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Citizens for a Better Env't v. Steel Co.

ELR Citation: 26 ELR 21408
Nos. 96-1136, 90 F.3d 1237/42 ERC 2057/(7th Cir., 07/23/1996)

The court holds that an environmental organization may bring a citizen suit against a steel manufacturing company under Emergency Planning and Community Right-to-Know Act (EPCRA) §§312 and 313 for failure to timely submit inventory and toxic release forms, even though the company subsequently filed its overdue forms. The court first notes that EPCRA's citizen-suit provision contains no temporal limitation, and its plain language does not point clearly to the present tense. The court then holds that the citizen suit provision authorizes citizens suits not only for failure to complete and submit forms, but also for failure to complete and submit forms in accordance with the statute's deadline requirements. Further, the language of EPCRA's entire enforcement provision is not cast in the present tense. The court notes that the Federal Water Pollution Control Act's present-tense language shows that Congress knows how to require allegations of an ongoing violation as a condition of a citizen suit when it sees fit. The absence of language in EPCRA limiting citizen suits to ongoing violations, and Congress' choice of language specifically referring to past violations, strongly indicate that a cause of action exists under EPCRA for violations that are not ongoing when a citizen suit is filed. The court next holds that recognizing that citizens may sue under EPCRA even after violators have submitted overdue filing does not render the statute's 60-day notice provision gratuitous. Notice gives an alleged violator an opportunity to correct the citizen's information and to limit its exposure by filing late reports, and it preserves the Environmental Protection Agency's enforcement discretion by giving the Agency a chance to take enforcement action if it chooses. Further, if citizen suits could be fully prevented by "completing and submitting" forms, however late, citizens would have no real incentive to incur the costs of learning about EPCRA, investigating suspected violators, and analyzing information.

Counsel for Plaintiff
John Hundley
Hundley & Brussian
14 E. Jackson Blvd., Ste. 1320, Chicago IL 60604
(312) 427-3777

Counsel for Defendant
Leo P. Dombrowski
Wildman, Harrold, Allen & Dixon
225 W. Wacker Dr., 30th Fl., Chicago IL 60606
(312) 201-2562

Before ESCHBACH, ROVNER, and EVANS, Circuit Judges.