TSCA §§20 and 21-Citizen Suits and Petitions

• Author: Carolyne R. Hathaway/William K. Rawson/Ann Claassen/Julia A. Hatcher
• Pages: 149-153

Page 149

Chapter XVI:

TSCA §§20 and 21—Citizen Suits and Petitions

A. Citizens’ Civil Actions

Section 20 of TSCA authorizes citizens’ suits in two

circumstances: TSCA §20(a)(1)1 authorizes citizens

to bring civil enforcement actions in federal district

court2 against any person (including the United

States and other governmental authorities subject

to TSCA) whom they allege to be in violation of

TSCA, rules promulgated u nder TSCA §§4, 5, 6,

or Title II or IV, or orders issued under §5 or Title

II or IV. TSCA §20(a)(2)3 permits any person to

bring a civil act ion against EPA in district court4

to compel the performance of any “nondiscretion-

ary” act or duty under TSC A. Like other environ-

mental statute citizen suit provisions, §20 contains

a 60-d ay notice requirement,5 a bar in the case of

prior federal enforcement,6 a provision granting

1. 15 U.S.C. §2619(a)(1), ELR S. TSCA §20(a)(1).

2. Actions may be brought in the district in which the alleged

violation occurred, the defendant resides, or the defendant’s

principal place of business is located. Id. §2619(a), ELR S.

TSCA §20(a).

3. Id. §2619(a)(2), ELR S. TSCA §20(a)(2).

4. Actions may be brought in the U.S. Court for the District of

Columbia or in the applicable district court where plainti

resides. Id. §2619(a), ELR S. TSCA §20(a).

5. Plainti must provide defendant and EPA 60 days’ notice of

a violation before commencing a §20(a)(1) action, and must

provide EPA 60 days’ notice of a performance failure before

commencing a §20(a)(2) action (reduced to 10 days’ notice in

the case of a §7 action). 15 U.S.C. §2619(b)(1)(a), (2), ELR

S. TSCA §20(b)(1)(a), (2). See, e.g., Basel Action Network v.

Maritime Admin., 370 F. Supp. 2d. 57 (D.D.C. 2005) (dismiss-

ing an amended complaint brought under §20(a)(2) because

plainti’s initial complaint attempted to bring TSCA claims

under the APA to avoid the 60-day notice period. APA review

was found to be precluded when a citizen suit remedy is available,

making it an unsuccessful “disguise”). Procedures governing the

giving of notice are located at 40 C.F.R. §702.60-.62.

6. No action is permitted if EPA or the Attorney General have

already commenced and are diligently prosecuting duplicative

compliance measures (a §16(a)(2) proceeding or a civil action,

respectively). A person who provides notice before the com-

mencement of such a proceeding or action may intervene as a

matter of right. 15 U.S.C. §2619(b)(1)(B), ELR S. TSCA

§20(b)(1)(B).

the EPA the right of intervention,7 and a savings

clause.8 e provision also permits cour ts to award

costs of suit and rea sonable fees for attorneys and

expert witnesses9 and to consolidate two or more

§20 actions on defendant’s request.10

Liability under §20(a)(1) extends to any per-

son who violates TSC A or its ru les and orders.11 A

“person” is understood to be any regulated party,

including governmental entities to t he extent t hey

are subject to TSCA.12 Citizens may not recover

statutory penalties under §20 and are limited to

injunctive relief.13 As a result, courts have held that

only ongoing and future violations of TSCA may be

subject to a §20 suit.14 Remedies for past violations

are not available, and courts have been unwilling

to re-characterize improperly completed work a s

“incomplete” and therefore ongoing.15 Courts have

7. Id. §2619(c)(1), ELR S. TSCA §20(c)(1).

8. Section 20 specically does not preempt any other statutory or

common-law actions. Id. §2619(c)(3), ELR S. TSCA §20(c)

(3).

9. Id. §2619(c)(2), ELR S. TSCA §20(c)(2).

10. Id. §2619(d), ELR S. TSCA §20(d).

11. An example of an action under TSCA §20(a)(1) is: Chemical

Weapons Working Group, Inc. v. U.S. Department of the Army,

No. 2:96-CV-425C, 2000 WL 1258380, 30 ELR 20519 (D.

Utah Apr. 16, 2000).

12. 15 U.S.C. §2619(a)(1), ELR S. TSCA §20(a)(1).

13. See, e.g., United States v. Holloway Oil, No. 88-59-CIV-J-14,

1988 WL 148608 (M.D. Fla. July 26, 1988) (court ordered an

injunction against defendant to cease storing PCB-contaminated

oil at its facility in ongoing violation of TSCA regulations at 40

C.F.R. §761.65); Sipes ex rel. Slaughter v. Russell, 89 F. Supp.

2d 1199, 1205 (D. Kan. 2000) (“Section 2169 only provides

injunctive relief for private plaintis . . . not compensatory dam-

ages.”); Welch v. Schneider Nat’l Bulk Carriers, 676 F. Supp.

571 (D.N.J. 1987) (denying damages for personal injuries suf-

fered from an explosion that occurred while using an unmarked

cleaning solvent, citing plain language of §20).

14. See, e.g.,Moreco Energy, Inc. v. Penberthy-Houdaille, 682 F. Supp.

931, 18 ELR 21071 (N.D. Ill. 1987) (Motor oil reprocessors’

§20(a)(1) action alleging that oil company wrongfully delivered

contaminated oil dismissed for failure to state cause of action

because complaint did not allege an “ongoing violation.”).

15. Mair v. City of Albany, 303 F. Supp. 2d 237 (N.D.N.Y. 2004)

(dismissing a complaint requesting that a builder remedy homes