The opinion of the court was delivered by: Skretny, District Judge.
Now before this Court is the motion of defendant Whiting
Roll-Up Door Manufacturing Corp. ("defendant") to dismiss the
Complaint for lack of subject matter jurisdiction and for
failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(1) and
12(b)(6), respectively. Alternatively, defendant moves for
summary judgment pursuant to Fed.R.Civ.P. 56.
This lawsuit is a citizen's enforcement action arising under
the Emergency Planning and Community Right-To-Know Act
("EPCRA"), 42 U.S.C. § 11001 et seq.*fn1 In Counts One
through Three of the Complaint, plaintiff Atlantic States Legal
Foundation, Inc. ("plaintiff") alleges that the defendant has
failed to submit timely certain hazardous chemical information
to proper state and federal authorities pursuant to EPCRA's
reporting provisions, §§ 311, 312 and 313, 42 U.S.C. § 11021,
11022, and 11023 ("§ 311" "§ 312" "§ 313"), respectively, for
the 1987-1989 reporting years. With regard to §§ 311 and 312
compliance, the plaintiff concedes that as of the date of suit
the defendant has filed all required information. However, the
plaintiff maintains that EPCRA authorizes a citizen suit, such
as this, to recover civil penalties for wholly past violations,
that is, where the defendant has "come into" compliance with
EPCRA's reporting provisions before the plaintiff commenced
suit. With respect to § 313, the plaintiff contends that it has
a good faith belief, as of the date it filed this lawsuit, that
the defendant continues to be a nonreporter under that
Plaintiff seeks the following relief: 1) a declaratory
judgment regarding defendant's liability for failure to meet
the reporting requirements under EPCRA; 2) pursuant to EPCRA
§ 325(c), 42 U.S.C. § 11045 ("§ 325"), civil penalties for
violations of §§ 311-313 for the 1987-1989 reporting years; 3)
permanent injunctive relief prohibiting further EPCRA
violations; and 4) attorneys' fees and costs.
Moving to dismiss this lawsuit, the defendant argues that
EPCRA does not afford citizens, such as plaintiff, a right to
sue for wholly past violations. Since, according to the
defendant, the evidence demonstrates defendant's compliance
with all of EPCRA's reporting provisions before plaintiff filed
this lawsuit, the defendant argues that this Court lacks
jurisdiction of plaintiff's lawsuit. Because the thrust of the
defendant's motion is that this Court lacks authority under
EPCRA to hear plaintiff's claim, this Court shall treat the
defendant's motion as one pursuant to Fed.R.Civ.P. 12(b)(1).
In support of its motion, the defendant submits a legal
memorandum ("d. memo"); a reply memorandum, the affidavit of
Paul Meosky, Esq. ("Meosky"); the affidavit of Michael Whiting
with exhibits ("Whiting") and the affidavit of Jerrold S.
In opposition to the defendant's motion, the plaintiff
submits a legal memorandum ("p. memo."); the affidavit of
Charles Tebbutt, Esq. ("Tebbutt"); and the affidavit of James
Keane ("Keane"). Also, on behalf of the plaintiff, the Natural
Resources Defense Counsel, Environmental Action, Inc. and the
Public Interest Research Group of New Jersey, Inc. have, with
permission of this Court, submitted an Amicus Curiae brief.
In ruling on the defendant's motion, this Court has
considered all these submissions and oral argument held on
March 19, 1991.
Conclusion: For the reasons set forth below, this Court
denies the defendant's motion to dismiss the Complaint.
A consultation of the entirety of EPCRA's provisions reveals
that the statute has two central objectives: public access to
centralized information, at a reasonably localized level,
concerning hazardous chemicals used, produced or stored in the
community and the use of this information to formulate and
administer local emergency response plans in case of a
hazardous chemical release.
To achieve these objectives, EPCRA contains three reporting
provisions, §§ 311-313, which require owners or operators of a
facility, as that term is defined at § 329(4),
42 U.S.C. § 11049(4), to submit certain specified information with respect
to hazardous chemicals maintained at threshold levels to
responsible state, local and, in the
case of § 313, federal authorities. Additionally, EPCRA §§
301-305 provide for the formation of state and local emergency
response commissions and planning committees designed to
receive and collect this reported information, make the
information available to the public, and develop emergency
response plans should a chemical release occur.
In this lawsuit, the plaintiff alleges that the defendant has
failed to meet EPCRA's reporting requirements. This Court will
now address those requirements in greater detail.
A. EPCRA's Reporting Requirements
As noted above, EPCRA contains three provisions, §§ 311-313,
which require an owner or operator of a facility to submit
information concerning hazardous chemicals to state, local and
sometimes federal officials.
§ 311(a)(1) provides that an owner or operator of any
facility which is required to prepare a Material Safety Data
Sheet ("MSDS") for a hazardous chemical under the Occupational
Safety and Health Act ("OSHA") ". . . shall submit . . ." a
MSDS for each chemical to the State emergency response
commission, a local emergency planning committee and the local
fire department. Alternatively, instead of filing a MSDS, an
owner or operator may file a list of chemicals ("List") for
which OSHA requires the filing of a MSDS, along with other
information required on the MSDS. With respect to an initial
compliance date, § 311(d)(1) states:
(1) The initial material safety data sheet or list
required under this section with respect to a
hazardous chemical shall be provided before the
later of —
(A) 12 months after October 17, 1986, or
(B) 3 months after the owner or operator of a
facility is required to prepare or have
available a material safety data sheet for the
chemical under the Occupational Safety and
Health Act of 1970 . . . and regulations
promulgated under that Act.
Although § 311 does not require annual reporting, § 311(d)(2)
requires a facility to update its MSDS or List to reflect ". .
. significant new information concerning an aspect of a
hazardous chemical. . . ."
§ 312 provides that an owner or operator of a facility
required by OSHA to prepare or have available a MSDS ". . .
shall prepare and submit . . ." an emergency and hazardous
chemical inventory form ("Inventory Form") to the State
emergency response commission, a local emergency planning
committee and the local fire department. § 312(c) verifies that
a hazardous chemical subject to § 312's reporting requirement
is any hazardous chemical for which § 311 also requires the
filing of a MSDS or List. § 312(a)(2) permits a facility to
file an inventory form containing either Tier I information or
Tier II information, as those terms are defined in § 312(d).
With respect to an initial compliance date, § 312(a)(2)
provides that the initial Tier I or Tier II Inventory Form ". .
. shall be submitted on or before March 1, 1988, and annually
thereafter on March 1, and shall contain data with respect to
the preceding calendar year."
§ 313 requires completion of a Toxic Chemical Release
Inventory Form, commonly known as the EPA Form R ("Form R"),
for those chemicals which are included on the "List of Section
313 Chemicals," contained at 40 C.F.R. § 372.65. Facilities
which release certain toxic chemicals must report total
emissions of these toxic chemicals to the United States
Environmental Protection Agency ("EPA") and to State officials.
With respect to an initial compliance date, § 313(a) provides
that the initial Form R ". . . shall be submitted to the
Administrator and to an official or officials of the States
designated by the Governor on or before July 1, 1988, and
annually thereafter on July 1 and shall contain data reflecting
releases during the preceding calendar year."
B. EPCRA Citizen Suit Enforcement & Civil Penalty Provisions
(a) Authority to bring civil actions
Except as provided in subsection (e) of this
section, any person may commence a civil action
on his own ...