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

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’ JUN 23 1997 |

In the Supreme Court of the Gnited States

OCTOBER TERM, 1996

THE STEEL Comrany, A/K/A CHICAGO STEEL AND

PICKLING COMPANY, PETITIONER

CITIZENS FOR A BETTER ENVIRONMENT

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING RESPONDENT

WALTER DELLINGER

Acting Solicitor General

LoIs J. SCHIFFER

Assistant Attorney General

LAWRENCE G. WALLACE

Deputy Solicitor General

JAMES A. FELDMAN

Assistant to the Solicitor

General

EDWARD J. SHAWAKER

MARK R. HAAG

MICHAEL E. WALL

Attorneys

Department of Justice

Washington, DC 20530-0001

(202) 514-2217

QUESTION PRESENTED

Whether a citizen may sue to enforce the reporting re-

quirements of the Emergency Planning and Community

Right-to-Know Act of 1986 (EPCRA) against a defendant

who violates the Act by failing to file the required reports

on time, but who then files them after receiving statutory

notice of the intended suit and before the complaint is filed.

TABLE OF CONTENTS

Page

Interest of the United States ............ccccccecssoseccoceoeeeeeese, l

EER ee ee l

ET, 7

Argument:

I. EPCRA authorizes citizens to sue persons who

file overdue reports only after having received

notice of a citizen’s intention to sue ................... i)

A. The terms of the statute authorize citizen

suit if the defendant has not filed re-

quired reports when the citizen provides

B. This Court’s interpretation of the Clean

Water Act in Gwaltney to preclude similar

citizens’ suits does not govern this case ....... ll

II. Article III’s case or controversy requirement is

satisfied where citizens seek relief against a

violator that ceases its illegal activity only after

receiving statutory notice of the citizens’ inten-

REE ST RSE

hee A LE AD I

S 8

TABLE OF AUTHORITIES

Cases:

Akins v. Federal Election Comm'n, 101 F.3d 731

(D.C. Cir. 1996), cert. granted, No. 96-1590

ETE ee ee

SE Cinetneirtntnccidibccuntabsedbddacdecibindseememminaiiaieeses

Alyeska Pipeline Serv. Co. v. Wilderness Society,

ee ee ED Wlliiicccliitsetiinccdeciiisctissitdatikeenadenesseence

Ardestani v. Immigration & Naturalization Serv.,

oo | RES Se eee ee i)

Ss 8S ®

Cases—Continued Page

Arizonans for Official English v. Arizona, 117

SD GR, GED crrrenemcenecccentnintntitleestntitnsst 29

Atlantic States Legal Found., Inc. v. Buffalo Enve-

lope Co., 823 F. Supp. 1065 (W.D.N.Y. 1993) .......... 23

Atlantic States Legal Found., Inc. v. United

Musical Instruments U.S.A., Inc., 61 F.3d 473

SEE Ge, SD ccestesnastinsssenssinnistniiadiiitiaeithitiatiartsteatmsess 5, 23

Atlantic States Legal Found., Inc. v. Whiting Roll-

Up Door Mfg. Corp., 772 F. Supp. 745 (W.D. N.Y.

a ee” 23

Chesapeake Bay Found. v. Gwaltney of Smithfield,

Ltd., 911 F. Supp. 1542 (E.D. Va. 1985), aff’d, 791

F.2d 304 (4th Cir. 1986), rev’d on other grounds, 484

Ft RENE . l 18-19

City of Chicago v. Environmental Defense Fund,

ok S| Re. By FL ee 13

City of Mesquite v. Aladdin's Castle, Inc., 455 U.S.

SD GREE) wongeeneenteantssnetenpemmnnenensanetiniaattatestaiitaetnsets 27

Delaware Valley Torics Coalition v. Kurz-Hastings,

Inc., 813 F. Supp. 1132 (E.D. Pa. 1993) .................. 23

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

950 F. Supp. 972 (D. Ariz. 1996) ..........cccccccccceeeeeeees 23

Flast v. Cohen, 392 U.S. 83 (1968) .........ccccccccccccceees 23

Foster v. Neilson, 27 U.S. (2 Pet.) 253 (1829) ......... 14

Friends of the Earth v. Carey, 535 F.2d 165 (2d

CER, SEU ccvsiiinstathnatienncssnianeciiiaetatesttannienatiaataatta tate ees 23

Gwaltney of Smithfield, Ltd. v. Chesapeake Bay

Found., Inc., 484 U.S. 49 (1987) ........ 6, 11, 12, 15, 16, 28

Hall v. Board of Sch. Commrs., 656 F.2d 999 (5th

SUED cocurienmncsiipetiibiinniadiiiiinasipienentntindina tite ia ditt as 28

COEUD ctenstsctnennesensencnsetantincstpectititniatinemmbimesadnscaninstenes 16, 17

Cases—Continued

Havens Realty Corp. v. Coleman, 455 U.S. 363

GEREN eettrescntidicettutiitintnentiiiiastiiialsiti es ess eg 24

Group of New Jersey, Inc., 29 E.R.C. 1417 (D. N.J.

ete) on OTe 18

SUI? itnthvenipestiembensabinsetiaenscnsteesinsidiblilnediis 30

Sei eitiittanmmiammeesie. 24,

ceria ee Nene 30

Shaw v. Dow Brands, Inc., 994 F.2d 364 (7th Cir.

SENET seurenenentutestnnnepiontnieetattensiee ne 30

Cases—Continued Page

United States v. Menasche, 348 U.S. 528 (1955) ..... 14

United States v. Oregon State Medical Soc., 343

WB. GBB COGEED ecrccnscesestitceinsccnstsicsestecdssassiiamsntinccessete 26

United States v. W.T. Grant Co., 345 U.S. 629

0 27, 28

United States Dep't of Energy, v. Ohio, 503 US.

GRE CED cccccccescsnssenssenssesnensntstbiinnautitterthinedinenemnesese 10

Vitek v. Jones, 445 U.S. 480 (1980) ............ccccceeeeeees 28

Warth v. Selding, 422 U.S. 490 (1975) .............ccc000es 24

Williams v. Leybold Technologies, Inc., 784 F. Supp.

CE GOLA, Ge ED eentectcnscntatsscrssanttinstssenvssesnsscessess 23

Constitution, statutes, and rule:

U.S. Const.:

Bat, TE ccocnsynessceseqeemaenseeneieeen 17

gh, TE. csusewsnenasemeseainn 8, 23, 24, 27, 28, 29

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

7601 et seq.:

Ee TD seiccnrenicnitsibepaidniitmtticrnanien 19

GB Fae CD Ghcneneccnnenscsintitnnertdattitiiinsentnemnsceens 19

Clean Water Act of 1977, 33 U.S.C. 1251 et seg. ......... 6

SD UR, GRD cdihdtericicerticcciincetsitinsttinizermecessce 12

SD Ee Be eiientecnrmncteseninennssenenceemettemeeeseen 15

B33 U.S.C. 136B(D)CI MAI) «.........ccceceeeeeeneeeerennernenees 15

SB UE, SID ccccasesscestssnssncvspnescczscssccscseeese 15

GD BG BD ttetereciccceetemens 15

SD he Bt cncneepenpcarsnnscsapepesnsnvenpnsesenentsnszecnese 16

Comprehensive Environmental Response, Compensa-

tion and Liability Act, 42 U.S.C. 9601 et seq. ........... 13

pF ee 13

Emergency Planning and Community Right-to-Know

TM en 1

$ BOZ%(c), 42 U.S.C. 11002(C) ...........cccceeeeeeeeeeeereees 21

$ BOB(d), 42 U.S.C. 1108) .........ccccccccecereeeseeesenees 21

Te TS ee 22

$ BIU(c), 42 U.S.C. LIO2Z1(C) ........cccccccrereererrreneeeees 21

§ B11(e)(1), 42 U.S.C. 11021 (@)(1) ......--0.eceerrereeees

VII

Statutes and rule—Continued: Page

§ 312, 42 U.S.C. 11022.............. 4, 18, 14, 15, 1

$ 312(a), 42 U.S.C. 11022(a) ‘ : aX 5 = .

§ 312(a)(1), 42 U.S.C. 11022(a\(1) 13

§ 312(d)(1)(B), 42 U.S.C. 11022(4)1XB) 13

§ 312(d)(2), 42 U.S.C. 11022(4\(2) ........ 14

B14eXD, fuse 11022(e)(1) ............. 21

> aan 4, 18, 14, 15, 19, 25

$ 313(a), 42 U.S.C. 1102%(a) 2, 4, 8, 9, at 21

$ 313(g)(1XC), 42 U.S.C. 11023(g\(1XC) 13

$ 313(g)(2), 42 U.S.C. 11023(g)2) ....... 14

§ 313(h), 42 U.S.C. 11023(h) ........ 2, 3, 14, 22

§ 313), 42 U.S.C. 11023()) ....................... 3

§ 822, 42 U.S.C. 11042(b\(1) 0.0.0... 21

§ 323(b), 42 U.S.C. 110430) ............... 14

§ 324(a), 42 U.S.C. 11044(a) .................. 3, 14

§ 324(b), 42 U.S.C. 11044() ............. 3

§ B25(c), 42 U.S.C. 11045(6) oonceeccccccccececeeeeeeess... 18

LK 7, 13

§ 326(a), 42 U.S.C. 11046(a) Meu 4, 7, 10

§ 326(a\(1), 42 U.S.C. 11046(a\1) 8, 4, 7,9

$ 326(a)(1) Aili), 42 U.S.C. 11046(aX\1MA)Gii) 10. 12

$ 326(a)(1(AMiv), 42 U.S.C. 11046(aX1XA\iv) 10. 12

§ 326(a(2), 42 U.S.C. 11046(aX(2) ................ 3

§ 326(b\(1), 42 U.S.C. 110461) 6, 8, 10, 15

$ 326(d), 42 U.S.C. 11046(d) .................... "17

§ 326(d)(1), 42 U.S.C. 11046(4\(1) 4, 8, 11, 15, 17

§ 326(e), 42 U.S.C. 11046(e) ..................... 15, 17

$ 326(h)(1), 42 U.S.C. 11046(h\(1) 18

$ 329(7), 42 U.S.C. 11049(7) ............. 16

eae lle ES SE REGS 13

Tit. II, 100 Stat. 1728 .............. 13

+ =) Ct aE cs 20

a i 8 4 fiiiandol mmcaummmmers se: sat 5

Vill IX

Miscellaneous: Page Miscellaneous—Continued:

President William J. Clinton, Memorandum for the Webster's Third New Int'l Dictionary (1986) .............

Administrator of the Environmental Protection

Agency and the Heads of Executive

and Agencies, 60 Fed. Reg. 41,791 (1995) ................ 3

131 Cong. Rec. (1985):

0, RTE cnietienssstnenutrinnentennnsssseretgaeendetiniabianaen 2

Enforcement Response Policy for Section 318 of

[EPCRA] and Section 6607 of the Pollution Pre-

vention Act (Aug. 10, 1992) .........sscccccseseereeeeeeees 19

1993 EPA Towics Release Inventory (March 1995) .. 3

1995 EPA Towics Release Inventory (April 1997) .... 21

Penalty Policy For Sections 302, 303, 304, 311,

and 312 of [EPCRA] and Section 103 of

[CERCLA] (June 13, 1990) .........cccccccessssreseeceeeees 19

Summary Of The 1998 Budget (January 1997) ........ 21

EPCRA Data Plays Major Role in Midwest Flood

Response, 6 Right-to-Know Planning Guide (BNA)

SED, ae GEES Bath, CID ccccemnssevsesereuieiibiamnestmeeueee 3

61 Fed. Reg. (1996):

Sh, GRE enansseubassenerseneupsqemenuniaiamansnaneres 22

>, GET cercessnsssesnennsnnecsnennansinbamenidiinaliamenaphiaanenansens 22

General Accounting Office, EPA's Toxic Release

Inventory Is Useful but Can Be Improved (June

SETE) cnserespcsveupiseeessstorsennsensaianebianadnnncieninnstambersesennecse 21

House Comm. on Public Works and Transporta-

tion, Superfund Amenaments of 1985, H.R. Rep.

No. 253, 99th Cong., Ist Sess. Pt. 5 (1985) ............... 22-23

Random House Dictionary of the English Language

GS GE. TED ehvenewrenientiniatunmtiiiiomemaene 10

John L. Spilsbury, The Hazardous Chemicals Right-

to-Know Act: Letting the Public Know What's Next

Door, 64 N.C. L. Rev. 1330 (1986) ..........ccccceseeeeeeeees 2

Value of EPCRA Information Proven in Fatal Explo-

sion, 4 Right-to-Know Planning Guide (BNA) No. 21

GU G, TERED cccccvvesssssazsvasssbansocnsesspeterpesnsystsnenesecences 2

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

Vv.

CITIZENS FOR A BETTER ENVIRONMENT

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING RESPONDENT

INTEREST OF THE UNITED STATES

The Environmental Protection Agency (EPA) plays the

lead role in implementing and enforcing the Emergency

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

U.S.C. 11001 et seq. The present case, in which the United

States appeared and argued as amicus curiae in the court

of appeals, concerns the prerequisites for a private suit

brought to enforce EPCRA requirements. Resolution of

this case will have a direct and substantial effect on

systematic enforcement of, and compliance with, the Act.

STATEMENT

1. The Emergency Planning and Community Right-

to-Know Act of 1986 (EPCRA), 42 U.S.C. 11001 et seq.,

protects public health, public safety, and the environment

by ensuring public and official access to information on

invento-ries and releases of hazardous and _ toxic

(1)

chemicals. This case involves two of EPCRA’s central

reporting require ments.

Section 312(a) requires covered facilities to submit an-

nual emergency and hazardous chemical inventory forms

(“inventory forms”) to the State in which the facility is

located, local officials, and fire departments. 42 U.S.C.

11022(a). Congress adopted that reporting requirement in

part to enhance community emergency preparedness after

a company’s accidental release of highly toxic chemicals

in Bhopal, India, killed more than 2,000 people, and after

many domestic accidents. 131 Cong. Rec. 24,060 (1985)

(statement of Sen. Lautenberg). During the five years

preceding EPCRA’s enactment, the United States experi-

enced at least 6,928 toxic chemical accidents that, in total,

killed more than 135 people, injured approximately 1,500,

and forced more than 200,000 others to evacuate their

homes, schools, or businesses. John L. Spilsbury, The

Hazardous Chemicals Right-to-Know Act: Letting the

Public Know What's Next Door, 64 N.C. L. Rev. 1330, 1330

(1986).

Section 313(a) of EPCRA requires covered facilities to

report toxic chemical releases to the State and the

Environmental Protection Agency (EPA) on an annual

basis. 42 U.S.C. 11023(a). EPCRA expressly ordains that

such information is of particular importance to the public.

Toxic chemical release reports “are intended to provide

information to the Federal, State, and local governments

and the public, including citizens of communities sur-

rounding covered facilities.” 42 U.S.C. 11023(h) (empha-

sis added).

EPCRA establishes strict annual deadlines for facili-

ties to submit inventory forms and toxic chemical release

forms. Prompt, regular reporting is critical to effective

community emergency planning and the safety of fire-

fighters and other emergency response officials. See 131

Cong. Rec. 24,060-24,061 (1985); Value of EPCRA Infor-

mation Proven in Fatal Explosion, 4 Right-to-Know

Planning Guide (BNA) No. 21, at 4 July 4, 1991) (EPCRA

reporting vital in responding to explosion of fertilizer

plant); EPCRA Data Plays Major he in Midwest Flood

Response, 6 Right-to-Know Planning Guide (BNA) No. 24,

at 4 (August 12, 1993) (emergency response officials relied

on EPCRA data to identify possibly hazardous conditions

after 1993 midwestern floods).

EPCRA also provides for unprecedented public access

to the inventory and toxic chemical release information,

which must be made available to the general public at

convenient locations and times. 42 U.S.C. 11044(a). Con-

sistent with the annual reporting cycle, local emergency

planning organizations must publish annual notices in

local newspapers announcing that inventory forms have

been received. 42 U.S.C. 11044(b). EPA must maintain a

national toxic chemical inventory in a publicly accessible

computer data base. 42 U.S.C. 11023(j).

EPCRA reporting provides information disclosure that

is an effective and efficient supplement to traditional

regulatory controls, because it “encourage{s] informed

community-based environmental decision making and

provide[s] a strong incentive for businesses to find their

own ways of preventing pollution.” President William

J. Clinton, Memorandum for the Administrator of the

Environmental Protection Agency and the Heads of

Executive Departments and Agencies, 60 Fed. Reg.

41,791, 41,791 (1995); see also 42 U.S.C. 11023(h) (describ-

ing uses of toxic release inventory information). During

the period that petitioner did not file EPCRA reports,

total reported toxic chemical releases decreased by 43%

nationwide. The fabricated metals and primary metals

industries, in which petitioner operates, reduced reported

toxic chemical releases by 237 million pounds and 46

million pounds, respectively. 199 EPA Toxics Release

Inventory 173, 184 & Table 3-7, at 185 (March 1995).

2. EPCRA provides for enforcement by EPA, 42 U.S.C.

11045, by state and local governments and emergency re-

sponse commissions, 42 U.S.C. 11046(a)(2), and by citizens,

42 U.S.C. 11046(aX(1). EPCRA Section 326(a\(1) author-

izes “any person” to sue “[ajn owner or operator of a

facility for failure to do” certain things. de U.S.C.

11046(a). Among the violations actionable by citizens are

an owner’s or operator’s failure to “(complete and submit

an inventory form under” Section 312(a) and an owner's or

operator’s failure to “{clomplete and submit a toxic

chemical release form under” Section 313(a). 42 U.S.C.

11046(a)(1). Before bringing suit, the citizen must provide

60-days notice to EPA, the State in which the facility is

located, and the violator. 42 U.S.C. 11046(d)(1).

3. On March 16, 1995, respondent notified EPA, the

State of Illinois, and petitioner of respondent's intention to

file suit because petitioner had not submitted annual

EPCRA inventory or toxic chemical release forms for

more than seven years. On May 1, 1995, after receiving

respondent’s 60-day notice letter, petitioner submitted the

overdue inventory and release forms. EPA did not bring

an enforcement action against petitioner. Pet. App. A8;

A. 18.

; 4. On August 7, 1995, respondent filed a complaint

under EPCRA Section 326(a)(1), 42 U.S.C. 11046(a)(1).

The complaint alleges that on “failed to submit

chemical inventory forms to the [state emergency re-

sponse and local emergency planning bodies] and the

appropriate fire department, on or before March 1, 1988,

and annually thereafter,” in violation of EPCRA Section

312, and “failed to timely submit chemical release forms to

the EPA and designated state agency on or before July 1,

1988, and annually thereafter,” in violation of EPCRA

Section 313. J.A. 8, 10.

The complaint alleges that respondent has offices in

Chicago, where petitioner’s facility is located, and that

its members “reside, own property, engage in recreational

activities, breathe the air, and/or use areas near

[petitioner’s] facility.” J.A. 4, 5. According to the com-

plaint, “[respondent’s] members seek, acquire and use data

reported by facilities under EPCRA to learn about toxic

chemical releases, the use of hazardous substances in

their communities, to plan emergency preparedness in the

event of accidents, and to attempt to reduce the toxic

chemicals in areas in which they live, work, and visit.”

J.A. 5. The complaint alleges that “[tJhe safety, health,

recreational, economic, aesthetic and environmental inter-

ests of [respondent’s] members and their right to know

about such releases have been, are being, and will be

adversely affected by [petitioner’s] actions in failing to file

timely and required reports under EPCRA.” Jbid.

To address these injuries, respondent’s complaint seeks

a declaratory judgment, civil penalties, and an injunction.

The injunction is to require petitioner to permit respon-

dent to inspect its facilities and records for EPCRA

compliance for at least one year, and to require petitioner

to send its EPCRA reports to respondent when they are

filed for a be of at least one year. Respondent also

sought an award of attorneys fees and costs. J.A. 11.

5. The district court granted petitioner’s motion to

dismiss pursuant to Federal Rule of Civil Procedure

12(b)(6), holding that EPCRA’s citizen suit provision does

not allow citizen enforcement against “historical

violations of the Act.” Pet. App. A24. Relying on the Sixth

Circuit’s decision in Atlantic States Legal Foundation,

Inc. v. United Musical Instruments U_S.A., Inc., 61 F.3d

473 (1995), the court noted that the citizens’ suit provision

of EPCRA authorizes suits for “failure to * * *

[cJomplete and submit [required forms] under [EPCRA’s

substantive provisions].” Pet. App. A22. The court read

that language to permit citizens’ suits only for complete

failures to file, not for failures to file on time. Jd. at A22,

A24. The court also stated that the 60-day notice provision

would serve no purpose and EPA’s enforcement discretion

would be undermined if a citizen could sue for a failure to

file reports that the defendant had then filed before the

suit commenced. Jd. at A23-A24.

6. The court of appeals reversed, holding that EPCRA

does authorize citizens’ suits against defendants who

violate EPCRA’s reporting requirements by submitting

untimely EPCRA forms only after receiving the citizen's

60-day notice of intention to sue. Pet. App. Al-Al5. The

court rejected petitioner’s argument that EPCRA permits

citizens’ suits only in circumstances in which the Clean

Water Act (CWA), 33 U.S.C. 1251 et seq., as construed in

Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foun-

dation, Inc., 484 U.S. 49 (1987), permits citizens’ suits.

The court based its decision on key differences in the

language Congress used in the CWA provisions at issue in

Gwaltney and the EPCRA provisions at issue here.

The court noted that EPCRA authorizes citizens’ suits

“for failure to complete and submit” the reports “under”

EPCRA’s substantive provisions; the court construed

“under” to mean “in accordance with the requirements of”

the substantive provisions—including the requirements

for annual filing by a certain date. Pet. App. All-Al2. The

CWA provision at issue in Gwaltney does not contain the

“failure to complete and submit * * * under” language.

The court of appeals also noted the use of the past tense

in EPCRA’s venue provision, which authorizes suits “in

the district court for the district in which the alleged

violation occurred,” 42 U.S.C. 11046(b)(1), and therefore

confirms that suit can be brought for a violation that is

completed at the time suit is brought. Pet. App. Al3. The

CWA provision at issue in Gwaltney does not contain that

language.

The court of appeals explained that its decision would

not defeat the purpose of the EPCRA 60-day notice pro-

vision. In Gwaltney, this Court referred to the purpose of

the CWA’s 60-day notice requirement to allow violators

to avoid suit by bringing themselves into compliance.

See 484 U.S. at 61. ,The court of appeals noted that the

EPCRA notice provision “gives an alleged violator a

chance to correct the citizen’s information if the citizen is

mistaken about the existence of a violation”; it “preserves

the EPA’s enforcement discretion, giving the Agency a

chance to take enforcement action if it chooses” and there-

by preclude the citizens’ suit; and it “conserves resources

by giving violators the opportunity and the incentive to

enter into settlement negotiations with citizens or the

EPA.” Pet. App. Al3-Al4. The court held that, because

those purposes would be served by permitting citizens’

suits in cases like this, permitting such suits would “not

— the [EPCRA] notice provision gratuitous.” /d. at

Finally, the court explained that if a violator could

automatically preclude suit by submitting EPCRA forms

after receiving a citizen’s notice of intention to sue, “(t]he

incentives created by the district court’s interpretation

would render the citizen enforcement provision virtually

meaningless.” Pet. App. Al4. That is because, under such

a regime, “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 turn them

in.” /bid. In that situation, given the costs of “monitoring

chemical use and keeping up to date on changes in EPCRA

requirements” by citizens, rather than regulated indus-

trial users, “[p)rivate enforcement * * * would undoubt-

edly drop off.” Id. at A165.

SUMMARY OF ARGUMENT

1. Section 326 of EPCRA contains detailed and unam-

biguous requirements for a citizens’ suit. 42 U.S.C. 11046.

A facility owner who has not filed reports at the time

citizens give notice of suit, but who files the forms

thereafter, is subject to citizens’ suit under EPCRA.

Three provisions are of particular relevance in this

respect.

First, Section 326(a)(1) provides that citizens’ suits ma

be brought “for failure to * * * [complete and submit”

inventory forms or toxic chemical release forms “under”

the EPCRA provisions requiring those forms. The recog-

nized meaning of the term “under” in this context is “in

accordance with.” Section 326(a)(1) therefore authorizes

citizens’ suits against facility owners who have failed to

comply with reporting requirements of Sections 312(a) and

“halle brought in the district court fr the dtr

in which the alleged violation occurred.” 42 U.S.C.

11046(b\1). Therefore, a citizens’ suit may be brought

even when the violation has already been completed—i.e.,

it has “occurred”—at the time of filing of the suit.

Third, Section 326(d\(1) provides that citizens may not

the Administrator [of EPA], the State in which the alleged

violation occurs, and the alleged violator.” 42 .

11046(d\(1). The Act thus specifies that the violation has

to be ongoing—i.e., it “occurs”—at the time when the

60-day notice is given. The contrast with subsection (b)\(1)

is telling, and determinative of the question in this case.

Because the terms of the statute are unambiguous, this

Court should reject petitioner’s various arguments that

the statute must be interpreted to preclude a citizens’ suit

when the facility owner files the required EPCRA reports

after having received notice of a citizens’ suit but before

the suit is filed. It is of little relevance that some other

EPCRA does not. bina i Gr emahete aaletes

statute like EPCRA, authorizing citizens’ suits would

have been largely a futile gesture if potential defendants

they received a citizen’s notice of suit.

2. The Article II] case-or-controversy requirement

does not bar respondent’s action for relief against peti-

tioner, which persisted in its illegal conduct until receiv-

ing notice of respondent's intention to sue. The complaint

in this case adequately alleges that respondent and its

The

“The starting point in statutory interpretation is ‘the

language {of the statute] itself.’” Ardestont v. Immigra-

tion & Naturalization Serv., 502 U.S. 129, 135 (1991)

(alteration in original) (quoting United States v. James,

478 U.S. 597, 604 (1986)). EPCRA is not ambiguous. It ex-

presses a clear congressional intent that citizens be able

to enforce all the reporting requirements under EPCRA

1. Section 326(aX1) of EPCRA authorizes citizens to

commence a civil action for penalties or an injunction

chemical release form under [Section 313(a)].” 42 U.S.C.

11046(a)(1)(A\iii) and (iv). As the court of appeals held

(Pet. App. All), the “most natural reading of ‘under’ in

this context is “in accordance with the requirements of.

defining “under” as “required by: in accordance with:

bound 6" Random House Dictionary of the English

Language 2059 (2d ed. 1987) (defining “under” as “in

accordance with: under the provisions of the law”). Thus,

Congress authorized citizens to enforce EPCRA against

persons who fail to file reports in accordance with the

various requirements of Sections 312(a) and 313(a). A

failure to submit a form at all, a submission of a false or

suit provision that “incorporaties]” a penalty provision

tion occurred.” 42 U.S.C. 11046(b)(1) (emphasis added).

Thus, a citizens’ suit may be brought even when t

violation has already been completed—it has “occurred” —

violations of the statute are actionable in citizens’ suits.

“(When a statute speaks with clarity to an issue, judicial

inquiry into the statute’s meaning, in all but the most

extraordinary circumstance, is finished.” Metropolitan

Stevedore Co. v. Rambo, 1158S. Ct. 2144, 2147 (1995).

3. Finally, EPCRA’s terms also make clear that not all

past violations are actionable in a citizens’ suit. Such

a suit may be brought for violations that were ongoing at

the time statutory notice is given to the defendant.

Specifically, under Section 326(d)\(1), “[nJo action may be

commenced * * * 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.” 42 U.S.C. 11046(d)(1) (emphasis added).

Just as the use of the past-tense term “occurred” in the

venue provision—especially in conjunction with the

“failure to * * * [clomplete and submit * * * under” lan-

guage in the earlier subsection—confirms that the viola-

tion may have been completed at the time suit is brought,

use of the present-tense term “occurs” in the notice

provision demonstrates that (in the context of this stat-

ute) the violation has to be ongoing at the time notice is

given.

Indeed, the juxtaposition of the terms “occurs” and

“occurred” in the two subsections is telling. Congress

could easily have used either term in both provisions. The

fact that Congress chose to use the terms that it did in

each of these subsections of the same Section shows that

Congress specified that citizens’ suits could be brought

for past violations, but that the violations must have been

ongoing at the time the citizen gives notice.

B. This Court's Interpretation Of The Clean Water

Act In Gwaltney To Preclude Similar Citizens’

Suits Does Not Govern This Case

Petitioner’s primary argument is that, because this

Court in Gwaltney of Smithfield, Ltd. v. Chesapeake Bay

Foundation, Inc., 484 U.S. 49 (1987), held that the Clean

Water Act does not permit citizens’ suits for violations

that have been abated by the time of suit, this Court

should reach the same conclusion regarding EPCRA.

See Pet. 16-17, 20-24, 25-27. That argument is mistaken.

This Court in Gwaltney specifically rejected the conten-

tion that Congress’s precise choice of words should be dis-

regarded as a “careless accident” or a “debatable lapse of

syntactical precision.” 484 U.S. at 57. Because the key

EPCRA provisions differ significantly from the corre-

sponding CWA provisions, Congress’s choice of words in

EPCRA should be given effect, just as Congress’s choice

of different words was given effect in Gwaltney. Insofar

as the statutory purposes may be consulted to aid in inter-

pretation, there are substantial differences between a

reporting statute such as EPCRA and a statute primarily

regulating substantive conduct such as the CWA. Those

differences support the reasonableness of Congress’s

choice to permit citizens’ suits under EPCRA—but not

under the CWA—for violations that were ongoing at the

time of notice but no longer ongoing by the time of suit.

l.a. The operative language regarding the scope of

citizens’ suits is significantly different in EPCRA and

the CWA. EPCRA permits citizens’ suits for “failure to

* * * [clomplete and submit an inventory form under

[Section 312(a)]” and “failure to * * * [cjomplete and sub-

mit a toxic chemical release form under [Section 313(a)].”

42 U.S.C. 11046(a)(1)(A)(iii) and (iv). In comparison, the

corresponding language in the CWA provides for a

citizens’ suit “against any person * * * who is alleged to

be in violation” of certain CWA provisions. 338 U.S.C.

1365(a). “The most natural reading of ‘to be in violation’ is

a requirement that citizen-plaintiffs allege a state of

either continuous or intermittent violation.” Gwaltney,

484 U.S. at 57. By contrast, as the court of appeals

explained in this case, the “failure to * * * [clomplete and

submit * * * under” language of EPCRA “contains no

temporal limitation; ‘failure to do’ something can indicate

a failure past or present.” Pet. App. All. ;

Congress’s deviation in EPCRA from the CWA ‘to be

in violation” formulation cannot properly be ass/imed to

have been accidental. EPCRA was enacted in the same

piece of legislation as the citizens’ suit provisions in the

Comprehensive Environmental Response, Compensation,

and Liability Act of 1980 (CERCLA), 42 U.S.C. 9601 et seq.

See Pub. L. No. 99-499, Tits. II and III, 100 Stat. 1613, 1728

(1986). Yet the CERCLA citizens’ suit provision, unlike

EPCRA, employs the same “to be in violation” formulation

as does the CWA. See 42 U.S.C. 9659%a)(1). Although

petitioner would simply disregard Congress’s decision to

use a different formulation in EPCRA, “ ‘it 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 Chicagy v.

Environmental Defense Fund, 511 U.S. 328, 338 (1994).

By including the “failure to * * * [clomplete and submit

* * * under” formulation in EPCRA, Congress mani-

fested its understanding that EPCRA citizen suitors need

not allege the defendant “to be in violation” at the time

suit is filed.

Petitioner argues (Br. 32) that the “failure to * * *

complete and submit” under the formulation in Section 326

simply serves as “a reference to Section 312’s inventory

form and Section 313’s Form R—and not a wholesale

incorporation of those sections’ requirements.” That

construction would permit citizens’ suits when a covered

party entirely failed to file forms or filed forms that were

incomplete, while barring such suits when a covered party

filed a belated form or “completed” a form by filling

out every line with false—even intentionally false—

information and submitting the forms to the requisite

party. Petitioner offers no reason why Congress would

have wanted to leave such a gaping hole in EPCRA’s

citizen enforcement provision, and the legislative history

makes no reference to such a curious elision.'

’

Indeed, Congress had good reason to be especially concerned

about late EPCRA reporting. Late reports are more likely to be in-

accurate, since a party making a late report will likely have lower

quality data available and EPCRA generally requires that reports

need only be “estimates” of chemical inventories and releases. See

42 U.S.C. 11022(d1)(B), 11022(d)(2), 11028(gX1)(C); see also 42 U.S.C.

11023(gX2) (under Section 313, “the owner or operator ™ay use readily

Moreover, petitioner’s reading would make the use of

“under section 312(a)” and “under section 313(a)”

superfluous. The term “inventory form” has a designated

meaning in EPCRA without the qualification “under

Section 312,” because Section 312 expressly provides that

covered parties “submit an emergency and hazardous

chemical inventory form (hereafter in this chapter re-

ferred to as an ‘inventory form’).” 42 U.S.C. 11022(a)(1)

(emphasis added). Similarly, the term “toxic chemical

release form,” although not specifically defined, plainly

refers to the form required by Section 313, as Congress

recognized when it used that term without express refer-

ence to Section 313 elsewhere in the statute. See 42

U.S.C. 11043(b), 11044(a). Congress thus had no need to

use the qualifiers “under section 312(a)” and “under

section 313(a)” merely to identify the forms at issue. Cf.

United States v. Menasche, 348 U.S. 528, 538-539 (1955)

(court’s “duty [is] ‘to give effect, if possible, to every

clause and word of a statute’”); Foster v. Neilson, 27 U.S.

(2 Pet.) 253, 311 (1829) (“[TJhese words materially affect{]

the construction of the article. They cannot be rejected as

surplusage.”). But Congress had every reason to use

those terms in order to make clear that covered parties

that failed to satisfy the requirements of Sections 312(a)

and 313(a) would be subject to citizens’ suits.

available data” and need not conduct any additional monitoring or

measurement). In addition, it may be difficult to recompile data com-

pilations and databases—relied upon by the public, a statutory bene-

ficiary of EPCRA, see 42 U.S.C. 11023(h)—to incorporate late reports.

Third, data contained on the reporting forms are analyzed immediately

by federal, state, and local officials, as well as citizens, and used

in their decisionmaking. When a firm fails to meet the statutory

deadlines, that violation undermines informed federal environmental

policy and may cause miscalculations or errors that cannot later be

rectified; the submission of information for previous years may provide

no assistance at all to those who are attempting to plan for current

needs, and it may endanger those, like firefighters, who rely on

accurate and timely EPCRA reports. See 131 Cong. Rec. 24,060-24,061

(1985) (statement of Sen. Lautenberg).

b. The EPCRA provision authorizing suits “in the

district court for the district in which the alleged violat-

ion occurred,” 42 U.S.C. 11046(b)(1) (emphasis added), also

differs from the corresponding CWA provision, which

provides that citizens’ suits “may be brought * * * only

in the judicial district in which [the discharge] source is

located.” 33 U.S.C. 1365(c)(1) (emphasis added). The

CWA provision is an example of what this Court in Gwalt-

ney termed the “undeviating use of the present tense” in

the CWA, see 484 U.S. at 59, which, the Court held,

virtually compels the conclusion that the discharge must

be occurring at the time suit is filed. By contrast, the

EPCRA provision specifically uses the past tense—“the

district in which the alleged violation occurred.” Con-

gress thereby utilized in EPCRA—unlike in the CWA—

language that would authorize suits (in at least some

circumstances) for violations that had been abated by the

time suit was filed.*

2 The third EPCRA provision discussed above—providing that

citizen suitors must give notice to “the State in which the alleged viola-

tion occurs,” 42 U.S.C. 11046(d)(1) (emphasis added)—uses language

identical to that in the corresponding CWA provision. See 33 U.S.C.

1365(b)(1AXii). There is no other EPCRA or CWA provision to

suggest that that provision, read in context, has a different meaning in

each statute. Accordingly, that provision has an identical meaning in

each of the two statutes, requiring that the violation must be alleged to

be ongoing at the time notice is given.

8 The Court in Gwaltney relied upon two further aspects of the

CWA that differ from EPCRA in significant ways. First, the

Gwaltney Court noted that the CWA’s notice provision bars citizen

suits “only if the Administrator or State has commenced an action

‘to require compliance.’” 484 U.S. at 60 n3 (quoting 33 U.S.C.

1365(b\(1(B)). The Court cited this statutory language to support its

conclusion that the “precluded [CWA] citizen suit is also an action for

compliance, rather than an action solely for civil penalties for past,

nonrecurring violations.” IJbid. By contrast, EPCRA bars a citizen suit

if EPA has commenced and is diligently pursuing an action “to enforce

the requirement concerned or to impose a civil penalty under this Act

with respect to the violation of the requirement.” 42 U.S.C. 11046(e)

(emphasis added). That language suggests that an EPCRA citizen suit

2. Petitioner argues (Br. 15-18, 21-24) that permitting

citizens’ suits for violations abated during the 60-day

notice period would be inconsistent with the policies on

which the citizens’ suit provision is based. In Gwaltney,

this Court noted that the CWA citizens’ suit provision was

intended to “give [the alleged violator] an opportunity to

bring itself into complete compliance with the Act and

thus * * * render unnecessary a citizen suit.” 484 U.S.

at 60. See also Hallstrom v. Tillamook County, 493 U.S.

20, 29 (1989) (RCRA). Petitioner argues (Br. 15-18) that

permitting EPCRA citizens’ suits for violations abated

during the 60-day notice period would disserve that

purpose, thereby rendering the notice period “gratuitous.”

See Gwaltney, 484 U.S. at 60.

The short answer to petitioner’s argument is that, as

the text of EPCRA indicates, the EPCRA citizens’ suit

provision is not based entirely on the purpose of the CWA

provision identified by this Court in Gwaltney. There are

at least three other purposes served by the EPCRA citi-

zens’ suit provision. Permitting citizen suits as Congress

intended would in no way disserve these purposes or

render the 60-day notice period gratuitous.‘

could be brought either to enforce compliance or for civil penalties for

some past violations. Second, the Court in Gwaltney noted the

significance of the CWA’s definition of “citizen” as “a person * * *

having an interest which is or may be adversely affected” to be “[tjhe

most telling use of the present tense.” 484 U.S. at 59 (quoting 33 U.S.C.

1365(g)). That “most telling use of the present tense,” ibid., is not

present in EPCRA, which instead uses the term “person” and defines it

broadly without regard to tense. See 42 U.S.C. 11049(7).

4 Citing Morrison v. Olson, 487 U.S. 654 (1988), amicus curiae the

Washington Legal Foundation mistakenly argues (Br. 24-27) that

citizens’ suits for past violations of EPCRA violate separation of

powers principles by “transferring a unique prosecutorial function from

the Executive branch to a private citizen.” The cause of action by one

private person against another that EPCRA created is much narrower

than the delegation of criminal and civil law enforcement authority

upheld in Morrison. See 487 U.S. at 662 (independent counsel ‘as

“full power and independent authority to exercise all investigative and

prosecutorial functions and powers of the Department of Justice”).

a. The 60-day notice period gives the EPA, which

must receive a copy of the 60-day notice, see 42 U.S.C.

11046(d)(1), an opportunity to decide whether to assume

responsibility for the enforcement action, thereby ousting

the citizen suitor. See 42 U.S.C. 11046(e) (“No [citizens’

suit) may be commenced * * * if the Administrator

[of EPA] has commenced and is diligently pursuing an

administrative order or civil action to enforce the require-

ment concerned or to impose a civil penalty.”). Cf. Hall-

strom, 493 U.S. at 29 (“notice allows Government agencies

to take responsibility for enforcing environmental regu-

lations, thus obviating the need for citizen suits”). Per-

mitting citizens’ suits for violations abated during the

60-day period is entirely consistent with that purpose.

Petitioner argues (Pet. Br. 24) that permitting such

citizens’ suits would threaten the government’s control

over enforcement, because citizens could file suit months

or years later “to seek [the] penalties [that] EPA chose [in

an earlier administrative proceeding] to forgo.” See also

id. at 46-47 (“Congress could not have intended to permit

citizen groups to exhume past violations and then bring

penalty actions.”).° That is incorrect. First, EPA’s

decision to “commence[] and * * * diligently pursufe] an

administrative order or civil action” bars any future

citizens’ suit. 42 U.S.C. 11046(e). There is no reason to

believe that courts will be unable to administer that

provision firmly to preclude abuses by citizen plaintiffs.

Second, any EPA enforcement action can be expected to

require, at a minimum, that the violator bring itself into

compliance with EPCRA. After compliance is achieved, no

Under amicus’s extreme view of Article II, it is likely that all citizen

suits, including suits seeking injunctive relief for ongoing violations

and qui tam actions, would constitute an unconstitutional intrusion on

the Executive’s enforcement discretion.

5 EPA, which receives and reviews all EPCRA 60-day notice

letters pursuant to 42 U.S.C. 11046(d), is not aware of any EPCRA citi-

zen suit that has alleged only violations that wholly predate the

citizens’ notice letter.

citizen suitor could bring suit, because the violation would

not be ongoing at the time the citizen attempts to give

notice. Third, the United States retains its ability to

intervene as of right in any citizens’ suit. See 42 U.S.C.

11046(h)\(1). Finally, after the agency has addressed the

matter, EPA’s views regarding the appropriate penalties

would be entitled to deference.

b. The 60-day notice period also provides an opportu-

nity for pre-litigation settlement of the case. If the

prospective defendant’s facility is in compliance, the facts

may be brought to the attention of the citizen suitor, thus

avoiding litigation entirely. If not, the prospective defen-

dant and plaintiff may work out a settlement of the case,

perhaps including safeguards to ensure that the facility

does not fall out of compliance in the future. See Pet. App.

Al4 (“key rationale” is “to require a ‘would-be champion to

try negotiation before litigation’”). That, too, can avoid

the need for litigation.

c. Finally, the 60-day notice period gives the pro-

spective defendant an opportunity substantially to miti-

gate the penalty or other remedial measures that might be

imposed if a lawsuit follows. The maximum statutory

penalty of $25,000 per violation accrues on a daily basis,

see 42 U.S.C. 11045(c); the defendant can absolutely stop

the accumulation of penalties by filing accurate reports

even before suit is filed. More important, a key consid-

eration in assessing penalties under most of the environ-

mental statutes is the extent to which the defendant has

made a good-faith effort to comply with the law. See, e.g.,

Tull v. United States, 481 U.S. 412, 422-423 (1987). EPA’s

own EPCRA penalty policies—which cours have looked

to for guidance in judicial proceedings involving citizen

plaintiffs, see, e.g., Hercules, Inc. v. Student Public Inter-

est Research Group of New Jersey, Inc., 29 E.R.C. 1417 (D.

NJ. 1989); Chesapeake Bay Foundation v. Gwaltney of

Smithfield, Ltd., 611 F. Supp. 1542, 1561 (E.D. Va. 1985),

aff’d, 791 F.2d 304 (4th Cir. 1986), rev’d on other grounds,

484 U.S. 49 (1987)—take this factor into account in a

number of ways.® ‘The 60-day notice period permits a

defendant to take advantage of these policies immediately,

thereby substantially limiting the potential penalty that

may be imposed.’

3. Congress’s decision to configure EPCRA citizens’

suits slightly differently from those under the CWA

makes sense. The CWA generally imposes operational

6 For example, EPA’s penalty policy for EPCRA Section 312 pro-

vides that “any prior history of * * * violations” and “the degree of

culpability * * * [must] be considered in every penalty assessment.”

EPA Penalty Policy For Sections 302, 308, 304, 311, and 312 of

[EPCRA] and Section 103 of [CERCLA] at 22 (June 13, 1990); see also

id. at 24-27. A defendant who complies quickly—such as during the 60-

day notice period—after being informed of a violation of which the

defendant was previously unaware will obviously benefit under these

provisions. On the other hand, a defendant who delays compliance each

year (or who files false or incomplete forms each year) until a citizen

suitor provides notice of suit may suffer a greater penalty under these

provisions. EPA has a similar penalty policy under EPCRA Section

313. See Enforcement Response Policy for Section 313 of [EPCRA]

and Section 6607 of the Pollution Prevention Act at 14 (higher penalties

for knowing violations), 16-17 (higher penalties for history of violat-

ions), 18 (lower penalties “in consideration of the facility’s good faith

efforts to comply with EPCRA, and the speed and completeness with

which it comes into compliance”) (August 10, 1992). We have lodged

copies of the two penalty policy documents cited in this footnote with

the Court and have provided them to the parties.

7 Although Congress’s amendments to the Clean Air Act in 1990

obviously do not control the interpretation of the earlier enacted

EPCRA, see Pet. 17-18, we agree with the court of appeals, see Pet.

App. Al3, that those amendments do support the principle that per-

mitting citizens’ suits for at least some past violations is consistent

with the purposes underlying the requirement that citizen suitors

provide a 60-day notice of suit. That is because Congress amended the

Clean Air Act to permit citizen suits against those alleged “to have

violated (if there is evidence that the alleged violation has been re-

peated)” various statutory provisions. 42 U.S.C. 7604(aX1). While

adding that language, which permits suits for past violations, Congress

left the Clean Air Act novice provision intact. See 42 U.S.C. 7604(b).

Accordingly, Congress must have believed that there was no incon-

sistency in permitting citizens’ suits for past violations but still re-

quiring citizen suitors to provide defendants with 60 days’ notice.

requirements on facilities that discharge pollutants into

the nation’s waters. To comply with the CWA, facilities

often have to make substantial investments in new equip-

ment or facilities, and Congress reasonably may have

concluded that a company that has made such investments

and come into compliance during the brief 60-day notice

period will likely continue in compliance and should not

face the additional sanctions that might be imposed in a

citizens’ suit.

EPCRA’s regulatory scheme is different from that of

the CWA. It requires only reports, not the installation of

new facilities or equipment. We do not disagree that

compliance with EPCRA’s reporting requirements has

costs for facilities, as petitioner and its amici emphasize.

See, e.g., Pet. Br. 42-45. But Congress may have rea-

sonably concluded that, in general, the costs of EPCRA

reports would be much less than the costs of complying

with the operational regulations imposed by the CWA, and

covered entities would find it much easier to file overdue

EPCRA reports within the 60-day notice period than to

come into CWA compliance within the same period."

Moreover, a facility’s decision to file an EPCRA report in

a given year often provides little or no assurance that it

will do so in the next year, since each year’s report is a

separate undertaking that may often involve an entirely

new effort.

In light of these characteristics of the EPCRA regula-

tory scheme—not shared by the CWA scheme—the court

of appeals correctly discerned that permitting violators to

preclude suit by curing violations during the 60-day notice

period “would render the citizen enforcement provision

virtually meaningless.” Pet. App. Al4. An owner or

8 EPCRA generally requires that the reports contain only esti-

mates of chemical inventories and releases. See note 1, supra. Peti-

tioner’s assertion (Br. 44) that the hasty assembly of reports would

expose them to criminal liability under 18 U.S.C. 1001 is wrong. That

statute criminalizes “knowing{]) and willful[]” false statements. It

does not criminalize inadvertent errors.

operator of an EPCRA facility might simply wait to

receive a notice of citizens’ suit—in a given year or every

year—before filing accurate EPCRA reports. Citizens

generally have no special access to information regarding

potential EPCRA violators, and identifying such violators

can be a costly undertaking. It will be difficult for citizen

suitors to bear those costs if they can neither recoup their

costs nor gain any protection through litigation against

future noncompliance. By contrast, the owner or operator

would have diminished incentives to incur the annual costs

of gathering the information in order to file timely and

accurate EPCRA reports, since the option of waiting for

the notice of a citizens’ suit—if it ever comes—before

abating violations would be available and likely to be no

more costly.

Petitioner contends that eviscerating the citizens’ suit

provision in this way would be tolerable, because the EPA

always retains the option of enforcing the EPCRA report-

ing requirements itself. EPA, however, does not have

the resources to uncover all EPCRA violations, including

failures to file and filing of out-of-date, false, or misleading

data. EPA has approximately 20 employees available to

enforce EPCRA nationwide. See EPA, Summary Of The

1998 Budget 37 (January 1997). This small group must

review compliance with and information provided under

the EPCRA provisions enforceable through citizens’ suits

as well as those not so enforceable, see 42 U.S.C. 11002(c),

11003(d), 11021(c), 11022(e)(1), 11042(b)(1), and must iden-

tify facilities that did not report at all. For fiscal year

1995, almost 22,000 facilities filed more than 73,000 toxic

chemical release forms under Section 313(a) alone. 1995

EPA Towics Release Inventory at v (April 1997). Accord-

ing to a 1991 GAO report, another 10,000 facilities—or

about one in three required by statute to do so—failed to

file Section 313(a) toxic chemical release forms. General

Accounting Office, EPA's Toxic Release Inventory Is

Useful but Can Be Improved 49 (June 1991). Although

similar nonreporting data fur Sections 311 and 312 are

———

unavailable, EPA estimates that approximately 860,000

manufacturing and nonmanufacturing facilities are sub-

ject to reporting and recordkeeping requirements under

Sections 311 and 312 of the Act. See 61 Fed. Reg. 51,107,

51,108 (1996).

Congress was aware of the limited enforcement re-

sources available to EPA, and it has relied on the citizens’

suit mechanism—botk in EPCRA and in other important

environmental statutes—to fill the gap between the

number of significant environmental violations and the

federal and staie enforcement resources available to ad-

dress such violations. See, eg., 131 Cong. Rec. 34,650

(1985) (statement submitted by Rep. Glickman) (“In view of

the government’s limited and overburdened enforcement

authority, citizen suits are essential to assure compliance

with the law.”); House Committee on Public Works and

Transportation, Superfund Amendments of 1985, H.R.

Rep. No. 253, 99th Cong., Ist Sess. Pt. 5, at 88 (1985)

(“Citizens [ } suits provisions have been found to be helpful

both in encouraging diligent Federal enforcement of

environmental statutes and in locating and taking actions

against violators of these Acts.”); 131 Cong. Rec. 34,641

(1985) (statement of Rep. Roe) (same). Cf. Pennsylvania

v. Delaware Valley Citizens’ Council for Clean Air, 478

U.S. 546, 560 (1986). Citizen enforcement authority is es-

pecially appropriate under EPCRA because EPCRA is the

principal means by which citizens can learn of the

hazardous chemicals and toxic emissions in their commu-

nities, and because Congress established EPCRA in part

specifically to inform the public about toxic releases.’

See, e.g., 42 U.S.C. 11023(h).

® Petitioner argues (Pet. 46) that, if EPCRA citizens’ suits are

permitted to go forward, the “federal courts will experience a deluge of

EPCRA citizen suits.” In determining to permit citizens’ suits, Con-

gress has debated and ultimately rejected claims by regulated industry

citizen enforcement. See, e.g., House Committee on Public Works and

Transportation, Superfund Amendments of 1985, H.R. Rep. No. 253,

CITIZENS’ INTENTION TO SUE

Article III limits the judicial power of federal courts to

“cases” or “controversies.” That serves both

and to allow counsel fees so as to encourage private litigation.”

Moreover, there is no reason to believe that EPCRA’s citizen suit pro.

vision has spawned an inordinate amount of litigation in the 11 years

since it was enacted, despite the fact that aside from the Sixth Circuit's

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

Instruments U.S.A., Inc., 61 F.3d 473 (1995) lower courts have per-

mitted citizens’ suits for violations that were corrected during the 60-

day notice period. See, ¢g., Don't Waste Arizona, Inc. v. McLane

Foods, Inc., 950 F. Supp. 972, 980 (D. Ariz. 1997); Idaho Sporting

Congress v. Computrol, Inc., 952 F. Supp. 690, 691-698 (D. Idaho 1996);

Atlantic States Legal Found., Inc. v. Buffalo Envelope Co., 823 F

Supp. 1065, 1071 (W.D.N.Y 1993); Delaware Valley Toxics Coalition v

Kurz-Hastings, Inc., 813 F. Supp. 1132, 1140-1141 (E.D. Pa. 1993);

Williams v Leybold Technologies , Inc., 784 F. Supp. 765, 768 (N.D. Cal.

1992); Atlantic States Legal Found., Inc. . Whiting Roll-Up Door Mfg

“an injury in fact” that is “causal[ly] connect[{ed]” to

the challenged conduct and would “likely” be redressed by

a favorable decision. Lujan v. Defenders of Wildlife, 504

U.S. 555, 560 (1992) (emphasis added).

A. Respondent’s complaint adequately alleges that it

and its members have suffered and will suffer an “injury in

fact” caused by petitioner’s failure to file timely EPCRA

reports. Respondent has alleged that its offices are

located in Chicago and that many of its members live in

the area of petitioner’s facility. J.A. 4-5. The complaint

also alleges that respondent uses EPCRA data to make

“reports to its members and the public,” J.A. 5, and that its

members use EPCRA data “to learn about toxic chemical

releases, the use of hazardous substances in their com-

munities, to plan emergency preparedness in the event of

accidents, and to attempt to reduce the toxic chemicals in

areas in which they live, work and visit.” Jbid. The

complaint alleges that respondent and its members “have

been, are being, and will be adversely affected” by peti-

tioner’s failure to file timely EPCRA reports. /bid.

Those allegations are sufficient, at this stage in the

litigation, see Defenders, 504 U.S. at 561; Bennett v.

Spear, 117 S. Ct. 1154, 1165 (1997) (the burden “is rela-

tively modest at this stage of the litigation”), to establish

that the statutory right of respondent and its members to

EPCRA-mandated information has been impaired. The

fact that respondent does not specifically allege a mone-

tary injury is not controlling. Congress may by statute

articulate interests and elevate the status of injuries that

otherwise would not be sufficient for Article III purposes.

See Defenders, 504 U.S. at 577. “The actual or threatened

injury required by Art. III may exist solely by virtue of

‘statutes creating legal rights, the invasion of which

creates standing.’” Warth v. Seldin, 422 U.S. 490, 500

(1975) (quoting Linda R. S. v. Richard D., 410 U.S. 614,

617 n.3 (1973)); accord Defenders, 504 U.S. at 577. See also

Havens Realty Corp. v. Coleman, 455 U.S. 363, 373 (1982)

(holding that “testers” had standing to sue persons who

provided false information in violation of the Fair Housing

that party is obviously injured in fact.”), cert. granted,

No. 96-1590 Gane 16, 1997); Sierra Club v. Simkins

; 1. Civil penalties would tend to redress respondent’s

injury, because their imposition would make it much less

might well decide that it would be more profitable to

their violation. Con-

gress devised EPCRA’s civil penalty scheme—including

the enforcement of that scheme through citizens’ suits—

to deter just such conduct. Because imposition of civil

penalties in this case would be likely to have that precise

effect on petitioner, they would likely eliminate or drasti-

cally reduce the chances of future violations by petitioner

and thereby redress the grievance of respondent and its

members.

In this respect, civil penalties have a deterrent effect

similar to that of injunctive relief, which has always been

understood to constitute appropriate redress for feared

future injuries. See, e.g., United States v. Oregon State

Medical Soc., 343 U.S. 326, 333 (1952). Indeed, if a court

sought to secure compliance with a legal requirement

through the issuance of an injunction, the court would

similarly rely on the threat of monetary penalties payable

to the Treasury (in the form of contempt sanctions) to

assure compliance with the injunction. The injunctive

remedy and the civil penalty remedy thus ultimately rely

on the same sort of monetary sanctions to redress the

citizen’s injury.” Moreover, as this Court stated in

agrees that a past violation cannot confer standing on an environmental

citizen suit plaintiff.” As we explained in a later filing in this Court

shortly after Gwaltney was decided, our Gwaltney submission was that

an action brought simply to obtain a judicial assessment of civil

penalties for nonrecurring past violations would fail to meet

Article III’s requirements. * * * Obviously, the United States’

concern regarding standing was limited to the situation where the

citizen plaintiff did not face any prospect of future injury.

88-660 U.S. Br. as Amicus Curiae at 13 n.14 (Simkins Industries, Inc.

v. Sierra Club, 491 U.S. 904 (1989) (internal quotation marks omitted)).

In Simkins itself, where the citizen plaintiff sought civil penalties for

violation of a CWA reporting requirement, we stated that

(a) citizen plaintiff may directly benefit from the imposition of a

civil penalty—even if he does not receive the proceeds—because

the assessment, like an injunction, deters the violator from

continuing the violations that prompted the plaintiff to file the suit.

That benefit, which rectifies the plaintiffs injury, is sufficient to

satisfy Article III's “redressability” requirement.

Id. at 9. That is the same position we are taking in this case, where the

EPCRA violation at issue cannot be said to be a nonrecurring one. See

pp. 27-30, infra. (We have provided the parties with copies of our brief

in Simkins.)

Albemarle Paper Co. v. Moody, 422 U.S. 405, 417 (1975),

“{I}f [violators] faced only the prospect of an injunctive

little incentive to shun practices of

requiring petitioner to permit respondent to inspect peti-

tioner’s facilities and to provide respondent with copies of

specifically deter petitioner from violating EPCRA as

future reports come due. Specifically, such a declaration

would likely subject petitioner to increased penalties as a

repeat violator if it again failed to file the required

EPCRA reports. Petitioner’s awareness of that prospect

would add to its incentive to comply as future EPCRA

ae come due, and would thereby redress respondent’s

ury.

C. Insofar as our argument depends on the fact that the

relief sought here will redress the threat of future injury

to respondent and its members, there can be no doubt that

that sort of threat satisfies the “injury in fact” require-

ments of Article III. See, ¢.g., Defenders, 504 U.S. at 564

(threat of “imminent injury” sufficient for Article II

standing). And a long and hitherto unquestioned line of

cases has made clear that there is a presumption of such

injury when the defendant has voluntarily ceased its

illegal activity in response to litigation. Such a voluntary

cessation “does not deprive the tribunal of power

to hear and determine the case.” United States v. W. T.

Grant Co., 345 U.S. 629, 632 (1953); accord City of

Mesquite v. Aladdin’s Castle, Inc., 455 U.S. 283, 289 (1982);

United States v. Concentrated Phosphate Export Ass'n,

393 U.S. 199, 203 (1968). On the contrary, the voluntary

cessation of illegal activity would terminate the litigation

only if the defendant shows that “subsequent events

[make] absolutely clear that the allegedly wrongful

behavior could not reasonably be expected to recur.”

Concentrated Phosphate, 393 U.S. at 203; Gwaltney of

Smithfield, Ltd. v. Chesapeake Bay Found., Inc., 484 U.S.

49, 66 (1987) (same); cf. Vitek v. Jones, 445 U.S. 480, 487

(1980). See also W.T. Grant Co., 345 U.S. at 633

(defendant’s burden under this standard ia a “heavy one”).

The question in the “voluntary cessation” cases is

whether, after the defendant has ceased its illegal conduct,

the plaintiff is still suffering a sufficient injury in fact to

support the litigation, or whether instead the injury the

plaintiff formerly suffered has been terminated by the

defendant’s “voluntary” behavior. Under the voluntary

cessation doctrine, even the possibility that the defendant

may return to its illegal conduct in these circumstances is

sufficient to support the continued existence of an injury

in fact, and thereby to support continued Article II

jurisdiction. The reason for that presumption is to

prevent defendants from manipulating their conduct to

escape judicial scrutiny. “The courts have rightly refused

to grant defendants such a powerful weapon against public

law enforcement.” W.T. Grant Co., 345 U.S. at 632.

If the mere possibility of a defendant’s future return to

illegal conduct is sufficient to establish an Article III

injury in fact in the mootness context, then Congress may

grant plaintiffs who suffer that sort of injury in a given

class of cases a cause of action to commence suits based on

the same alleged injury." That is because the case-or-

controversy requirement “subsists through all stages of

11 Although this Court has applied the voluntary cessation doctrine

only in the mootness context, at least two lower courts have applied the

doctrine where the voluntary cessation occurred, as here, prior to

filing of the complaint, but after the defendant became aware of an

investigation or impending lawsuit. See Jager v. Douglas County Sch.

Dist., 862 F.2d 824, 833-834 (11th Cir. 1989); Hall v. Board of Sch.

Comm'rs, 656 F.2d 999, 1000-1001 (5th Cir. 1981).

federal judicial proceedings.” Lewis v. Continental Bank

Corp., 494 U.S. 472, 477 (1990). Indeed, this Court has

described the mootness doctrine as “standing set in a time

frame,” Arizonans for Official English v. Arizona, 117

S. Ct. 1055, 1069 n.22 (1997); it seeks to ensure that the

case or controversy remains “alive” throughout the litiga-

tion, Lewis, 494 U.S. at 477.

Accordingly, there is no Article III bar to Congress’s

decision to base standing, in an appropriate class of cases,

on the possibility that a defendant, who in response to pro-

spective litigation has voluntarily ceased illegal activity

that harmed the plaintiff, will repeat it and thereby harm

the plaintiff once again in the future. Of course, if a defen-

dant can carry its burden of showing that it is “absolutely

clear that the allegedly wrongful behavior could not rea-

sonably be expected to recur,” Concentrated Phosphate,

393 U.S. at 203, then the voluntary cessation doctrine

would provide no support for the plaintiff’s standing in

that particular case. Otherwise, however, a plainti*f may

rely on Congress’s creation of a statutory cause of action

for plaintiffs suffering that sort of injury in fact.

That is precisely what Congress has done in fashioning

the EPCRA citizens’ suit provisions. As we have exvlain-

ed, Congress provided that a citizen may not file an

EPCRA enforcement action unless the defendant was

violating EPCRA and causing the citizen injury on the

Statutory notice date, at least 60 days prior to suit.

Congress also provided, however, that the citizen may file

the suit even if the defendant voluntarily ceases its illegal

activity and comes into compliance after receiving the

statutory notice. At that point, the citizen faces precisely

the same prospect of future injury—the possibility that

the defendant will return to its illegal conduct—that this

Court has found sufficient to support Article III standing

in its voluntary cessation cases. Accordingly, Congress

did not exceed its constitutional authority in yggee a

cause of action to plaintiffs in this class of cases

2 Application of the voluntary cessation doctrine to the standing

inquiry is consistent with the principle that jurisdictional facts are

to be assessed at the time the complaint is filed. For example, re-

spondent’s complaint alleged that petitioner: had violated EPCRA for

more than seven years; did not file required reports until threatened

with penalties; and had never demonstrated the willingness or ability

to meet EPCRA’s statutory deadlines. Under the voluntary cessation

doctrine, the facts at the time of the complaint create a presumption

that petitioner would again violate the law unless sanctioned.

The general rule requiring jurisdictional facts to be assessed at the

time the complaint is filed evolved in the diversity and removal

jurisdiction context. See Mollan v. Torrance, 22 U.S. (9 Wheat.) 537,

539 (1824); Smith v. Sperling, 354 U.S. 91, 98, n.1 (1957). A principal

purpose of the rule was to prevent a party from manipulating a court’s

subject matter jurisdiction at will. See St. Paul Mercury Indemnity

Co. v. Red Cab Co., 303 U.S. 283, 294 (1938); Shaw v. Dow Brands, Inc.,

994 F.2d 364, 366-368 (7th Cir. 1993); Johnson v. Burken, 930 F.2d 1202,

1205 (7th Cir. 1991). That purpose would not be served by allowing a

defendant “voluntarily” to halt illegal activity to defeat the court’s

jurisdiction.

CONCLUSION

The judgment of the United States Court of Appeals for

the Seventh Circuit should be affirmed.

Respectfully submitted.