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EPCRA Citizen Suits – What to do when you get sued

Posted on - 08/29/2007
by JHP

You own and operate Independent Plating, Inc.("IPI"), in Cincinnati, Ohio. Your company is small, and you have been very diligent at complying with the environmental laws. Through your cooperation with the local sewer district, Ohio EPA and U.S. EPA, you are in full compliance with all air and water discharge permits issued to your company. Everything is going well. Your company is making a nice profit, your sales are up, and your costs are down. Yesterday, however, you are surprised to receive a "notice of intent to sue" from the Regional Environmental Watch Dogs, Inc. ("REWDI"). REWDI has notified your company that it intends to sue your company for failing to submit form Rs for its toxic chemicals subject to the Emergency Planning and Community Right-to-Know Act ("EPCRA") during years 1993 through 1996.

You are not sure what a form R is, but you know what a lawsuit is, and you know that to defend your company, you need to talk to an environmental attorney. You find an attorney experienced in environmental law, and you meet with him to discuss the threatened lawsuit against your company. You ask the attorney to explain how your company could be violating an environmental law if it complies fully with all of the permits for air and water discharges issued to your company. Your attorney explains that EPCRA is a paper work law. Section 313 of EPCRA requires owners and operators of facilities using specified toxic chemicals to file toxic chemical release forms, which provide information about the storage and release of those chemicals, with the United States Environmental Protection Agency ("U.S. EPA") and designated state officials. 42 U.S.C. §§ 11023(a), 11023(g). The U.S. EPA created the "form R" as the toxic chemical release reporting form. 40 C.F.R. § 372.85. Form Rs for a given calendar year are due the following July 1. 42 U.S.C. § 11023(a). Violators of § 11023 are liable to the United States for civil penalties of up to $25,000 for each violation. 42 U.S.C. § 11045(c)(1). The EPA can seek civil penalties either administratively or by bringing an action in federal district court. 42 U.S.C. § 11045(c)(4).

Your attorney goes on to explain that EPCRA also authorizes citizen enforcement suits. The citizen suit provision relied upon by REWDI to threaten your company with a lawsuit provides that "any person may commence a civil action on his own behalf against . . . [a]n owner or operator of a facility for failure to . . . [c]omplete and submit a toxic chemical release form under section 11023(a) of this title." 42 U.S.C. § 11046(a)(1)(A)(iv). District courts have jurisdiction over citizen enforcement actions "to enforce the requirement concerned and to impose any civil penalty provided for violation of that requirement." 42 U.S.C. § 11046(c). Prevailing parties may recover reasonable costs and attorneys' fees. 42 U.S.C. § 11046(f).

To sue your company, the law requires that a citizen may not commence an enforcement action until sixty days after he or she provides notice of the alleged violation to U.S. EPA, state officials, and the alleged violator. 42 U.S.C. § 11046(d). The notice of intent to sue received by your company states that IPI uses some of the specified toxic chemicals that should have been reported on form Rs at its production facility in Cincinnati, Ohio. REWDI is a not-for-profit organization also based in Cincinnati, Ohio. On July 17, 1997, REWDI notified IPI of its intention to file a citizen enforcement action against IPI for violating EPCRA § 313. Specifically, the notice stated that IPI had failed to file the required form Rs for the years 1993 through 1996.

Your attorney asks you if you used the alleged chemicals, and if you filed form Rs. Sheepishly, you tell your environmental attorney that you did use the chemicals and that you have not submitted the data for any year, including 1997. You ask your attorney if you should simply contact REWDI and offer to pay money if REWDI will agree not to sue your company. Your environmental attorney smiles and says that he has a better idea. He proposes filing all of the past due form Rs within sixty days of July 17, 1997, the day you received the notice of intent to sue, and then telling REWDI that your company cannot be sued under the citizen suit provision of EPCRA for failing to submit form Rs. You are confused and ask for an explanation; after all, your company did not submit the form Rs as required by law. How can you possibly avoid being sued? Your company is guilty.

Your attorney agrees that it is undisputed that at the time IPI received the notice of intent to sue, IPI had not filed the required form Rs. However, if you file all past due form Rs before REWDI can file its complaint alleging that IPI failed to submit form Rs, REWDI's complaint against your company will be dismissed. According to your attorney, this is the law, not just wishful thinking.

Your attorney explains that EPCRA authorizes citizen suits for "failure to . . . [c]omplete and submit [form Rs] under section 11023(a) of this title." 42 U.S.C. § 11046(a)(1)(A)(iv). Although § 11023(a) requires submission of the form Rs by a certain date, the citizen suit provision emphasizes the completing and submitting of the forms. This language suggests that only the failure to complete and submit the required forms can provide the basis for a citizen suit. While among the provisions of 11023(a) is the requirement that the form be filed by July 1 for the preceding calendar year, the citizen suit provision speaks only of the completion and filing of the form. The form is completed and filed even when it is not timely filed. Therefore, your attorney explains, if your company can file all of the past due form Rs within sixty days of receiving the notice of intent to sue, REWDI will be precluded from suing you under the citizen suit provision.

Your attorney explains that in Atlantic States Legal Found. V. United Musical Instruments, 61 F.3d 473 (6th Cir., 1995), the court dismissed a lawsuit brought against a company that had neglected to file the appropriate form Rs. The court dismissed the claim since the defendant had managed to file the appropriate form Rs before the lawsuit was filed in court. In dismissing the lawsuit, the court in the Atlantic States Legal Found. V. United Musical Instruments concluded that if Congress had intended to authorize citizen suits for any violation of § 11023(a) -- such as a late submission -- it could easily have done so. Instead, Congress clearly gave U.S. EPA and citizen plaintiffs differing authority to enforce EPCRA. Congress authorized U.S. EPA to bring actions to assess and collect "any civil penalty for which a person is liable." 42 U.S.C. § 11045(c)(4). Rather than give citizen plaintiffs this same broad power, however, Congress limited citizen suits by emphasizing that it is the failure to submit the requisite forms that gives rise to a citizen action. Congress did not authorize citizen suits for other violations of § 11023. This difference between the grants of authority to U.S. EPA and citizen plaintiffs is significant because it indicates a congressional intent to limit citizen suits to ongoing violations and to give U.S. EPA sole authority to seek penalties for historical violations.

Your attorney advises you to prepare and submit the form Rs immediately as required by EPCRA. If your company can complete and submit all past due form Rs within sixty days of July 17, 1997, the date you received the notice of intent to sue, REWDI will be precluded from suing your company. You thank your attorney, and with the assistance of an environmental consultant, you file all past due form Rs within sixty days of receiving REWDI's notice of intent to sue. You send REWDI a copy of your form Rs that were submitted along with a copy of the court's decision in Atlantic States Legal Found. V. United Musical Instruments, 61 F.3d 473 (6th Cir., 1995). REWDI, whose objective was to bring your company into compliance, agrees that upon submission of the form Rs, a citizen suit is not proper under the law. You are thrilled, and relieved.

I always advise clients who are threatened with a citizen suit to seek legal advice immediately. Congress provided certain limitations on citizen suits, including time to achieve compliance and preclude a lawsuit in some cases. In this case, the company was able to avoid a citizen suit by simply filing the appropriate form Rs. In this example, U.S. EPA could still file suit against the company. However, after a company achieves full compliance, U.S. EPA often will focus its legal resources on companies that refuse to comply with the law, rather than those that were simply unaware of the law, and fully comply with the law when told what the law requires.

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