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

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No. 96-643 = gee

IN THE

Supreme Court Of The

United States

OCTOBER TERM, 1996

THE STEEL COMPANY, a/k/a CHICAGO STEEL

AND PICKLING COMPANY,

Petitioner,

v.

CITIZENS FOR A BETTER ENVIRONMENT,

Respondent.

On Writ of Certiorari

to the United States Court of Appeals

for the Seventh Circuit

BRIEF OF AMERICAN FOREST & PAPER

ASSOCIATION, INC. AND THE NATIONAL

ASSOCIATION OF MANUFACTURERS AS

AMICI CURIAE IN SUPPORT OF PETITIONER

RUSSELL S. FRYE*

Of Counsel: ROY S. BELDEN

CHADBOURNE &

Cynthia H. Evans PARKE LLP

American Forest & 1200 New Hampshire Ave., NW

Paper Association, Inc. | Washington, D.C. 20036

(202) 974-5600

Jan S. Amundson

Quentin Riegel Attorneys for Amici Curiae

National Association of American Forest &

Manufacturers Paper Association, Inc.

and the National

Association of

) Manufacturers

May 2, 1997 *Counsel of Record

4p

TABLE OF CONTENTS

INTEREST OF THE AMICI CURIAE

SUMMARY OF ARGUMENT

I.

THE SEVENTH CIRCUIT'S READING

OF EPCRA SECTION 326 IS

CONTRARY TO ITS PLAIN MEANING

AND THE RELEVANT LEGISLATIVE

Like Other Citizen Suit Provisions,

EPCRA's Citizen Suit Provisions

Are Generally Cast in the Present

The EPCRA Citizen Suit Venue

Provision Mirrors the CERCLA

Language that Was Enacted as Part

. THE SEVENTH CIRCUIT'S

CONCLUSION THAT THE 60-DAY

NOTICE REQUIREMENT IS NOT

INCONSISTENT WITH ALLOWING

SUITS FOR HISTORICAL VIOLATIONS

TO GO FORWARD IS UNFOUNDED

A. The Seventh Circuit's Decision

Neutralizes the Intent of Providing a

ii

Page

B. The Seventh Circuit's Conclusion

that the 60-Day Notice Provision Is

Not Rendered Gratuitous Is Contrary

to Common Practice ..............ccc0000. 13

Ifl. THERE ARE OVER-RIDING PUBLIC

POLICY REASONS SUPPORTING

CONGRESS' DECISION TO GIVE EPA

BROAD EPCRA ENFORCEMENT

AUTHORITY AND NOT AFFORD THE

SAME AUTHORITY TO CITIZENS ......... 15

A. The Intent of EPCRA Citizen Suits

Is to Ensure Chemical Release Data

Are Reported, Not to Provide a

Representing Citizen Groups............ 15

B Cc Intended that EPA, Not

Citizen Groups, Make the Difficult

on Whether EPCRA

Reports Comply with the

and Whether

Punishment Is Warranted ................ 18

NUNIT Unduiiddchsadddoutielnccusteiccecceccsceces 22

TABLE OF AUTHORITIES

CASES Page

Atlantic States Legal Foundation, Inc. v. United

Musical Instruments, U.S.A., Inc.,

61 F.3d 473 (6th Cir. 1995) .............. 3, 9, 12, 16

Citizens for a Better Environment v. The Steel

Company, 90 F.3d 1237 (7th Cir. 1996 ...... passim

Coalition for Health Concern v. LWD, Inc.,

60 F.3d 1188 (6th Cir. 1995) ..................0006 5,7

Connecticut Coastal Fishermen's Ass'n v.

i Arms Co., 989 F.2d 1305 (2d Cir.

i icesieisltiricrieatemsnanepnggumnnananseenetecescoete 5

Gwaltney of Smithfield, Ltd. v. Bay

Foundation, Inc., 484 U.S. 49 (1987) ........ passim

Lutz v. Chromatex, Inc., 718 F. Supp. 413 (M.D.

i isenons 5,7

Mertens v. Hewitt Associates,

SET IED «ncn sc cncatancoonsscassocoosecooces 6

\oreco Energy, Inc. v. Penberthy-Houdaille,

682 F. Supp. 931 (N.D. Ill. 1987)..................5 5

U.S. v. Trident Seafoods Corporation,

60 F.3d 556 (9th Cir. 1995) ........... cc cece ec eeeees 14

STATUTES

Comprehensive Environmental R

esponse,

Compensation and Liability Act of 1980,

Ge ee 6 ee Ob BD ceccccccccccsccecccccececcees passim

STATUTES - Cont. Page

§ 310(b), 42 U.S.C. § 9659(0) .-cceecccccoceoeeee. 6

§ 310(b)(1), 42 U.S.C. § 9659(b)(1)............. 5

Know Aci of 1986 CEPCRA) USE

ed Mitte ADSL sine ee passim

§ 313(a), 42 U.S.C. § 11023(a).................. 18

§ 325(c), 42 U.S.C. § 11045(c).................. 17

§ 325(c)(1), 42 U.S.C. § 11045(c)(1)............ 8

§ 326(a), 42 U.S.C. § 11046(a)............. ua18

§ 326(b), 42 U.S.C. § 1104600). coccccoeo----. 6

§ 326(c), 42 U.S.C. § 11046(C)..ceccccceceeoeee 17

§ 326(d), 42 U.S.C. § 11046(d) .......... 0.0... 5

§ 326(e), 42 U.S.C. § 11046(e)....... oo. 10

§ 329(2), 42 U.S.C. § 11049(2) ...00. eo. 3

Freedom of Information Act, 5 U.S.C. § 552

GF BBD. cccccccceccsesesceseccnscessocesdocesenesscccceccoccs 17

MLE HSNO,

“eg

Toxic Substances Control Act, § 20(a),

Sa) WNaeeibe SPIED neadtnithiinhabaigndindeadectansenia 5

Vv

LEGISLATIVE MATERIALS Page

S. Rep. No. 99-11 (1985) .........cccccceceeeeeeeeeeeeeeees 7

H. . No. 99-253(II]) (1986), reprinted in 1986

UW B.C..C. ATA. Beiecccccccccccvcccccccscescsccccssccece 7

H. . No. 99-253(V) (1986), reprinted in 1986

UB.C.C.AB, FiBeeccccccccccccescccccscoscescccccccese 7

H.R. Conf. . No. 99-962 (1986), reprinted in

1986 U.S.C.C.A.N. 3276..........ccceceeeeeeeees 8, 12

131 Cong. Rec. H11,087

(daily ed. December 5, 1985) ................ 7,11, 15

CODE OF FEDERAL REGULATIONS

40 C.F.R. § 370.25 (1996).......ccecceseeceseesesceeeenees 2

40 C.F.R. § 370.28 (1996)........cecceeceeeeeeeeeees 19, 20

40 C.F.R. § 370.28(a)(2) (1996) .......tecccceseeseeeeees 20

40 C.F.R. § 372.3 (1996) .....cccccccceceeceseeseeeeeeeees 18

40 C.F.R. § 372.30 (1996).......ccecceceeseseeeeseees 3, 21

40 C.F.R. § 372.38 (1996).......cccccceceeseseeseeeeeeees 19

FEDERAL REGISTER

56 Fed. Reg. 48,795 (1991).......c..cesssseseeseseeeeeees 22

61 Fed. Reg. 33,588 (1996)..........cecceseseeseeeeeeeees 21

OTHER REFERENCES Page

EPA Enforcement and

Compliance Assurance

300. R5S-004 Mt FY 1994, EPA

300-R-95-004, May 1995 16

EPA Enforcement and Compliance Assurance

300-856-006 Ja Report, FY 1995, EPA

300-R- July 1996 16

EPA's Enforcement for

Section 313 of the Emerge - 4% and

ee -to-Know Act (1986) and

the Pollution Prevention Act

(1990), August 10, 1992,

23 ELR ‘3008 EERE eee 9, 13, 22

Final Penalty Policy for EPCRA Sections 302,

303, 304, 311 and 312 and for CERCLA

Section 103, June 13, 1990.

20 ELR 35,216 labdieidneedibaniinniaddimiiediadacnans 9,14

No. 96-643

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1996

THE STEEL COMPANY, a/k/a CHICAGO STEEL

AND PICKLING COMPANY.

v.

CITIZENS FOR A BETTER ENVIRONMENT,

Respondent.

On Writ of Certiorari

to the United States Court of Appeals

for the Seventh Circuit

BRIEF OF AMERICAN FOREST & PAPER

ASSOCIATION, INC. AND THE NATIONAL

ASSOCIATION OF MANUFACTURERS AS AMICI

CURIAE IN SUPPORT OF PETITIONER

INTEREST OF THE AMICI CURIAE

Amicus curiae American Forest & Paper

Association, Inc.! is a non-profit trade association for

1 Pursuant to Rule 37 of the Rules of this Court, the

amici have obtained letters of consent to the filing of this

brief from the parties and have filed those letters with the

Clerk of the Court. Additionally, pursuant to Rule 37, this

brief was authored, prepared and paid for in its entirety by

2

over 250 member companies engaged in owing

harvesting, and an pee wood = wood

manufacturing » Paper, and gee products

from both virgin and recycled , and solid wood

products. Its member companies account for over 8

Association of Manufacturers through its Associati

Council and National Industrial Coat —

are j to the i i f

sections 312 and 313 of EPCRA. “Section 326 of

EPCRA authorizes private citizens to sue alleged

violators for violations of four specific reporting

requirements, inc failure to “complete and

2 Section 312 generally requires submittal of

— chemical” inventory forms to the state

mergency response commission, the local fire department,

and the appropriate local emergency planning committee.

40 C.F.R. § 370.25 (1996). Section 313 requires submittal

of ae a See feat, Gao Enews ot "Form R”

reports, to to the state emergency response

commission for any of the 651 specified chemicals. A

separate Form R must be filed for each chemical released to

the environment (as defined in EPCRA § 329(2), 42

3

enth Circuit's

Sixth Circuit's

same statutory language,’ a new right to

ties

:

i

e

Bg

SUMMARY OF ARGUMENT

_ The Seventh Circuit's decision is contrary to the

accurately anal the Act's legislative history.

U.S.C. § 11049(2)) that exceeds the applicable threshold

ities. 40 C.F.R. § 372.30 (1996). The chemical

release information is compiled by EPA into the Toxic

Release Inventory or the TRI.

3 Atlantic States Legal Foundation, Inc. v. United

Musical Instruments, U.S.A., Inc., 61 F.3d 473 (6th Cir.

1995).

4

policy reasons behind Congress’ affording EPA the

authority to enforce violations of "any requirement" of

EPCRA sections 312 and 313 and its failure to ide

the same power to citizen . Under the Seventh

Circuit's reading of section 326, citizen group lawyers

would be given a perverse incentive to pursue EPCRA

citizen suits to the detriment of the intent of the statute,

which is to ensure that toxic chemical release data are

collected and released to EPA, the applicable state and

local entities, and the public for emergency planning

and response purposes.

ARGUMENT

I. THE SEVENTH CIRCUIT'S READING OF

EPCRA SECTION 326 IS CONTRARY TO

ITS PLAIN MEANING AND THE

RELEVANT LEGISLATIVE HISTORY

A. Like Other Citizen Suit Provisions,

The Seventh Circuit asserts that the EPCRA

provisions are not "cast in the tense” and it

places great weight on this point. Citizens for a Better

Environment v. The Steel Company, 90 F.3d 1237,

1244 (7th Cir. 1996) (reproduced at Pet. App.

1A-15A). The Seventh Circuit concludes that the

statutory language permitting citizens to sue for failure

to " lete and submit" the isite forms under

sections 312 and 313 can indicate either a failure in the

past or present. It then goes on to look at the EPCRA

citizen suit provision as a whole, and determines that

use of the word "occurred" in the section 326(b) venue

ore is evidence that Congress intended that an

citizen suit could reach historical violations.

The Steel Company, 90 F.3d at 1244, Pet. App. at

5

. Strangely, the Seventh Circuit accords no weight

aay of the tense in the section 326(d)

notice provision, 1.¢., notice must be given to the

"State in which the alleged violation occurs." 42

U.S.C. § 11046(d). This Court, in Gwaltney of

Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc.,

484 U.S. 49, 59 (1987), cited the exact same notice

provision language under section 505(b) of the Clean

Water Act as an example of the forward-looking nature

of that citizen suit provision. While the past tense 1s

used in the vee section of EPCRA, dis is mt

surprising since the citizen suit provisions 0

Cammemaaive Environmental Response,

Compensation and Liability Act (° CERCLA"), the

Solid Waste Disposal Act ("SWDA"), and the Toxic

Substances Control Act ("TSCA") each incorporate the

same venue ision.4 Courts interpreting the scope

of CERCLA, SWDA, and TSCA citizen suits have

concluded that jurisdiction exists only for ongoing

violations.>

CERCLA § 310(b)(1), 42 U.S.C. § 9659(b)(1);

SWDA § 7002(a), 42 U.S.C. § 6972(a); TSCA § 20(a), 15

U.S.C. § 2619(a).

5 See, e.g., Coalition for Health Concern v. LWD,

Inc., 60 F.3d 1188, 1193 (6th Cir. 1995) (CERCLA citizen

suit requires allegations of continuous or intermittent

violations); Lutz v. Chromatex, Inc., 718 F. Supp. 413,

420-422 (M.D. Pa. 1989) (same); Connecticut Coastal

Fishermen's Ass'n v. Remington Arms Co., 989 F.2d 1305,

1315 (2d Cir. 1993) (same for RCRA); Moreco Energy,

Inc. v. Penberthy-Houdaille, 682 F. Supp. 931, 932 (N.D.

Ill. 1987) (same for TSCA).

6

B. The EPCRA Citizen Suit Venue

Provision Mirrors the CERCLA

that Was Enacted as Part of

Legislation

The CERCLA citizen suit provision was enacted

as part of the same legislation as EPCRA -- the

Amendments and Reauthorization Act of

1986 ("SARA" or "1986 Superfund Amendments").°

SARA used virtually the same venue language that the

Seventh Circuit relied so heavily on, i.e., "[aJny action

under . . . this section shall be brought in the district

court for the district in which the alleged violation

occurred," for both the CERCLA and the EPCRA

citizen suit provisions. CERCLA § 310(b), 42 U.S.C.

§ 9659(b) and EPCRA §326(b), 42 U.S.C.

§ 11046(b). This Court has recognized that it is a

common canon of statutory construction that " e

used in one portion of a statute . . . should be deemed

to have the same meaning as the same language used

elsewhere in the statute." Mertens v. Hewitt

Associates, 508 U.S. 248, 260 (1993).

Although the legislative history of the EPCRA

citizen suit provision is sparse, the — history

of the 1986 Superfund Amendments, of which EPCRA

was a part, includes considerable discussion on the

citizen suit provision that was added to CERCLA. In

the Senate Committee on Environment and Public

Works Report on S. 51, the Superfund Improvement

Act of 1985, the Committee stated that:

A citizen suit provision has been a

standard feature of each of the major

environmental laws since the 1970's.

6 EPCRA was enacted as Title III of the 1986

Superfund Amendments.

7

The reported bill adds such a provision

to the Superfund law. Under this new

authority, modeled on the citizen suit

provisions of the Clean Air, Clean

Water and Solid Waste Disposal Acts,

individuals may bring actions in Federal

court against private parties .

S. Rep. No. 99-11, at 62 (1985).7 Thus, since the

other citizen suit provisions have been held by this

Court and others not to authorize citizen suits for

wholly past violations (see Gwaltney, 484 U.S. at 56-

63 and note 5 supra), and Congress modeled the

CERCLA citizen suit provisions on those other

Statutes, there is no reason to believe Congress

intended CERCLA to authorize citizen suits for wholly

past violations, and courts have concurred, (see, e.2.,

Coalition for Health Concern, 60 F.3d at 1193; Lutz,

718 F. Supp. At 420-422), despite the fact that the

CERCLA venue provision uses the past tense

("occurred").

7 Similar statements were made during the floor

debate on the House of Representatives’ bill H.R. 2817, the

Superfund Amendments of 1985, and the relevant House

Committee Reports on the legislation. See, e.g., 131

Cong. Rec. H11,087 (daily ed. December5, 1985)

(statement of Rep. Glickman providing the House Judiciary

Committee's Explanation of Purpose and Intent of

section 113 of H.R. 2817 (noting the similarity between

certain CERCLA citizen suit provisions with those of

SWDA, TSCA, the Clean Air Act, and the Safe Drinking

Water Act)); H. Rep. No. 99-253(III), at 33-34 (1986),

reprinted in 1986 U.S.C.C.A.N. 3038, 3056-3057; and

H. Rep. No. 99-253(V), at 83, reprinted in 1986

U.S.C.C.A.N. 3124, 3206 (in explaining CERCLA's

citizen suit provisions, references made to similar

provisions in the Clean Water Act).

8

Given that the EPCRA citizen suit provision was

enacted as part of the same legislation as the CERCLA

citizen suit provision, it seems unlikely that Congress

would have intended the venue provision in EPCRA to

mean something different from the venue provision in

CERCLA. It also seems unlikely that Congress

intended to depart from precedent in other

environmental statutes and in CERCLA, to allow

EPCRA citizen suits to seek civil penalties for wholly

past violations, without even some cursory discussion

in the final Joint House-Senate Conference R

accompanying the final version of the 1986

Amendments.®

C. The Seventh Circuit's tion

The phrase "failure to...complete and

submit" the applicable forms "under" sections 312 and

313 should also be given its plain meaning. The

Seventh Circuit makes the assumption that "under"

means "in accordance with the requirements of" those

sections. The Steel Company, 90 F.3d at 1243, Pet.

App. at All. While on its face this broad

interpretation of the term may not seem unreasonable,

in practice it expands citizen suit authority into

enforcement areas that Congress specifically reserved

to EPA. Under EPCRA section 325(c)(1), EPA is

authorized to seek civil or administrative penalties

from any person "who violates any requirement

of" EPCRA sections 312 and 313. 42 U.S.C.

§ 11045(c)(1). If Congress had intended to grant

citizen groups the same expansive enforcement

8 See H.R. Conf. Rep. No. 99-962, at 309-310

(1986), reprinted in 1986 U.S.C.C.A.N. 3276, 3402-03.

9

authority as EPA, it would have said so. As set out in

EPA's EPCRA penalty policies, there is a laundry list

of potential violations of sections 312 and 313,

including numerous ial data quality errors such

as failing to identify all appropriate categories of

chemical use.? Many of these data quality errors

would seem to fall within the Seventh Circuit's

interpretation that reports need to be submitted "in

accordance with the requirements of” sections 312 and

313. The Steel Company, 90 F.3d at 1243, Pet. App.

at All. But, as noted by the Sixth Circuit in United

Musical, “Congress limited citizen suits by

emphasizing that it is the failure to submit the requisite

forms that gives rise to a citizen action. Congress did

not authorize citizen suits for other violations of

§ 11023." United Musical, 61 F.3d at 475.

Il. THE SEVENTH CIRCUIT'S CONCLUSION

THAT THE 60-DAY NOTICE

Sa att ee IS NOT INCONSISTENT

ALLOWING SUITS FOR

HISTORICAL VIOLATIONS TO GO

FORWARD IS UNFOUNDED

Under EPCRA section 326(d), no _ citizen

enforcement action may be brought until 60 days after

notice of the violation has been provided to the alleged

violator, EPA, and the state. The Seventh Circuit

9 See EPA's Enforcement Response Policy for Section

313 of the Emergency Planning and Community Right-to-

Know Act (1986) and Section 6607 of the Pollution

Prevention Act (1990), August 10, 1992, 23 ELR 35,523

("EPCRA § 313 Penalty Policy"). See also Final Penalty

Policy for EPCRA Sections 302, 303, 304, 311, and 312

and for CERCLA Section 103, June 13, 1990. 20 ELR

35,261. ("EPCRA § 312 Penalty Policy").

10

claims that allowing citizens to sue after overdue

EPCRA filings have already been made does not

"render the notice provision gratuitous." The Steel

Company, 90 F.3d at 1244, Pet. App. at Al3. The

Seventh Circuit rationalizes its position by arguing that

the 60-day notice provided to the alleged violator will

still (i) give the alleged violator a chance to correct the

citizen's information if he or she is mistaken about a

violation, (ii) limit the alleged violator's exposure for

additional penalties because "each day of an EPCRA

violation is a separate violation,” and (iii) conserve

resources by giving violators a chance to enter

settlement discussions with the citizens or EPA. The

Steel Company, 90 F.3d at 1244, Pet. App. at Al4.

The Seventh Circuits’ analysis is perplexing because

these assumptions have no basis in the statute, the

relevant legislative history, or common practice.

A. The Seventh Circuit's Decision

Neutralizes the Intent of Providing a

60-Day Notice

One of the primary functions of the 60-day

notice provision is to allow EPA to initiate an

enforcement action. The statute provides that “no

[citizen] action may be commenced" where EPA has

commenced and is _ “diligently pursuing an

administrative order or civil action" to enforce an

applicable i . EPCRA § 326(e), 42 U.S.C.

§ 11046(e). This limitation is a standard component of

the citizen suit provisions of the major environmental

laws, and, as this Court noted in Gwaltney, it suggests

that the citizen suit is "meant to supplement rather than

supplant governmental action." Gwaltney, 484 U.S. at

60. Further, this very point was recognized in the

legislative history of the CERCLA citizen suit

provision which was enacted with the EPCRA

11

isions as f the 1986

provis * part o Superfund

In Gwaltney, this Court concluded, that:

It follows logically that the purpose of

notice to the alleged violator is to give it

~ aa to bring itself into

ete compliance with the Act and

thus likewise render ummecessary a

citizen suit.

Id. Rather than paying appropriate deference to

the Seventh Circuit contends that Congress'

amendment of the Clean Air Act undercuts this Court's

determination in Gwaltney that Congress intended the

60-day notice provision to allow an alleged violator to

come into compliance. The Steel , 90 F.3d at

1244, Pet. App. at Al3. First, the 1 ean Air Act

Amendments purport to grant district courts

jurisdiction only for a subset of past violations, i.e.,

past "repeated" violations.'!! Second, the Seventh

10 In the debate on H.R. 2817, the Superfund

Amendments of 1985, Congressman Glickman provided the

House Judiciary Committee's summary of the enforcement

provisions of the bill. The summary provided that: “[t}he

basic concept is that the purpose of citizen suits is to

augment, not duplicate, government enforcement efforts.

Consequently, instances where EPA or a state is involved

in good faith negotiations will be protected from the drain

and disruption that might otherwise be created by citizen

suits.” 131 Cong. Rec. H11,087 (daily ed. December 5,

1985) (Statement of Rep. Glickman providing the House

Judiciary Committee's Explanation of Purpose and Intent of

section 113 of H.R. 2817).

11 The scope of this jurisdiction appears to be limited

to very narrow circumstances in order to satisfy Article III

12

Circuit loses sight of the fact that the intent of EPCRA

is to make sure that chemical release data is reported to

the EPA and the state emergency response commission

so that it may be used in developing emergency

response plans and made publicly available so that

affected citizens may be aware of the

risks from chemical releases in their

community. H.R. Conf. Rep. 99-962, at 218 (1986),

EPCRA. ci in 1986 U.S.C.A.N.N. 3276, 3374. If

go

——. violations, an alleged violator certainly has

plenty of incentive to file its forms as quickly as

possible, i.e., before the 60-day notice period expires,

mn order to avoid a citizen suit. This _of the

ee eS SS ee the

data available to EPA and the public.

The Seventh Circuit's interpretation, however, would

take away most, if not all, of the motivation for speedy

compliance with the EPCRA reporting requirements. !

standing requirements. Moreover, as pointed out by the

Sixth Circuit in United Musical, this argument is

“unpersuasive since one can argue with at least equal force

that by amending the Clean Air Act, but failing also to

amend EPCRA, Congress intended to limit EPCRA's

citizen suit provision to violations existing at the time the

suit is filed.” United Musical, 61 F.3d at 477.

12 If a violator is going to be sued anyway, it does not

really matter whether it complies with EPCRA reporting

requirements within the 60-day notice period or waits until

after the suit is filed. The alleged violator will still incur

legal fees to defend itself, and more importantly the filing

of a new or revised report could potentially be used by the

citizen plaintiff as an admission that the report was legally

required to have been filed previously. Conversely, if the

company is uncertain whether a report was required to be

creates an incentive for the company to err on the side of

over-reporting, furthering the congressional goal of greater

access to information.

13 As noted in Section I.C of this brief, the Seventh

14 See EPCRA § 313 Penalty Policy, supra note 9. For

reports that are less than a year late, EPA usually assigns a

missed the deadline by a year or more.!

Moreover, the Ninth Circuit has held that failure to

submit a notice under the Clean Air Act prior

Seafoods Corporation, 60 F.3d 556 (9th Cir. 1995).

Neither the statute nor the applicable EPA regulations

the Seventh Circuit's assumption that

"continuous" penalties may be assessed for each

su day from the initial failure to file on the

specified due date.

The Seventh Circuit's assertion that resources

are conserved by fostering the opportunity for

settlement during the 60-day period misses the mark in

two ways. First, it is not clear that the alleged violator

would have much of an incentive to settle within the

60-day period, since settlement with the citizen

would still leave the company vulnerable to an EP

enforcement action. More importantly, as noted

above, the intent of EPCRA is to promote submittal of

the reports to make the information available to EPA

and the public, not to promote settlement on

pro rata share (on a per day basis) of the penalty up to a

maximum of $25,000.

15 EPA provides similar discretion in its EPCRA § 312

Penalty Policy to assess one penalty for a failure to file a

timely inventory form. Inventory forms filed after 30 days

from the reporting deadline are viewed as warranting a

"level 1" penalty which may result in a maximum amount

of $25,000 per violation. EPCRA § 312 Penalty Policy, 20

ELR at 35264-66.

15

unspecified grounds before a citizen suit is even filed.

Nowhere in the statute or the legislative history is this

peculiar type of “incentive” even mentioned. In

The Seventh Circuit's interpretation of section

226 to authorize EPCRA citizen suits for wholly past,

corrected violations largely rests on the premise that to

read it amy other way would “render the citizen

enforcement provision virtually meaningless." The

Steel Company, 90 F.2d at 1244, Pet. App. at Al4.

This is not the case. As the Sixth Circuit explained, if

oS ee ee ee eee ee

before the 60-day notice period expires, the mere

16 In discussing the CERCLA citizen suit provision,

the House Judiciary Committee stated that the diligent

prosecution bar is “also necessary to avoid the confusion or

termination of settlement negotiations because EPA, a

State, or potentially responsible parties face citizen suit

litigation relative to the matters under negotiation.” 131

Cong. Rec. H11,087, supra note 10.

16

notice of a citizen suit will have

EPCRA's statutory goal. United Musical, 61 F.3d at

477. (Of course, even a facility that files the required

reports during the 60-day notice period will still be

vulnerable to a ial EPA enforcement action for

the late filing. It is then a decision for EPA to make

on whether other exigent circumstances weigh against

assessing a penalty.)!

The Seventh Circuit posits that if citizens cannot

seek recovery for past violations, then they would have

no real incentive to incur the costs of learning about

EPCRA, i i suspected violators, and

90 F.3d at 1244, Pet. . at Al4. But even if they

were permitted to sue wholly past violations,

citizen groups still would not have any financial

incentive for bringing such suits. To the contrary, they

are prohibited from receiving any direct compensation

from a suit.'8 Their "incentive" is the accomplishment

17 EPA has not been reluctant to bring enforcement

actions against late filers and other violators of EPCRA's

provisions. For example, in 1994, EPA issued 242

EPCRA administrative penalty orders and assessed over

$8.2 million in penalties. EPA Enforcement and

Compliance Assurance Accomplishments Report, FY 1994,

EPA 300-R-95-004, May 1995, p. 4-5. In 1995, EPA

closed 202 civil and administrative EPCRA cases and

assessed over $4.4 million in EPCRA civil and

administrative penalties and secured over $8.7 million in

equivalent value in supplemental environmental projects.

EPA Enforcement and Compliance Assurance

Accomplishments Report, FY 1995, EPA 300-R-96-006,

July 1996, p. 3-3 to 3-4.

18 To the extent any civil penalties would be extracted

in a settlement or court decision, these are required to go to

the U.S. Treasury. EPCRA §§ 325(c) and 326(c), 42

U.S.C. §§ 11045(c) and 11046(c).

19 It also is worth noting that EPCRA citizen suits can

be filed with relative ease. All the EPCRA filings are

available publicly. Data from the section 313 Form R

reports are available on the National Library of Medicine's

TOXNET System and EPA's Internet ENVIROFACTS

database. Hard copies of the section 312 inventory forms

and section 313 Form R reports are available from EPA

through the Freedom of Information Act (5 U.S.C. § 552

et seq.). An enterprising citizen group lawyer merely

needs to access the ENVIROFACTS database, key in the

name of the relevant facility, and almost instantly

information on whether the facility has filed its Form R

reports is available.

and Whether a

Warranted

Congress authorized EPA to bring an

enforcement action "EPCRA. ' person "who violates

any requirement" of ae it carefully limits

—_ to suing for "failure lete and submit"

rp Ms EPCRA § 3 a), 42 a

sii a). There are strong policy reasons C

would leave the bulk of EPCRA enforcement to A.

EPA is in a much better position than a private citizen

to determine whether the rules apply, whether a

is accurate, and when a transgression of the reporting

requirements merits enforcement or when exigent

circumstances or a good-faith failure to comply should

be forgiven.

EPCRA is a complex statute with very technical

definitions. Submittal of accurate FormR reports

consistent with the section 313 statutory and regulatory

specifications is often not a black and white issue. In

many cases, the Form R report is the culmination of

several time-consuming and deliberative determinations

on whether a certain chemical mixture is subject to

of mumufconing, proces quilfies "being

of a manufacturing process as being

“otherwise used" on-site, and thus y subject

to reporting for releases above s threshold

quantities. | Determinations of ae hy threshold

quantities of toxic chemical releases are reached

involve determining initially whether the toxic

chemical qualifies as being "manufactured,

or otherwise used." EPCRA § 313(a), 2 U.S.C.

§ 11023(a). Each of these terms is further defined in

40 C.F.R. § 372.3 (1996). EPCRA also has a

complex scheme for determining whether use of

19

chemical mixtures triggers the threshold

reporting

———_ See 40 C.F.R. §§ 370.28 and 372.38

(1996). The Form R report must include estimates of

releases of each covered chemical, even though there

may be little or no measurement data to support those

estimates.

An example of an area where amici's member

companies must make technical interpretations is what

constitutes a “waste stream" subject to FormR

reporting. The Pollution Prevention Act of 1990

(PPA), 42 U.S.C. §§ 13101-09, added new reporting

requirements for on-site process streams that are waste

streams. Listed chemicals in the PPA waste streams,

which include recycled streams and treated discharges,

must be reported on Form Rs. EPA is in the process

of developing a rule to define a “waste stream" and

related concepts, but to date a rule has not been

issued.20 Nevertheless, companies must still make this

determination. For example, a stream containing one

or more e chemicals that is sent to a boiler or

industrial where it is used as a fuel would not

appear to be a PPA waste stream if it displaces an

available conventional fuel. But what constitutes an

acceptable conventional fuel substitution? To date,

EPA has not answered this question. Pulp mills

generate spent pulping liquor as a residual of the wood

process, and generally these materials are

recycled for chemical and recovery (burned as

a fuel). In order to meet 's requirements, a

mill may need to make its own conclusions on whether

spent pulping liquor qualifies as a PPA waste stream

that may need to be reported on the Form Rs.

Another complex area of EPCRA interpretation

is what qualifies as a reportable “chemical mixture."

20 The term “waste stream” is not defined by the PPA.

20

Frequently, the composition of mixtures may not be

readily and a facility must determine whether

the applicable thresholds under section 312 are met.

Section 312 inventory form ing is requ'red for

"hazardous chemicals" for which the maximum amount

on-site at any one time exceeds specified quantities.

Methanol is a hazardous chemical because of its

ignitability. It is common practice for pulp and paper

mills to have methanol present on-site as a trace

contaminant Mba wang in certain = geo

streams. No reporting is required for a mixture that

contains chemicals that would be considered

“hazardous chemicals" if stored in their pure form,

unless the concentration of the chemical in the mixture

is more than | percent by weight (or more than 0.1

percent, if a carcinogen). 40 C.F.R. § 370.28 (1996).

To prepare a correct inventory under section 312, the

mill must generally assess all the chemicals contained

in mixtures, know their concentration and whether or

not they are considered carcinogens, and calculate how

much of the chemical is included as a component of the

mixture.21_ There are often situations where the

Fe ee Lae Ger te coompemint samy be

required to be included in an section 312

inventory form, but, depending on the characteristics

of the mixture, the methanol contained in the mixture

may not need to be reported separately on the section

312 report, i.e., the methanol is less than the

thresholds in 40 C.F.R. § 370.28 (1996). Difficult

21 As an alternative, EPA allows reporting on the

entire mixture itself on the section 312 inventory form. 40

C.F.R. § 370.28(a)(2) (1996). However, for section 313

reporting requircments, the amount of a specific toxic

chemical in a mixture that is released must be

with other releases of the same chemical at the facility to

determine if the reporting threshold is exceeded for that

chemical. 40 C.F.R. § 372.30 (1996).

where necessary, make the decision on whether a

company is culpable for violating the Act.

22

It is i for EPA, as the relevant

government alley ont the technical expert, to be

making the difficult judgments about how the rules

apply and whether a previously corrected error still

warrants punitive action. For example, EPA has

recognized that:

Generally, an EPA enforcement action

may not be taken regarding changes to

22 The Seventh Circuit makes the pang ag that

inve forms and Form R Reports can wn

ee ty with “minimal effort." The Steel Company, 90

F.3d at 1244, Pet. App. at Al4. Again this assumption has

little basis in practice. EPA has estimated that, in the first

year alone, it takes approximately 50.5 hours of staff time

to become familiar with the EPCRA rule requirements and

determine compliance. Another 74 hours per report is

needed to perform Form R calculations and complete the

report, and maintain the relevant records. 61 Fed. Reg.

33,588, 33,617 (1996) (proposed rule to add seven new

categories of facilities to the EPCRA _ reporting

requirements). Since EPA requires a separate report for

each chemical released above the applicable thresholds,

many facilities are required to prepare multiple reports.

While there is undoubtedly some time-saving economies of

scale in preparing multiple reports, these are arduous

reporting requirements that require more than a “minimal

—

22

that were not available when the facility

was completing its initial report.

56 Fed. Reg. 48,795, 48,798 (1991). EPA may also

determine when ‘only a Notice of Noncompliance is

necessary or when an administrative or civil complaint

should be filed. EPA's August 10, 1992 EPCRA

§ 313 Penalty Policy sets out a list of circumstances

where inaccurately completed Form R reports would

not automatically trigger a penalty, but only initially

warrant a Notice of Noncompliance. EPCRA § 313

Penalty Policy 23 ELR at 35,523.23 To put pene

citizens in EPA's role would not be filling the gaps

EPA enforcement, but would be “potentially

intrusive." Gwaltney, 484 U.S. at 61.

CONCLUSION

Congress did accord a role for citizens in

enforcing certain EPCRA requirements, and that role

is a limited one. Nowhere in the statute or the

legislative history are citizens granted the right to sue

for wholly past violations that have been remedied.

The Seventh Circuit's conclusion that citizen suits for

wholly past violations do not disrupt EPCRA's

enforcement balance between EPA and citizens does

not reflect the practical realities of EPCRA compliance

and enforcement. Moreover, there are over-riding

23 Failure to respond to a Notice of Noncompliance

would, under the EPCRA § 313 Penalty Policy, result in a

penalty assessment. EPCRA § 313 Penalty Policy, 23 ELR

at 35,524.

23

licy reasons for rejecting the Seventh Circuit's

oon ion. For these reasons, the Seventh Circuit's

decision should be reversed.

Respectfully submitted,

RUSSELL S. FRYE*

Of Counsel: ROY S. BELDEN

CHADBOURNE &

Cynthia H. Evans PARKE LLP

American Forest & 1200 New Hampshire Ave., NW.

Paper Association, Inc. | Washington, D.C. 20036

(202) 974-5600

Jan S. Amundson

Quentin Riegel Attorneys for Amici Curiae

National Association of American Forest & Paper

Manufacturers Association, Inc. and the

National Association of

Manufacturers

May 2, 1997 *Counsel of Record