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Don't Waste Ariz. v. McLane Foods, Inc.

ELR Citation: 27 ELR 20766
Nos. Civ-95-1808-PHX-ROS, 950 F. Supp. 972/44 ERC 1010/(D. Ariz., 01/08/1997)

The court holds that the Emergency Planning and Community Right-to-Know Act (EPCRA) authorizes citizen suits for wholly past violations. The court first holds that it has jurisdiction to hear citizen suits for wholly past violations of EPCRA. EPCRA's jurisdictional grant does not limit the court to hearing cases where it must both enforce the requirement concerned and impose a penalty. If Congress had intended such a result, it would have included the term "simultaneously" or "collectively" in the provision granting the district court jurisdiction over citizen suits. Further, to give effect to EPCRA's remedial purposes, the jurisdictional grant must be read broadly to mean that a district court may exercise its power to enforce a requirement or to impose civil sanctions. The court then holds that EPCRA's citizen suit provision, which authorizes suits against any facility owner or operator for "failure to comply" with the Act's requirements, authorizes suits for wholly past violations. "Failure to do" something may refer to a past, present, or future failure, and does not contemplate a temporal limitation. In addition, EPCRA's venue provision provides that a citizen suit must be "brought in the district court for the district in which the alleged violation occurred." This language plainly contemplates that a suit may be brought for a violation that occurred in the past. Also, EPCRA authorizes suit for failure to complete and submit forms under §§312 and 313. The most natural reading of the term "under" is "in accordance with," which implies that EPCRA does not contemplate a timeliness requirement for filing inventory forms. Last, EPCRA's purposes would best be served by allowing citizen suits for past violations. If citizen suits were barred for wholly past violations, then facilities would have an incentive not to comply with reporting requirements until they have been caught.

The court then holds that plaintiff environmental group has representational standing to bring this suit. One of the group's members has standing to sue in his own right. Moreover, the group's interest in a safe environment and an informed public are germane to the purposes of the organization and to this suit. And neither the claim asserted nor the relief requested requires that the group's members participate individually in the suit.

Counsel for Plaintiff
Matthew D. Karnas
Siegel, Bellovin & Karnas
5151 E. Broadway Blvd., Tucson AZ 85711
(520) 571-9700

Counsel for Defendant
Lisa A. Schuh
Snell & Wilmer
One Arizona Ctr., Phoenix AZ 85004
(602) 382-6000