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Toxic Substances Control Act enforcement and citizen suits, P.2

In our last post, we noted that ordinary citizens can help enforce the Toxic Substances Control Act, at least with respect to certain aspects of the law. One major limitation on citizen suits, though, is that the law does not allow citizens to file a civil action if the EPA has already filed and is diligently prosecuting a violation of the law.

Even when the EPA is already on top of a violation, though, citizens do have the ability to intervene in the case. In order to file a lawsuit against an entity found to be in violation of the Toxic Substances Control Act, notice must first be given to the EPA and the facility which is allegedly violating the law. Other conditions and requirements apply as well, and it is important for plaintiffs to be aware of these when pursuing a citizen suit. 

One of the issues that can come up in citizen suits under the Toxic Substances Control Act is standing, which refers to the citizen’s basis for pursuing the lawsuit, specifically whether the plaintiff is sufficiently impacted by the alleged violations to have the right to be involved in the case. Defendants in environmental litigation can sometimes successfully have a citizen suit dismissed for lack of standing.

Another common basis on which a citizen suit may be dismissed is failure to fulfill statutory prerequisites for filing a claim, such as providing proper notice and proving lack of diligent prosecution by the EPA. Another possible issue is that of mootness. In cases where the alleged violation is not ongoing, a defendant may be able to have a citizen suit dismissed on the grounds that it is not a continuing violation.

Navigating the procedural and substantive legal issues in a citizen suit is not always an easy matter, and having the guidance and advocacy of an experienced attorney is indispensible to making a strong showing in court. 

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