ELR Citation: ELR 21490
No(s). CIV-90-1109S (W.D.N.Y. Sep 3, 1991)

The court holds that the Emergency Planning and Community Right-to-Know Act (EPCRA) authorizes citizen suits for reporting violations that are not continuing at the time the lawsuit is filed. The plain meaning of EPCRA's reporting, enforcement, and civil penalty provisions compel this conclusion. To hold otherwise would render gratuitous the compliance dates for initial submissions that Congress placed in EPCRA's reporting provisions. EPCRA's underlying purpose, as documented by its legislative history, supports the conclusion that citizens may sue for past violations. If facilities delay reporting beyond EPCRA's compliance dates, even if they later file the proper reports, the public will have less information and emergency response plans will be based on incomplete information. The court holds that the U.S. Supreme Court's decision in Gwaltney of Smithfield v. Chesapeake Bay Foundation, Inc., 18 ELR 20142, on the citizen suit provision of the Federal Water Pollution Control Act (FWPCA) is distinguishable from the present case. The natural reading of the EPCRA provision at least would seem to include past acts of noncompliance, while a natural reading of the FWPCA provision indicates that the statute contemplates only prospective relief. Further, the fact that Congress amended the Clean Air Act citizen suit provision to allow suits for past violations while simultaneously leaving the Clean Air Act's notice provision unchanged undercuts the importance of the Supreme Court's discussion in Gwaltney that Congress would not have placed such a notice provision in a statute where it also intended to authorize citizen suits for past violations.

Counsel for Plaintiff
Charles N. Tebbutt
Allen Lippes & Shonn
1260 Delaware Ave., Buffalo NY 14209
(716) 884-4800

Counsel for Defendant
Jerrold S. Brown
1800 One MNT Plaza, Buffalo NY 14203
(716) 856-4000