ELR Citation: ELR 21071
No(s). 86 C 20153 (N.D. Ill. Jul 20, 1987)

The court holds that citizen suits under the Toxic Substances Control Act (TSCA) must assert ongoing violations. The court first holds that although the disputed polychlorinated biphenyl (PCB) contaminated oil is located in another judicial district, it still has jurisdiction over whether or not the oil's presence constitutes an ongoing TSCA violation. The court declines to determine the merits of defendants' allegation that this action is disallowed since EPA is already prosecuting a proceeding, because it would require the court's consideration of facts outside of the pleadings. The court then rules that a citizen suit under TSCA §20(a)(1) must assert an ongoing violation. Although TSCA suits may usually be limited to injunctive relief, civil penalties may be appropriate in situations where violators can repeat unlawful acts and evade judicial review. The court holds that defendant generator's delivery of and refusal to remove the PCB-contaminated oil is not an ongoing violation of TSCA.

[A related opinion from this litigation is published at 18 ELR 21072.]

Counsel for Plaintiff
Kevin T. McClain
Immel, Zelle, Ogren, McClain & Germeraad
118 S. 6th St., Springfield IL 62703
(217) 789-1414

Counsel for Defendant
Stuart R. Lefstein
Katz, McAndrews, Durkee, Balch & Lefstein
200 Plaza Office Bldg., 1705 Second Ave., Rock Island IL 61204-0066
(309) 788-5661