sue under EPCRA, but not under CERCLA. See

42 U.S.C. § 11004(a)(1 & 3), § 11046(a)(1)(A){i) (certain

releases require reporting under both EPCRA and

CERCLA). (

}

Ill. CBE LACKS ARTICLE III STANDING TO SUE

FOR PAST EPCRA VIOLATIONS

Congress could not have intended to authorize citi-

zens to sue for past EPCRA violations because Congress

may not confer standing to sue where the case or contro-

versy requirement of Article III of the Constitution is not

met. Defenders of Wildlife, 504 U.S. at 560; Valley Forge

Christian College v. Americans United for Separation of

Church and State, 454 U.S. 464, 474-75 (1982); Warth ov.

Seldin, 422 U.S. 490, 498 (1975). To satisfy Article III's case

or controversy requirement, which is the “irreducible

constitutional minimum” of standing, a plaintiff must

show that it has suffered an injury-in-fact, that the injury

is fairly traceable to the defendant's actions, and that the

injury will likely be redressed by a favorable decision.

Bennett v. Spear, 65 U.S.L.W. 4201, 4203 (March 19, 1997);

Defenders of Wildlife, 504 U.S. at 560-61. These constitu-

tional limits on the exercise of federal jurisdiction are

“founded in concern about the proper - and properly

limited — role of the courts in a democratic society.”

Warth, 422 U.S. at 498. “The province of the court is,

solely, to decide on the rights of individuals,” Marbury v.

Madison, 5 U.S. (1 Cranch) 137, 170, 2 L.Ed. 60 (1803), and

not to vindicate the general public interest that the gov-

ernment enforce the laws and that individuals and busi-

nesses comply with those laws. See Defenders of Wildlife,

504 U.S. at 576.

Article III thus requires that, to invoke the jurisdic-

tion of the federal courts, a plaintiff must “stand to profit

in some personal interest.” Simon v. Eastern Ky. Welfare

Rights Org., 426 U.S. 26, 39 (1976). In this case, however,

by seeking judicial authority that it may sue for past

violations, CBE attempts to pursue a generalized public

interest; it has no personal stake in the resolution of its

complaint, and thus no Article III standing. The federal

courts must reject “appeals to their authority which

would convert the judicial process into no more than a

vehicle for the vindication of value interests of concerned

bystanders.” Valley Forge, 454 U.S. at 473.

A. CBE Cannot Establish an Injury-in-Fact

Because The Steel Company Was in Compli-

ance with EPCRA When CBE Filed Its Com-

plaint

CBE cannot establish an Article III injury. In its com-

plaint, CBE did not (and could not) allege that The Steel

Company was in violation of EPCRA, only that The Steel

Company had in the past not filed certain EPCRA

reports. CBE therefore did not seek injunctive relief

ordering The Steel Company to come into compliance,

but rather sought reimbursement of its attorneys’ fees

and civil penalties to be paid to the U.S. Treasury. J.A. 11;

Pet. App. A25-A26.

In environmental citizen suits, the plaintiff is seeking

redress of public rights and does not rec ive any personal

damages (all penalties going to the U.S. Treasury). See

National Sea Clammers Ass'n, 453 U.S. at 17 (citizen suit

plaintiffs seek to enforce environmental requirements as

private attorneys general, whose injuries are “non-

economic and probably noncompensable.”) When The

Steel Company filed its reports, CBE’s claim of personal

injury was cured, and it joined the public at large in

having an interest that the Executive take action against

any party that has committed past EPCRA violations. See

Sosna v. lowa, 419 U.S. 393, 402 (1974) (plaintiff's injury

must exist at time complaint is filed); Los Angeles v. Lyons,

461 U.S. 95, 105 (1983) (fact of past injury, while presuma-

bly affording plaintiff standing to claim damages, does

not establish real threat that plaintiff would again suffer

similar injury in future to support Article III standing).

B. Payment of Penalties to the U.S. Treasury or an

Award of CBE’s Fees Does Not Satisfy Article

III's Redressability Requirement

CBE cannot show an injury, but even if it could, CBE

certainly cannot demonstrate redressability. CBE

requested the district court to redress its alleged injury as

follows: 1) issue a declaratory judgment that The Steel

Company had violated EPCRA; 2) authorize CBE to

inspect The Steel Company’s facility and records for com-

pliance with EPCRA for at least one year; 3) order The

Steel Company to provide CBE a copy of all future

EPCRA reports for at least one year; 4) order The Steel

Company to pay civil penalties of $25,000 per day for

each day of each violation; and 5) award CBE its costs of

litigation, including attorneys’ fees. J.A. 11.

That a court may impose penalties payable to the

U.S. Treasury or issue a declaratory judgment that a

defendant violated EPCRA before the complaint was filed

does not give a citizen plaintiff a sufficient stake in a case

for Article III] purposes. By seeking penalties and a

declaratory judgment, CBE was not acting on its own

behalf, but instead on behalf of the government and the

public at large. See Maine v. Taylor, 477 U.S. 131, 137 (1986)

(private parties have no judicially cognizable interest in

the prosecution of another); Sure-Tan, Inc. v. NLRB, 467

U.S. 883, 897 (1984) (private parties have no judicially

cognizable interest in procuring the enforcement of law

by an administrative agency). Because it is undisputed

that The Steel Company was in compliance before this

suit was filed, CBE’s only interest was that The Steel

Company be called upon to answer for any past viola-

tions by paying penalties. Such an interest is no more

than the “undifferentiated public interest” in the “faithful

execution” of the country’s laws, and is insufficient to

confer standing on the citizen plaintiff. Defenders of Wild-

life, 504 U.S. at 577; Gwaltney, 484 U.S. at 70 (Scalia, J.,

concurring) (“If it is undisputed that the defendant was

in a state of compliance when this suit was filed, the

plaintiffs would have been suffering no remediable injury

in fact that could support suit.”) Just as the payment of

penalties does not confer standing, this Court has like-

wise held that awarding attorney’s fees does not consti-

tute sufficient interest in a case for Article II] purposes.

Lewis Continental Bank v. Lewis, 494 U.S. 472, 480 (1990);

Diamond v. Charles, 476 U.S. 54, 70-71 (1986).'

Not only does The Steel Company maintain that CBE

has no standing, but the United States also agrees that a

past violation cannot confer standing on an environmen-

tal citizen suit plaintiff: f

A citizen plaintiff who alleges that he is

adversely affected by a company’s ongoing vio-

lation of its discharge permit and requests an

injunction requiring compliance can satisfac-

torily demonstrate, at least at the pleading

stage, both personal injury and redressability.

However, a citizen who brings suit simply to

obtain a judicial assessment of civil penalties for

nonrecurring past violations would fail to meet

Article III’s requirements; the mere assessment

of civil penalties, which are payable only to the

16 CBE’s other requested relief - that it be authorized to

inspect The Steel Company’s facility and records and be

provided its future EPCRA reports - also amount to no more

than a generalized interest in a company’s compliance with the

law.

Treasury, would not redress in any meaningful

sense the citizen’s alleged injuries. Indeed, if

Congress were to give private citizens untram-

meled authority to seek penalties for wholly

past violations - oblivious to Article III's

requirement that a litigant have a personal stake

in the controversy — it would intrude upon the

Executive's responsibility to “take Care that the

Laws be faithfully executed” (U.S. Const. Art. II,

§ 3) and the prosecutorial discretion inherent

therein.”

The government was rightly concerned by the expansion

of citizen suit authority advanced by citizen groups. Citi-

zen suit provisions essentially vest prosecutorial author-

ity in persons who, unlike federal or state authorities, are

not limited by constitutional constraints on government

and are not accountable to the electorate. As noted in

Gwaltney, allowing citizens to sue for past violations

would also impermissibly intrude upon EPA's enforce-

ment discretion.

That EPCRA authorizes “any person” to bring a citi-

zen suit does not alter the requirement that citizen suits

be prospective in nature because inherent in every con-

gressional grant of standing are the constitutional

17 Brief of the United States as Amicus Curiae Supporting

Affirmance at 21 n. 34, Gwaltney, 484 U.S. 49 (1987) (citation

omitted). The United States urged affirmance arguing that

respondents had properly alleged that Gwaltney was in

violation of its discharge permit, but rightly noted that there is

no standing if the violation is entirely past. In the present case,

the United States filed an amicus brief and argued to the

Seventh Circuit that EPCRA citizen suits would not interfere

with EPA’s enforcement discretion, but it did not address the

threshold issue of whether Respondent has standing.

requirements that a plaintiff suffer a concrete injury and

that the injury be redressable by a favorable decision. See,

e.g., Defenders of Wildlife, 504 U.S. at 560-61. This constitu-

tional core of standing is a minimum requirement which

Congress cannot eliminate. See, e.g., Warth v. Seldin, 422

U.S. at 498-501. Congress simply cannot create standing

by authorizing “any person” to bring an EPCRA action.

That Defenders of Wildlife involved a government

defendant also does not matter for Article III purposes

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 sen-

sitive to the articulation of new rights of action

that do not have clear analogs in our common-

law tradition. . . . Congress has the power to

define injuries and articulate chains of causation

that will give rise to a case or controversy 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.

Defenders of Wildlife, 504 U.S. at 580 (citations omitted)

(Kennedy, J., concurring). If a statute purports to give

standing to “any person,” without more, this requirement

is not met. A would-be citizen plaintiff must establish an

injury and redressability, and not merely point to a gen-

eral congressional statement of standing. Id. at 580-81.

Three courts have held, all without analysis, that

relief available to EPCRA citizen plaintiffs establishes

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

950 F. Supp. 972, 980 (D. Ariz. 1996); Atlantic States Legal

Found., Inc. v. Buffalo Envelope Co., 823 F. Supp. 1065, 1071

(W.D.N.Y. 1993); Delaware Valley Toxics Coalition v. Kurz-

Hastings, Inc., 813 F. Supp. 1132, 1140-41 (E.D. Pa. 1993).

These courts cursorily reasoned that because a court can

impose penalties payable to the Treasury, issue a declara-

tory judgment that a party has violated EPCRA, enjoin

future EPCRA violations, or award costs of litigation,

Article III redressability was satisfied. These courts’ shal-

low analysis, bereft of any constitutional examination,

begs the ultimate question: just how do these types of

relief, which either do not benefit the EPCRA plaintiff or

are simply a by-product of the litigation, satisfy Article

III? This Court's Article III jurisprudence shows that they

do not.

“Surely Congress did not intend this [citizen suit]

provision to be read in a vacuum, without regard to

constitutional limitations.” Defenders of Wildlife v. Hodel,

851 F.2d 1035, 1045 (8th Cir. 1988) (Bowman, J., dissent-

ing), rev'd sub nom. Lujan v. Defenders of Wildlife, 504 U.S.

555 (1992). Because Congress alone cannot expand the

constitutional jurisdiction of the federal courts, which

would amount to amending the Constitution through

legislation, it could not have intended to authorize citi-

zens to seek penalties for past EPCRA violations.'* CBE

has no standing to sue.

18 In the CAA Amendments of 1990, Congress revised the

authorization for citizen suits under that statute. Pub. L. No.

101-549, 104 Stat. 2399, 2682, codified at 42 U.S.C. § 7604(a)(1)

(citizen plaintiffs may sue “if there is evidence that the alleged

violation has been repeated.”) In his Signing Statement,

President Bush noted that, “As the Constitution requires,

litigants must show, at a minimum, intermittent, rather than

IV. COMPLYING WITH EPCRA TAKES MUCH MORE

THAN A “MINIMAL EFFORT”

The court below latched onto two other reasons to

conclude that citizens should be allowed to sue for past

violations. First, the Seventh Circuit concluded that if the

Sixth Circuit in United Musical 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.” Pet.

App. Al4. The Seventh Circuit reasoned therefore that

citizens would have no reason “to incur the costs of

learning about EPCRA.” Id.

Contrary to the court’s assertion, completion of

EPCRA forms is no simple matter. It is also a more

laborious matter for those companies, especially small

businesses like The Steel Company, that cannot assign

personnel to deal solely with environmental compliance.

Completing the forms, especially the Section 313 Form R,

requires the collection and computation of detailed infor-

mation regarding a company’s operations and practices.

EPA itself estimates the public reporting burden for Sec-

tion 313 familiarization, compliance determination, calcu-

lation, 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

purely past, violations of the statute in order to bring suit.”

Reprinted in 1990 U.S.C.C.A.N. 3887-1, 3887-2. Interpretation of

the CAA is obviously not before the Court. However, one point

is clear: Congress did not amend EPCRA when it amended the

CAA.

considering that employee’s other duties, including com-

pliance with other environmental laws, hardly a simple

matter.

The completion of Section 312 forms also requires

collection and recording of detailed information. The

reporting of chemical mixtures may further complicate

reporting.’? See 40 C.F.R. § 370.40-41 (if a chemical is part

of a mixture, a party may report “either the weight of the

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 Sec-

tion 312 “may have confused the regulated commu-

nity. . . . “ Confusion About EPCRA Rule Acknowledged,

Chem. Reg. Rep. (BNA), Aug. 17, 1990, at 802. EPA esti-

mates that there are over 500,000 chemicals or products

which are subject to the Section 312 reporting require-

ments. Title III List of Lists: Consolidated List of Chemicals

Subject to EPCRA, EPA, June 1994, at 1 n. 1. And EPA

attributes many EPCRA compliance problems to “gray

areas in the law” that make reporting requirements con-

fusing for both EPA and industry. EPA Eyes Changes to

EPCRA Regulations to Clarify ‘Gray Areas,’ Increase Compli-

ance, Toxics Law Rep. (BNA), 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 Steel

Company, whose regulatory burden is great and whose

1? EPA has not provided the regulated community with an

estimate of the public reporting burden for Section 312

compliance.

resolve to cure a 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 neces-

sary. This makes EPCRA no different from other environ-

mental statutes where, if a violation is cured within 60

days, citizen enforcement is barred.

Moreover, should a company simply “throw” reports

together after receiving a citizen notice of intent to sue, it

opens itself up to a wide range of civil and criminal

penalties. First, EPA considers the submission of incom-

plete forms to be serious violations, which can result in

penalties as high as $16,500 per day. Section 312 Policy at

15-20; Section 313 Policy at 11-12. Moreover, in addition

to running the risk of civil penalties for filing incomplete

forms, a company also runs the risk of criminal prosecu-

tion for submitting false information. 18 U.S.C. § 1001;

Section 313 Policy at 7; see also United States v. Murphy,

935 F.2d 899, 900 (7th Cir. 1991) (18 U.S.C. § 1001 makes it

a criminal offense to submit false information required by

a federal statute to a state agency; thus, a party that

submits false Section 312 forms to state or local agencies

could be prosecuted under 18 U.S.C. § 1001.)

Second, the court below ignored the traditional oper-

ation of environmental citizen suit provisions and instead

chose to guarantee EPCRA citizen plaintiffs recovery of

their costs and attorneys’ fees. EPCRA is no different,

however, from other environmental statutes in that Con-

gress did not guarantee citizens recovery of their costs of

identifying alleged violators. A citizen group always

faces the possibility that a party will be able to cure the

alleged violation before the group files suit, the result

that Congress no doubt sought as the citizen group’s

primary goal, not the advancement of litigation. Like-

wise, if the government pursues a violator before the

notice period expires, the citizen plaintiff is barred from

suing and thus cannot recover its costs. Affirming the

Seventh Circuit’s decision would guarantee EPCRA

plaintiffs the possibility of recovering their costs in any

EPCRA suit, however trivial, a result that Congress could

not have intended. The goal of the citizen group is

achieved with compliance, even though at a small cost for

posting the notice.

Vv. NOTHING INDICATES THAT CONGRESS

INTENDED CITIZENS TO HAVE UNBRIDLED

DISCRETION TO DETERMINE WHEN TO BRING

ACTIONS FOR CURED PAST VIOLATIONS

Because reporting, rather than substantive, violations

are the easiest to prove, citizen groups readily file suits

alleging this kind of violation. Michael S. Greve, The

Private Enforcement of Environmental Law, 65 Tulane L. Rev.

339, 365-66 (1990). Some observers have found that,

“Enforcement proceedings brought for violations of the

voluminous paperwork requirements of the Clean Water

Act generate tens of thousands of dollars in attorneys’

fees but no discernible environmental benefits.” Id. at

366. This lack of environmental benefit is even more

pronounced under EPCRA because EPCRA does not

restrict the use or disposal of any substance; it is simply a

reporting statute.

Even enforcement attorneys at EPA find that filing

EPCRA citizen suits is “a rewarding and lucrative prac-

tice area for private attorneys general. . . . The large

number of EPCRA citizens suits may be because paper-

work violations are relatively easy to prove when com-

pared to other more substantive violations, and because

EPCRA is a strict liability statute.” Michael J. Walker &

Jon D. Jacobs, EPCRA Citizens Suits: An Evolving Opus

with a Discordant Note, The Journal of Environmental Law

& Practice, Jan./Feb. 1997, at 20.29 The authors explain

why EPCRA litigation has been such a fertile ground for

citizen groups:

[C]itizen suits were first used extensively under

the CWA. This probably would not have been

the case had EPCRA also been in existence at

that time, because EPCRA is much simpler to

use from a litigation point of view. The statute is

well written; the issues are generally clear-cut;

the suits are inexpensive, require minimal

expert testimony, and usually can be resolved

on a summary determination without the need

for a trial or evidentiary hearing.

Id. at 14.

If the Seventh Circuit is affirmed, the federal courts

will experience a deluge of EPCRA citizen suits, contrary

20 Mr. Walker is the Senior Enforcement Counsel for

Administrative Litigation in EPA’s Office of Enforcement and

Compliance Assurance. Mr. Jacobs is a Branch Chief in EPA’s

Office of Enforcement and Compliance Assurance’s Toxic and

Pesticides Enforcement Division. The authors note that the

opinions in their article are personal views and not necessarily

those of EPA.

to Congress’s concern that the federal courts not be

flooded with unnecessary citizen actions. Not only will

citizen groups be able to sue if a company, like Petitioner,

achieves compliance within the notice period, but a citi-

zen group will also be able to search old government

records to determine which companies filed late EPCRA

reports and then sue. Consider the situation of a small

manufacturer, in compliance with numerous environmen-

tal, health and safety requirements, but not in compliance

with EPCRA because it is uninformed about EPCRA. The

company then discovers it is subject to EPCRA and sub-

mits the required reports. A year or two later, in search-

ing government records, a citizen group finds the

company’s EPCRA filings and sends an EPCRA notice. If

the company does not settle on the terms demanded by

the citizen group, it must defend a lawsuit in federal

court. Moreover, if suit is filed, the citizen group is cer-

tain to prove liability. Like other environmental statutes,

EPCRA is a strict liability statute, and, under the decision

below, an EPCRA reporting violation, even if cured, is

always sufficient to allow the citizen to sue in federal

court. The citizens group has an ironclad lawsuit and will

seek to recover its 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 citizen groups will

have that authority if the Seventh Circuit is affirmed.

Such actions do not abate any violation, the violation

already having been corrected. Nothing is gained by such

a suit (with the exception of the citizen group possibly

recovering attorneys’ fees). A party’s resources will be

consumed defending an unnecessary lawsuit - resources

that could be used to invest in new plant and equipment,

creating jobs and benefiting the community.

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 com-

panies before filing suit, and has yet to resolve its dis-

putes with another 40.21 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 guidelines that most didn’t

even know existed... .

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 com-

pelled to yield to the citizen group’s demands. The judi-

cial extension of citizen suit jurisdiction to past violations

makes this practice so lucrative because there is nothing a

defendant, having already achieved compliance, can do

to defeat the plaintiff's action. Citizen groups thus have

21 Don’t Waste Arizona is one of the ten citizen groups that

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

Seventh Circuit.

enormous leverage, with little to lose and much to gain,

simply by reviewing government records to determine

which companies are easy litigation targets.

Protection of health and the environment through

strong public and private commitments is today part of

the accepted and essential goals of government, business

and the public. The vitality and success of environmental

protection benefit all people, but a balanced and reason-

able response to those who strive to comply with the

numerous and complex regulatory requirements should

‘not be lost in the zeal to enforce those requirements. The

Steel Company, like most U.S. business, seeks to comply

with the law and does so. When it received notice of

EPCRA violations, it quickly responded within the statu-

tory notice period for cure. To insist that its response fell

short, and that citizens can sue for wholly past violations,

disserves the spirit whereby the regulated community

today seeks to be a partner, not a recalcitrant, in the

successes of environmental protection. Citizen enforce-

ment, while important, should not be accorded greater

significance than intended by Congress.

CONCLUSION

The judgment of the Seventh Circuit Court of

Appeals should be reversed, and the District Court's

dismissal of CBE’s complaint should be reinstated and

affirmed.

Respectfully submitted,

SANFORD M. Srern

Counsel of Record

Leo P. Domsrowski

WitpMan, Harrop, ALLEN & Dixon

225 West Wacker Drive

Chicago, IL 60606-1229

(312) 201-2000

Counsel for Petitioner

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.