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Citizens for a Better Environment v. Steel Co.

July 23, 1996






Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 95 C 4534 George M. Marovich, Judge.

Before ESCHBACH, ROVNER, and EVANS, Circuit Judges.

EVANS, Circuit Judge.

ARGUED MAY 29, 1996


In this case we examine for the first time the citizen enforcement provisions of the Emergency Planning and Community Right-to-Know Act of 1986 (EPCRA). EPCRA was passed into law as Title III of the Superfund Amendments and Reauthorization Act of 1986 (SARA), and is codified at 42 U.S.C. sec. 11001 et seq. While awareness of SARA is quite high, EPCRA remains one of the lesser-known environmental statutes. Only about 20 federal cases have been decided under EPCRA since its enactment, and only one court of appeals has ruled on the question before us in this case. See Atlantic States Legal Foundation, Inc. v. United Musical Instruments U.S.A., Inc., 61 F.3d 473 (6th Cir. 1995). Many industrial companies subject to the Act remained unaware of its existence long after it went into effect. GAO, Report to Congress, Toxic Chemicals -- EPA's Toxic Release Inventory is Useful but Can Be Improved (June 1991). Some discussion of the Act's history and goals may therefore be in order to put this case in context.

In 1984, over 2,000 people were killed and countless injured when a Union Carbide facility in Bhopal, India, unexpectedly released the toxin methyl isocyanide into the environment. This tragedy, combined with smaller incidents closer to home, focused increased attention on the presence of toxic chemicals in our communities, and on the lack of reliable, accessible information regarding the location and use of these chemicals. EPCRA was passed primarily as a means of filling this informational void and improving emergency response capabilities.

The information compiled under the statute has also been put to many creative uses and led to some unexpected results. For example, releases of toxic chemicals have been reduced nearly 43 percent since 1988, the baseline year against which annual reports are measured. EPA, Environmental News 1 (Mar. 27, 1995). Some observers have found "reason to believe that the public release of information about discharge of toxic chemicals has by itself spurred competition to reduce releases, quite independently of government regulation." Richard H. Pildes and Cass R. Sunstein, Reinventing the Regulatory State, 62 U. Chi. L. Rev. 1 (1995).

As the name of the statute suggests, EPCRA has two main purposes. The first, the "Right-to-Know" component, aims to compile accurate, reliable information on the presence and release of toxic chemicals and to make that information available at a reasonably localized level. In furtherance of this goal, EPCRA sets up a reporting scheme whereby users of specified toxic chemicals must inventory the chemicals used in their facilities on an annual basis. Chemical inventory reporting requirements are found at EPCRA sec. 312 (42 U.S.C. sec. 11022). Facilities releasing specified chemicals into the environment must report these releases annually as well, and detailed requirements for reporting chemical releases are set out at EPCRA sec. 313 (42 U.S.C. sec. 11023). The case before us arose from an attempt to enforce the reporting requirements of secs. 312 and 313, and the text of those sections is set out at length later in our opinion.

EPCRA is concerned not just with gathering information, but with making that information available in a comprehensible form. In furtherance of this goal, the EPA is charged with establishing and maintaining a publicly accessible computer database using information reported under EPCRA and otherwise disseminating reported information to the public. State and local organizations must also make information reported under EPCRA readily available to the public. (For those who are interested, the complete EPA Toxic Release Inventory database is available online through the National Library of Medicine's TOXNET system.) Information gathered under EPCRA may be used by the public to identify environmental concerns and to encourage industrial users of toxic chemicals to reduce the risks associated with their use. Industrial users can use the information to identify opportunities for savings. Government organizations at all levels can use the data to "compare facilities or geographic areas, to identify hotspots, to evaluate existing environmental programs, to more effectively set regulatory priorities, . . . to track pollution control and waste reduction progress . . . [and] identify potential environmental justice concerns." Office of Pollution Prevention & Toxics, EPA, Public Data Release, 1993 Toxic Release Inventory (March 1995), p. 4.

The second primary purpose of the Act, the "Emergency Planning" component, is to use the reported information to formulate emergency response plans, again at the local level, in order to limit damage resulting from the accidental release of toxic chemicals. The Act calls for the establishment in each state of a State Emergency Response Commission. These commissions, referred to as SERCs, must appoint and supervise Local Emergency Planning Committees. The LEPCs, as they are called, must consist of representatives from community organizations, regulated industries, state and local government, fire departments, the media, and other groups. Each LEPC is charged with formulating emergency response plans for its community, based in part on information reported under EPCRA.

While the statute mandates the creation of state and local commissions and requires those organizations to take certain actions, the only burdens EPCRA places on industry are the reporting requirements. Because most of the required information must be compiled and reported for other purposes, the cost of compliance with EPCRA's reporting requirements is low. EPCRA sec. 313, for example, which requires reporting of releases of toxic chemicals, explicitly states that "[n]othing in this section requires the monitoring or measurement of the quantities, concentration, or frequency of any toxic chemical released into the environment beyond that monitoring and measurement required under other provisions of law or regulation." 42 U.S.C. sec. 11023(g)(2). Likewise, the reporting requirements of EPCRA sec. 312 only apply to facilities already subject to certain reporting requirements of the Occupational Safety and Health Act. 42 U.S.C. sec. 11022(a). Because EPCRA requires little additional effort by regulated facilities, the estimated annual fixed unit costs of sec. 312 compliance total $326.09, and the estimated variable unit costs range from $43.50 to $146.81. U.S. EPA EPCRA Section 312 Penalty Policy (June 13, 1990), at 29.

In drafting EPCRA, Congress provided a full range of enforcement options. The EPA may seek redress of EPCRA violations through civil or administrative remedies, or may seek criminal penalties. In addition, the authority to bring civil actions seeking declaratory and injunctive relief, as well as civil penalties for specified violations of the Act, is conferred on SERCs, LEPCs, and state and local governments.

Most relevant to this case, EPCRA grants enforcement authority to ordinary citizens, who may sue in the federal district courts after giving 60 days notice to the alleged violator, the EPA, and state authorities. EPCRA's citizen ...

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