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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petitioners Brief
- **Published:** January 1, 1998
- **Citation:** 523 U.S. 83

## Text

j

Y
No. 96-643 ” Ss

a CLERK

Bupreme Court, U.S.
FILED

i297

In The

Supreme Court of the United States
October Term, 1996

S

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.

ii
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

iv

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

27

37

——

v

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

vi

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

ix

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

x

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. *. *

(c) The district court shall have jurisdiction in
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.

10

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

11

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

12

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.

13

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.

14

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.

S

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.

15

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:

16

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.

17

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).

18

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.

19

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

20

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

21

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.

22

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.

|

23

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.

24

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

25

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

26

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.”

27

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).

28

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

29

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).

30

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

31

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

32

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

33

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.

34

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). (

i

}

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

io

35

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.

36

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).

37

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

38

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.

39

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.

40

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

41

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

42

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.

43

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.

44

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

45

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.

46

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.

47

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

48

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.

49

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.

SJ

50

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0026%3A08. Public record. Not legal advice.