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Old 05-29-2003, 10:18 AM   #1
Timber Loftis
40th Level Warrior
 

Join Date: July 11, 2002
Location: Chicago, IL
Posts: 11,916
I'm writing a letter to a client today explaining why they must spend about 100+ man hours and 100+ attorney hours over the next month dealing with Emergency Planning and Community Right-to-Know issues. Now, if this medium-sized company can make that investment, the government should at least be enacting the Emergency Plans all this effort is done for.

Today's BNA Reporter:
___________________________________________
Emergency Planning
Lawsuit Over Alleged Failure by Illinois
To Develop Response Plan Allowed to Proceed

A federal court in Illinois has allowed a group of citizens and local environmental advocates to move forward with a lawsuit charging that the state failed to make public Cook County's plan for response in the event of an emergency involving a hazardous substance release (Trepanier v. Ryan, N.D. Ill., No. 00 C 2393, 5/20/03).
The citizens and the Chicago Greens, a local chapter of the Green Party USA, sued former Illinois Gov. George Ryan (R) and two officials with Illinois' State Emergency Response Commission (SERC) for failing to develop a response plan for Cook County, which is required under the Emergency Planning and Community Right-to-Know Act. The complaint also claimed the state did not make any information regarding a response plan available to the public.

The state, in the latest motion, asked the court to dismiss the complaint, saying the defendants did not state a claim as required for the case to move forward.

In the May 20 decision, however, the U.S. District Court for the Northern District of Illinois rejected the state's motion to dismiss the complaint regarding the response plan and allowed the case to proceed.

Claim Stated

The plaintiffs said they tried to obtain from the SERC the emergency response plan for Cook County, and were repeatedly denied access to information regarding the plan, according to the decision. In addition, the defendants failed to provide a mechanism to make information publicly available, which the state is required to do under EPCRA, the court said.
Those allegations are sufficient to satisfy the standards of federal notice pleading and state a claim, the court said.

The Emergency Planning and Community Right-to-Know Act requires that each state have a state commission and local emergency planning committees (LEPCs) to inform the public and certain emergency responders about the presence of toxic chemicals and to provide for the emergency response in the event of health-threatening releases.

LEPCs, under the law, were required to prepare emergency response plans and submit them to their respective state commissions. Information regarding those plans must be made public.

In the complaint, the plaintiffs claim the state commission is responsible for the local committee's failure to create a response plan for Cook County because the SERC failed to adequately supervise the local committee to ensure that a plan was established, according to the decision.


Court Order Sought

The complaint seeks an order from the court for the Illinois government to develop a response plan for Cook County.
The judge ruled on this point, however, that "it is not evident ... that the plaintiffs have standing to bring a citizen action under EPCRA to force the creation of an emergency plan."

The judge asked the parties to submit additional briefs on whether the plaintiffs have standing to seek an injunction ordering the development of a response plan.

The court further ruled that it would be redundant to move forward with the complaint against both the governor and the SERC officials, and dismissed Ryan from the complaint. Rod Blagojevich (D) is the current governor of Illinois. He is not a defendant in the suit.

By Meredith Preston

Copyright © 2003 by The Bureau of National Affairs, Inc., Washington D.C.
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