# Respondents Brief — Steel Co. v. Citizens for Better Environment > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0026%3A09 ## Record - **Collection:** Supreme Court brief - **Document type:** Respondents Brief - **Published:** January 1, 1998 - **Citation:** 523 U.S. 83 ## Text In THE Supreme Court of the Anited States OcToBER TERM, 1996 THE STEEL COMPANY, a/k/a CHICAGO STEEL AND PICKLING COMPANY, ot Petitioner, CITIZENS FOR A BETTER ENVIRONMENT, ™, Respondent. TT eee On Writ of Certiorari to the United States Court of Appeals for the Seventh Circuit BRIEF FOR THE RESPONDENT JAMES D. BRUSSLAN Counsel of Record HUNDLEY & BRUSSLAN 14 East Jackson Boulevard Suite 1320 Chicago, IL 60604 (312) 427-3777 Davip A. STRAUSS 1111 East 60th Street Chicago, IL 60637 (773) 702-9601 STEFAN A. NOE CITIZENS FOR A BETTER a4 ENVIRONMENT 407 South Dearborn Street Suite 1775 Chicago, IL 60605 (312) 939-1530 Lee —_ —- —— BEST AVAILABLE COPY QUESTIONS PRESENTED The Emergency Planning and Community Right-to-Know Act of 1986 (EPCRA), 42 U.S.C. §§ 11001 et seq., requires large industrial facilities to file annual reports providing details about their use and release of toxic chemicals. The questions presented are: 1. Whether EPCRA authorizes a citizen suit against a party who failed to file the required reports for several years, then filed out-of- time reports only after receiving notice of the plaintiff’s intent to sue but before the suit was brought. 2. Whether Article III bars Congress from permitting a citizen suit in such circumstances by plaintiffs who live near and are affected by the facility, and who expended resources to obtain independently the information that should have been supplied in the reports. I. EPCRA AUTHORIZES A CITIZEN SUIT AGAINST A DEFENDANT WHO FILES OUT- OF-TIME REPORTS AFTER RECEIVING THE NOTICE OF INTENT TO SUE ...........ccssesseesesseeees A. The Plain Language Of The Citizen Suit Provision Authorizes This Action .............. B. Petitioner’s Interpretation Would Effectively Nullify The Citizen Suit Provision Of EPCRA. ........cssssssssssscssesesees Il. ARTICLE Ill DOES NOT BAR CONGRESS FROM AUTHORIZING THIS CITIZEN SUIT.... A. CBE Suffered Injury In Fact Caused by Petitioner’s Conduct ................0000+ inibethes B. CBE’s Suit Satisfies the Requirement of CROGUITEEY | Sccceccvsvevessieincinstibniiainiadniii CONC AIUIIN .....ccssrsccsisesscssotncsessesietisnncsesustineseassniieiianMannnn es ee 10 10 19 Cases: Adams, qui tam, v. Woods, 6 U.S. 336, 341 (1805) .......... Allen v. Wright, 468 U.S. 737 (19B4) .0.....cccccccccccccccceeceeens Atlantic States Legal Foundation v. Com-Tek, 22 BNA Env’t Rep. (Current Developments) 535 (June 28, 1991) Atlantic States Legal Foundation, Inc. v. United Musical Instruments U.S.A., Inc., 61 F. 3d 473 (6th Cir. 1995) .. Atlantic States Legal Foundation, Inc. v. Whiting Roll-Up Door Mfg. Corp., 772 F. Supp. 745 (W.D.N.Y. 1991)... Atlantic States Legal Foundation v. Whiting Roll-Up Door Mfg. Corp., 38 BNA Env’t Rep. Cases 1426 A 8 a ee ae Baker v. Carr, 369 U.S. 186 (1962) .......cccccccccceereesereeeeens Bennett v. Spear, 117 S. Ct. 1154 (1997) .0......cccccccceeevenees Budinich v. Becton Dickinson & Co., 486 U.S. 196 (1988) Carey v. Piphus, 435 U.S. 247 (1978) ....cccccccceccecereereneeees City of Chicago v. Environmental Defense Fund, 511 U.S. Ee City of Los Angeles v. Lyons, 461 U.S. 95 (1983) ............ City of Mesquite v. Aladdin's Castle, Inc., 455 U.S. 283 on ecuastuspunonsucecs Delaware Valley Toxics Coalition v. Kurz-Hastings, 813 F.Supp. 1132 (ED. Pa. 1993) ...........ccccccecseccerseesseeseeseees Diamond v. Charles, 476 U.S. 54 (1986) ............ccccccccceoons Don’t Waste Arizona, Inc. v. McLane Foods, Inc., 950 F. Supp. 972 (D. Ariz. 1996) ..ccccccccscccsscessssescessssessseseeeeeeee 38 30, 35 13-15, 23 37 35 13 35 32 iv TABLE OF AUTHORITIES-Continued Page Freeport-McMoRan Inc. v. K N Energy, Inc., 498 U.S. 426 Se ee eae aN GEG ED crevernzsnsmecnsesescseeranmcsansssseseninliibatienadilinedtiiiiuetisinemes Grassi v. Ciba-Geigy, Lid., 894 F. 2d 181 (Sth Cir. 1990) Gwaltney v. Chesapeake Bay Foundation, 484 U.S. 49 ae ee eee Oe ea Ce Hallstrom v. Tillamook County, 493 U.S. 20 (1989)........... 10, 18, 38 Havens Realty Corp. v. Coleman, 455 U.S. 363 (1982).... 24-26, 28 Honig v. Doe, 484 U.S. 305 (19BB) onc cccccccccccccceececeeeeeeeee 33-34 Hughes Aircraft Co. v. United States ex rel. Schumer, No. co), ee ae 29 Idaho Sporting Congress v. Computrol, 952 F. Supp. 690 I I ticcennsssccnsiscsittditinnninsiihiaiie ante ied, 6 Per TRO RGU ccintinictenstisiarntiticssidndtat ME Se 10 Keene Corp. v. United States, 508 U.S. 200, 208 (1993) .. 13 Kramer v. Caribbean Mills, Inc., 394 U.S. 823 (1969) .... 34 Lewis v. Continental Bank Corp., 494 U.S. 472 (1990).... 30 Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) ........ passim Marvin v. Trout, 199 U.S. 212 (1905) .......ccccccccccecceeeeeeeeeeee 29 McClure v. Carter, 513 F. Supp. 265 (D. Idaho 1981) ...... 22 McClure v. Reagan, 454 U.S. 1025 (1981) ........cccccccccceceeee 22 Miller v. Perry, 456 F. 2d 63 (4th Cir. 1972) ooo... cccccceee. 34 Mollan v. Torrance, 22 U.S. ‘9 Wheat.’ 537 (1824) .......... 34 22 Muskrat v. United States, 219 U.S. 346 (1911) ....ccccccccooe. Vv TABLE OF AUTHORITIES-Continued Neighbors for a Toxic Free Community v. Vulcan Materials Co., 1997 U.S. ee ete. $-D- 2617) (D. Colo. April 25, 1997) ooo ccccccccccceecvseeseeeeee Northeastern Florida Chapter, Associated General Contractors v. Jacksonville, 508 U.S. 656 (1993) .......... Pennsylvania v. Delaware Valley Citizen's Council, 478 RR Sana aE ee a An a i il ee RO li a Public Interest Research Group of New Jersey, Inc. v. Windall, 51 F. 3d 1179 (3d Cir. 1995) 00 cceceoees Samuels v. Mackell, 401 U.S. 66 (1971) oo... ccccccccececoeoeoees St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 US. eat aarttntacntinipnsiacinetaisititlinenaeratcaeaasensens Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. TD dictreariiaiisedatistsiitiatiinivedatacialaensinitianiesin onine 27-28, 30, 35 Smith v. Sperling, 354 U.S. 91 (19ST) .....cccccccceeceeveesesoeoee United States v. Concentrated Phosphate Export Ass'n, a Se tiircttitthe United States v. Oregon State Medical Society, 343 U.S. SED iiercacicenadintesiaistitininnhalalitlesclianenatiiatatshetnetdeaia United States v. Richardson, 418 U.S. 166 (1974)............ United States v. SCRAP, 415 U.S. 669 (1973) .o..cccccccc00.--. United States v. W.T. Grant Co., 345 U.S. 629 (1953)...... United States ex rel Marcus v. Hess, 317 U.S. 537 (1943) United States Parole Comm'n v. Geraghty, 445 U.S. 388 Seek SRI Tsai SE Valley Forge Christian College v. Americans United for Separation of Church and State, 454 U.S. 464 (1982) .. vi TABLE OF AUTHORITIES-Continued Page Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252 (1977) oo-cccccccccocosoooe.. 28 Vitek v. Jones, 445 U.S. 480 (1980) ooo cc cccccccceeseseones 32 Warth v. Seldin, 422 U.S. 490 (1975) oo... cccccccccoces 24-25, 28, 30 Webb v. Board of Ed., 471 U.S. 234 (1985) 0.0... 37 Williams v. Leybold Technologies, Inc., 784 F. Supp. 765 ey certain nantes 6 Constitution, Statutes and Rules: U.S. Constitution, Artiche TT ...................cccccccsceseseeeeeeoseeeses passim Clean Air Act, 42 U.S.C. § 7604 ooo cccccccccesessseeeeceeees 17, 37 Clean Water Act, 33 U.S.C. § 1251 ef $69. ....ccccccccecceessesses 13 RL TE ey TD 7, 12, 15 Comprehensive Environmental Response Compensation and Liability Act, 42 U.S.C. § 9659 ooo ccccceeeeee. 13 Deepwater Port Act, 33 U.S.C. § 1515 (1975) ..o.cccccccccoss-. 13 Emergency Planning and Community Right-to-Know Act, 42 U.S.C. § 11001 ef Seg. ....cccccccccccecccececccsssessseseces passim Section 312, 42 U.S.C. § 11022 ooo ceccccccccececcseseseseees passim Section 313, 42 U.S.C. § 11023 ooo. cccccececccescsseesss passim Section 325, 42 U.S.C. § 11045 ooo cocccccccceseeeeee. 3, 14 Section 326, 42 U.S.C. § 11046 ooo cccccccccccceeeeeeee. passim BUSA GI hit 2 Endangered Species Act, 16 U.S.C. § 1640(g) (1973)... 13 Federal Tort Claims Act. See 28 U.S.C. § 2675(a)............ 18 Hazardous Liquid Pipeline Safety Act, 42 U.S.C. § 2041 13 TABLE OF AUTHORITIES-Continued Page Marine Protection Research & Sanctuaries Act, 33 U.S.C. § 1415(g) (1972) siteeedoouses 13 Noise Control Act, 42 U.S.C. § 4911 (1972) .................... 13 Outer Continental Shelf Lands Act, 43 U.S.C. § 1349 SS eee meee. eh Ae Ret) i 13 Resource Conservation and Recovery Act, 42 U.S.C. Waiiatictsittiitiiintaiata eat 13 Safe Drinking Water Act, 42 U.S.C. § 300j-8 (1974)........ 13 Surface Mining Control & Reclamation Act, 30 U.S.C. REE TIES Se 13 Toxic Substances Control Act, 15 U.S.C. 2619 (1976) .... 13 Pub.Law 99. 499 (Oct. 17, 1986).......cccccccccecececeseseseseeeeseees 13 A A anincibeddioes 4 62 Fed. Reg. 23834, 23889 (May 1, 1997)... ccc. 20 Legislative materials: 131 Cong. Rec. 34650 (Dec. 5, 1985) ooo. ccccccccccccesesenees 3 H.R. Rep. 253, 99th Cong., Ist Sess. (1985) ........-cccccoes. 3, 25, 37 H. R. Rep. 962, 99th Cong., 2d Sess. 281 (1986) ............ 25 S Rep. No. 101-223, 101st Cong., Sess. 372-75 (1989)... 36 Miscellaneous: Albert, Standing to Challenge Administrative Action: An Inadequate Surrogate for Claim for Relief, 83 Yale LJ. TN atin ictietcditecuchdecbieaateectaranathaiccenmann onseeseesen 22 Berger, Standing to Sue in Public Actions, 78 Yale L.J. ee Stale a a) abet cade elder Se 32 Currie, Misunderstanding Standing, 1981 Sup. Ct. Rev. 41 22 Environmental Protection Agency, 1995 Toxics Release Inventory Public Data Release (May, 1997) .................. 3 R. Fallon, et al., Hart and Wechsler’s The Federal Courts and the Federal System (4th ed. 1996) .....................0-. Fletcher, The Structure of Standing, 98 Yale L.J. 221 en General Accounting Office, Toxic Chemicals: EPA's Toxic Release Inventory Is Useful but Can Be Improved fs FRPRRMIR AR I... Hearne, Tracking Toxics: Chemical Use and the Public's “Right-to- Know,” 38 Environment 4 (1996).................. Jaffe, Standing to Secure Judicial Review: Public Actions, 74 Harv. L. Rev. 1265 (1961) .........ccccccccccccceceeessececeeeeees Logan, Standing to Sue: A Proposed Separation of Powers Analysis, 1984 Wis. L. Rev. 37 ...........cccccceceeeeees P. Menell and R. Stewart, Environmental Law and Policy CRB CE, FOGG cittieenenttaminsipibipeddanbmatiienas Monaghan, Constitutional Adjudication: The Who and When, 82 Yale L.J. 1363 (1973)............ --eltatalaeathithinnenints R. Percival et al., Environmental Law and Policy (2d ed. Pildes & Sunstein, Reinventing the Regulatory State, 62 ee Ra TST RE oe Sunstein, What's Standing After Lujan?, 91 Mich. L. Rev. SED - ccssecseecasustonentatneitinsinnsiishecttanintnisabanthaibliadhdtiiindaiiadp imac COPED cxpcsneruscrseequprastsertoinmantiemntapentneaanatuteratetinteinieae Winter, The Metaphor of Standing, 40 Stan. L. Rev. 1371 (TEED wccccsecslissitevsnciteinibbescnsniecieitlanaiiiiasalnanaddestia ix TABLE OF AUTHORITIES-Continued Wolf, Fear and Loathing About the Public Right to Know: The Surprising Success of the Emergency Planning and 1) * elammdhaan 11 J. Land Use & Env. IN THE Supreme Court of the Anited States OCTOBER TERM, 1996 No. 96-643 THE STEEL COMPANY, a/k/a CHICAGO STEEL AND PICKLING COMPANY, . Petitioner, CITIZENS FOR A BETTER ENVIRONMENT, Respondent, On Writ of Certiorari to the United States Court of Appeals for the Seventh Circuit BRIEF FOR THE RESPONDENT STATEMENT A. The Emergency Planning and Community Right-to-Know Act 1. The Emergency Planning and Community Right-to-Know Act (EPCRA), 42 U.S.C. §§ 11001 et seq., is widely regarded as one of the nation’s most successful environmental statutes.' Unlike many environmental statutes, EPCRA does not impose “command-and- control” obligations on firms in an effort to compel pollution reduc- tions through technological requirements or uniform emissions limi- tations. Instead, EPCRA is purely an informational statute. “The underlying premise of EPCRA is that the public has a right to know 1 See, ¢.g., Hearne, Tracking Toxics: Chemical Use and the Public’s “Right-to- Know,” 38 Environment 4,4 (1996) (“Industry, government, and community repre- sentatives alike consider” the central disclosure provision of EPCRA to be “one of the most successful environmental laws in U.S. history.”); Wolf, Fear and Loathing About the Public Right to Know: The Surprising Success of the Emergency Planning and Community Right-to-Know Act, 11 J. Land Use & Env. L. 217 (1996); R. Percival et al., Environmental Law and Policy 650-53 (2d ed. 1996); P. Menell and R. Stewart, Environmental Law and Policy 424 (2d ed. 1992); Pildes & Sunstein, Reinventing the Regulatory State, 62 U. Chi. L. Rev. 1, 106 (1995). Indeed, even petitioner acknowledges that EPCRA has proved effective. Pet. Br. 6. 2 about the toxic chemicals released by facilities in their communi- ties.”? EPCRA seeks to achieve its environmental goals not through regulatory mandates but through the disclosure of polluting activity.’ Section 312 of EPCRA, 42 U.S.C. § 11022, imposes inventory requirements. Specifically, facilities using threshold amounts of cer- tain specified toxic chemicals must submit, by March | of each year, an inventory of those chemicals to the local fire department and to state and local emergency planning commissions. The report must identify the chemicals on the site, the amounts used during the previ- ous year, and the location of the chemicals on the site. Section 313 of EPCRA, 42 U.S.C. § 11023, principally concerns releases of toxic chemicals. It provides that manufacturing facilities using threshold amounts of toxic chemicals must, by July | of each year, submit a form reporting any releases of those chemicals to the Administrator of the Environmental Protection Agency (EPA) and to a designated state official. These reports must include the volume of chemicals released, how releases in one year compare to the amounts released in previous years, projections of future releases, and recy- cling efforts. All these reports must be made available for inspection by members of the public, and EPCRA requires local emergency planning agen- cies to notify members of the public that these reports are available by “publish[ing] a notice in local newspapers” (42 U.S.C. § 11044(b)). Section 313 specifically states that “the release forms required under this section are intended to provide information” not only “to Federal, State, and local governments” but to “the public, including citizens of communities surrounding covered facilities.” 42 U.S.C. § 11023(h). Members of the public use this information to help formulate local emergency response plans (42 U.S.C. § 11001(c)). In addition, Section 313 requires the Administrator “to 2 General Accounting Office, Toxic Chemicals: EPA's Toxic Release Inventory Is Useful but Can Be Improved 32 (June 1991) [hereinafter GAO Report]. 3 Some have discerned a general trend in environmental regulation away from command and control regulation and toward laws like EPCRA. See, ¢.g., R. Percival et al., Environmental Law & Policy 636-54, 825-834; P. Menell and R. Stewart, Environmental Law and Policy 415-27 . 3 establish and maintain in a computer data base a national toxic chem- ical inventory based on data submitted to the Administrator under this section.” 42 U.S.C. § 11023(j). The Administrator must “make these data accessible by computer telecommunication and any other means to any person.” [bid. The toxic releases inventory has been widely used, and it is credit- ed with significantly reducing the amount of pollution. See, e.g., GAO Report at 23-24. The overall effects of EPCRA have been dra- matic: Reported releases of toxic chemicals by firms complying with EPCRA have been reduced nearly 46 percent since 1988.‘ 2. The success of EPCRA depends entirely on timely and accurate reporting, and as with any self-reporting scheme, the rate of compli- ance is a concern under EPCRA. The Act specifies that “[a]Jny person * * * who violates any requirement of section [312 or 313] * * * shall be liable to the United States for a civil penalty in an amount not to exceed $25,000 for each such violation.” 42 U.S.C. § 11045(c)(1). But according to some estimates, over 30% of the facilities that should have submitted reports under EPCRA have not done so, part- ly because of the limitations of government enforcement efforts. GAO Report at 49. The EPA, for example, which is the federal agency charged with enforcement of EPCRA, not only has limited important envircamental statutes. In response to these concerns, Congress included a citizen suit provision in EPCRA. See, e.g., 131 Cong. Rec. 34650 (Dec. 5, 1985) (statement of Rep. Glickman) (“In view of the government’s limited and overburdened enforcement authority, citizen suits are essential to assure compliance with the law.”); H.R. Rep. 253, 99th Cong., Ist Sess., pt. 5, at 83 (Nov. 12, 1985). Section 326 of EPCRA, the citizen suit provision, states that “any person may commence a civil action on his own behalf against * * * [aJn owner or operator of a facility for failure to * * * [sjubmit an 4 Environmental Protection Agency, 1995 Toxics Release Inventory Public Data Release (May, 1997). This document is available at http://www.epa.gov/opptintr/ tri/pdr95/drover01.htm. 4 inventory form under section [312]” or “for failure to * * * [sjubmit a toxic chemical release form under section [313].” 42 U.S.C. § 11046 (a)(1)(A)(iii) and (iv). Section 326 provides that, before suing, a plaintiff must give 60 days’ “notice of the alleged violation to the Administrator, the State in which the alleged violation occurs, and the alleged violator” (42 U.S.C. § 11046(d)(1)). No citizen suit may be brought “if the Administrator has commenced and is diligently pur- suing an administrative order or civil action to enforce the require- ment concerned or to impose a civil penalty under this Act with respect to the violation of the requirement” (42 U.S.C. § 11046(e)). If the plaintiff prevails in a citizen suit, the court may “enforce the requirement concerned and * * * impose any civil penalty provided for violation of that requirement.” 42 U.S.C. § 11046(c). The court may also award “costs of litigation (including reasonable attorney and expert witness fees) to the prevailing or the substantially prevail- ing Party whenever the court determines such an award is appropri- ate.” 42 U.S.C. § 11046(f). B. The Proceedings Below Petitioner operates a manufacturing plant on the Southeast Side of Chicago, Illinois. As part of its operations, petitioner removes rust from steel coils, a process called steel pickling. This process involves the vse of hydrochloric acid, an extremely hazardous toxic chemical. 40 C.F.R. Part 355, App. A & B. Users of hydrochloric acid are sub- ject to the reporting requirements of Sections 312 and 313 of EPCRA. Petitioner had on its premises other hazardous substances covered by Section 312 as well. J.A. 6-7; Pet. App. A7-A8; Pet. Br. a Between 1988 and 1995, petitioner, by its own admission, did not file the reports required by Sections 312 and 313 of EPCRA. Pet. App. A8; see J.A. 7-10. During that period, petitioner not only had toxic chemicals on its premises but released literally tons of such chemicals into the environment. In one year, for example, it released 130,618 pounds of hydrochloric acid into the air.’ 5 See The Steel Company’s Reply Memorandum in Support of Its Motion to Dismiss, No. 95 C 4534 (N_D. Ill.), filed Oct. 19, 1995, Exh. B. 5 Respondent Citizens for a Better Environment (CBE) is a not-for- profit corporation with offices in Illinois, Minnesota, and Wisconsin. It has approximately 30,000 members, many of whom live in the Chicago area. J.A. 4. The complaint describes CBE’s membership as follows (J.A. 5): Members of CBE reside, own property, engage in recre- ational activities, breathe the air, and/or use areas near [petitioner’s]} facility. * * * CBE’s members seek, acquire, and use data reported by facilities under EPCRA to learn about toxic chemical releases, the use of hazardous sub- stances in their communities, to plan emergency prepared- ness in the event of accidents, and to attempt to reduce the toxic chemicals in areas in which they live, work, and visit. On March 16, 1995, CBE gave notice to petitioner and to state and federal authorities that it believed petitioner had violated Sections 312 and 313 of EPCRA and that it intended to bring suit. J.A. 13-16. This notice was the product of an investigation of petitioner prompt- ed by, among other things, a report from a member of the public that petitioner released “acidic material” through its smokestacks “only at night.”* After petitioner received CBE’s notice it filed overdue forms with the appropriate agencies. Pet. App. A8. The EPA did not insti- tute proceedings against petitioner, and on August 7, 1995, CBE filed this citizen suit under Section 326 of EPCRA in the United States District Court for the Northern District of Illinois. CBE sought, among other things, a declaratory judgment that petitioner had vio- lated Sections 312 and 313; civil penalties, as provided by Sections 325 and 326; an injunction authorizing CBE to inspect petitioner’s facility and records to ensure compliance with EPCRA; and an award of all costs incurred in connection with the investigation and prose- cution of the case. J.A. 11. Petitioner moved to dismiss the complaint on the ground that “CBE cannot sue it for failure to file timely EPCRA reports in the past, but only may sue to force [petitioner] actually to complete and submit 6 See Plaintiff's Memorandum in Opposition to “Motion to Dismiss,” No. 95 C 4534 (N.D. Ill.), filed Oct. 5, 1995, Exh. 1 (Affidavit of Stefan A. Noe). 6 any EPCRA reports from 1988 to 1995 that it may have failed to file.” Pet. App. A21. The district court agreed with petitioner and dismissed the complaint. Pet. App. Al7-A26. The district court acknowledged that numerous decisions of lower courts had rejected petitioner's interpretation of EPCRA. Pet. App. A21-22, citing Atlantic States Legal Foundation, Inc. v. Whiting Roll-Up Door Mfg. Corp., 772 F. Supp. 745, 751-53 (W.D.N.Y. 1991); Williams v. Leybold Technologies, Inc., 784 F. Supp. 765, 768 (N.D. Cal. 1992); Delaware Valley Toxics Coalition v. Kurz-Hastings, 813 F.Supp. 1132, 1141 (E.D. Pa. 1993). See also Don’t Waste Arizona, Inc. v. McLane Foods, Inc., 950 F. Supp. 972 (D. Ariz. 1996); Idaho Sporting Congress v. Computrol, 952 F. Supp. 690 (D. Id. 1996); Neighbors for a Toxic Free Community v. Vulcan Materials Co., 1997 U.S. Dist. LEXIS 7025 (No. 95-D-2617) (D. Colo. April 25, 1997). But the district court chose instead to rely on the single lower court decision that had accepted petitioner’s interpretation, Atlantic States Legal Foundation, Inc. v. United Musical Instruments U.S.A., Inc., 61 F. 3d 473 (6th Cir. 1995). The court of appeals reversed. Pet. App. Al-A15. The court relied on the plain language of Section 326, the citizen suit provision of EPCRA. Section 326 provides that a citizen suit may be brought “for failure to * * * [c]omplete and submit an inventory form under sec- tion [312]” and “for failure to * * * [c]omplete and submit a toxic chemical release form under section [313].” The court explained that “(t]he most natural reading of ‘under’ a section is ‘in accordance with the requirements of’ that section.” Pet. App. All. While petitioner had, by the time suit was brought, belatedly filed the forms, petition- er had failed to file the forms by the deadlines specified in Sections 312 and 313; the court of appeals accordingly concluded that peti- tioner was guilty of a “failure to [c]omplete and submit” forms “under” those provisions within the meaning of the citizen suit pro- vision. The court of appeals also relied on the contrast between the citizen suit provision of EPCRA and the citizen suit provision of the Clean Water Act, 33 U.S.C. § 1251 et seq., which was interpreted by this Court in Gwaltney v. Chesapeake Bay Foundation, 484 U.S. 49 (1987). The Clean Water Act provides that a citizen suit can be 7 brought only against a person “alleged to be in violation of” the Act. 33 U.S.C. § 1365(a)(1). Accordingly, this Court ruled that a com- plaint could not be brought under the citizen suit provision unless it alleged a “continuous or intermittent violation” (484 U.S. at 64); a party who had violated the Clean Water Act, but who came into com- pliance before the suit was brought, could not be “alleged to be in violation” and would accordingly not be subject to a citizen suit. By contrast, the court of appeals explained, EPCRA did not require that a citizen suit allege a defendant “to be in violation”; it required only a “failure” to file “under” the statute. Pet. App. A9-A12. The court of appeals accordingly concluded that EPCRA reached a defendant who filed delinquent reports in response to the notice to sue, but before the complaint was filed. SUMMARY OF ARGUMENT L.A. 1. The plain language of the citizen suit provision of EPCRA authorizes CBE’s suit. EPCRA authorizes a citizen suit against an owner or operator of a facility for “failure to * * * [clomplete and submit an inventory form under section [312]” and for “failure to * * * {c]omplete and submit a toxic chemical release form under section (313.]” Petitioner is guilty of a “failure to do” these things. A form has not been “complete[d] and submit[ted] * * * under” a statutory provision when the individual submitting the form ignored the dead- lines that the provision specifies—any more than a form could be said to have been submitted “under” Section 312 or 313 if it provided inaccurate data or disregarded some other requirement of that section. In fact, the deadlines specified in those provisions are among the most essential requirements in EPCRA. Information supplied years out of time is nearly worthless to the individuals and agencies to whom Congress wanted EPCRA data to be provided—tocal fire departments and emergency planning officials, and citizens who are concerned about environmental hazards in their neighborhoods. 2. This Court’s decision in Gwaltney v. Chesapeake Bay Foundation, Inc., 484 U.S. 49 (1987), on which petitioner relies heav- ily, in fact reinforces the conclusion that EPCRA authorizes CBE’s citizen suit. Gwaltney disallowed a citizen suit under the Clean Water Act in circumstances parallel to those present here. But the Court in Gwaltney relied on the language of the Clean Water Act, which per- mits a citizen suit only against a person “who is alleged to be in vio- lation” of an effluent standard. In EPCRA, Congress did not require a citizen plaintiff to allege that the defendant was “in violation” of the statute. Since every other environmental statute with a citizen suit provision contains the “alleged to be in violation” limitation, Congress’s decision not to impose such a limit on EPCRA citizen suits cannot be attributed to inadvertence. B. In fact, Congress had good reason to choose different language when it drafted the citizen suit provision of EPCRA: petitioner’s interpretation would effectively nullify the citizen suit provision of EPCRA. Because EPCRA is an informational statute, a firm will sel- dom find it difficult to come into compliance with EPCRA within 60 days after receiving notice of a citizen’s intent to sue. Gwaltney left a substantial role for citizen enforcement of the Clean Water Act: a firm that is in violation of an anti-pollution requirement might have to modify its manufacturing processes or install new equipment, costly tasks that will often take more than 60 days. But a firm that has been ignoring Sections 312 and 313 of EPCRA—or, for example, a firm that does rot update its forms and inaccurately reports the same infor- mation year after year—will almost always be able to file delinquent, corrected forms within 60 days of receiving notice of intent to sue. Under petitioner’s interpretation of EPCRA, such a firm would then be immune from citizen enforcement. Congress could not have intended to permit the elaborate citizen suit provision of EPCRA to be set completely at naught in this way. Il. Article II] does not bar CBE’s citizen suit. This suit is, as we have shown, authorized by an Act of Congress. It is a suit against a private party, not against an executive official, and therefore does not present separation of powers problems involving judicial supervision of the executive. There is no question that CBE and its members were injured in fact, and that the injury was inflicted by petitioner. And in numerous ways, the relief CBE seeks will redress its and its members injuries. The Court has consistently recognized that Congress may authorize qui tam actions seeking, as this suit does, the payment of a fine to the Treasury; CBE has an even stronger claim to standing than the typical qui tam plaintiff, because CBE was undoubtedly injured in fact. 9 A. As a result of petitioner’s conduct, CBE and its members suf- fered injury in fact in several forms. First, petitioner denied them the information that EPCRA gives them a right to receive. In this respect, CBE and its members are not just asserting an interest they share with the general public. CBE’s members live and work near petitioner’s facility, and EPCRA is particularly designed to ensure that individu- als living near facilities that use and release toxic chemicals have accurate and timely information. In addition, because petitioner did not comply with EPCRA, CBE had to expend its own resources to uncover information about peti- tioner to supply to members of the community. Finally, Congress expected that firms that complied with EPCRA would be likely to pollute less, and petitioner’s conduct bears out Congress’s judgment: petitioner's reported releases of hydrochloric acid dropped dramati- cally after it began filing EPCRA reports. The additional environ- du; .ag the time it was ignoring EPCRA, is further injury in fact. B. CBE’s suit also satisfies the requirement of “redressability.” There would be no conceivable issue about redressability in this case had petitioner not begun complying with EPCRA when it received CBE’s notice of intent to sue. But it is well established that “‘a defen- dant’s voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of the practice.” Northeastern Florida Chapter, Associated General Contractors v. Jacksonville, 508 U.S. 656, 662 (1993) (citation omitted). That prin- ciple is usually applied when the voluntary cessation occurs after suit is brought. Nothing in Article III, however, prohibits Congress from applying the same principle in a case like this, when the voluntary cessation was a response to the notice of intent to sue, and when Congress had compelling reasons not to permit the citizen enforce- ment scheme to be nullified ir this way. In addition, the relief CBE seeks redresses its injury by punishing petitioner for wrongful conduct and by deterring future wrongful conduct by petitioner. In particular, Congress was entitled to con- clude that petitioner would be less likely to violate EPCRA in the future—thus inflicting further injury on CBE and its members—if 10 compensation for some of the injury petitioner inflicted on CBE and its members. The award of litigation costs will include compensation to CBE for the costs of the investigation it was forced to undertake to learn about petitioner’s use of toxic chemicals. The possibility of a settlement, through a Supplemental Environmental Project, can rem- edy some of the environmental injury petitioner inflicted on CBE members. ARGUMENT I. EPCRA AUTHORIZES A CITIZEN SUIT AGAINST A DEFENDANT WHO FILES OUT-OF-TIME REPORTS AFTER RECEIVING THE NOTICE OF INTENT TO SUE A. The Plain Language Of The Citizen Suit Provision Authorizes This Action. 1. The interpretation of the citizen suit provision of EPCRA must, of course, “begin * * * with an examination of the language of the statute.” Ingalls Shipbuilding Inc. v. Director, OWCP, 117 S. Ct. 796, 801 (1997); see, e.g., Hallstrom v. Tillamook County, 493 U.S. 20, 25 (1989). Section 326 of EPCRA authorizes a citizen to bring suit against “[a}]n owner or operator of a facility for failure to do” certain specified things. Among those things are “failure to * * * [c]omplete and submit an inventory form under section [312]” and “failure to * * * [c]omplete and submit a toxic chemical release form under sec- tion [313.]” 42 U.S.C. § 11046(a)(1)(A)(iii) and (iv). Petitioner is guilty of a “failure to do” these things. Of course, peti- tioner filed out-of-time forms for previous years, after it had received notice of CBE’s intention to sue. But this did not constitute “com- plet[ing] and submit([ting the forms] under” Sections 312 and 313. The ordinary meaning of “under” a legal provision is “in accordance with” that provision,’ and a form cannot be said to have been “com- plete{d] and submit[ted] * * * under” a statutory provision when the individual submitting the form ignored the deadlines that the provi- 7 See, e.g., Webster's Encyclopedic Dictionary, Unabridged Edition (1989), which defines “under” as “14. in accordance with: under the provisions of law.” 11 sion specifies—any more than a form could be said to have been sub- mitted “under” Section 312 or 313 if it disregarded some other requirement of that section. As the court of appeals explained, this use of “under” is “simply a way to incorporate the requirements of the referenced section without listing them all over again.” Pet. App. All. Section 312 provides that “[t}he inventory form * * * shall be sub- mitted on or before March 1, 1988, and annually thereafter on March 1, and shall contain data with respect to the preceding calendar year.” 42 U.S.C. § 11022(a)(1). Petitioner filed no such forms on March | of 1988 through 1995. Section 313 specifies that “a toxic chemical release form * * * shall be submitted * * * on or before July 1, 1988, and annually thereafter on July | and shall contain date reflecting releases during the preceding calendar year.” 42 U.S.C. § 11023 (a). Petitioner filed no such forms on July | of 1988 through 1994. Forms submitted years after those deadlines cannot be said to have been filed “under” Sections 312 and 313. No one would deny that petitioner had “fail[ed] to * * * [cjomplete and submit an inventory form under section ([312]” or Section 313 if petitioner had filed forms that omitted the information required by those sections, such as the identity and quantity of the chemicals. But none fn sient cipeaindite toate Gen Giitnentdhinn | ao deadlines specified in Section 312 and 313 and the other require- ments of those sections. That is why petitioner—whose brief devotes conspicuously little attention to the plain language of Section 326— cannot suggest any plausible explanation of why an untimely filing would not be a “failure to complete and submit” a form “under” Sections 312 and 313. Petitioner asserts that “[t}]he reference to complete 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—not a wholesale incorporation of those sections’ requirements.” Pet. Br. 31- 32. But petitioner surely does not deny that filing blank forms, or forms containing information that the owner knew to be inaccurate, would constitute a “failure to complete and submit forms under” Sections 312 and 313. And petitioner does not explain why the requirements of accuracy are “incorporated” but the deadlines speci- 12 fied in Sections 312 and 313 are not. In fact, the deadlines specified in those provisions are among the most essential requirements in EPCRA. The information required by. EPCRA is far less valuable when it is disclosed belatedly, especially years after it was required. That is apparent from the fact that Congress required annual disclosures. Congress would not have done so if outdated information was as useful as current information. In addition, EPCRA’s specific purposes are served only if informa- tion is kept current. For example, forms required under Section 312, specifying the amounts and locations of hazardous chemicals, are filed with the local fire department and local emergency planning agencies. Those officials obviously need current information to plan how to control fires or releases of hazardous chemicals. A form filed years late is of little or no use to them. The same is true for citizens living or raising children in the neighborhood of a facility that uses toxic chemicals, or persons considering whether to buy property in such a neighborhood. In all of those instances, the information required by EPCRA is far less valuable—and may well be altogether useless—if it is disclosed years late. There is, accordingly, no basis whatever, in either the language or the logic of EPCRA, for conclud- ing that a failure to comply with the deadlines specified by Sections 312 and 313 is not actionable in a citizen suit. 2.a. Petitioner relies heavily on this Court’s decision in Gwaltney v. Chesapeake Bay Foundation, Inc., 484 U.S. 49 (1987). Gwaltney held that the citizen suit provision of the Clean Water Act did not authorize a suit against a firm that was in violation of a permit con- dition when it received notice of intent to sue, but that came into com- pliance before suit was brought. Gwaltney, however, far from .1p- porting petitioner, powerfully reinforces the conclusion that EPCRA authorizes this action. That is because the citizen suit provision of the Clean Water Act is phrased differently from EPCRA’s, and the dif- ference is crucial. The Clean Water Act authorizes an citizen suit “against any person * * * who is alleged to be in violation of” an effluent standard. 33 U.S.C. § 1365(a) (emphasis added). The Court explained in Gwaltney that “(t]he most natural reading of ‘to be in violation’ is a requirement 13 that citizen-plaintiffs allege a state of either continuous or intermit- tent violation—that is, a reasonable likelihood that a past polluter will continue to pollute in the future.” 484 U.S. at 57. Had Congress wanted to limit citizen suits under EPCRA in the way petitioner advocates, Congress could simply have borrowed the phrase “alleged to be in violation” from the Clean Water Act. Bvi there is overwhelming evidence that Congress deliverately chcse not to use that phrase in EPCRA. Every other citizen suit provision in an environmental statute at the time of EPCRA used the phrase “alleged to be in violation.”* As the Court explained in its most recent decision dealing with a citizen suit provision, the language in a statute must be “compared with the language Congress ordinarily uses.” Bennett v. Spear, 117 S. Ct. 1154, 1162 (1997). In EPCRA, Congress used different language from what it used in every other cit- izen suit provision. In fact, the citizen suit provision of the Comprehensive Environmental Response Compensation and Liability Act (CER- CLA), 42 U.S.C. § 9659, is limited by the “alleged to be in violation” formulation—and the CERCLA citizen suit provision was enacted as part of the same public law as EPCRA. Pub. Law 99-499 (Oct. 17, 1986). “*[I}t is generally presumed that Congress acts intentionally and purposely’ when it ‘includes particular language in one section of a statute but omits it in another.’” City of Chicago v. Environmental Defense Fund, 511 U.S. 328, 338 (1994), quoting Keene Corp. v. United States, 508 U.S. 200, 208 (1993) (brackets in original). 8 See Clean Water Act, 33 U.S.C. § 1365 (1972); Marine Protection Research & Sanctuaries Act, 33 U.S.C. § 1415(g) (1972); Noise Control Act, 42 U.S.C. § 4911 (1972); Endangered Species Act, 16 U.S.C. § 1640(g) (1973); Safe Drinking Water _ Act, 42 U.S.C. § 300j-8 (1974); Deepwater Port Act, 33 U.S.C. § 1515 (1979); Resource Conservation and Recovery Act (RCRA), 42 U.S.C. § 6972(a)(1 XA) (as amended 1984); Toxic Substances Control Act, 15 U.S.C. § 2619 (1976); Surface Mining Control & Reclamation Act, 30 U.S.C. § 1270 (1977); Outer Continental Shelf Lands Act, 43 U.S.C. § 1349 (1978); Comprehensive Environmental Response Compensation and Liability Act, 42 U.S.C. § 9659 (1986); Hazardous Liquid Pipeline Safety Act, 42 U.S.C. § 2014. RCRA contains an additional citizen suit provision that does not use the term “alleged to be in violation,” but that pro- vision, also, focuses on ongoing harm. See 42 U.S.C. § 6972(a)(1\B). 14 Against this background, the obvious inference is that Congress used the distinctive language of the citizen suit provision of EPCRA because it wanted to do something different in EPCRA: Congress’s decision to deviate, in EPCRA, from “the language it ordinarily uses” in citizen suit provisions (Bennett, 117 S. Ct. at 1162) establishes that Congress did not want to require citizens suing under EPCRA to “allege[ the defendant] to be in violation” of the Act at the time of the suit. In Gwaltney, the Court emphasized that the phrase “‘alleged to be in violation’ [i]s a statutory term of art rather than a mere stylistic infelicity” (484 U.S. at 62). Congress’s decision not to use that “term of art” also should not be viewed as a mere stylistic variation. Petitioner, again, has no plausible explanation for Congress’s deci- sion to use the phrase “failure to * * * [c]omplete and submit [forms] under” Sections 312 and 313 instead of the customary “alleged to be in violation.” Petitioner’s only suggestion appears to be that because Sections 312 and 313 require only the filing of documents, the use of the term “violation” would somehow be inapposite. See Pet. Br. 31. But this argument, implausible on its face, is contradicted by the text of EPCRA itself. The provisions of EPCRA specifying civil penalties refer to a failure to comply with Section 312 or 313 as a “violation.” 42 U.S.C. § 11045(c)(1). Moreover, those provisions show that Congress’s understanding in EPCRA, too, was that a “violation” of a reporting requirement “continues” until the report is filed out of time, at which point the “violation” ceases. See 42 U.S.C. § 11045(c)(3).’ The phrase “to be in violation” would, therefore, have had a clear meaning under EPCRA—the very meaning that petitioner wishes to impute to the citizen suit provision. Congress, however, chose not to use that phrase. 9 Under these provisions, a failure to submit a required report under Section 312 or 313 renders a person liable for a civil penalty of up to $25,000 “for each viola- tion,” and “[eJach day a violation * * * continues shall, for [these] purposes * * * constitute a separate violation.” 42 U.S.C. § 11045(c)(1), (3). Thus the term “vio- lation” under EPCRA denotes a state of affairs that can be brought to an end by fil- ing an out-of-time report. 15 b. In other ways, as well, the logic of Gwalmey not only is inap- plicable to EPCRA but helps show that EPCRA authorizes CBE’s suit in this case. The Court in Gwaltney remarked on the “undeviat- ing” and “pervasive use of the present tense” in the citizen suit pro- vision of the Clean Water Act—usage that, the Court believed, further suggested that citizen suits were limited to unlawful conduct that was ongoing at the time suit was filed. 484 U.S. at 59. Section 326 of EPCRA stands in sharp contrast. The term “failure,” of course, is not taken most naturally to refer to ongoing action but to action in the past. Also, the venue provision for citizen suits under EPCRA, Section 326(c), provides that citizen suits “shall be brought in the dis- trict court for the district in which the alleged violauon occurred.” 42 U.S.C. § 11046(c) (emphasis added). This, of course, suggests that citizen suits may be brought for violations that were completed by the time the suit was filed. Similarly, Gwalmey found “most telling” the definition of a citizen authorized to bring suit under the Clean Water Act: “‘a person... having an interest which is or may be adversely affected’ by the defendant’s violations of the Act.” 484 U.S. at 59, quoting 33 U.S.C. § 1365 (g). The Court reasoned that this limitation on the class of individuals authorized to sue revealed that Congress intended to allow citizen suits only against ongoing violations. Under the citizen suit provision of EPCRA, by contrast, “any person may commence a civil action” (42 U.S.C. § 11046(a)(1) (emphasis added)). This Court has recently commented on the “remarkable breadth” of the “any per- son” formulation, contrasting it explicitly to “the language Congress ordinarily uses” in citizen suit provisions. Bennett v. Spear, 117 S. Ct. 1154. 1162 (1997). These aspects of EPCRA are further evidence that the approach taken in Gwalimey, when applied to EPCRA, leads not to the result petitioner suggests but to the conclusion that CBE’s suit should be allowed. There are other differences, as well, between the Clean Water Act citizen suit provision considered in Gwaltney and Section 326 of EPCRA. The legislative history of the Clean Water Act contained numerous statements suggesting that the citizen suit provision was intended only to abate or prevent pollution. See 484 U.S. at 61-63. The legislative history of EPCRA contains nothing comparable. In 16 addition, the Court in Gwaltney was concerned that citizen suits under the Clean Water Act might interfere with EPA efforts to settle an administrative enforcement proceeding. See 484 U.S. at 60-61. But under EPCRA, EPA's initiation of administrative enforcement proceedings bars a citizen from filing suit. 42 U.S.C § 11046(e). There is, to be sure, one conspicuous use of the present tense in Section 326. But far from aiding petitioner, it wholly undermines one of petitioner’s principal arguments. The notice provision of Section 326 requires that the citizen plaintiff give notice to, among others, “the State in which the alleged violation occurs” (42 U.S.C. § 1 1046(d)(1) (emphasis added)). This is in direct contrast to the venue provision, according to which citizen suits “shall be brought in the district court for the district in which the alleged violation oucurred.” 42 U.S.C. § 11046(c) (emphasis added). The most reasonable infer- ence from this contrast is that the violation must be ongoing at the time notice is given—but need not be ongoing at the time suit is brought. That is, of course, precisely the situation here. Petitioner raises the spectre that citizen plaintiffs will “exhume past violations” by “search[ing] old government records to determine which companies filed late EPCRA reports and then su[ing.]” Pet. Br. 47. Of course, that is not what this case involves, and the Court need not reach the question whether EPCRA permits such citizen svits. But in any event, the contrast in tenses between the venue and notice provisions provides a firm basis for distinguishing this suit from any such “exhumation.” And nothing in EPCRA suggests that a firm that files overdue forms only in response to the notice of intent to sue can thereby gain immunity from a citizen action. 3. Petitioner places its greatest emphasis on the fact that Section 326 contains a notice requirement. See Pet. Br. 14-20. Petitioner relies on the Court’s conclusion in Gwaltmey that the notice provision of the Clean Water Act was intended to provide polluters an opportu- nity to come into “complete compliance” with that Act and thereby “render unnecessary a civil suit.” 484 U.S. at 60. In the context of a statute like the Clean Water Act, which authorizes citizen suits on!y against defendants “alleged to be in violation,” this is undoubtediy one purpose to which the notice period might be put. —_— 17 Petitioner’s argument, however, presupposes that this is the only purpose of the notice period. Congress’s actions in amending anoth- er citizen suit provision—that found in the Clean Air Act, 42 U.S.C. § 7604—