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

re

In The

Supreme Court of the United S

LED

MAY 2 1997

OF THE CLERK

October Term, 1996

7

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 AMICI CURIAE OF THE MID-AMERICA

LEGAL FOUNDATION, ILLINOIS

MANUFACTURERS’ ASSOCIATION, PETROLEUM

MARKETERS ASSOCIATION OF AMERICA AND

WESTERN STATES PETROLEUM ASSOCIATION

IN SUPPORT OF PETITIONER

¢

WituaM F. Moran III James T. HarrINGTON

STRATTON, STONE & Kopec Counsel of Record

725 South Fourth Street WituaM A. Price,

Springfield, IL 62791 General Counsel

(217) 528-2183 Mip-America LEGAL

Counsel for Illinois FOUNDATION

Manufacturers’ Association 120 West Forest Avenue

Wheaton, IL 60187

Grecory R. McCuintockx (630) 668-5488

Matcoum C. Weiss Also Counsel for Petroleum

McCuntock, Weston, Marketers Association

BeNsHOor, ROCHEFORT, of America

Rusatcava & MacCuisn, LLP

444 South Flower St., 43rd Floor

Los Angeles, CA 90071

(213) 623-2322

Counsel for Western

States Petroleum Association

Oo Ye PLP . Y

i

TABLE OF CONTENTS

TABLE OF AUTHORITIES

IDENTITY AND INTEREST OF THE AMICI

SUMMARY OF ARGUMENT

ARGUMENT

CITIZEN SUITS FOR PAST PAPERWORK VIOLA-

TIONS ARE ONLY A SMALL PART OF THE REG-

ULATORY PICTURE THIS COURT SHOULD

CONSIDER

A. Large And Small Industrial Facilities Have Sig-

nificant Reporting Burdens

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

ecutorial Discretion Can Encourage Compli-

Private Prosecutions Favor Dollar Payments,

Not Compliance

PRIVATE ACTIONS ARE LIMITED BY PUBLIC

POLICIES EXPRESSED IN FEDERAL AND STATE

A. Modern Environmental Statutes Show Con-

ional Concern With The Possible Abuse

f Citizen Suit Authority

B. Congress Did Not Choose To Permit Citizen

Suits For Past Violations Of EPCRA

C. Illinois Law Favors Self-Reporting And Efforts

To Come Into Compliance, Not Paperwork

Prosecutions

CONCLUSION

ii

TABLE OF AUTHORITIES

Cases

Alyeska Pipeline Service Company v. Wilderness Soci-

ety, 95 S. Ct. 1612, 421 U.S. 240, 44 L. Ed. 2d 141

COS. Dist. Cab. BOTS) cc cccccccccscccccessccees

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

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

Bucolo v. Adkins, 96 S. Ct. 1086, 424 U.S. 641, 47 L.

Ed. 2d 301, conformed to, 332 So. 2d 25 (U.S. Fla.

SEPP PPT TTTT TITTLE T TT TLE T TTT

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

Fogerty v. Fantasy, Inc., 114 S. Ct. 1023, 510 U.S.

517, 127 L. Ed. 2d 455, on remand, 1995 WL

261504, affirmed and remanded, 94 F.3d 553 (U.S.

Ge BD nccccccccedcccscccccsesesccccesvececs

CROETD cccccccccnsesescccesdvevecccocsvcccce 14,

Hall v. Cole, 93 S. Ct. 1943, 412 U.S. 1, 36 L. Ed. 2d

Fae CURD. WY. BGFS) cc ccc cvccccscccvccccccccces

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

Md. 1985), aff'd, 874 F.2d 1109 (4 Cir. 1988),

cert. denied, 491 U.S. 904 (1989) ...........605,

Southport Petroleum Co. v. N.L.R.B., 62 S. Ct. 432,

315 US. 100, 06 L. Bd. 716 .... cc ccccccccens

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

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

Ubi uthatehidebetsbubes40aeescccenceuece

Page

iii

TABLE OF AUTHORITIES - Continued

Page

STATUTES

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

ih. c.dbadiediedisavadsceestedecedbece cove 15

Emergency Planning and Community Right-to-

Know Act, 42 U.S.C. §§ 11001-11050........ 3, 10, 18

Illinois Environmental Protection Act, 415 ILCS

tt tt iinee ee she eee eed add ednnandeandes 17

MISCELLANEOUS

Barry Boyer and Errol Meidinger, Privatizing Reg-

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

Chemical Marketing Reporter, Vol. 250, No. 9

St ih Pi cbc cencededetonéecececcecescecces 6

EPA EPCRA Section 313 Penalty Policy (Aug. 10,

eAbebcdadndesescsonesesnncececestsees os 6, 10, 11

EPA Press Release, EPA Moves Toward Major

Expansion of Community Right-to-Know Informa-

tion About Chemical Use by Industry, Sept. 25,

PEEP T TOC TTT COLT eT ETT T TT TTT TTTLTTTTTe 6

General Accounting Office, EPA’s Toxic Release

Inventory Is Useful But Can Be Improved, (June

ee EY SEED ccd edvedccdccescccececccc: 6

Michael S. Greve, Private Enforcement, Private

Rewards: How Environmental Citizen Suits Became

an Entitlement Program, in Environmental Politics:

Public Costs, Private Rewards 105 (Praeger Pub-

i dé /<lseteuderenneeeuaseeeass 8, 10, 11, 14

Pesticide and Toxic Chemical News, April 17, 1996 .. . .6-8

EE ee 11, 14

iv

TABLE OF AUTHORITIES - Continued

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

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

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

Paul G. Wallach and Dan Levin, Using Govern-

ment’s Guidance to Structure a Compliance Plan,

National Law Journal, Aug. 30, 1993

IDENTITY AND INTEREST OF THE AMICI CURIAE!

Pursuant to Supreme Court Rule 37.3, the Mid-

America Legal Foundation, Illinois Manufacturers’ Asso-

ciation, Petroleum Marketers Association of America and

Western States Petroleum Association respectfully submit

this brief as amici curiae in support of the Petitioner, The

Steel Company. The members of the amici are typically

subject to the environmental reporting requirements at

issue in this case. Written consent was granted by counsel

for all parties and filed with the Clerk of the Court.

Amicus Mid-America Legal Foundation (MALF) was

organized in 1975 as an Illinois non-profit corporation to

engage in study, analysis, and legal advocacy for the

benefit of the general public. MALF endeavors to address

evolving concepts of law as they affect free enterprise

and our democratic institutions, especially where the out-

coimne of litigation could potentially cause disruption to

our national commerce, and to provide legal representa-

tion on matters of public interest on all levels of the

judicial process. MALF takes a special interest in actions

that originate in or have a direct effect on the Midwest

region.

Amicus Illinois Manufacturers’ Association (IMA) is

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

is the oldest and largest statewide manufacturing associa-

tion in the United States. IMA’s membership numbers

1 Rule 37 Footnote: All counsel named on the cover

contributed to the writing and editing of the Brief, with original

drafts by William A. Price, general counsel, Mid-America Legal

Foundation. The cost of the brief is paid for exclusively by the

Mid-America Legal Foundation.

more than 4,700 Illinois manufacturing companies which

employ over 80 percent of the total Illinois manufacturing

work force.

Amicus the Petroleum Marketers Association of

America (PMAA) is the national organization represent-

ing the nation’s independent petroleum marketers.

PMAA is a federation of state and regional trade associa-

tions from the 48 continental states and the District of

Columbia. PMAA was formed in the early 1900’s to pro-

vide an advocacy group on federal legislative and regula-

tory issues affecting petroleum marketers. PMAA

represents over 10,000 marketers of petroleum products

nationwide. Collectively, these marketers sell nearly half

the gasoline, over 60 percent of the diesel fuel, and

approximately 85 percent of the home heating oil con-

sumed in the U.S. annually.

Amicus the Western States Petroleum Association

(WSPA) is a trade association consisting of approximately

31 individual companies engaged in the production,

refining and marketing of petroleum and petroleum

products. Its members are responsible for more than 90

percent of the production of oil and gas on the Pacific

coast of the United States.

*

SUMMARY OF ARGUMENT

If not reviewed by this Court, the Seventh Circuit

decision will, in conflict with a decision by the Sixth

Circuit and decisions interpreting similar provisions of

cognate environmental laws by this Court, and expose

businesses nationwide outside of the Sixth Circuit to the

risk of citizen suits for past violations under the Emer-

gency Planning and Community Right-to-Know Act

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

citizen suit was filed. The decision of the Seventh Circuit

also presents broad policy questions of concern to the

amici curiae and those whose interests they represent,

which only this Court can satisfactorily address

The Court should reverse to establish the appropriate

role for private citizen prosecutions for past and already

cured EPCRA reporting violations. As it does so, it

should consider the extensive network of government

control mechanisms which limit and penalize reporting

failures. Congress did not, and the Court should not,

extend the activity of private prosecutors under EPCTA

beyond that of assuring continued compliance. If the

decision below is allowed to stand, self-auditing efforts

by the huge number of companies subject to EPCRA will

be discouraged.

Congress left to public prosecutors, not citizens, the

discretion to pursue past violations. In many cases, a

governmental agency may be satisfied that a company

has come into compliance with EPCRA’s complex report-

ing requirements, however late, and elect not to seek

penalties for the past violations. The Illinois legislature

has even gone so far as to require the Illinois Environ-

mental Protection Agency to allow a party 30 days to cure

an EPCRA reporting violation before initiating an

enforcement action. Contrary tv that pro-compliance

goal, and in the absence of any congressional authority,

the Seventh Circuit’s decision encourages private citizen

prosecutors to clog the courts by pursuing any past

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

mize their attorneys’ fees. The Court should carefully

consider the difference between public and private

enforcement of past environmental violations, the policy

implications in allowing citizens to sue for past viola-

tions, along with Congress’s decision not to authorize

citizens to sue for past EPCRA violations, and reverse the

decision below.

¢

ARGUMENT

I.

CITIZEN SUITS FOR PAST PAPERWORK VIOLA-

TIONS ARE ONLY A SMALL PART OF THE REGULA-

TORY PICTURE THIS COURT SHOULD CONSIDER

A. Large And Small Industrial Facilities Have Signifi-

cant Reporting Burdens

The Court should consider the scope and variety of

reporting burdens currently imposed by environmental

statutes as it considers whether or not to set private

prosecutors on the trail of organizations which cure and

report past EPCRA paperwork lapses. These reporting

requirements are so stringent as to make inadvertent

violations a real possibility, a possibility EPCRA recog-

nizes by providing a grace period to cure without being

subject to the additional penalty of a citizen suit. A

Chemical Manufacturers Association study released this

year estimated that U.S. industry is required to spend

over $2.9 billion each year to prepare and submit reports

under eight major environmental statutes: the Clean Air

Act, Toxic Substances Control Act, Federal Insecticide,

Fungicide, and Rodenticide Act, Resource Conservation

and Recovery Act, Comprehensive Environmental

Response, Compensation and Liability Act, EPCRA,

Clean Water Act and Safe Drinking Water Act. 2,982,052

reports were submitted in 1994 pursuant to the 37 report-

ine programs mandated by these laws. The United States

Environmental Protection Agency (EPA) has estimated

that 54,571,915 hours of workers’ time are required for

filling out and submitting the reports. At the EPA’s esti-

mated $53.00/hour cost for report preparation, the regu-

latory burden of this 1994 paperwork preparation is more

than $2.9 billion. Pesticide and Toxic Chemical News,

April 17, 1996, at 6-8. In fact, the CMA found that

EPCRA’s Section 313 reporting requirements are the most

onerous among all environmental reporting require-

ments. Id.

The study also details the “extensive duplication” of

EPA’s requirements, along with those of the Occupational

Safety and Health Administration and the Chemical

Diversion and Trafficking Act, which have resulted in 37

different lists of chemicals with nearly 7,000 separate

reporting requirements. These lists include more than

2,400 regulated chemicals and chemical categories. Id.

Some confusion as to which reports are required, and

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

a good faith compliance effort is made by regulated

industries.

Because so many reports are required from so many

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

defense to an EPCRA citizen prosecution, EPCRA offers

citizen plaintiffs a huge number of potential litigation

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

ties are subject to EPCRA Section 312 reporting require-

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

30,000 facilities are required to submit Section 313 toxic

release inventory forms. See General Accounting Office,

EPA's Toxic Release Inventory Is Useful But Can Be Improved,

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

identifies a company which has missed a reporting dead-

line (a rather easy process), the company finds itself faced

by two unattractive alternatives, litigation or settlement

negotiations with little or no leverage.

Moreover, the burdens associated with proper report-

ing and regulatory compliance under EPCRA are not

static, but are expanding. EPA is intent on expanding

EPCRA reporting requirements and imposing ever more

regulatory burdens on industry. See EPA Press Release,

EPA Moves Toward Major Expansion of Community Right-to-

Know Information About Chemical Use by Industry, Sept. 25,

1996. Recent Federal Register notices include:

e An EPA proposal to add over 6,400 facili-

ties to the 30,000 now required to submit

Section 313 toxic release inventory

reports under EPCRA. The industries

newly affected would include metal min-

ing, coal mining, electric utilities, com-

mercial hazardous waste treatment,

chemical wholesalers, petroleum whole-

salers, solvent recovery services, and any

manufacturing facilities which receive

wastes from other facilities and manage

same through treatment or disposal. 61

Fed. Reg. 33588 (June 27, 1996); see also

Chemical Marketing Reporter, Vol. 250,

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

e An EPA Advance Notice of Proposed

Rulemaking proposing extensive new

accounting and tracking requirements

and occupational exposure estimates for

raw and finished materials brought to,

used in, and shipped or disposed of from

EPCRA reporting sites. 61 Fed. Reg.

51322 (Oct. 1, 1996).

Such reporting requirements are, of course, only part

of the responsibilities associated with federal, state, and

local environmental regulation. Comprehensive systems

of statutes, regulations, and permits govern permissible

discharge limits, required control technologies, operator

certification, and a wide variety of other requirements

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

charges. Civil and criminal sanctions may be imposed if

the various mandates are violated. Government enforce-

ment actions can and do deter companies from violating

paperwork requirements because a party is always sub-

ject to government sanctions for past violations. Such

enforcement obviously would remain in full force and

effect if the Court agrees with the Sixth Circuit’s reasoned

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

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

decides that Congress intended to limit private prosecu-

tions to those involving continuing violations.

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

ecutorial Discretion Can Encourage Compliance.

Enforcement policy is likely to significantly influence

the type and extent of voluntary compliance efforts by

regulated organizations. When the Department of Justice

issued a 1991 guidance statement listing “regular internal

or external compliance and management audits to evalu-

ate, detect, prevent, and remedy circumstances such as

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

should influence a prosecutor’s decision as to whether to

seek criminal sanctions against a party in violation of

pollution control laws, it encouraged companies to con-

duct such audits. Paul G. Wallach and Dan Levin, Using

Government's Guidance to Structure a Compliance Plan,

National Law Journal, Aug. 30, 1993. Private counsel are

often of two minds about such activity. On the one hand,

an audit program can help in enforcement negotiation.

On the other, it can provide evidence of violations which

can be the basis of both government and citizen enforce-

ment actions.

The Department of Justice has in the past expressed

concern about who controls enforcement policy. DOJ tes-

timony offered during the 1987 consideration of reauthor-

ization of the Clean Water Act argued that the flood of

private enforcement actions under the Act was coming

dangerously close to producing the result Congress

apparently meant to prevent - a shift of control over

enforcement from the government to private parties. See

Michael S. Greve, Private Enforcement, Private Rewards:

How Environmental Citizen Suits Became an Entitlement Pro-

gram, in Environmental Politics: Public Costs, Private

Rewards 105, 120 (Praeger Publishers 1992). Those con-

cerns are even more relevant here because the Seventh

Circuit’s decision grants citizen plaintiffs the same

enforcement authority as the government - a result Con-

gress could not have intended.

Current trends in industrial activity and in govern-

mental policy favor active and voluntary compliance

assurance programs. The International Standards Organi-

zation (ISO), which creates various standards used as

corporate benchmarks for quality assurance, is in the

process of developing its ISO 14,000 standards series.

These standards encourage companies to go beyond the

letter of the law. Such efforts may require permit and

technology standards negotiations, and may disclose

reportable violations or previously undiscovered toxic

emissions.

Companies will have reduced incentive to conduct

voluntary audits, identify environmental compliance

improvement opportunities, update missing paperwork

or self-report environmental violations if citizen groups

are allowed to use these actions as the basis for citizen

suits without the company first having the opportunity to

cure any reporting deficiencies. If the Court allows the

Seventh Circuit’s decision to stand, or if it interprets

EPCRA as authorizing citizen suits for past paperwork

problems, it will discourage proactive compliance on the

part of U.S. industry.

C. Private Prosecutions Favor Dollar Payments, Not

Compliance

Paperwork violations, unlike discharges, unpermit-

ted emissions, nonpoint source toxic runoffs, or deliber-

ate and concealed releases of pollutants into the

environment, are relatively easy to prove. Courts have

held that records compiled and submitted pursuant to

10

regulatory requirements constitute admissions of punish-

able violations. See, e.g., Sierra Club v. Simkins Indus., 617

F. Supp. 1120, 1130 (D. Md. 1985), aff'd, 874 F.2d 1109 (4th

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

enforcement efforts have, in the past, focused on such

paperwork violations, with effective bounties to the envi-

ronmental community in the form of settlements contain-

ing attorney’s fees at market rates (which may or may not

match the actual costs incurred by the citizen organiza-

tions) and “credit projects,” which may finance grants to

local or regional environmental organizations, grants for

land acquisition, or research activity. See Greve, Private

Enforcement, at 109-110.

Private enforcers, under current conditions, possess

enormous leverage in settlement negotiations. Violations

of Sections 312 and 313 are punishable by civil penalties

of up to $25,000 per violation. Every day that a facility

does not comply with the requirements of these sections

is considered a separate violation. Additionally, Section

312 reports are submitted to three government agencies,

42 U.S.C. § 11022(a)(1), and Section 313 reports to two, 42

U.S.C. § 11023(a). EPA considers each agency not

reported to be a separate violation so that an overlooked

report is more than one violation. EPA penalty policies

assess a base amount for the first day of violation deter-

mined by statutorily mandated factors, including the seri-

ousness of the violation, the size of the violator, the

quantity of toxic chemicals used, prior history of viola-

tions, the violator’s “attitude,” ability to pay, and other

factors. This base amount is assessed for the first day of

violation, and subsequent days are also penalized. See

Petition for Certiorari at A7.

11

Where an enforcement agency is involved, “attitude”

and the organization’s history of compliance efforts is

relatively easily determined. Other compliance invest-

ments, the reputation and activity of the violator, and the

number and types of violations encountered may be

given great weight in settlement, with future compliance

assurance and prospective later permit and other negotia-

tions between the parties always a main focus. Where a

private prosecutor pursues a violation, however, similar

concerns are not present. The citizen organization simply

has no economic interest in settling for less than the

maximum possible penalty. See Greve, Private Enforce-

ment, at 109-113.

The subject case indicates the injustice of permitting

private, rather than public, prosecutions. According to

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

30% if a party cooperates with EPA and quickly complies

with reporting requirements once it is informed of the

violation. EPA EPCRA Section 313 Penalty Policy (Aug.

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

would entitle it to the reduction if the EPA were bringing

an action.

On the other hand, when a private prosecutor sends

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

on the prosecuting group’s terms and choose to defend

their rights are likely to face increased settlement

demands and increased attorney fees for citizen groups.

The Seventh Circuit was obviously mistaken that

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

would-be champion to try negotiation before litigation.”

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

12

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

EPCRA citizen action, and citizen groups use the notice

period to attempt to intimidate parties into generous

settlements. The Court should consider the economic

incentives and motives which apply to private prosecu-

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

gress specifically intended.

PRIVATE ACTIONS ARE LIMITED BY PUBLIC POLI-

CIES EXPRESSED IN FEDERAL AND STATE STAT-

UTES

A. Modern Environmental Statutes Show Congres-

sional Concern With The Possible Abuse Of Citizen

Suit Authority

The general rule of law is that unless Congress pro-

vides otherwise, parties are to bear their own attorney’s

fees. (Fogerty v. Fantasy, Inc., 114 S. Ct. 1023, 510 U.S. 517,

127 L. Ed. 2d 455, on remand 1995 WL 261504, affirmed and

remanded 94 F. 3d 553 (U.S. Cal. 1994).) Even when allow-

ing attorney’s fees as “fee-shifting” would be appropriate

as a matter of equity, Congress has the power to circum-

scribe such relief. (Hall v. Cole, 93 S. Ct. 1943, 412 U.S. 1,

36 L. Ed. 2d 702 (U.S. N.Y. 1973).) The Court has chosen

to limit such grants of fees to their clear terms. (Alyeska

Pipeline Service Company v. Wilderness Society, 95 S. Ct.

1612, 421 U.S. 240, 44 L. Ed. 2d 141 (U.S. Dist. Col. 1975),

held, Congressional utilization of the private attorneys

general concept can in no sense be construed as a grant of

authority to jettison the traditional rule against nonstatu-

tory allowances of attorneys fees to the prevailing party,

—— — -

13

and to award attorneys fees whenever courts deem the

public policy furthered by a particular statute important

enough to warrant an award.) Parties such as CBE, which

seek their attorneys fees and costs as a part of private

prosecutions, must show a clear statutory policy requir-

ing a deviation in their case from the general rule of law.

The common law also limits authority over prosecu-

tions and decisions not to prosecute to the state. (Bucolo v.

Adkins, 96 S. Ct. 1086, 424 U.S. 641, 47 L.Ed. 2d 301,

conformed to 332 So. 2d 25 (U.S. Fla. 1976), held, Florida

follows the common law with respect to nolle prosequi,

and vests in its Attorney General exclusive discretion to

determine that the state is unwilling to prosecute.) Con-

gress has, in other statutes, provided for the use of inde-

pendent counsel (28 U.S.C.A. Section 594, Independent

Counsel to exercise authority of Attorney General), or for

private counsel. (31 U.S.C.A. Section 3718, private coun-

sel may be used by agencies for debt collections.) Such

laws retain oversight or supervision in other govern-

mental bodies (Cf. 28 U.S.C.A. Section 595, relative to

Congressional oversight with respect to Independent

Counsel functions; and 31 U.S.C.A. 3718(b)(5)(A) and (B),

requiring that all contracts with private counsel contain

provisions permitting the Attorney General or the heads

of executive, judicial, or legislative agencies which

referred a matter for collection to terminate representa-

tion by private counsel, or to resolve the disputes in

question, respectively.) The determination of what pros-

ecutions are in the public interest is normally a matter for

the agency in question, and not for private persons. (Cf.

Southport Petroleum Co. v. N.L.R.B., 62 S. Ct. 432, 315 U.S.

100, 86 L.Ed. 718, held, a contempt petition for violation of

14

an injunction following a determination by the National

Labor Relations Board can only be instituted by the Board

in the public interest.)

As Petitioner details, Congress has permitted and the

Court has upheld limited private prosecutions under var-

ious federal environmental statutes. Petition for Cer-

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

legislative histories of these statutes “indicate some con-

gressional caution about giving private parties the power

to enforce regulatory statutes.” Barry Boyer and Errol

Meidinger, Privatizing Regulatory Enforcement, 34 Buff. L.

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

include provisions directing fines to the U.S. Treasury,

and not to citizen plaintiffs. See Greve, Private Enforce-

ment, at 106. Whatever the practical results (and commen-

tators like Mr. Greve have argued that the settlement

process in citizen suits already provides a nonappropri-

ated entitlement program for the environmental move-

ment), it is clear that Congress can and has established a

policy of limitation of private activity in and profit from

environmental enforcement action. In Gwaltney v. Chesa-

peake Bay Found., Inc., 484 U.S. 49, 60 (1987), this Court

noted that:

If citizens could file suit, months or years later,

in order to seek the civil penalties that the

Administrator chose to forgo, then the Adminis-

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

lic interest would be curtailed considerably. The

same might be said of state authorities. Respon-

dents’ interpretation of the scope of citizen suit

would change the nature of the citizen's role

from interstitial to potentially intrusive. We can-

not agree that Congress intended such a result.

a

15

The same concerns that this Court had with citizen

suits for past Clean Water Act violations are present in

EPCRA actions. Citizen plaintiffs should not be permitted

to file suit for past violations that EPA chose to resolve

with little or no penalty. The Court should determine

whether the concerns it had regarding the proper applica-

tion of the Clean Water Act in Gwaltney should also apply

to private prosecutions under EPCRA.

B. Congress Did Not Choose To Permit Citizen Suits

For Past Violations Of EPCRA

Respondents below suggested, and the Seventh Cir-

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

period, along with explicit permission for citizen suits for

some past violations, in the Clean Air Act Amendments

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

hold that citizens should be able to sue for past EPCRA

violations even without such explicit permission. Petition

for Certiorari at A13. Leaving aside the constitutional

question of citizen standing to sue for past violations

even with such explicit permission, Petition for Certiorari

at 16-19, the legal argument suggested is inconsistent

with ordinary principles of statutory interpretation. The

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

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

effect on one concerned with emergency planning.

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

usual principle of common law, that the law does not

favor repeal or amendment of an older statute by a newer

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

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

16

that repeal or amendment by implication is possible only

if it arises out of a clear repugnancy between two laws,

and that the newer law abrogates the older only to the

extent that it is inconsistent and irreconcilable with it.

Chew Heong v. United States, 112 U.S. 535, 549 (1884); Wood

v. United States, 16 Pet. 342, 362-63, 10 L. Ed. 987, 995

(1842).

No amendment by implication is possible here. Con-

gress could have chosen to amend all environmental stat-

utes to explicitly permit suits for past violations after this

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

did, insert explicit permission for suits for some past

violations in the Clean Air Act Amendments of 1990.

Absent such explicit permission, the 60-day notice

requirement of EPCRA should be given the meaning

intended by Congress and consistent with the Court's

analysis of identical language in the Clean Water Act in

Gwaltney. The Seventh Circuit should be directed to con-

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

gress.

C. Illinois Law Favors Self-Reporting And Efforts To

Come Into Compliance, Not Paperwork Prosecu-

tions

If the Court decides that federal law permits private

enforcement even when a paperwork violation has been

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

the policy implications of recent Illinois law. The Illinois

General Assembly recognized the purpose of reporting

statutes to be compliance. Given the real possibility of

inadvertent violations, it decided the best way to insure

17

compliance is through a grace period to cure without

violators being subject to the additional penalty of citizen

suits. The General Assembly amended the Illinois Envi-

ronmental Protection Act to require the Illinois EPA to

give a party 30 days’ opportunity to bring EPCRA paper-

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

The Illinois legislature has not provided a similar grace

period if actual harm to the environment such as contam-

ination of the air, water, or land is involved. As a matter

of public policy, private prosecutors should not be given

more opportunity to enforce EPCRA than the State of

Illinois chooses to permit itself.

¢

18

CONCLUSION

A careful limitation of citizen prosecutions to

instances where significant or continuing harm to the

public is likely is a rational choice, and serves important

public policy interests. Petitioner has suggested that Con-

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

position the Sixth Circuit has endorsed. The Court should

overrule the Seventh Circuit and restore the appropriate

interpretation.

Respectfully submitted,

James T. HARRINGTON

Counsel of Record

WriuaM A. Price, General Counsel

Mip-America LeGat FouNDATION

120 West Forest Avenue

Wheaton, IL 60187

(630) 668-5488

Also Counsel for Petroleum Marketers Association

of America

WiiuaM F. Moran III

STRATTON, STONE & Kopec

725 South Fourth Street

Springfield, IL 62791

(217) 528-2183

Counsel for Illinois Manufacturers’ Association

Grecory R. McCuntock

Matcoim C. Weiss

McCuwntock, Weston, BensHoor, ROCHEFORT,

Rusatcava & MacCuisn, LLP

444 South Flower St., 43rd Floor

Los Angeles, CA 90071

(213) 623-2322

Counsel for Western States Petroleum Association