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Neighbors for a Toxic Free Community v. Vulcan Materials Co.

ELR Citation: 27 ELR 21313
Nos. 95-D-2617, 964 F. Supp. 1448/(D. Colo., 04/25/1997)

The court holds that a consumer group is not barred from bringing a citizen suit action under the Emergency Planning and Community Right-to-Know Act (EPCRA) against a tank car lessee for violating reporting requirements concerning a toxic spill, even though the lessee had already entered a consent agreement with the U.S. Environmental Protection Agency (EPA) under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) for its involvement in the spill, and had cured historical EPCRA violations. The court first holds that EPA's administrative complaint and subsequent consent agreement with the lessee does not bar the consumer group's complaint. The alleged violation of the reporting requirement asserted by the consumers under EPCRA was not referenced in EPA's administrative complaint and, therefore, the consumers' claim was not encompassed within the four corners of the consent agreement. And EPCRA specifically allows citizens to sue for violations of EPCRA that EPA has chosen not to pursue. Further, EPCRA and the specific EPCRA violations alleged in the citizen suit serve an entirely different purpose than CERCLA and the CERCLA claim asserted by EPA. The court also holds that the lessee's cure of historical EPCRA violations before suit was commenced does not bar this suit. The court agrees with the Seventh Circuit's reasoning that to hold otherwise would require private citizens to absorb much of the cost of monitoring EPCRA violations, thereby reducing private enforcement. This is contrary to the clearly expressed intent of Congress and the very existence of the citizen enforcement provision. Next, the court holds that the tank car lessee was not required to provide follow up emergency notice under EPCRA §304. The transportation-related release regulation is not applicable to the lessor because it was not the carrier of the toxic substances or in control of the tank car or the lessee's plant. Further, the tank car was no longer in transport; it was in the lessee's facility. EPCRA §304 requires only that the person in charge of a facility provide notification. Because the lessor was not in charge and had no knowledge, notification by the lessor was not required. The court therefore grants the lessor's summary judgment motion.

Counsel for Plaintiffs
Randall M. Weiner
Land and Water Fund for the Rockies
2260 Baseline Rd., Ste. 200, Boulder CO 80302
(303) 444-1188

Counsel for Defendants
C. Michael Montgomery
Montgomery, Kolodny, Amatuzio, Dusbabek & Parker
600 17th St., Ste. 2400 S., Denver CO 80202
(303) 592-6600