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ATLANTIC STATES v. WHITING ROLL-UP DOOR

September 3, 1991

ATLANTIC STATES LEGAL FOUNDATION, INC., PLAINTIFF,
v.
WHITING ROLL-UP DOOR MANUFACTURING CORP., DEFENDANT.



The opinion of the court was delivered by: Skretny, District Judge.

ORDER

INTRODUCTION

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 provision.

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. Brown, Esq.

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.

EPCRA GENERALLY

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

With respect to a citizen's right to sue an owner or operator for failure to meet EPCRA's reporting requirements, § 326, 42 U.S.C. § 11046 ("§ 326"), contains EPCRA's citizen enforcement provision. § 326 provides:

(a) Authority to bring civil actions

(1) Citizen suits

  Except as provided in subsection (e) of this
    section, any person may commence a civil action
    on his own ...

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