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

IN THE

JUN 28 1997

Supreme Court of the Unjted 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

ooo —E——eEeEEE

BRIEF OF AMICI CURIAE STATES OF NEW YORK, CONNECTICUT,

DENNIS C. VACCO

Attorney General of the State of New York

The Capitol ($43

Albany, NY 12224

* (518) 474-5487

BARBARA G. BILLET

Solicitor General

PETER H. SCHIFF

Deputy Solicitor General

MAUREEN F. LEARY*

~ Assistant Attorney General

*Counsel of Record

(Additional Counsel listed on Inside Cover)

Printed on Recycled Paper _ wk |

SA . 4. 64> | ie “SA.

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES .......... ccc ccccccccccs iii

INTEREST OF AMIC] CURIAE .................... 2

SUMMARY OF THE ARGUMENT ................. 4

NEES Fee 7

POINT I:

CBE'S CITIZEN SUIT IS EXPRESSLY AUTHORIZED

BY EPCRA SECTION 326(a) ..... 2.2... 0.0 cc ceee. 7

A. Express Language of Section 326(a) ............ 7

B. EPCRA's Legislative History ................. 12

C. EPA's Interpretation of EPCRA ............... 13

POINT Il:

STATE AND CITIZEN ENFORCEMENT OF EPCRA

WOULD BE UNDERMINED IF AN ACTION MAY

NOT BE MAINTAINED FOR REPORTING VIOLA-

GE CUCU ee eb be ce ducbecdeteccecessesccccce 15

B. CBE's Injury Will Be Redressed by the Relief -

Requested in the Complaint ......-+ +++ +++

CONCLUSION .....-cccececcreseerrereeneseren®

ili

TABLE OF AUTHORITIES

Page

Cases

Abercrombie v. Clarke, 920 F.2d 1351 (7th Cir. 1990), cert.

denied, 502 U.S. 809 (1991) ..................... 15

Allen v. Wright, 468 U.S. 737 EES Pee ae eee ee 19

Atlantic States Legal Foundation v. United Musical Instru-

ments USA, Inc., 61 F.3d 473 (6th Cir. 1995) ........ 14

Bennett v. Spear, US. _; 117 S.Ct. 1154; 137 L.Ed.2d

Pe eb bb shh ch dbeEKss detos'ciseti cde 19

Chevron USA, Inc. v. Natural Resources Defense Council,

Ee 14

Citizens for a Better Environment v. The Steel Company, 90

F.3d 1237 (7th Cir. 1996), cert. granted, 117 S.Ct. 1079

Dida cneuedccdacbeddewsesoevbesse< 10

Consumer Product Safety Commission v. GTE Sylvania, Inc.,

EE OE Re 12

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

Inc., 484 U.S. 49 (1987)... ccc ceeee. passim

Hallstrom v. Tillamook County, 493 U.S. 20 (1989) ....... 12

Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992)... 19, 21

iv

National Independent Coal Operators Assoc. V. Kleppe, 423

TE dedn cnc ntddcienntenghunues 15

National Organization for Women, Inc. v. Scheidler, 510 U.S.

DUPE ccccasoocsecavecscsameedsebtioane 19

United States v. W.T. Grant Co., 345 U.S. 629 (1953) .. 16,23

Warth v. Seldin, 422 U.S. 490 (1975) ....... 0.6606 cue 19

Whitmore v. Arkansas, 495 U.S. 149 (1990) ............. 18

Federal Statutes

Emergency Planning and Community Right to Know Act

DS Fey Se SUSE ec cc iUSsb ec cesticddoccde 22

§ 303(a), 42 U.S.C. § 11003(a) ...........4.... 22, 2.8

§ 304(c), 42 U.S.C. § 11004(c) .... 2.6... eee 8,n.1

DS Fee a ee FOUND wecdesoscccccesceoces 16, 0.6

§ 311(a), 42 U.S.C. § 11021(a) ................. 8,n.1

§ Fea Se We © BBS bc cc csccccccccesen passim

§ 312(a), 42 U.S.C. § 11022(a) ...........26605. 8,19

§ 312(aX(2), 42 U.S.C. § 11022(aX(2)............. 4,10

§ SID), 42 USC. § LIGZAS) .. 0... ccc cccccccccs 10

Vv

§ 312(d), 42 U.S.C. § 11022(d) ............. 8, 10, n.3

oe Le eee passim

§ 313(a), 42 U.S.C. § 11023(a) ............005. passim

§ 313(g), 42 U.S.C. § 11023(g) .........----. 7, 10, n.3

§ 313(h), 42 U.S.C. § 11023(h) ............. 10, 23, n.9

SO A OI So ccccccvccccscansmanl 17

SE BR fiidieiicits iddsss cade en 12

§ 326(a), 42 U.S.C. § 11046(a) ..........20000- passim

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

§ 326(a(1 KA\iii), 42 U.S.C. § 11046(a)(1 (Aili) .... 4

§ 326(a(1 KA)iv), 42 U.S.C. § 11046(aX1(AMiv) .... 4

§ 326(a\(1)(B), 42 U.S.C. § 11046(aX(1)(B) ....... 8,n.1

§ 326(a1(C), 42 U.S.C.4 11046(aK1 KC) ....... 8,n.1

§ 326(a)(1\D), 42 U.S.C. § 11046(aX1 XD) ....... 8,n.1

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

§ 326(aX(2AXiv), 42 U.S.C. § 11046(aX2KAMiv) .... 8

§ 326(b\(1), 42 U.S.C. 11046(bX{(1) ......-.----- 11,n.4

vi vii

§ 326(c), 42 U.S.C. § 11046(c) ............ 4,9, 17,19

EPA Request for Public Comment on Small Business Adminis-

§ 326(d), 42 U.S.C. § 11046(d) .............. 8,17, 18 tration Petition to Review Reporting Thresholds Under

Community Right-to-Know Law, 57 Fed. Reg. 48706,

§ 326(e), 42 U.S.C. § 11046(e) ................. 8,17 es ci vedas ceed teudoeede's 17, 0.7

5 SESE, GB UBL. 6 1IGGEED ..n ccc ccccccccceccces 9 CE Ee 24

§ 329(7), 42 U.S.C. § 11049(7) .............0... 9,n.2

Miscellaneous

132 Cong. Rec. H9593-94 (daily ed. October 8, 1986) (State-

ment of Rep. Edgar), reprinted in Senate Committee on >

Environment and Public Works, A Legislative History of

the Superfund Amendments and Reauthorization Act of

1986, Vol. 6, pp. 5313-14 (Comm. Print 1990) ...... 13

132 Cong. Rec. H9593 (daily ed. October 8, 1986) (Statement

of Rep. Sikorski), reprinted in Senate Committee on

Environment and Public Works, A Legislative History of

the Superfund Amendments and Reauthorization Act of

1986, Vol. 6, pp. 5313 (Comm. Print 1990) ........ 13

EPA Office of Compliance Monitoring, Enforcement Response

Policy for Section 313 of the Emergency Planning and

Community Right-to-Know Act of 1986 and Section 6607

of the Pollution Prevention Act of 1990 (1992) ......... 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,

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 AMICI CURIAE STATES OF NEW YORK,

CONNECTICUT, DELAWARE, GEORGIA, HAWAII,

INDIANA, MASSACHUSETTS, MISSOURI, NEW

HAMPSHIRE, NORTH CAROLINA, OKLAHOMA,

VERMONT, VIRGINIA, WEST VIRGINIA AND THE

TERRITORY OF GUAM IN SUPPORT OF

RESPONDENT

\

2

INTEREST OF AMICI CURIAE

The States submit this brief pursuant to Rule 37 of the Rules

of the Supreme Court in support of the respondent, Citizens For

a Better Environment ("CBE"), and its efforts to enforce the

Emergency Planning and Community Right-to-Know Act,

("EPCRA"), an environmental reporting statute intended to

provide the public with information on the presence and release

of hazardous substances in the community. The amici curiae

States appear through their respective Attorneys General who

are responsible for enforcement of certain reporting re-

quirements under EPCRA. The amici curiae States urge

affirmance of the decision of the court below.

This case involves the failure of the petitioner, The Steel

Company, to file annual hazardous chemical inventory and toxic

chemical release forms (hereinafter "chemical inventory and

release forms") for eight years in repeated violation of EPCRA

Sections 312 and 313, 42 U.S.C. §§ 11022 and 11023. These

chemical inventory and release forms advise the community of

the presence and release of hazardous substances and enable

planning and preparation for emergencies.

The reporting requirements of EPCRA Sections 312 and 313

are designed to provide crucial information annually to State and

local governments and the public on which they may rely in

making decisions. States have a strong interest in assuring that

timely information on the presence and release of hazardous

substances is filed and available to communities, to emergency

planners and responders, and to State and local environmental

regulators. The States therefore have a strong interest in

assuring strict compliance with the reporting requirements of

Sections 312 and 313.

3

The States’ interest would be adversely affected by a reversal

of the decision of the court below because compliance

incentives for facilities subject to EPCRA's reporting

requirements would be eliminated. If facilities can cure

violations by simply filing years late and thereby eee

penalties and injunctive relief from being imposed, yen

may not comply with the reporting requirements at al un

enforcement is sought.

The outcome of this case will affect not only compliance, Put

also the States’ ability to enforce EPCRA's a. -

effectively. If citizens may not enforce EPCRA — . :

U.S.C. § 11023, once a facility belatedly files, ene en

efforts will be seriously compromised and the public “

jeopardized because hazardous chemical releases will not :

disclosed. Moreover, given the structure of EPCRA ao

requires the States to utilize the citizen sult mere =

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

Section 313 violations, this Court's construction 0

suit provision will dictate the extent to which State oo ed

agencies and Attorneys General throughout the United tates

enforce chemical release reporting violations under Section

313. Thus, States have a significant interest in the determination

reached here.

and welcome

iti orcement efforts are a necessary

Citizen “ne the enforcement efforts of federal, State and

local regulatory agencies whose resources are limited. oo.

thousands of facilities are subject to EPCRA's reach

4

determination of the court below, which implicitly addressed the

foregoing State interests, should be affirmed.

SUMMARY OF THE ARGUMENT

1. The express language of EPCRA Section 326(a)(1)

authorizes a civil action by "any person" for a facility's failure to

comply with the procedural and substantive requirements of

EPCRA's reporting provisions. Section 326(a(1) expressly

provides that suit may be commenced for a facility's "failure to

. .. complete and submit" chemical inventory and release forms

as required "under" Sections 312 and 313. 42 U.S.C.

§ 11046(a)(1)(A)(iii) and (iv). These forms are statutorily

required to be filed every year by March 1 and July l,

respectively. 42 U.S.C. § 11022(a)(2) and 42 U.S.C.

§ 11023(a). The failure to file the forms by the deadlines noted

in Sections 312 and 313 constitutes violations subject to a

citizen suit. A citizen suit may be maintained for injunctive

relief, penalties and attorneys’ fees against a facility failing to

strictly comply with Sections 312 and 313. Section 326(c) gives

the district court jurisdiction to award such relief in a citizen

suit.

2. EPCRA's citizen suit provision is entirely different than the

citizen suit provision in the Clean Water Act ("CWA"), 33

U.S.C. § 1365. The primary differences are found in EPCRA's

statutory purpose of protecting communities in which facilities

are located, in the defined reporting deadlines, and in the

language of the citizen suit provision which is not cast in the

present tense, unlike the CWA's citizen suit provision. The

court below thoroughly analyzed these differences and properly

concluded that a citizen suit could be maintained for wholly past

violations.

5

3. The legislative history of EPCRA reflects the we a

sional intent to promote strict compliance with EPCRA's ann

filing deadlines and with its other substantive —

Congress found unacceptable the risks to communities

chemical exposure and emergencies, and intended to —

such risks through enforcement of strict compliance wi

EPCRA.

4. EPA, the federal agency respo nsible for admini i “i

EPCRA, does not consider late filing to constitute “c -

compliance" or to cure violations. EPA interprets Section ,

pO net tog aa a the pg as a

facility's "failure to report at F in

facility's "failure to timely report. EPA considers both oe

violations of EPCRA punishable by civil omar 7

injunctive relief. EPA's pe erm ote re _

i en

protective goals of the statute and 1s

deference.

5. State and citizen enforcement efforts would be seriously

undermined if suit cannot be maintained against a facility that

continually fails to comply with EPCRA S reporting |

ive injunctive relief and penalties compels compliance

not only by the violating facility but by other facilities subject to

EPCRA's requirements. Absent a legal consequence imposed

a federal enforcement

ement and complement State and

aeons Citizen enforcement is critical to EPCRA's purpose,

6

protection of communities in which hazardous chemicals are

present and released.

6. CBE's complaint presents a "case or controversy" and CBE

has standing to maintain a civil action for The Steel Company's

failure to file annual chemical inventory and release forms by

the dates set forth in EPCRA Sections 312 and 313. In the

context of a motion to dismiss, the allegations in CBE's

complaint are deemed true. These allegations sufficiently set

forth a basis for standing. CBE's complaint alleges that both

CBE and its members have been placed at risk and harmed by

The Steel Company's failure to report. Specifically, the

complaint alleges that CBE uses EPCRA data reported by

facilities in its programmatic activities and (1) reports to its

members and the public about the storage and release of toxic

chemicals to the environment; (2) advocates changes in

environmental laws; and (3) seeks reduction of toxic chemicals

and effective enforcement of environmental laws. CBE

members have been exposed to releases of hydrochloric acid

(also known as hydrogen chloride) and other hazardous

chemicals, and were entitled to know of the releases and to

make decisions and choices with respect to their exposure. CBE

members reside in a community in which the emergency

planners and responders lacked adequate information to protect

the community and the public health in the event of an

emergency. CBE has drained its resources by investigating,

researching and otherwise pursuing The Steel Company's

chemical inventory and release information that should have

been readily available. CBE has a risk of future injury because

The Steel Company's past violations indicate a likelihood of

future violations. CBE injury will be redressed by the relief

requested in the complaint. Future violations will be deterred

and CBE's resources will not be expended in pursuing

7

information that is required as a matter of law to be

filed under

ARGUMENT

POINT I

CBE'S CITIZEN SUIT IS EXPRESSLY AUTHORIZED

BY EPCRA SECTION 326(a)

A. Eapress Language of Section 326(a)

CBE's citizen suit against The Stee! Company is ex l

authorized by EPCRA Section 326(a) for the aro

to file chemical inventory and release forms for eight years.

Under Sections 312 and 313, chemical inventory and release

forms must be filed by specific deadlines every year. 42 U.S.C.

§§ 11022(a) and 11023(a) and (g). The failure to meet these

deadlines constitutes a violation which, under the express

statutory language of Section 326(a), may be subject to a citizen

suit. 42 U.S.C. § 11046(a). Section 326(a) authorizes a citizen

Suit against a facility “for failure to . . . complete and submit"

hazardous chemical inventory forms by March | every year, and

“for failure to . . . complete and submit" toxic chemical release

forms by July | every year.

More specifically, "any person" may commence a civil action

against a facility for failure, inter alia, to complete and submit to

the State Emergency Response Commission ("SERC"), the

Local Emergency Planning Committee ("LEPC") and the local

fire department:

1. hazardous chemical inventory forms identifying the

nature, quantity and location of chemicals at the

facility on or before March 1, 1988 and annually

thereafter, as required under Section 312(a) and (d),

42 U.S.C. § 11022(a) and (d); and

2. toxic chemical release forms for each chemical

manufactured, processed or otherwise used at and

released from the facility in amounts exceeding

threshold quantities on or before July 1, 1988 and

annually thereafter, as required under Section 313(a),

42 U.S.C. § 11023(a).

See, 42 U.S.C. § 11046(a\(1).'

Prior to commencing a citizen suit, 60 days’ notice of the

violation must be given to the EPA, the State and the violating

facility. Section 326(d), 42 U.S.C. § 11046(d). A citizen suit

may not be commenced if EPA is "diligently pursuing" an

administrative order or civil action to enforce the requirements

of EPCRA or to impose civil penalties. 42 U.S.C. § 11046(e).

State or local governments are authorized to commence a civil

action against a facility for the failure to submit, among other

things, Section 312 hazardous chemical inventory forms to the

State, the SERC, the LEPC, or local fire department. See, 42

U.S.C. § 11046(aX2A iv). A State or local government need

' Citizens are also authorized to sue a facility for failing to provide follow-

up emergency notification of a release of an extremely hazardous substance

“as soon as practicable” after the release, as required by Section 304(c),

42 U.S.C. § 11004(c), and for failure to submit material safety data sheets for

each hazardous chemical at the facility as required by Section 31 1(a), 42

U.S.C. § 11021(a). Citizens may also sue EPA, a State, or a SERC for failing

to make reporting information available to the public or to respond to a

request by the public for detailed Section 312 chemical inventory informa-

tion. See, 42 U.S.C. § 11046(a1(B), (C) and (D).

Under the express terms of Section 326(c), the district court

has jurisdiction in any civil action brought under Section 326(a)

to grant the following relief:

1. Enforce the requirements of EPCRA; and

2. Impose a civil penalty for violation(s) of the

requirement(s); and

See, 42 U.S.C. § 11046(c) and (f). This is the full range of relief

to which a “person,” including a citizen, a State or local

government, a SERC or an LEPC, is entitled in a suit brought

under Section 326(a), 42 U.S.C. § 11046(c) and (f). Clearly,

this is the relief to which CBE is entitled here.

The court below exhaustively analyzed the differences

between the language of EPCRA's citizen Suit provision and the

language of the Clean Water Act's ("CWA's") citizen suit

provision as construed by this Court in Gwaltney of Smithfield,

* "Person" is defined in EPCRA to include State and local governments.

See, 42 U.S.C. § 11049(7).

10

Lid. v. Chesapeake Bay Foundation, Inc., 484 U.S. 49 (1987).

This Court in Gwaltney held that a citizen suit must allege that

a facility is "in violation,” meaning that it is in continuous or

intermittent violation of a permit and is discharging

contaminants unlawfully. Gwaltney, 484 U.S. at 57. This Court

viewed the pervasive use of the present tense in the CWA to

mean that Congress intended a citizen suit to be authorized only

for "continuous or intermittent" violations. 484 U.S. at 59.

Unlike the CWA, however, EPCRA's citizen suit provision is

not cast in the present tense and its language authorizes a citizen

suit for past violation.

Section 326(a) authorizes an action for a facility's "failure to

required "under" Sections 312 and 313. Compliance with

Sections 312 and 313 requires not only that specific substantive

information’ be submitted to State and local emergency

and be made available to the public, [see, 42 U.S.C.

§§ 11022(aX(2); 11022(e); 11023(a); 11023(h)]}, but that the

information be submitted by a specific date each year. Citizens

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

1243 (7th Cir. 1996), cert. granted, 117 S.Ct. 1079 (1997)

("[tJhese [filing deadlines} are not guidelines or suggestions,

they are essential elements of the provisions citizens have

authority to enforce”).

The most natural reading of the phrase “failure to... .

complete and submit [chemical inventory and release forms] . . .

> The substantive requirements of Sections 312 and 313 provide that

annual chemical inventory and release forms include, : nong other things, the

nature, quantity and location of hazardous chemicals at the facility, and an

assessment of the amount of releases of such substances to the environment.

42 U.S.C. §§ 11022(d) and 11023(g).

under” Sections 312 and 313, is that a citizen plaintiff may sue for

a facility's past violations despite attempts to "correct" violations

by late filing. This reading makes sense because once the annual

deadlines have been missed, adverse impacts have occurred

which cannot be corrected. The court below properly concluded

that Section 326(a) authorizes a citizen suit for a facility's failure

to file by the date noted in the statute and that late filing is

insufficient to constitute compliance. 90 F.3d at 1243.‘

The Steel Company has consistently asserted that once it

belatedly filed eight years of reports, it was "in compliance” and

no citizen suit could be maintained for past violations, referring

to this Court's holding in Gwaltney, 484 U.S. at 59. This

proposition was rejected by the court below, 90 F.3d at 1244, and

ould be rejected here. Prompt receipt of the information every

year by SERCs, LEPCs, and local fire departments, and its

availability to the public, is crucial to achieving EPCRA's

purposes of emergency planning and community right-to-know.°

* The court below also referred to the use of the past tense in the venue

provision of Section 326(b\1), 42 U.S.C. § 11046(b\(1), which provides for

a citizen suit to be commenced in the district "in which the alleged violation

occurred.” 90 F.3d at 1244. This provision is cast in the past tense and is

consistent with the reading of Section 326(a) that would authorize suits for

past violations.

* The complaint alleges that in failing to file chemical inventory and

release forms, The Steel Company failed to disclose to State and local

emergency planners and responders and to the public the presence and release

of hydrochloric acid (JA 5-6), an “extremely hazardous substance” that poses

a significant health risk from exposure. This information was crucial to CBE's

members in reaching decisions regarding where they chose to live and work

in order to avoid exposure to an established health risk. This information was

also crucial to CBE in its associational role of educating the public about

chemicals in the community, developing plans for emergency preparedness,

and attempting to reduce toxic chemicals where its members live, work and

visit (JA 5).

12

Congress would not have included the specific annual deadlines

of March 1 in Section 312(a) and July 1 pry reset ana

ing requirement could be ignored. The Company was not

“ha auntlanas” whan bs teltedly Sted eight pen afeagem.

As this Court has repeatedly stated, "the starting point for

interpreting a statute is the language of the statute itself."

Gwaltney, 484 U.S. at 56; Hallstrom v. Tillamook County, 493

U.S. 20, 25 (1989); Consumer Product Safety Commission v.

GTE Sylvania, Inc,, 447 U.S. 102, 108 (1980). Absent a clearly

expressed legislative intention to the contrary, the words of the

statute are conclusive. Hallstrom, 493 U.S. at 28; GTE, 447 U.S.

at 108. The Court need not proceed beyond the express language

of Sections 326, 312 and 313 to conclude that a citizen suit is

B. EPCRA's Legislative History

Although EPCRA's language is unambiguous and the Court

need not go beyond the words of the statute, its legislative history

further supports this reading of Section 326(a), 42 U.S.C. §

11046(a). EPCRA's purpose as a “community right-to-know"

statute was stated by one of its principal architects to be as

follows:

First, Congress recognizes a compelling need for more

information about the Nation's exposure to toxic

chemicals. Until now, the success of regulatory programs

_. . has been impossible to measure because no broad-

based national information has been compiled to indicate

increases or decreases in the amounts of toxic pollutants

the [Section 313] toxic chemical release forms in

particular, are intended to provide this national

—

13

information. As a result, the reporting provisions in this

legislation should be construed expansively to require the

collection of the most information. . . .

A second major principle of this program is to make

to the public, particularly to the local communities most

affected. For too long, the public has been left in the dark

about its exposure to toxic chemicals. Information that

has been available under existing environmental statutes,

. . . has been difficult to aggregate and interpret, which

has made it difficult, if not impossible, for the public to

gain an overall unc >rstanding of their toxic chemical

exposure. Consequently, the reporting re-quirements

should be construed to allow the public the broadest

possible access to toxic chemical information in formats

that are straightforward and easy to understand.

See, 132 Cong. Rec. H9593-94 (daily ed. October 8, 1986)

(Statement of Rep. Edgar), reprinted in Senate Committee on

Environment and Public Works, A Legislative History of the

Superfund Amendments and Reauthorization Act of 1986, Vol. 6,

pp. 5313-14 (Comm. Print 1990).

The legislative history also indicates a Congressional intent to

enforce strictly the deadlines delineated in the statute. Reporting

must be "swift and complete" and the requirements of the statute

“must be strictly and strenuously enforced." See, supra, 132

Cong. Rec. at 119593 (Statement of Rep. Sikorski).

C. EPA’S Interpretation of EPCRA

EPA is the federal agency responsible for administering

EPCRA along with SERCs, LEPCs and local fire departments.

14

Like the court below, EPA views late filing of Section 313

chemical release forms as a violation of EPCRA subject to

enforcement and the imposition of civil penalties. See, EPA,

Office of Compliance Monitoring, Enforcement Response Policy

for Section 313 of the Emergency Planning and Community

Right-to-Know Act of 1986 and Section 6607 of the Pollution

Prevention Act of 1990 (1992).

EPA's policy does not allow a facility to "correct" its violations

through late filing. EPA views late filing as non-compliance

subject to enforcement. Enforcement by a citizen suit under

Section 326(a) for Section 313 reporting violations is implicit in

EPA's policy. This is precisely the enforcement CBE seeks here.

As the federal agency responsible for administering EPCRA,

EPA's interpretation of what constitutes non-compliance for

purposes of enforcement is entitled to great weight and deference.

See, Chevron USA, Inc. v. Natural Resources Defense Council,

Inc., 467 U.S. 837, 843-45 (1984). The reading of Section 313 by

the court below and its conclusion that citizens may sue for past

violations is fully consistent with EPA's policy, unlike the Sixth

Circuit’s decision in Atlantic States Legal Foundation v. United

Musical Instruments USA, Inc., 61 F.3d 473, 475-77 (6th Cir.

1995) (late submission of Section 313 chemical release forms

constitutes compliance and is not equivalent to a complete failure

to submit such forms).

15

POINT I

STATE AND CITIZEN ENFORCEMENT OF EPCRA

WOULD BE UNDERMINED IF AN ACTION MAY NOT

BE MAINTAINED FOR REPORTING VIOLATIONS

State and citizen enforcement of EPCRA would be seriously

undermined if suit may not be maintained against a facility that

continually fails to comply with annual reporting requirements.

There are strong public policy reasons that favor both a citizen's

and a State's right to seek an injunction and penalties even when

a facility files late in an attempt to remedy its past wrongs.

Compliance with EPCRA is assured only if violations are

penalized. Penalties are a powerful deterrent to non-compliance.

Cf, National Independent Coal Operators Assoc. v. Kleppe, 423

U.S. 388, 408 (1976) (penalty provision of Coal Mine Health and

Safety Act is essential to achieving Congress’ intent to deter and

prevent mining accidents and if operator faces no monetary

penalty for violations, “he has little incentive to eliminate

danger"); Abercrombie v. Clarke, 920 F.2d 1351, 1358-59 (7th

Cir. 1990), cert. denied, 502 U.S. 809 (1991) (termination of

bank's violation of Comptroller of Currency's cease and desist

order did not eliminate need for assessment of penalties because

penalties for past violations deter future violations).

As this Court has noted in the context of mootness:

Both sides agree to the abstract proposition that

voluntary cessation of allegedly illegal conduct does not

deprive the tribunal of power to hear and determine the

case, ie., does not make the case moot. ... A

controversy may remain to be settled in such

circumstances . . ., e.g., a dispute over the legality of the

Ss

challenged practice .... The defendant is free to return

to his old ways. This, together with a public interest in

having the legality of the practices settled, militates

against a mootness conclusion. ... For to say that the

case has become moot means that the defendant is

entitled to a dismissal as a matter of right. ... The courts

have rightfully refused to grant defendants such a

powerful weapon against public law enforcement.

United States v. W.T. Grant Co., 345 U.S. 629, 632 (1953)

(emphasis added; citations omitted). If a citizen under EPCRA is

prohibited from seeking to redress past harms, a violator "is free

to return to his old ways." This reading of EPCRA provides too

powerful a weapon to the violator against enforcement.

Moreover, citizen enforcement virtually would be eliminated

because once the right to redress is gone, citizens will lack the

incentive to notify and prosecute violators.

The Steel Company asserts that CBE currently suffers no

present harm once the company filed its reports, albeit eight years

late. That is simply not the case (See, infra, Point Ill (A), pp. 21-

22). The implication of this assertion, however, is that a State

would be unable to seek relief under Section 326(a) for reporting

violations once a facility belatedly files. A State bringing a

Section 313 enforcement action could be subject to a claim of

mootness, for example, if a facility can eliminate the harm by

filing past due reports once notice is received or suit is

commenced.® Under The Steel Company's analysis, State

* As previously noted, States must sue as "persons" under Section 326(a)

for violations of Section 313 and provide 60 days notice but may sue

immediately for violations of Sections 311 and 312. Either way, suit would

be barred under The Stee! Company's analysis because once past due reports

(continued...)

17

Attorneys General would lack the ability to seek any punitive

relief for Section 313 reporting violations once a facility quickly

acts to file past due reports. This is simply not what Congress

Rather, in passing Section 326, Congress sought to grant

enforcement authority to a wide-ranging class of plaintiffs and

thereby assure strict compliance with the statute. This class of

plaintiffs includes EPA, State and local governments, SERCs,

LEPCs and citizens. Each is entitled to seek penalties, injunctive

relief and attorneys’ fees for violations. 42 U.S.C. §§ 11045 and

11046(c). This type of broad-reaching enforcement is a necessary

component of EPCRA's regulatory scheme, particularly because

of the large number of facilities subject to its provisions.’ EPA

and the States simply lack adequate resources to investigate and

prosecute all violations. This comprehensive enforcement

scheme, which includes citizens, operates to protect the public

from toxic chemical exposure and accidents precisely as Congress

envisioned. See, 42 U.S.C. § 11046(a).

The Steel Company also asserts that the 60-day notice

provision is primarily intended to give facilities the ability to

come into compliance without facing a penalty. (See, petitioner

Steel Company brief at p. 15.) To the contrary, when Section

326(d) and Section 326(e) are read together it is clear that the

*(...continued)

are filed, enforcement cannot be sought because there is no “continuing

violation" and the case is moot.

” The number of facilities nationwide that are subject to EPCRA is

estimated to be close to 180,000. See EPA Request for Public Comment on

Small Business Administration Petition to Review Reporting Thresholds

ee 57 Fed. Reg. 48706, 48708 (Oct. 27,

18

primary purpose of the 60-day notice provision is to give EPA the

opportunity to "diligently pursue" violations. See, Section 326(d)

and (e), 42 U.S.C. § 11046(d) and (e). The 60-day notice

requirement simply is not intended to provide an escape hatch for

violators to attempt to "cure" past wrongs that continue to have an

impact. A facility may of course use the 60-day notice period to

file past due reports, but under EPCRA, past due filing does not

operate to bring a facility into compliance since the risk of injury

to the community is far-reaching. When facilities fail to report,

thousands of people living in a community are placed at risk from

State and local responders are unprepared. Late filing simply

does not eliminate this risk nor achieve EPCRA’S objectives of

POINT Ill

CBE HAS STANDING TO SEEK REDRESS OF THE

STEEL COMPANY'S EPCRA VIOLATIONS

CBE has standing to seek redress of The Steel Company's eight

years of reporting violations. CBE has suffered a concrete injury

caused by the company's non-compliance. CBE and its members

have been deprived of crucial information which has affected

their ability to assess the risk of exposure, to prepare for

emergencies, and to participate in environmental regulatory

decision-making in an effort to reduce chemicals in the

community (JA 4-5). CBE's resources also have been adversely

affected by having to research and investigate the absence of The

Steel Company's reporting information. These resources

otherwise could have been expended on activities such as citizen

participation and education (JA 4-5). This injury is concrete and

particularized, not conjectural or hypothetical. Whitmore v.

19

Arkansas, 495 U.S. 149, 155 (1990); Warth v. Seldin, 422 U.S.

490, 508 (1975).

CBE's injury is sufficiently set forth in its complaint and will

be redressed by the injunctive and penalty relief and award of

litigation costs authorized by Section 326(c), 42 U.S.C. §

11046(c). CBE's injury is related to a legally protected interest

under EPCRA, that is, the right-to-know on an ongoing basis

about the nature and quantity of chemicals present and released

in the community. CBE therefore has presented a "case or

controversy" and has proven its standing by alleging in the

complaint an injury that (1) is fairly traceable to The Steel

Company's unlawful conduct; and (2) is likely to be redressed by

the requested relief. Lujan v. Defenders of Wildlife, 504 U.S.

555, 560-61 (1992); Allen v. Wright, 468 U.S. 737, 751 (1984).

This case comes to the Court in the "pleadings stage," in the

context of a motion to dismiss. At this stage, general factual

allegations of injury in CBE's complaint suffice to confer

standing because the pleaded facts necessary to support an

EPCRA claim are presumed to be true. See, Bennett v. Spear,

__. ; US. __; 117 S.Ct. 1154, 1164; 137 L.Ed.2d 281, 299

(1997); Lujan v. Defenders of Wildlife, 504 U.S. at 561;

Gwaltney, 484 U.S. at 65; Warth v. Seldin, 442 U.S. at 501;

F.R.C.P. 12() and (c); SA Wright & Miller Federal Practice and

Procedure § 1368 (2d ed. 1990). Although the burden is on CBE

to establish standing, Lujan, 504 U.S. at 561, that burden is a

modest one at the pleadings stage. National Organization for

Women, Inc. v. Scheidler, 510 U.S. 249, 256 (1994). The

beginning point for the Court's analysis is CBE's complaint.

CBE's complaint asserts that both it and its members have

suffered injury-in-fact as a result of The Steel Company's failure

to submit chemical inventory and release forms by the specific

dates set forth in Sections 312(a) and 313(a), 42 U.S.C.

§ 11022(a) and § 11023(a):

CBE seeks, acquires, and uses data reported by

facilities under EPCRA in its programmatic activities.

Based on this data, CBE reports to its members and the

public about storage and releases of toxic chemicals into

the environment, advocates changes in environmental

© sgulations and statutes, prepares reports for its members

and the public, seeks the reduction of toxic chemicals and

further seeks to promote the effective enforcement of

environmental laws.

(JA 4-5). The complaint states that CBE's organizational purpose

as a citizen's group is to "prevent environmental health threats

through research, advocacy, public education and citizen

involvement" (JA 4). Without The Steel Company's chemical

inventory and release forms, CBE has been prejudiced in

achieving its organizational goals of prevention, research,

advocacy, public education and citizen involvement. Moreover,

CBE's resources have been devoted to obtaining the chemical

inventory and release information to which it is undisputedly

entitled under EPCRA.

CBE's complaint also states that its members “reside, own

property, engage in recreational activities, breathe the air, and/or

21

use areas” in the community in which The Steel

facility is located, and: heen

CBE's members seek, acquire and use data reported by

facilities under EPCRA to learn about toxic chemical

releases, the use of hazardous substances in their

communities, to plan emergency preparedness in the

event of accidents, and to attempt to reduce the toxic

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

safety, health, recreational, economic, aesthetic and

environmental interest of CBE's members and their right

to know about such releases have been, are being, and

will be adversely affected by defendant's actions in failing

to file timely and required reports under EPCRA.

(JA 5). Thus, CBE's complaint establishes injury of a legally

protected interest by showing that the group and its members use

in their activities the chemical inventory and release data reported

under EPCRA (JA 4-5). Because The Steel Company has failed

to file this data, CBE and its members cannot "plan emergency

preparedness," or “attempt to reduce toxic chemicals in areas in

which they live, work and visit" (JA 5).

CBE asserts that its members’ interests "have been, are being,

and will be adversely affected" by The Steel Company's failure to

file chemical inventory and release forms (JA 5). The Steel

Company's violations are “continuing,” and have a "present

adverse effect," Lujan, 504 U.S. at 564, in the sense that there

have been eight years of unknown chemical releases and

exposure and a lack of preparedness that continues to the present.

The community has lacked the power of choice in avoiding

chemical exposure from these releases, and even now is not likely

to be prepared for emergencies that may occur at The Steel

Company's facility. CBE is entitled to present evidence to the

22

prepared pursuant to Section 303, 42 U.S.C. § 11003, does not

include The Steel Company's facility.’ Emergency response plans

contain detailed procedures for public notification, evacuation of

affected areas, and necessary cleanup actions. A plan amendment

to include an entire facility and all of its emergency contingencies

can be tedious and expensive for an LEPC to undertake since it

often lacks the resources to accomplish the task efficiently. This,

too, constitutes a continuing harm from The Steel Company's

eight years of violations that CBE is entitled to prove.

Continuing injury to CBE is also found in the absence of any

Steel Company data in EPA's "Toxics Re)sase Inventory National

Report” which identifies chemical releases nationwide. EPA's

report is widely relied upon by State and local environmental

regulators in permitting and other decision-making, and by

citizens in making choices regarding where they live and work.

CBE’s members continue to live with the State and local

environmental decisions that have been made for eight years

* LEPCs were required to prepare emergency response plans encompass-

ing all facilities within a community by October 1988. Section 303(a), 42

U.S.C. § 11003(a). Facilities were required to provide the LEPC with all

information necessary, or requested, to develop the emergency plan. These

plans must include at a minimum (1) identification of all the facilities within

the community subject to EPCRA; (2) methods and procedures for facilities,

emergency responders, and medical personnel to follow in the event of an

coordinators for the community and

emergency plan.

future injury. Gwaltney, 484 U.S. at :

Grant, 345 U.S. at 633. —

CBE’s Injury Will Be Redressed By the Relief

_—-+-—--

CBE's injury will be redressed by the penalty inleenct

. and .

relief and costs requested in the complaint. CBE's complaint

rove CBE ah renee St Compny

CBE to inspect The Steel ane » and (2) authorizing

monitor compliance (JA 11). If this relief is granted

will compliance be assured but CBE will nt be forced to expend

its resources again to enforce compliance.

* For eight years, federal, State and regulator

not taken into account The Steel Company/s releases Tras en ine has

tion is critical to environmental regulatory decision-maki ond

development of appropriate to “the

24

CBE also prays for an order requiring the payment of civil

penalties. Penalties, if assessed, will punish for past non

compliance and will deter future non-compliance (JA 11).

litigation costs in connection with prosecuting the action (JA 11).

CBE has therefore satisfied the criteria for standing and the

allegations in its complaint present a "case or controversy. US.

Const., Art. III, § 2.

'© Civil penalties assessed under Section 326(a), 42 U.S.C. § 11046(a), are

payable to the United States Treasury.

25

CONCLUSION

For the foregoing reasons, the determination ion of the court

should be affirmed. below

Dated: June 23, 1997

DENNIS C. VACCO

Attorney General of the

State of New York

The Capitol

Albany, New York 12224

BARBARA G. BILLET

Solicitor G

PETER H. SCHIFF

Deputy Solicitor General

MAUREEN F. LEARY*

* Counsel of Record