EPCRA Citizen Suits After Steel Co. v. Citizens for a Better Environment

Jim Hecker

Editors' Summary: In March, the U.S. Supreme Court rendered its decision in Steel Co. v. Citizens for a Better Environment, 118 S. Ct. 1003, 28 ELR 20434 (1998). The Court held that an environmental group lacked standing to sue a company for past EPCRA reporting violations, because the group failed to meet the redressability requirement for Article III standing. In a follow-up to his November 1997 ELR Article on the Steel Co. litigation, Jim Hecker, an environmental enforcement attorney at Trial Lawyers for Public Justice, looks at the implications of the Steel Co. case. He first discusses the holding of the case and the nature of EPCRA suits. Then, he explores what Congress can do in the wake of the opinion to restore citizen authority to sue for past EPCRA violations. Finally, he examines the impact the case will have on citizen suits for civil penalties when the defendant complies after suit is filed.

Jim Hecker is an environmental enforcement attorney at Trial Lawyers for Public Justice in Washington, D.C. In an Article published before the U.S. Supreme Court's decision in Steel Co. v. Citizens for a Better Environment, 118 S. Ct. 1003, 28 ELR 20434 (1998), he argued that citizens should have standing to enforce wholly past violations under the Emergency Planning and Community Right-To-Know Act. Jim Hecker, Citizen Standing to Sue for Past EPCRA Violations, 27 ELR 10561 (Nov. 1997).

[28 ELR 10306]

In Steel Co. v. Citizens for a Better Environment,¹ the U.S. Supreme Court held that citizens cannot sue companies that violate the Emergency Planning and Community Right-To-Know Act (EPCRA)² if the violations are fully cured before a citizen suit is filed. Only suits with ongoing violations at the time of the complaint are justiciable. This Article examines the difficulty of proving an ongoing violation under EPCRA, and the ways in which Congress could restore citizen authority to sue for wholly past violations. The Court's decision also raises questions about citizen standing to seek civil penalties in other contexts. This Article analyzes whether citizen claims for civil penalties can now be mooted by post-complaint compliance.

The Court's Decision

EPCRA gives citizens a right to sue persons who fail to comply with the statute's reporting requirements, and to seek injunctive relief, civil penalties, and costs, including attorneys fees.³ In the Steel Co. case, a company failed to file its required reports for seven consecutive years. The company filed its overdue forms after it received an environmental organization's notice of intent to sue for these EPCRA reporting violations, but before the organization filed a complaint in federal court. The organization's complaint did not allege that the company's violations were continuing, or were likely to occur in the future. On these facts, the Supreme Court held that the complaint failed the redressability requirement for Article III standing.⁴

Justice Scalia's opinion for the Court analyzed each element of relief requested and found no redress for the organization's assumed informational injuries. The requested civil penalties provided no redress because they were payable solely to the U.S. Treasury.⁵ The requested pre-complaint costs of investigating the suit were not recoverable as "costs of litigation," within the meaning of the statutory fee provision.⁶ The requested post-complaint costs of litigating the suit were recoverable, but were wholly collateral to the merits and therefore insufficient.⁷ The requested injunctive relief was insupportable because there was no alleged continuing or future violation to enjoin.⁸ The Court therefore remanded the case with instructions to dismiss the complaint.⁹

As a result of this decision, nonreporting companies can now avoid liability in EPCRA citizen suits if they file their reports after receiving a citizen's notice letter and before the citizen files suit.¹⁰ EPCRA reports can usually be prepared and filed in a few days or, at most, a few weeks. Consequently, EPCRA violators can delay compliance until they are notified of a citizen suit, and then easily avoid any legal consequences for their violations during the notice period.

[28 ELR 10307]

Proving Ongoing Violations Under EPCRA

It is possible that some companies may have ongoing reporting violations and still be subject to EPCRA citizen suits. A company could deliberately or negligently ignore a citizen's notice of intent to sue and fail to file any of its reports before the citizen suit is filed.¹¹ It could deliberately or negligently file incomplete reports that do not cure all of its violations. Or it could file complete reports for its past violations, and then deliberately or negligently allow future nonreporting violations to occur.

However, detecting an ongoing violation is much harder under a reporting statute like EPCRA than under a pollution control statute like the Clean Water Act.¹² Under the Clean Water Act, the U.S. Environmental Protection Agency (EPA) has the authority to require recordkeeping, monitoring, and reporting of pollutant discharges.¹³ A permittee must monitor its discharges, and report the results to EPA and a state agency on a regular basis on discharge monitoring reports.¹⁴ Citizens can use these reports to determine whether permittees are complying with their permits. For example, in Chesapeake Bay Foundation v. Gwaltney of Smithfield, Ltd.,¹⁵ a company monitored its discharge three times a week, and filed reports of its monitoring results once a month.¹⁶ This frequent monitoring and reporting made it possible for the citizens in that case to determine the company's recent compliance status. According to Gwaltney, an ongoing violation can be established if the defendant commits a violation after the complaint is filed.¹⁷ With the Clean Water Act's frequent monitoring and reporting system, citizens have proven ongoing violations by waiting for several months after the complaint is filed and then identifying violations listed in the most recent monitoring reports.¹⁸

Furthermore, based on discharge data in a company's discharge monitoring reports, citizens considering a suit under the Clean Water Act can obtain an opinion from an engineering expert about whether a discharger's pollution control equipment is inadequate and needs to be upgraded. Depending on the extent of a necessary upgrade, the plaintiffs can make an objective assessment about how long it will take to correct the violations. If the upgrade is likely to take longer than 60 days, they can allege that continuing violations are imminent and likely.

In contrast, under EPCRA, no system of frequent monitoring and reporting exists. EPCRA contains no counterpart to Clean Water Act § 308.¹⁹ EPCRA imposes no new requirements on companies to monitor their storage and usage of toxic chemicals. EPCRA also requires no permits. Precise data on storage and usage of chemicals will, in most cases, not be publicly available and will only be contained in private, internal company records. Furthermore, EPCRA only requires two of the most important forms — inventory forms and toxic chemical release forms — to be filed on an annual basis.²⁰ As a result, citizens would have to wait for a year or more to determine whether a past violation "continued" based on a company's failure to file the next annual report when it is due.

Furthermore, it is difficult or impossible to predict a company's propensity to violate EPCRA in the future. The implication of the Steel Co. decision is that even seven years of past noncompliance will not demonstrate the likelihood of a future violation. Nonreporters do not need to make equipment upgrades or capital investments to prepare reports. They only need a computer or pen, a form, and a willingness to fill out the form. The likelihood of a future violation will therefore depend primarily on a subjective and deliberate intent to violate, or a level of managerial incompetence or negligence that allows unintentional violations to continue to occur. Except in the remote event in which an employee blows the whistle on a company's misconduct, it will be difficult or impossible for citizens to assess this risk objectively. In most cases, plaintiffs will be unable to make a good-faith allegation of a continuing violation in a complaint based on this assessment. Companies can therefore respond to citizen notice letters by proclaiming their subjective intention to comply in the future, and citizens will be hard-pressed to disprove this intent with objective evidence.

Thus, the ongoing violation requirement is likely to be unworkable as a basis for citizen enforcement under EPCRA. Citizen enforcement cases under EPCRA, which have to date been a small part of the citizen enforcement universe, will now probably dwindle to little or nothing. Neither plaintiffs nor their attorneys are likely to risk the tens or hundreds of thousands of dollars it takes to litigate a case when the existence of an ongoing violation, and jurisdiction, is so uncertain.

Potential Congressional Responses

Congress could take several actions to restore citizen standing to sue for EPCRA violations. First, it could give citizens a share of the penalties recovered. The Court stated in Steel Co. that civil penalties "might be viewed as a sort of compensation [28 ELR 10308] or redress to respondent if they were payable to respondent."²¹ Congress has given citizens this type of financial interest in qui tam actions.²² Justice Scalia suggested in Lujan v. Defenders of Wildlife²³ that qui tam plaintiffs have standing because "Congress has created a private interest in the outcome of a suit against a private party for the government's benefit, by providing a cash bounty for the victorious plaintiff."²⁴ Citizens need not receive a large share of the penalties. Since a "minute" monetary interest is sufficient for standing,²⁵ even a tiny percentage of the penalties would do.

Second, Congress could authorize citizens to recover the investigation costs that they incurred before the litigation. The Court stated in Steel Co. that the "recovery of such expenses unrelated to litigation would assuredly support Article III standing, …."²⁶ It does not appear that Congress has expressly authorized the recovery of pre-suit investigation costs in any federal statute.²⁷ However, Congress could easily add these three words ("pre-suit investigation costs") to the EPCRA fee provision.²⁸

Third, Congress could give district courts the power to use a portion of the civil penalties to fund environmentally beneficial projects in the community near the defendant's facility. In 1990, Congress gave courts this power in citizen suits under the Clean Air Act.²⁹ The district courts have the discretion to order that up to $ 100,000 of assessed penalties "be used in beneficial mitigation projects which are consistent with this Act and enhance the public health or the environment."³⁰ While no court has analyzed yet whether this power is sufficient to provide redressability, it certainly seems capable of providing a direct remedial benefit to citizen plaintiffs.³¹

Standing and Mootness

Both standing and mootness are aspects of the Article III "case or controversy" requirement for federal court jurisdiction. To qualify as a case fit for federal court adjudication, an actual controversy must exist at all stages of review.³² Standing measures the existence of a controversy at the time the case is commenced, while mootness measures the existence of a controversy at the time the case is decided.

Both the plaintiff's standing, and the existence of an ongoing violation in a citizen suit, are determined based on the facts existing when the plaintiff's complaint is filed. In evaluating standing in citizen suits under the Endangered Species Act in Lujan, Justice Scalia stated that it is a "long-standing rule that jurisdiction is to be assessed under the facts existing when the complaint is filed."³³ In evaluating the existence of an ongoing violation in a Clean Water Act citizen suit in Gwaltney, Justice Scalia stated in his concurring opinion that "subject matter jurisdiction 'depends on the state of things at the time of the action brought'; if it existed when the suit was brought, 'subsequent events' cannot 'oust[]' the court of jurisdiction."³⁴ Thus, post-complaint events are irrelevant to determinations of standing and ongoing violations.³⁵

If a plaintiff loses its cognizable interest in the litigation after the filing of the complaint, the issue is not standing, but mootness. For example, in Arizonans for Official English v. Arizona,³⁶ the sole plaintiff had a viable claim for injunctive relief at the outset of the litigation, but lost it later when she left her state job. The Supreme Court dismissed the case on mootness grounds, not for lack of standing.³⁷

A citizen's ability to seek civil penalties in a citizen suit under a federal statute with an "ongoing violation" requirement depends on the time that a defendant achieves compliance. There are three possible scenarios. First, the defendant may achieve complete compliance before the filing of the complaint. In that event, Steel Co. holds that there is no ongoing violation and no standing.

Second, the defendant may continue to violate the law after the filing of the complaint and up to the trial. In that [28 ELR 10309] event, there is an ongoing violation and standing, and no mootness. The plaintiff can seek both civil penalties and injunctive relief to abate the violation. The Court confirmed this conclusion in Steel Co. when it stated that "if respondent had alleged a continuing violation or the imminence of a future violation, the injunctive relief requested would remedy that alleged harm."³⁸

Third, the defendant may continue to violate the law after the filing of the complaint, but may achieve complete and permanent compliance before trial. At that point, there is an ongoing violation and standing, but the citizen's claim for injunctive relief would be moot. The issue is whether the citizen's claim for civil penalties is also moot. Portions of the Court's opinion in Steel Co. could be read to suggest that citizens lack a legally cognizable interest in the outcome in this scenario, because they cannot benefit individually from payments to the federal treasury, and only have an "undifferentiated public interest" in a penalty assessment by the Court.³⁹ One defendant has already moved to dismiss a Clean Water Act citizen suit based on this argument.⁴⁰

There are several reasons that this reading of the Court's opinion is incorrect. First, in Steel Co., the Court did not address the issue of whether citizens could seek penalties for violations that were ongoing at the time of the complaint, but were later discontinued. All parties to the Steel Co. case agreed that compliance had been achieved before the filing of the complaint. The complaint did not contain any allegation that there was a continuing violation or the threat of a future violation.⁴¹

Second, if the Court's opinion were read broadly to prohibit citizen suits seeking civil penalties despite an ongoing violation, it would directly conflict with the Court's prior decision in Gwaltney. In that case, the plaintiffs in a Clean Water Act citizen suit had alleged an ongoing violation, but by the time that case reached the Supreme Court, there was no longer any claim for injunctive relief, and the defendant had reported no permit violations for over three years.⁴² After a bench trial, the district court had only assessed a civil penalty, not an injunction.⁴³ Based on these facts, the Court remanded the case for a determination of whether plaintiffs had proved the existence of an ongoing violation at the time the complaint was filed.⁴⁴ Consequently, the Supreme Court must have anticipated that civil penalties could be imposed based on the lower court's finding of an ongoing violation, even in the absence of injunctive relief. If the mooting of a claim for injunctive relief had deprived the district court of the power to assess penalties, then the Supreme Court should not have remanded the case in Gwaltney. But the Court did remand the case for further findings, and the Gwaltney lower courts subsequently assessed civil penalties.⁴⁵ There is no indication in the Steel Co. opinion that Gwaltney is now bad law. On the contrary, the Court confirmed in Steel Co. that Article III standing existed in Gwaltney.⁴⁶

Third, neither the Steel Co. nor Gwaltney decisions evidence any intent to create any new law concerning mootness. The Gwaltney decision cited and applied "long-standing principles of mootness."⁴⁷ The Steel Co. decision similarly cited and quoted from prior decisions on mootness, without enunciating any intent to deviate from established principles.⁴⁸ "The Supreme Court has long directed courts to analyze a mootness claim directed at one form of relief separately from a mootness claim directed at the other."⁴⁹ For example, in Powell v. McCormack,⁵⁰ the Court stated that "where several forms of relief are requested and one of these requests subsequently becomes moot, the Court has still considered the remaining requests …. The remaining live issues supply the constitutional requirement of a case or controversy."⁵¹ The Court also rejected the argument that "mootness of a 'primary' claim requires a conclusion that all 'secondary' claims are moot."⁵² Another well-established rule is that "claims for damages or other monetary relief automatically avoid mootness, so long as the claim remains viable."⁵³ Thus, under traditional mootness principles, the mootness of civil penalty and injunctive claims are analyzed separately, and civil penalty claims are not mooted by subsequent events.

Based on these principles, seven federal circuit courts of appeals have held, and an eighth has stated in dicta, that the mooting of injunctive relief will not moot a request for civil [28 ELR 10310] penalties in citizen suits under the Clean Water Act if there was an ongoing violation at the time the complaint was filed.⁵⁴ In addition, many district court decisions have reached the same conclusion.⁵⁵ These decisions are also based on the rationale that "when the Supreme Court concluded in its Gwaltney decision that [Clean Water Act § 505] permits citizens' actions against polluters while there are ongoing violations, the Court effectively approved the assessment of penalties based on past violations (the only possible basis for assessing a penalty)."⁵⁶ Consequently, if Gwaltney is still good law (and Steel Co. does not suggest otherwise), these post-Gwaltney mootness decisions by the lower courts are likewise still good law.

Finally, if citizens could not seek civil penalties for violations that ceased after a complaint was filed, it would seriously undermine citizen enforcement of federal environmental statutes. Violators would be encouraged "to delay litigation as long as possible, knowing that they will thereby escape liability even for post-complaint violations, so long as violations have ceased at the time the suit comes to trial or is decided on summary judgment."⁵⁷ Whether or not penalty claims were mooted would depend on the happenstance of how quickly the district court resolved the case. So far, the courts have uniformly rejected this scenario, since "a polluter should not be able to avoid otherwise appropriate civil penalties by dragging the citizen suit plaintiff into costly litigation and then coming into compliance before the lawsuit can be resolved."⁵⁸

Conclusion

The Supreme Court's decision in Steel Co. v. Citizens for a Better Environment eliminates citizens' ability to sue for wholly past reporting violations under EPCRA. Ongoing reporting violations under EPCRA are so hard to investigate and detect that few, if any, such suits are likely to be brought. Congress could, however, restore citizen enforcement under EPCRA by amending the law to give citizens a small share of the penalties, authorize recovery of citizens' investigation costs, or give courts the power to use some of the penalties for environmentally beneficial projects. Moreover, defendants in EPCRA and other citizens' suits should not be permitted to mischaracterize the Steel Co. case as affecting the mootness of cases filed before the defendant came into compliance with the law. The Court in Steel Co. did not question or overrule prior decisions that post-complaint compliance does not moot citizen claims for civil penalties.

1. 118 S. Ct. 1003, 28 ELR 20434 (1998).

2. 42 U.S.C. §§ 11001-11050, ELR STAT. EPCRA §§ 301-330.

3. Id. § 11046, ELR STAT. EPCRA § 326.

4. The three requirements for Article III standing are injury-in-fact, causation, and redressability. Steel Co., 118 S. Ct. at 1016-17, 28 ELR at 20438. Redressability means "the likelihood that the requested relief will redress the alleged injury." Id. at 1017, 28 ELR at 20438.

5. Id. at 1018, 28 ELR at 20438.

6. Id. at 1019, 28 ELR at 20438-39.

7. Id.

8. Id.

9. Id. at 1020, 28 ELR at 20439.

10. Under EPCRA, at least 60 days before the complaint is filed, citizens must send a letter to the violator and to state and federal government agencies notifying them of the violations and the citizens' intent to file a citizen suit. 42 U.S.C. § 11046(d)(1), ELR STAT. EPCRA § 326(d)(1).

11. For example, in Don't Waste Arizona, Inc. v. Precise Metal Prods., CIV 95-2133-PHX-SMM (D. Ariz. Mar. 30, 1998) (memorandum of decision and order), the defendant claimed (unsuccessfully) that the amount of chemicals that it stored at its facility did not exceed EPCRA thresholds, so it was not required to file any forms. The court held that this dispute concerning statutory coverage put the plaintiff "in a very different posture than the plaintiff in Steel [Co.], … makes a declaratory judgment that the Defendant violated EPCRA a redressable one, and thus gives Plaintiff standing to sue for Defendant's alleged failure to file requisite documents pursuant to EPCRA." Id. at 6. A company's potential costs (in attorneys fees and potential penalties) if it loses a statutory coverage argument will probably far exceed the costs of preparing and filing an EPCRA form. As a result, after the Steel Co. decision, companies will likely decide that, in a doubtful case, it is preferable to file the EPCRA form than to bear the risks of litigation.

12. 33 U.S.C. §§ 1251-1387, ELR STAT, FWPCA §§ 101-607.

13. Id. § 1318, ELR STAT. FWPCA § 308.

14. 40 C.F.R. § 122.41(l)(4) (1997).

15. 611 F. Supp. 1542, 15 ELR 20663 (E.D. Va. 1985), aff'd, 791 F.2d 304, 16 ELR 20636 (4th Cir. 1986), vacated and remanded, 484 U.S. 49, 18 ELR 20142 (1987), on remand, 844 F.2d 170, 18 ELR 20941 (4th Cir. 1988), judgment reinstated, 688 F. Supp. 1078, 18 ELR 21275 (E.D. Va. 1988), aff'd in part, rev'd in part and remanded, 890 F.2d 690, 20 ELR 20341 (4th Cir. 1989).

16. 611 F. Supp. at 1553 n.13, 1555, 15 ELR at 20668 n.13, 20669.

17. 844 F.2d at 171-72, 18 ELR at 20941-42.

18. See, e.g., Arkansas Wildlife Fed'n v. Bekaert Corp., 791 F. Supp. 769, 778, 22 ELR 21438, 21442 (W.D. Ark. 1992) (jurisdiction found because complaint was filed in September 1991 and violations were reported in October 1991).

19. See 33 U.S.C. § 1318, ELR STAT. FWPCA § 308.

20. 42 U.S.C. §§ 11022(a)(2), 11023(a), ELR STAT. EPCRA §§ 312(a)(2), 313(a).

21. 118 S. Ct. at 1018, 28 ELR at 20438.

22. The False Claims Act authorizes citizens to sue on behalf of the government and to obtain a share of the amount recovered. 31 U.S.C. § 3730.

23. 504 U.S. 555, 22 ELR 20913 (1992).

24. Id. at 572-73, 22 ELR at 20918.

25. Ellis v. Brotherhood of Ry., Airline & S.S. Clerks, 466 U.S. 435, 442 (1984).

26. 118 S. Ct. at 1019, 28 ELR at 20439.

27. Congress has indicated, however, that investigation costs may sometimes be included as a part of the attorneys fees. Successful plaintiffs in trademark infringement actions can recover their attorneys fees. 15 U.S.C. § 1117(b). Congress intended this to include the costs of investigating the infringement. Louis Vuitton S.A. v. Downtown Luggage Ctr., 706 F. Supp. 839, 842 (S.D. Fla. 1988). The legislative history of this statute states that "to the extent that an investigator acts under the direction of an attorney, … his or her fees may be recovered by a prevailing plaintiff as part of an award of attorneys fees." Id. (quoting 130 CONG. REC. H12083 (Oct. 10, 1984)).

28. 42 U.S.C. § 11046(f), ELR STAT. EPCRA § 326(f).

29. Id. §§ 7401-7671q, ELR STAT. CAA §§ 101-618.

30. Id. § 7604(g)(2), ELR STAT. CAA § 304(g)(2).

31. If the environmental statute is designed to control pollution (i.e., the Clean Water Act), instead of only requiring reports about pollution releases (i.e., EPCRA), a defendant's past violations may have caused continuing adverse environmental effects, such as contaminated sediments. In that event, under its inherent equitable jurisdiction, "a court may fashion injunctive relief requiring a defendant to pay monies into a remedial fund, if there is a nexus between the harm and the remedy." Public Interest Research Group of N.J. v. Powell Duffryn, 913 F.2d 64, 82, 20 ELR 21216, 21225 (3d Cir. 1990), cert. denied, 498 U.S. 1109 (1991).

32. Arizonans for Official English v. Arizona, 117 S. Ct. 1055, 1068 (1997).

33. 504 U.S. at 569 n.4, 22 ELR at 20918 n.4. In Lujan, the Court rejected the argument that redressability could be created after a suit was filed if it did not exist at the outset. Id. ("a plaintiff cannot retroactively create jurisdiction based on postcomplaint litigation conduct"). In addition, the Court indicated that, while a defendant may dispel jurisdiction by demonstrating standing defects later in the litigation, those defects must exist at the time the complaint is filed. Id. ("permitting a defendant to point out a pre-existing standing defect late in the day …" (emphasis added)).

34. 484 U.S. at 69, 18 ELR at 20147.

35. Natural Resources Defense Council v. Texaco Ref. & Mktg., 2 F.3d 493, 502, 23 ELR 21328, 21332 (3d Cir. 1993) ("Post-filing events are thus incapable of stripping a court of its properly conferred jurisdiction"); Carr v. Alta Verde Indus., 931 F.2d 1055, 1065, 21 ELR 21005, 21009-10 (5th Cir. 1991).

36. 117 S. Ct. 1055 (1997).

37. Id. at 1071. The Court suggested that it would have allowed the case to continue if the plaintiff had had a claim for nominal damages at the time the case was filed, but ruled that that claim was "nonexistent" because damage actions were not available against a state defendant under 42 U.S.C. § 1983. Id. at 1069-70. This decision is therefore consistent with the rule that monetary claims are analyzed separately from claims for injunctive relief in determining mootness, and prevent mootness so long as the monetary claims remain viable. See infra text accompanying notes 48-52.

38. 118 S. Ct. at 1019, 28 ELR at 20439.

39. Id. at 1018, 28 ELR at 20438.

40. Defendant's Supplemental Memorandum Regarding Standing, Sierra Club v. Hyundai America, Inc., No. 96-6131 - TC (D. Or. Mar. 13, 1998). In an April 7, 1998, order, the court expressed no opinion on this issue. Hyundai America at 14-15 n.3 (D. Or. Apr. 7, 1998) (order). Instead, the court held that plaintiffs had standing to sue based on their request for equitable relief to remedy defendant's permit violations, which had continued after the filing of plaintiffs' complaint. Id. at 13-14. Even though defendant's discharge permit had subsequently expired, the court stated that it had the authority to require defendant to clean up the continuing effects of its past illegal discharges. Id. at 13 (citing Illinois v. Outboard Marine Corp., 680 F.2d 473, 480-81, 12 ELR 20797, 20801 (7th Cir. 1982)).

41. 118 S. Ct. at 1019, 28 ELR at 20439 ("there is no such allegation here — and on the facts of the case, there seems no basis for it"). If there is no alleged threat of future noncompliance, an assessment of civil penalties could not deter the defendant specifically from committing future violations, but could only deter generally other violators. The Court in Steel Co. rejected the argument that citizens' "generalized interest in deterrence" is sufficient for purposes of Article III. Id. This is consistent with the Court's prior decisions. Los Angeles v. Lyons, 461 U.S. 95, 111 (1983). However, if a continuing violation is alleged in the complaint, a plaintiff can seek penalties to deter specifically the defendant's continuing illegal conduct. The Court in Steel Co. stated that relief that "is aimed at deterring petitioner from violating EPCRA in the future …. can of course be 'remedial' for Article III purposes, …." Id. A citizen obtains "redress" in this situation because the penalty abates ongoing violations by inducing the violator to achieve and maintain a state of compliance.

42. In Gwaltney, the violations had ceased even before the filing of the complaint, Gwaltney's last violation occurred on May 15, 1984, and plaintiffs' complaint was filed on June 15, 1984, 484 U.S. at 53-54, 18 ELR at 20143; Gwaltney, 890 F.2d at 692, 20 ELR at 20341.

43. 611 F. Supp. at 1547, 15 ELR at 20665.

44. 484 U.S. at 67, 18 ELR at 20147.

45. 890 F.2d at 698, 20 ELR at 20344 (affirming judgment for $ 289,822 in civil penalties).

46. Steel Co., 118 S. Ct. at 1011, 28 ELR at 20435 ("Article III standing was in any event found").

47. 484 U.S. at 66, 18 ELR at 20147.

48. 118 S. Ct. at 1020, 28 ELR at 20439.

49. Atlantic States Legal Found, v. Pan Am. Tanning Corp., 993 F.2d 1017, 1020, 23 ELR 20865, 20867 (2d Cir. 1993).

50. 395 U.S. 486 (1969).

51. Id. at 496 n.8, 497.

52. Id. at 499.

53. 13A CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE, § 3533.3, at 262 (2d ed. 1984).

54. Pawtuxet Cove Marina, Inc. v. Ciba-Geigy Corp., 807 F.2d 1089, 1094, 17 ELR 20374, 20377 (1st Cir. 1986), cert. denied, 484 U.S. 975 (1987) ("A plaintiff who makes allegations warranting injunctive relief in good faith, judged objectively, may recover a penalty judgment for past violations even if the injunction proves unobtainable"); Atlantic States Legal Found, v. Pan Am. Tanning Corp., 993 F.2d at 1021, 23 ELR at 20867 states:

We hold therefore that a defendant's ability to show, after suit is filed but before judgment is entered, that it has come into compliance with limits on the discharge of pollutants will not render a citizen suit for civil penalties moot. Civil penalties may still be imposed for post-complaint violations and for violations that were ongoing at the time suit was filed.

Natural Resources Defense Council v. Texaco Ref. & Mktg., Inc., 2 F.3d 493, 503, 23 ELR 21328, 21333 (3d Cir. 1993) ("once a citizen plaintiff establishes an ongoing violation of a parameter at the time the complaint is filed, the court is obliged to assess penalties for all proven violations of that parameter"); Chesapeake Bay Found. v. Gwaltney of Smithfield, Ltd., 890 F.2d 690, 697, 20 ELR 20341, 20344 (4th Cir. 1989) ("Assuming, then, proof of an ongoing violation, a citizen action, like a government action, cannot become moot once there is assessment of civil penalties, so long as the penalties are for past violations that were part of or contiguously preceded the ongoing violations"); Carr v. Alta Verde Indus., Inc., 931 F.2d 1055, 1065 n.9, 21 ELR 21005, 21009 n.9 (5th Cir. 1991) ("Even had [defendant's post-complaint] improvements mooted the plaintiffs' action for injunctive relief, it would not necessarily have mooted the plaintiffs' action for civil penalties") (dicta); Atlantic States Legal Found. v. Stroh Die Casting Co., 116 F.3d 814, 820, 27 ELR 21087, 21090 (7th Cir.), cert. denied, 118 S. Ct. 442 (1997) ("if the violation is cured at some point while the suit is pending, … the case nevertheless does not become moot …. [because] civil penalties … would be recoverable for any time period in which Stroh was found to be in violation"); Comfort Lake Ass'n v. Dresel Contracting, Inc., 1998 U.S. App. LEXIS 3733 (8th Cir. 1998) ("even if a polluter's voluntary permanent cessation of the alleged violations moots a citizen suit claim for injunctive relief, it does not moot a related claim for civil penalties"); Atlantic States Legal Found. v. Tyson Foods, 897 F.2d 1128, 1135, 20 ELR 20788, 20791 (11th Cir. 1990) ("the mooting of injunctive relief will not moot the request for civil penalties as long as such penalties were rightfully sought at the time the suit was filed"); see also Reich v. Occupational Safety & Health Review Comm'n, 102 F.3d 1200 (11th Cir. 1997) (government's claim for civil penalties for violations of safety regulations was not moot even though the defendant had ceased operations after the suit was filed).

55. Molokai Chamber of Commerce v. Kukui (Molokai), Inc., 891 F. Supp. 1389, 1406, 26 ELR 20303, 20311-12 (D. Haw. 1995); Beartooth Alliance v. Crown Butte Mines, 904 F. Supp. 1168, 1176, 26 ELR 20639, 20642-43 (D. Mont. 1995); Save Our Bays & Beaches v. City & County of Honolulu, 904 F. Supp. 1098, 1119, 26 ELR 20595, 20604 (D. Haw. 1994); Public Interest Research Group of N.J. v. Hercules, Inc., 830 F. Supp. 1525, 1537, 24 ELR 20270, 20276 (D.N.J. 1993); Public Interest Research Group of N.J. v. Star Enter., 771 F. Supp. 655, 655, 22 ELR 20094, 20095 (D.N.J. 1991); Tobyhanna Conservation Ass'n v. Country Place Waste Treatment Facility, 769 F. Supp. 739, 745 (M.D. Pa. 1991).

56. Gwaltney, 890 F.2d at 696-97, 20 ELR at 20343-44; Tyson Foods, 897 F.2d at 1136, 20 ELR at 20792.

57. Tyson Foods, 897 F.2d at 1137, 20 ELR at 20792.

58. Comfort Lake Ass'n v. Dresel Contracting, Inc., 1998 U.S. App. LEXIS 3733, *11 (8th Cir. 1998).