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Atlantic States Legal Found. v. United Musical Instruments, U.S.A., Inc.

ELR Citation: 25 ELR 21412
Nos. No. 93-4379, 61 F.3d 473/41 ERC 1091/(6th Cir., 08/03/1995)

The court holds that the Emergency Planning and Community Right-to-Know Act (EPCRA) does not allow citizen suits for post-EPCRA §313 reporting violations that are cured by the date the action commences. The citizen suit alleged that a manufacturer violated §313 by failing to complete and submit the required toxic release inventory reporting forms (Form R). It is undisputed that the manufacturer had not yet filed the required Form Rs when it received the citizen group's notice of intent to sue. The court first holds that the district court dismissal of the citizen suit was proper, because EPCRA's plain language and structure does not allow citizen suits that seek civil penalties for purely historical violations. Only the failure to complete and submit the required forms can provide the basis for a citizen suit, and Congress did not intend late submissions to be the equivalent of a complete failure to submit the information. The court next rejects the citizen group's argument that Congress would not have placed such a notice provision in a statute where it also intended to authorize citizen suits for past violations. Allowing citizen suits for purely historical violations would render superfluous EPCRA's 60-day notice requirement. The court notes that EPCRA's legislative history does not support the group's position, because the only thing that is clear from EPCRA's legislative history is that Congress thought it important that the public receive the required information in developing emergency response plans for hazardous chemical releases. Once the forms providing the information have been filed, this congressional goal has been achieved and an enforcement suit is unnecessary. Although civil penalties for purely historical violations may be appropriate in some cases, the congressional scheme leaves to the U.S. Environmental Protection Agency discretion to determine those violators whose conduct warrants such penalties. The court next holds that the district court lacked jurisdiction over the citizen group's allegation that the manufacturer failed to file a Form R for the 1991 calendar year, because the group failed to provide the manufacturer with notice of that violation before filing suit. The group's notice stated its intent to hold the manufacturer accountable for failing to file Form Rs for calendar years 1987-1990, but made no mention of a 1991 violation. The group's complaint, however, alleged violations for 1988-1991.

Counsel for Plaintiff
Charles M. Tebbutt
Lippes & Shonn
1260 Delaware Ave., Buffalo NY 14209
(716) 884-4800

Counsel for Defendant
Keith L. Pryatel
Millisor & Nobil
9150 S. Hills Blvd., Cleveland OH 44147
(216) 838-8800

Before: KENNEDY and NORRIS, Circuit Judges; TAYLOR, District Judge.*