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

THE STEEL COMPANY, a/k/a CHICAGO STEEL

AND PICKLING COMPANY,

Petitioner,

Vv.

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 NATURAL RESOURCES

DEFENSE COUNCIL, INC., SIERRA CLUB, UNITED

STATES PUBLIC INTEREST RESEARCH GROUP,

FRIENDS OF THE EARTH, ATLANTIC STATES LEGAL

FOUNDATION, TRIAL LAWYERS FOR PUBLIC

JUSTICE AND OTHER MEMBERS OF AMICI

(Additional Members Listed on Inside Cover)

IN SUPPORT OF RESPONDENT

James M. Hecker

Counsel of Record

Trial Lawyers for Public Justice, P.C.

1717 Massachusetts Ave., N.W., Suite 800

Washington, D.C. 20036

(202) 797-8600

Attorney for Amici Curiae

© As ih dae ae he.

ADDITIONAL MEMBERS OF AMICI

IN SUPPORT OF RESPONDENTS

Tennessee Environmental Council

Ecology Center of Ann Arbor, Inc.

Communities for a Better Environment

Cold Mountain, Cold Rivers, Inc.

Don't Waste Arizona, Citizens for Environmental Compliance

Ecological Consultants for the Public Interest

ee

BEST AVAILABLE COPY’ Sum

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IDENTITY AND INTEREST OF AMICI CURIAE ........ l

SUMMARY OF ARGUMENT ..............--55005- 3

Se ee ee 4

I THE PLAIN LANGUAGE OF EPCRA AUTHORIZES

CITIZENS TO SEEK CIVIL PENALTIES FOR A

FAILURE TO FILE TIMELY REPORTS ......... 4

Il THE CITIZEN’S ROLE IN ENFORCING EPCRA

IS DEFINED BY THE STATUTORY LANGUAGE,

NOT BY THIS COURT'S STATEMENTS IN

CC ES ee 9

Ill CBE HAS STANDING TO SUE FOR PENALTIES

FOR WHOLLY PAST VIOLATIONS .......... 13

A. CBE Has Sufficiently Alleged Injury-in-Pact ... 13

B. CBE’s Pursuit of Civil Penalties Deters Further

Violations and Therefore Redresses Its Injuries .... 18

IV PERMITTING CITIZEN SUITS FOR PAST

VIOLATIONS WILL NOT HAVE THE ADVERSE

EFFECTS ALLEGED BY PETITIONER AND ITS

EE ee ee ee 25

EEE Pe 28

TABLE OF AUTHORITIES

Cases:

Arkansas Wildlife Federation v. ICI Americas Inc., 842

F. Supp. 1140 (ED. Ark. 1993), aff'd, 29 F.3d 376

(8th Cir. 1994), cert. denied, 115 S.Ct. 1094 (1995) ..... 10

Atlantic States Legal Foundation v. Buffalo Envelope,

823 F. Supp. 1065 (W.D.N.Y. 1993) ............ 14, 26

Atlantic States Legal Foundation v. Pan American

Tanning Corp., 993 F.2d 1017 (2d Cir. 1993) ........ 7,18

Atlantic States Legal Foundation v. Tyson Foods, 897

POG CE EG bbb ccc seebscrmecccsccce. 7

Atlantic States Legal Foundation v. United Musical

Instruments, 61 F.3d 473 (1995) ..... 2... 66 ee cece 10

Atlantic States Legal Foundation v. Whiting Roll-Up Door

Mfg. Corp., 38 BNA Env't Rep. Cases 1426

CTT GED. hai ve cules od cae We ck e006 ccc. 23

Atlantic States Legal Foundation, Inc. v. Universal Tool

& Stamping Co., Inc., 735 F. Supp. 1404 (N.D.

ere ee ae 26

Bennett v. Spear, 117 S.Ct. 1154 (1997) ............... 21

Chesapeake Bay Foundation v. Bethlehem Steel

Corp., 652 F. Supp. 620 (D. Md. 1987) ............. 26

Chesapeake Bay Foundation v. Gwaltney of Smithfield,

890 F.2d 690 (4th Cir. 1989) ............. owes « 6,7

Chevron, U.S.A. Inc. v. NRDC, 467 U.S. 837 (1984) ...... 9

Citizens for a Better Environment v. The Steel Company,

90 F.3d 1237 (7th Cir. 1996) ............-- 2 ce eeee 12

Citizens for a Better Environment v. Union Oil Co.,

83 F.3d 1111 (th Cir. 1996), cert. denied, 117

OR I 60 EEE PERE S bo hepbe hd ccc cc vcccas 12

Coalition for a Liveable West Side v. NYC Dept.

of Environmental Protection, 830 F. Supp. 194

Cet ee bbe orc cena ccccccouas 13

Ca CEE vcr odbcs coccccccesdées 22

Davis v. Passman, 422 U.S. 228 (1979) ............ 4,27

813 F. Supp. 1132 (B.D. Pa. 1993).............. 14, 26

Earth Island Institute v. Southern California Edison, 838

F. Supp. 458 (S.D. Cal. 1993) .................... 25

EPA v. City of Green Forest, 921 F.2d 1394 (8th

Cir. 1990), cert. denied, 502 U.S. 956 (1991) ......... 12

Farrar v. Hobby, 506 U.S. 103 (1992) ................ 25

Gwaltney of Smithfield, Lid. v. Chesapeake Bay Foundation,

SED oo w BBS CEES cK Ledwic 3, 7-13, 19

Havens Realty Corp. v. Coleman, 455 U.S. 363 (1982) .... 14

Heart of America Northwest v. Westinghouse Hanford,

820 F. Supp. 1265 (E.D. Wash. 1993) .............. 14

INS v. Chadha, 462 U.S. 919 (1983) ................. 27

- JI. Case Co. v. Borak, 377 U.S. 426 (1964) ............ 22

Linda RS. v. Richard D., 410 U.S. 614 (1973) .......... 14

Local No. 93 v. City of Cleveland, 478 U.S. 501 (1986)... . 23

Lujan v. Defenders of Wildlife, 504 U.S. 555

ES ee oe 17, 18

Morrison v. Olson, 487 U.S. 654 (1988) ............... 27

North and South Rivers Watershed Ass'n v. Town of

Scituate, 949 F.2d 552 (ist Cir. 1991) .............. 10

Northern Pipeline Construction Co. v. Marathon Pipe

EE on no no ow sili dae 60006 27

NRDC v. Outboard Marine Corp., 692 F. Supp. 801

sw ws eee en 26

NRDC v. Texaco Refining & Marketing, Inc., 2 F.3d 493

en nn awe capeeeecs 7

PIRG v. Powell Duffryn Terminals, Inc., 913 F.2d 64

(3d Cir. 1990), cert. denied, 498 U.S. 1109 (1991)...... 23

Plunkett v. Commissioner, 118 F.2d 644 (ist Cir. 1941) ..... 8

Sierra Club v. Chevron U.S.A., 834 F.2d 1517

EE TE ree ere 9

Sierra Club v. Electronic Controls Design, 909

nn + +. ccccedelibol'sccccecce 23

Sierra Club v. Port Townsend Paper Corp., 28 BNA

Env't Rep. Cases 1676 (W.D. Wash. 1988) ........... 26

SPIRG v. AT&T Bell Laboratories, 617 F. Supp. 1190

Sig Ferre rrr LTT 21

SPIRG v. Monsanto Co., 600 F. Supp. 1474 (D.N_J.

GD 55 Ti Fs OUST CPB US Gis ok EWSS Ge COC EL G8 26

Tigner v. Texas, 310 U.S. 141 (1940). ...... 6... eee ees 28

Tull v. U.S., 481 U.S. 412 (1987) ........ 0.65556. 18, 21

LY F 2 | | BSA vTrT Trees 22

U.S. v. Atlas Powder, 26 Env't Rep. Cases (BNA)

B90 GREG GE WE SEE. 0 Le iwcdwcwerecsc cece 11

U.S. v. Hays, 115 S. Ct. 2431 (1995) ..... eee eee 18

U.S. v. Sherwin-Williams, 27 BNA Env't Rep. (Current

Developments) 2029 (Feb. 7, 1997); 62 Fed. Reg. 7473

Bde, By GT. 6 5 So SSS SESE IES oni occ. 24

U.S. v. W.T. Grant Co., 345 U.S. 629 (1953) ..........-.. 7

United States ex rel Marcus v. Hess, 317 U.S. 537

SEE Bbc vs 6k CCC ERU EE ea ob 0 Oe CERVS ec cc vcce's 27

Warth v. Seldin, 422 U.S. 490 (1975) .... 2... 2.2 enue 20

Wash PIRG v. Pendleton Woolen Mills, 11 F.3d 883

GN a vo one ede ddseee 4 aeesdene dekh. 12

Statutes and Regulations:

LR ee, ere ere ey rrr 8

ED 6 oie ib oc cc eS aM eU NCES Sus od 0 Wa e 9

SIPS « occ ouckeh cedsecccocaccoceteut s

ED». oo pc eae ehh she 6 ¢ 00> ab 160.0 bd 8

Gre en a NR nw ccc cc cc ccc cece cscndss 15

I ns. nn 6 ae 0 oe eens one 6 te 15

ines s 0.0 e cue 09946040 2 cone fans en 15

nt Ons enonaenan ss 0s Reis 5

es ID Faces 0m bid coeeddcs o0ss cons 5

Ss vn ncccceccccccce] GUmbcesb awe 5

GB BOE BS ilin’s o's e0 ce bo ebedscc coer ent 13

GB BBE, Bi tin 600 0 ee ehh ws 5 wb atc civil’ 14

GB BB on Bb 5 ooh c eevee ein ddees ows 5

GD CB Ge EO Ee sc ice cc ccc ctccesbeciese 5

BUDE OOD ee che ccc ccc tdode ded 25

iv

ETE Ue Fe 8, 19

ey INS, OO. dil'c 6 O64 oe aN cc ve BEUNOES 6

— ) A SS i eres 6

SEE CON oie ob We abe begeectceieede 6

ee ee oul c gcd asedioscvaes 7,27

ee ee eee ee ae Ce 4,27

Se ne anne ann 4

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i is ben cine tai ws tae wed 4, il

CE a en me 11

EE RN ee 16

eG Ee i OL cdc wodecwoceces 9

EN re 8

60 Fed. Reg. 57382 (Nov. 15, 1995) ................. 15

61 Fed. Reg. 20473 (May 7, 1996) ............... 15, 16

61 Fed. Reg. 38600 (July 25, 1996) .................. 15

Exec. Order No. 12969, 60 Fed. Reg. 40989

ewes 17

False Claims Act, Act of March 2, 1863, 12 Stat. 696,

I 27

Pollution Prevention Act of 1990, P.L. 101-508,

TE aE 19

Legislative Materials:

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ee ee ccc cc cccces 16

a 5

I oo no's dice é cece be dled 12

nc oe cece cece cccccee 12

ccc ccc ccccce 12

Dn ccc cccces 12

ele a a 12

ED. vn vec co ccees S00 cecewes 12

INS. os ows diese W'S 06 0 OU 20

ee 12, 20

136 Cong. Rec. S 17523 (daily ed. Oct. 27, 1990) .... 16, 17

Amendment No. 1436, 136 Cong. Rec. 6437, 6557, 6564

| 4 |] rrr. Tr re eee ee 19

H. Rep. No. 1004, 99th Cong., 2d Sess. (1986) .......... 23

H. Rep. No. 962, 99th Cong., 2d Sess. (1986) .......... 14

S. Rep. No. 228, 101st Cong., Ist Sess. (1989) .......... 21

S. Rep. No. 50, 99th Cong., Ist Sess. (1985) ........ 21, 22

Other Authority:

EPA, Interim Revised Supplemental Environmental

Projects Policy (May 8, 1995) ..... ~~... ee eee 15, 24

Fletcher, The Structure of Standing, 98 Yale LJ. 221

( Se Ae ee (re See 22

Hecker, The Citizen's Role in Environmental Enforcement:

Private Attorney General, Private Citizen, or Both, 8

Natural Resources & Env't 31-34, 61-62 (Spring 1994)... 10

Hodas, Enforcement of Environmental Law in a Triangular

Federal System: Can Three Not Be a Crowd When

Enforcement Authority is Shared by the United States,

the States,and Their Citizens?, 54 Maryland L. Rev.

2 EP ee) RS ere a 10

IDENTITY AND INTEREST OF AMICI CURIAE'

The primary purpose of the Emergency Planning and

Community Right-to-Know Act (EPCRA) is to inform the public

about releases of toxic chemicals by manufacturing facilities to the

environment. EPCRA gives citizens a right to know what those

chemicals are, where they are, and how much of them is present.

The thirteen organizations submitting this brief have a

direct and substantial interest in this information and in enforcing

EPCRA.’ Their members live, breathe the air, and engage in

recreational activities in areas affected by releases of toxic

chemicals by companies regulated under EPCRA. These toxic

chemicals are known to cause significant adverse effects on human

‘Letters confirming that petitioner and respondent consent to the filing

of this brief have been filed with the Clerk of the Court. No counsel for any party

had any role in authoring this brief, and no person other than the named amici and

their counse! made any monetary contribution to its preparation or submission.

>The following not-for-profit organizations (with their state of incorpora-

health and the environment. Amicis’ members use data reported by

facilities under EPCRA to learn about toxic chemical releases in

their communities. The interests of amicis’ members and their right

to know about such releases is adversely affected whenever

companies fail to file required and timely reports under EPCRA.

The thirteen organizations also have organizational interests

in enforcing EPCRA. These amici research and use data reported

by facilities under EPCRA. Based on these data, amici report to

their members and the public about releases of toxic chemicals to

the environment, advocate changes in environmental regulations

and statutes, encourage companies to reduce their use of toxic

chemicals, and seek to promote the effective enforcement of

environmental regulations and statutes. Amici have also researched

public files to identify companies which have failed to file required

reports under EPCRA and have brought citizen suits against such

companies.

Petitioner's interpretation of EPCRA would allow non-

reporting companies to avoid all liability in citizen suits if they file

the reports after receiving a citizen's notice letter and before the

citizen files suit. Filing these reports is a simple act that can

invariably be accomplished in a few days or weeks. Consequently,

this interpretation would allow any EPCRA violator to delay

compliance until it is notified of a citizen suit, and then to easily

avoid any legal consequences for its violations.

This outcome would destroy the deterrent effect of civil

enforcement, in two ways. First, it would discourage voluntary

compliance and reward noncompliance by the regulated

community. Second, it would mean that citizen investigations and

enforcement efforts against violators are a waste of time and

resources, because those violators would have a foolproof and

simple defense in nearly every case. It is therefore critical that this

Court affirm the decision below and reaffirm the right of citizens

to sue for violations of EPCRA’s reporting requirements.

SUMMARY OF ARGUMENT

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ARGUMENT

I. THE PLAIN LANGUAGE OF EPCRA AUTHORIZES

CITIZENS TO SEEK CIVIL PENALTIES FOR A

FAILURE TO FILE TIMELY REPORTS

It is fundamental that Congress decides “who may enforce

[statutory rights] and in what manner.” Davis v. Passman, 422

U.S. 228, 241 (1979). Congress defines the role of citizens in

enforcing EPCRA. The nature of that role is set forth in the

statutory text. It is therefore critical to examine the pertinent

statutory language and apply traditional rules of statutory

construction.

A citizen suit under EPCRA is a hybrid cause of action to

vindicate a mixture of private and public rights. A citizen enforces

EPCRA “on his own behalf.” 42 U.S.C. § 11046(a). He therefore

asserts his own private right to be free of harm from violations of

EPCRA. In that sense, the citizen is a private litigant However,

the citizen also has remedial authority equivalent to that of the

government, because he can seek to “enforce the requirement

concerned and to impose any civil penalty provided for violation

of that requirement.” 42.U.S.C. § 11046(c). In that sense, the

citizen is a private attorney general.

The scope of the citizen's cause of action as a private

attorney general is defined in 42 U.S.C. § 11046(a)(1)(A), which

lists four EPCRA requirements that citizens can enforce against

owners or operators of facilities. The enforceability of these

requirements is limited in only one respect. The first clause of 42

U.S.C. § 11046(a) authorizes citizen suits “[e)xcept as provided in

subsection (e).” Subsection (e), in turn, is described in its heading

as a single “[Iimitation,” and provides that citizens cannot sue if

EPA is already pursuing civil or administrative enforcement of the

same violation. 42 U.S.C. § 11046(e). Thus, citizens can sue to

enforce the four EPCRA requirements in 42 USC. §

11046(a)(1)(A) whenever EPA does not.’

If the suit is one to enforce one of these four requirements,

citizens have the same power to seek civil penalties that EPA does.

EPCRA is quite clear on this. Under section 325 of EPCRA, EPA

“may bring an action to assess and collect the penalty in the United

States District Court” for a failure to submit the forms required by

section 312 or 313. 42 U.S.C. § 11045(a){1), (4). Similarly, under

section 326, the district court in citizen suits “shall have jurisdiction

* * * to impose any civil penalty provided for” a failure to submit

those forms. 42 U.S.C. § 11046(c)(emphasis added). The penalty

reference in the citizen suit provision in section 326 is to the

federal government's civil penalty authority in section 325. Thus,

for these types of violations, the penalty authority in EPA suits and

citizen suits is coextensive.

The central issue in this case is whether Congress intended

to limit citizen authority to seek civil penalties based on the timing

of certain events relating to the violations of EPCRA. It is

important to separate and define these events, place them in a

common frame of reference, and then analyze how they relate to

federal jurisdiction and the existence of a citizen cause of action.

The timing of four events is relevant: the violation, penalty

liability, cessation of the violation, and the filing of the complaint.

First, there is the timing of the violation itself. The

violation in this case is the failure to submit required forms. For

section 312, the form must be submitted annually on March |. 42

U.S.C. § 11022(a)(2). For section 313, the form must be submitted

annually on July 1. 42 U.S.C. § 11023(a). The violation occurs

on the first day after the date on which the company was required

to submit the required form. In this case, petitioner violated

section 312 on March 2 of each year from 1988 through 1995, and

violated section 313 on July 2 of each year from 1988 through

1995. Pet. App. A8; J.A. 7-10.

*The legislative history supports this conclusion, indicating that EPCRA

“allows citizens the right to sue in cases where the law is not enforced or the

Government has not performed its mandated duties.” 132 Cone. Rec. 29758

(1986)(Rep. Coats).

Second, there is the timing of penalty liability for those

violations. Under section 325(c)(1), any person “who violates any

requirement of section 312 or 313 shall be liable to the United

States for a civil penalty.” 42 U.S.C. § 11045(c)(1). In addition,

Congress provided that “[eJach day a violation * * * continues shall

* * * constitute a separate violation,” subject to a separate daily

assessment of civil penalties. 42 U.S.C. § 11045(c)(3). This

means that penalty liability first attaches on the date of each

violation, and continues to attach on each subsequent day until the

report is filed.* See Chesapeake Bay Foundation v. Gwaltney of

Smithfield, 890 F.2d 690, 696 (4th Cir. 1989).

Liability for penalties must begin with the happening of an

event that occurred in the past. All violations of EPCRA, by

necessity, will be “past” violations. A citizen cannot bring a citizen

suit until the violations occur. The violations cannot occur until

after the filing deadline passes, in the same sense that taxpayers

cannot violate the filing deadline for their income tax forms until

after April 15 of each year. In addition, civil penalties can only be

imposed for “past” violations. A civil penalty cannot be imposed

on violations before they occur.

Third, there is the time that the defendant ceases its

violation. Nothing in EPCRA states that a defendant's cessation of

a reporting violation absolves it of liability for civil penalties for

that violation. EPCRA contains no defenses to liability.’ It is a

strict liability statute. If there is a violation, a penalty “shall” be

imposed. 42 U.S.C. § 11045(c)(1). Consequently, an action for

“Thus, if a required report is filed five days late, that constitutes five

separate days of violation. Those violations do not lapse or disappear on the sixth

day, when the belated report is filed.

*The 60-day notice requirement is not designed to give the violator an

opportunity to cure its violation and avoid suit. Notice gives EPA an opportunity

to exercise its primary enforcement authority, and gives the violator an

opportunity to settle admitted violations or to head off misdirected litigation over

disputed violations.

penalties is intrinsically incapable of being negated or rendered

moot by a defendant's corrective action.* The only issue is how

much the penalty should be, and that issue is within the district

court's discretion to decide.

Fourth, there is the time that the citizen plaintiff files its

complaint. This may occur before or after the defendant ceases its

violations by filing its reporting form. If it is before the complaint

is filed, or there is a risk of ongoing violations on or after that date,

the violations are “ongoing.” Gwaliney, 484 U.S. at 65. If it is

after the complaint is filed, and there is no risk of ongoing

violations thereafter, the violations are “wholly past.” Jd. at 56.

To resolve this controversy, it is necessary to focus on the

authorizing language that Congress used for citizen suits. A citizen

plaintiff can file a complaint against an owner or operator of a

facility “for failure to * * * complete and submit” a required

reporting form “under” sections 312(a) or 313(a). 42 U.S.C. §

11046. There is no temporal limitation in this language. Indeed,

the language has no temporal component at all. Instead, the

—

*A defendant's voluntary cessation of its unlawful conduct will not cause

mootness, “especially when abandonment seems timed to anticipate suit, and there

is probability of resumption.“ U.S. v. W.T. Grant Co., 345 U.S. 629, 633 (1953).

Four Circuits have held that, even if a defendant has cured its permit violations

under the Clean Water Act since the citizen suit was filed, claims for civil

penalties for past violations prevent the case from being moot. NRDC v. Texaco

Refining & Marketing, Inc., 2 F.3d 493, 502-504 (3d Cir. 1993); Atlantic States

Legal Foundation v. Pan American Tanning Corp., 993 F.2d 1017, 1021 (2d Cir.

1993); Atlantic States Legal Foundation v. Tyson Foods, 897 F.2d 1128, 1135-37

(11th Cir. 1990); Gwaltney, 890 F.2d at 696. A contrary rule “would weaken the

deterrent effect of the Act by diminishing incentives for citizens to sue and

language is purely functional--citizens can sue persons who violate

these statutory sections by failing to submit the required forms.’

The phrase “failure to complete and submit” is synonymous

with either “violates” or “violated.” A person who fails to

complete and submit the required form “violates’ EPCRA.

Similarly, a person who has failed to complete and submit the

required form has “violated” EPCRA. Substituting either the

present or past tense of the verb does not change the meaning of

the statute. Congress did not use the English language in a

temporal or historical sense. It used the English language in a

functional sense.*

In this regard, the citizen suit provision in EPCRA is

different from those in the Clean Water Act and the amended Clean

Air Act. The CWA provision authorizes citizens to sue a person

who “is alleged to be in violation” of that statute. 33 U.S.C. §

1365(a)(emphasis added). The CAA provision authorizes citizens

to sue a person who “is alleged to have violated (if there is

"Congress has frequently used the “failure to do” something in

functional sense as the basis for imposing penalties for past violations. See, ¢.g.,

26 U.S.C. § 6651 (imposing penalties for “failure to file” tax returns); 49 U.S.C.

§ 11901(i)(1) (imposing penalties for “failure to make, prepare, or preserve” a

report to the Interstate Commerce Commission). Congress intended to allow the

federal government to impose penalties for untimely reporting under those statutes.

For example, under 26 U.S.C. § 6651, if a person fails w file a tax return,

penalty is imposed despite any attempt to file a late rewm. Plunken v.

Commissioner, 118 F.2d 644, 650 (ist Cir. 1941). Thus, these words are used in

a functional, not a temporal, sense, and provide no basis for limiting the

application of penalties to ongoing violations.

*This same functional usage is apparent in the federal enforcement

section. The verbs describing the federal government's authority to file a civil

action are stated in the present tense. 42 U.S.C. § 11045(c) (U.S. may sue “[ajny

person who violates” EPCRA or “who fails to furnish” required information under

EPCRA). So are the verbs in the federal enforcement section of the Clean Water

Act. 33 U.S.C. § 1319 (U.S. may sue any person who “is in violation” of the

CWA). Yet “it is lithe questioned that the Administrator [of EPA) may bring

enforcement actions to recover civil penalties for wholly past violations * * *.

Gwaltney, 484 US. at 58.

evidence that the alleged violation has been repeated) or to be in

violation of” that statute. 42 U.S.C. § 7604(a)(1)(emphases added).

Both of these provisions use the word “alleged.” That word must

refer to the allegations in the plaintiff's complaint. In so doing,

Congress created a temporal frame of reference based on the date

that the complaint was filed. The timing of the violation (i¢.,

whether it is wholly past or ongoing) and the right to sue are

i

reporting. Since “the intent of

Congress is clear from the plain meaning of the statutory provision,

that [is}) the end of the judicial inquiry.” Chevron, U.S.A. Inc. v.

NRDC, 467 U.S. 837, 843 (1984).

Il. THE CITIZEN'S ROLE IN ENFORCING EPCRA IS

DEFINED BY THE STATUTORY LANGUAGE, NOT

BY THIS COURT'S STATEMENTS IN GWALTNEY

A major source of the error in petitioner's interpretation of

EPCRA is its misapplication of this Court's Gwaltney decision. In

that case, the Court addressed the issue of whether the citizen suit

provision of the Clean Water Act authorizes citizen plaintiffs to file

suit against violators of that Act who have “completely * * *

eradicated” the potential for further violations. 484 U.S. at 70

*The applicable statute of limitations for actions to enforce a penalty is

five years. 28 U.S.C. § 2462. Sierra Club v. Chevron U.S.A., 834 F.2d 1517,

1521 (9th Cir. 1987).

(Scalia, J., concurring). Focusing on the particular language and

history of the Clean Water Act, this Court concluded that Congress

had not intended such a result. In the course of this analysis, the

Court noted that the Clean Water Act's disallowance of citizen suits

when the government had already filed suit against the violator

“suggests that the citizen suit is meant to supplement rather than

supplant governmental action.“ /d. at 60. Further, the Court

reasoned that limiting Clean Water Act citizen suits to “ongoing”

violations could be seen as consistent with the “interstitial” role of

such suits. /d. at 61. Following the lead of the Sixth Circuit in

Atlantic States Legal Foundation v. United Musical Instruments, 61

F.3d 473, 477 (1995), petitioner seeks to use this language from

Gwaltney to transform that opinion into a quasi-constitutional

charter governing all federal citizen suit provisions, regardless of

the language of the statute is especially important here because, as

F.3d at 1242. Similarly, in Wash PIRG v. Pendleton Woolen

11 F.3d 883, 886 (1993), the

“supplement rather than supplant” language in Gwaliney

persuade us to abandon the clear language that Congress used

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of the CWA, as well as the legislative history, which make clear that agency

inaction is precisely the circumstance in which private action is appropriate.” EPA

v. City of Green Forest, 921 F.2d 1394, 1405 (8th Cir. 1990), cert. denied, 502

U.S. 956 (1991).

"In the 1990 amendments to the Clean Air Act, Congress rejected the

Dole-Nickles- Heflin amendment which would have applied the Gwaltney principle

give rise to legal action. There is no reasonable justification for treating violations

of the Clean Air Act differently.” id. at 11918.

12

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it drafted the [CWA).”"*

The courts which have relied on Gwaltney to limit citizen

suits have given too little consideration to the statutory text that

actually defines the citizens’ cause of action. As Gwaliney

recognized, the scope of citizen enforcement should be determined

solely on the basis of the statutory conditions enacted by Congzess.

Viewed on that basis, Congress intended citizens to be able to sue

for untimely EPCRA reports when EPA has not taken enforcement

action.

Ill. CBE HAS STANDING TO SUE FOR

PENALTIES FOR WHOLLY PAST VIOLATIONS

Petitioner also argues that a citizen plaintiff cannot satisfy

the “injury-in-fact” and redressability requirements for Article III

standing in a suit based solely on wholly past violations. Pet. Br.

34-41. However, petitioner is incorrect.

A. CBE Has Sufficiently Alleged Injury-in-Fact

CBE has alleged three types of “injury-in-fact” which

satisfy Article III standards: informational, environmental, and

procedural.

First, EPCRA protects CBE's informational interests.

EPCRA creates a “right to know” about the nature and amount of

toxic chemicals in citizens’ communities. The statute provides that

the required reporting forms “shall be available * * * to inform

persons about releases of toxic chemicals to the environment * *

*." 42 U.S.C. §.11023(h). The Conference Report states that

“(t]he information collected under this section is intended to inform

the general public and the communities surrounding covered

facilities about release of toxic chemicals, to assist research, to aid

“See also Citizens for a Better Environment v. Union Oil Co., 83 F.3d

1111, 1118 (th Cir. 1996), cert. denied, 117 S.Ct. 789 (1997); Coalition for a

Liveable West Side v. NYC Dept. of Environmental Protection, 830 F. Supp. 194,

197 (S.D.N.Y. 1993).

13

in the development of regulations, guidelines and standards, and for

other similar purposes.” H. Rep. No. 962, 99th Cong., 2d Sess.

299 (1986). CBE’s members live in the community near

petitioner's facility and have been injured by the lack of

information that resulted from petitioner's failure timely to file the

reports required by the statute. J.A. 5. This informational injury

continues afte~ © belated report is filed, because it can take months

for EPA to update the publicly-accessible computerized data base

that Congress required EPA to maintain. 42 U.S.C. § 11023()).

It is well-established that informational injury, by itself, is

a sufficient injury to confer standing. In Havens Realty Corp. v.

Coleman, 455 U.S. 363, 374 (1982), the Court held that injury to

the “statutorily created right to truthful housing information” was

sufficient for constitutional purposes. The statute in Havens is an

example of “statutes creating legal rights, the violation of which

creates standing.” Linda RS. v. Richard D., 410 U.S. 614, 617 n.3

(4973). EPCRA creates a similar right to know about the storage

and release of toxic chemicals in one's community.’

Second, EPCRA protects CBE’s members from

environmental injury, both directly and indirectly. EPA has

described the direct form of protection, in which government uses

EPCRA information to protect the nearby community from chemi-

serious, and could result in injury or death to members of the

community.

The risk of environmental harm in this case is serious.

Petitioner failed to disclose that it was releasing as much as 14 tons

per year of hydrochloric acid into Chicago's air. EPA has listed the

aerosol form of hydrochloric acid as a “toxic chemical” under

EPCRA. 40 C.F.R. § 372.65; 61 Fed. Reg. 38600, 38603 (July 25,

1996). Hydrochloric acid is “acutely toxic to all human tissue,

producing effects ranging from irritation to corrosion to risk of

early death.” 60 Fed. Reg. 57382, 57384 (Nov. 15, 1995). EPA

considers this chemical to be an “extremely hazardous substance”

(EHS). Id. at 57385; 42 U.S.C. § 11004; 40 C.F.R. § 355.40; id.,

Part 355, App. A. According to EPA, “EHSs are acutely toxic

chemicals which cause both severe short- and long-term health

effects after a single, brief exposure.” 61 Fed. Reg. 20473, 20475

(May 7, 1996). EPA has also stated that “reporting of EHS

“This policy is available on the World Wide Web at

http://es. inel. gov/compl y/oeca/policy html.

15

releases is required because EHSs are acutely toxic and will

potentially pose an immediate hazard upon release.” /d. at 20476.

Thus, EPCRA directly protects against this form of harm.

The indirect form of protection arises when the companies

making the disclosures reduce their chemical usage. Congress

believed that required disclosure, by itself, would encourage this

result. Representative Sikorski made this point during the House

debates on the conference version of the bill:

direct connection between compliance with EPCRA’s disclosure

continue past the date that the form is filed. The filing of the form

is just the beginning of the cooperative process that Congress

envisioned to reduce pollution. '’

"Congress continued this same theme when it enlarged the scope of

EPCRA reporting by enacting the Pollution Prevention Act of 1990. 42 U.S.C.

§§ 13101, ef seg. According to its main sponsor, Senator Lautenberg, that Act “is

designed to foster efforts to eliminate or reduce pollution before it is generated ”

136 Cong. Rec. $ 17523 (daily ed., Oct. 27, 1990). One method to achieve that

16

In these two ways, petitioner's past EPRCA violations have

caused environmental harm to CBE’s members. In addition,

petitioner's longstanding history of such violations creates a

significant risk of future EPCRA violations and threatens to cause

additional harm. This is a legally cognizable injury for standing

purposes.

Third, CBE’s members have suffered procedural injury.

This Court stated in Lujan v. Defenders of Wildlife, 504 U.S. 555,

573 n.8 (1992), that a plaintiff may have standing to challenge the

failure to follow a procedural requirement if that requirement was

“designed to protect some threatened concrete interest” of the

plaintiff. Jd. at 573 n.8. In the present case, the procedural injury

arises from petitioner's failure to file required reports of its releases

of toxic chemicals into the Chicago area. The reporting

requirement was designed to protect the concrete informational and

environmental interests of citizens, like CBE and its members, who

live near pollution sources.

CBE therefore meets the “injury-in-fact” requirement for

Article III standing. Its members have the same informational,

environmental, and procedural injuries that the EPCRA regulatory

system was designed by Congress to prevent.

B. CBE's Pursuit of Civil Penalties Deters Further Violations

and Therefore Redresses Its Injuries

The third prong of standing analysis requires that CBE

establish that it is “likely, as opposed to merely speculative, that

the injury will be redressed by a favorable decision.” U.S. v. Hays,

115 S. Ct. 2431, 2435 (1995)(quoting Defenders of Wildlife, 504

U.S. at 561). To meet this requirement, then, CBE must show that

it is likely to benefit from a decree in its favor.

At the outset, we note that, since CBE “has been accorded

a procedural right to protect [its] concrete interests,” it “can assert

that right without meeting all the normal standards for

redressability and immediacy.” Defenders of Wildlife, 504 U.S. at

572 n.7. In such cases, the primary focus of the standing inquiry

is whether plaintiff has sued a defendant who has caused that

injury. The Court suggested in Defenders that plaintiffs living near

a site for a proposed federal dam would have procedural standing

to sue if the licensing agency failed to prepare an EIS, even though

the EIS might have no impact on the plans for the dam. /d.

Similarly, CBE has standing to sue petitioner for its failure to

submit EPCRA reports, even if the filing of those reports may not

reduce the impact of releases of toxic chemicals in the community

in which CBE’s members live.

Even if this procedural injury alone were insufficient,

CBE’s pursuit of civil penalties satisfies redressability standards.

Petitioner argues that CBE cannot benefit from this remedy,

because all civil penalties will be paid to the U.S. Treasury. Pet.

Br. 37-41. However, this is too narrow a characterization of the

purpose and benefits of civil penalties. The purpose of such

penalties is not to enrich the U.S. Treasury. A major purpose of

penalties is to deter violations. Tull v. U.S., 481 U.S. 412, 422-423

(1987). If citizens cannot seek civil penalties for past violations,

the deterrent effect of citizen suits and penalties for violations of

EPCRA in their communities will be eviscerated. As a result,

citizens will be exposed to the risk of increased pollution.

The availability of civil penalties encourages citizens to

bring citizen suits to remedy and deter violations. “Citizen

"In the 10 years since Gwaltney was decided, Congress has enacted onl

one comprehensive reauthorization of the major federal environmental statues

In the 1990 reauthorization of the Clean Air Act, Congress rejected the Gwaltney

principle that citizens should only be able to sue for ongoing violations. EPCRA

was enacted in 1986, prior to Gwaltney. As a result, the legislative history of that

statute contains no discussion of Congress’ approach to that issue. Congress had

no reason to address the Gwaltney issue in the Pollution Prevention Act of 1990,

> diahan ad ae ae app epralee af a yr menan

nO court at that time that EPCRA’‘s language

prohibited citizen suits for wholly past violations. .

19

The second point is on the citizen suit, the citizen cannot

collect for past damages. In other words, the citizen has to

give notice, under the law--and we all agree with this--has

to give notice to the polluter that he is giving suit and that

gives the polluter 60 days to straighten out the situation.

stop, then there is no

ground for a suit. He stops within the 60 days.

Then what happens? The polluter starts polluting again, let

us say somebody upstream, upwind. Then again the citizen

has to go through this rigamarole, 60 days’ notice; within

the 60 days give notice. And the polluter says: “Oh, dear,

I am sorry.” We go through this charade possibly for

several times.

Id. at 5627. The Senate rejected this proposed amendment and its

language does not appear in the final enactment. /d. at 6442.

Thus, Congress wanted penalties to deter violators. Here,

penalties deter petitioner from violating EPCRA in the future.

palpable” harm to itself, it may also “invoke the general public

20

that the effect of civil penalties provided « sufficient prospect of

remedial action to confer standing. The plaintiffs in that case challenged the

adequacy of a biological opinion issued by the Fish and Wildlife Service (FWS)

under the Endangered Species Act. Plaintiffs claimed that they were injured

because restrictions on lake levels recommended in the FWS’ opinion would cause

federal agencies to reduce the amount of irrigation water available to them. This

Court held that, although federal agencies were not bound to follow the opinion

the water levels, they had a strong incentive to do so to avoid penalties

zB

:

(1964)). The purpose of penalties--deterring violators—would be

seriously undermined if citizens could not sue for wholly past

the harm caused by the violation.”’ The district courts in several

EPCRA citizen suits have approved consent decrees in which

payments were made to such projects. For example, in Aflantic

States Legal Foundation v. Whiting Roll-Up Door Mfg. Corp., 38

BNA Env't Rep. Cases 1426, 1428 (W.D.N.Y. 1994), the court

approved a

emergency

a five-year pollution prevention/toxics use reduction program.

™PIRG v. Powell Dufftyn Terminals, Inc., 913 F.2d 64, 81 0.32 (3d Cir.

1990), cert. denied, 498 U.S. 1109 (1991); Sierra Club v. Electronic Controls

Design, 909 F.2d 1350, 1355-56 (Sth Cir. 1990).

23

H. Rep. No. 1004, 99th Cong., 2d Sess. 139 (1986).

As petitioner admits (Pet. Br. 24), EPA has endorsed the

use of “supplemental environmental projects (SEPs)” in settlement

of EPCRA enforcement actions. In its SEP policy, EPA recognized

the deterrent effect of these projects:

The Agency encourages the use of SEPs. While penalties

play an important role in environmental protection by

deterring violations and creating a level playing field, SEPs

can play an additional role in securing significant

environmental or public health protection and

improvements.’

' Depending on circumstances and cost, SEPs also may have a deterrent

impact.

EPA, Interim Revised Supplemental Environmental Projects Policy,

supra, p. 2. EPA has specifically approved of SEPs which prevent

or reduce the generation of pollution and which restore and protect

the environment. /d. at 6-7. EPA has also approved of SEPs

which increase emergency planning and preparedness under

EPCRA. id. at 9-10. EPA itself has settled EPCRA cases in

which millions of dollars are designated for SEPs rather than the

U.S. Treasury. For example, in U.S. v. Sherwin-Williams, the

consent decree provided that the company would pay $4.7 million

in penalties and as much as $10 million on a cleanup program

aimed at bringing its 123-acre Chicago facility into compliance

with federal environmental statutes, including EPCRA. 27 BNA

Env't Rep. (Current Developments) 2029 (Feb. 7, 1997); 62 Fed.

Reg. 7473 (Feb. 19, 1997). -

Petitioner will be deterred to the same extent regardless of

whether it pays a certain amount to the U.S. Treasury or to an

environmental project. In either instance, it has suffered the same

financial disadvantage. In addition, environmental projects can

directly benefit CBE’s members by reducing the pollution in their

community. When these projects are included in the redressabil ity

analysis, it is clear that CBE satisfies the redressabilit y requirement

24

for Article III standing.

IV. PERMITTING CITIZEN SUITS FOR PAST

VIOLATIONS WILL NOT HAVE THE ADVERSE

EFFECTS ALLEGED BY PETITIONER AND ITS AMICI

Petitioner and its amici argue that permitting citizens to sue

for past violations would have serious adverse effects, ic,

Tr

HT

Hie

Miele

Ht

i

L afl

ails if

:

tat

He

: FHS

little or no incentive to bring suit for these kinds of

The courts are unlikely to impose significant penalties

such suits, since they will look to the same statutory guidelines

that EPA must apply in assessing administrative civil penalties.

Section 325(b)(1)(C) provides that in determining those penalties,

EPA “shall taken into account the nature, circumstances, extent and

gravity of the violation and, with respect to the violator, * * * any

prior history of such violations [and] the degree of culpability * *

*.” 42 U.S.C. § 11045()(1)(C). Furthermore, the district court

can award reduced attorneys’ fees or none at all if the citizen suit

recovers only a nominal penalty. Farrar v. Hobby, 506 U.S. 103,

115 (1992); Earth Island Institute v. Southern California Edison,

1

25

838 F. Supp. 458, 466 (S.D. Cal. 1993).

controlled by

submitted,

James M. Hecker

Counsel of Record

Trial Lawyers for Public

Justice, P.C.

Suite 800

Washington, D.C. 20036

1717 Massachusetts Ave., N.W.

CONCLUSION

For these reasons, the Seventh Circuit's decision should be

(202) 797-8600

Attorney for Amici Curiae

28

141, 148 (1940).

affirmed.

June 23, 1977