United States District Court, Western District of New York
September 3, 1991
ATLANTIC STATES LEGAL FOUNDATION, INC., PLAINTIFF,
WHITING ROLL-UP DOOR MANUFACTURING CORP., DEFENDANT.
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
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 behalf against the following:
(A) An owner or operator of a facility for
failure to do any of the following:
(i) Submit a follow-up emergency notice under
section 11004(c) of this title.
(ii) Submit a material safety data sheet or a
list under section 11021(a) of this title.
(iii) Complete and submit an inventory form
under section 11022(a) of this title
containing tier I information as described in
section 11022(d)(1) of this title unless such
requirement does not apply by reason of the
second sentence of section 11022(a)(2) of this
(iv) Complete and submit a toxic chemical
release form under section 11023(a) of this
title. . . .
With respect to violations of EPCRA's reporting requirements
§ 326 must be read in conjunction with § 325, 42 U.S.C. § 11045
("§ 325"), EPCRA's civil penalty provision. § 325(c) provides:
(1) Any person (other than a governmental entity)
who violates any requirement of section 11022 or
11023 of this title, shall be liable to the
United States for a civil penalty in an amount
not to exceed $25,000 for each such violation.
(2) Any person (other than a governmental entity)
who violates any requirement of section 11021 or
11043(b) of this title, and any person who fails
to furnish to the Administrator information
required under section 11042(a)(2) of this title
shall be liable to the United States for a civil
penalty in an amount not to exceed $10,000 for
each such violation.
(3) Each day a violation described in paragraph
(1) or (2) continues shall, for purposes of this
subsection, constitute a separate violation.
(4) The Administrator may assess any civil penalty
for which a person is liable under this
subsection by administrative order or may bring
an action to assess and collect the penalty in
the United States district court for the
district in which the person from whom the
penalty is sought resides or in which such
person's principal place of business is located.
With these provisions in mind, this Court now addresses the
facts of this case.
Plaintiff is a not-for-profit citizens environmental
organization. (Complaint, ¶ 6; p. memo., p. 2). Defendant is an
industrial facility located in Akron, New York engaged in the
business of manufacturing roll-up and hinged doors. (Whiting, ¶
On May 25, 1990, defendant received a Notice Of Intent To Sue
letter ("Notice Letter") dated May 15, 1990 from Charles
Tebbutt, Esq. ("Tebbutt"), counsel for the plaintiff. The
Notice Letter stated, in accordance with § 326(d), that upon
expiration of sixty (60) days from the date of the letter, ". .
. the Atlantic States Legal Foundation will file a civil action
in federal district court . . ." pursuant to the citizen suit
provision contained in § 326(a). The Notice Letter identified
alleged violations of EPCRA's reporting provisions, §§ 311, 312
and 313, as the reason for plaintiff's imminent suit.
Specifically, the Notice Letter alleged that the defendant had
. . failed to accurately complete and submit:
A. Material Safety Data Sheets by October 17, 1987
pursuant to Section 311 of EPCRA, 42 U.S.C. § 11021;
B. Emergency and Hazardous Chemical Inventory
Forms by March 1, 1988, and annually thereafter,
pursuant to Section 312 of EPCRA, 42 U.S.C. § 11022;
C. Toxic Chemical Release Forms (EPA Form Rs) by
July 1, 1988, and annually
thereafter, pursuant to Section 313 of EPCRA,
42 U.S.C. § 11023.
(Whiting, exh. A).
On July 16, 1990, Michael Whiting, a Vice-President of the
defendant, mailed the following information for the 1989
reporting year to The New York State Emergency Response
Commission and the Erie County Department of Emergency
Services, hand delivering a copy to the Akron Fire Department:
1) a List of hazardous chemicals present in defendant's plant
pursuant to § 311 (Whiting, ¶ 4(a) and exh. B thereto); and 2)
Tier II Inventory Forms pursuant to § 312. (Whiting, ¶ 4(b) and
exh. C thereto).
On July 20, 1990, Michael Whiting mailed to The New York
State Emergency Response Commission and the Erie county
Department of Emergency Services, hand delivering a copy to the
Akron Fire Department, the same information for the 1987 and
1988 reporting years. (Whiting, ¶ 5 and exhs. D-G thereto).
On August 21, 1990, Michael Whiting mailed to The New York
State Emergency Response Commission and the Erie county
Department of Emergency Services, hand delivering a copy to the
Akron Fire Department, a revised § 311 list and Tier Two
Inventory Forms for the 1987-1989 reporting years. (Whiting, ¶
6 and exh. H thereto).
On June 28, 1990, Michael Whiting mailed a Form R for the
1989 reporting year to the EPA EPCRA Reporting Center and the
New York State Emergency Response Commission. (Whiting, ¶ 7 and
exh. I thereto).
On July 25, 1990, Michael Whiting mailed a revised Form R for
1989 and Form Rs for the 1987 and 1988 reporting years, to the
same entities. (Whiting, ¶ 8 and exhs. J-L thereto).
By letter dated August 22, 1990, Michael Whiting transmitted
copies of the above referenced §§ 311, 312 and 313 filings to
Tebbutt. (Whiting, ¶ 9 and exh. M thereto).
On October 30, 1990, plaintiff commenced this lawsuit.
A. EPCRA's Authorization Of Citizen Suits For Past Violations
The plaintiff does not dispute that the defendant submitted
§ 311 Lists and § 312 Inventory Forms for the 1987-1989
reporting years before plaintiff filed this lawsuit.*fn2
also undisputed that prior to receiving plaintiff's Notice
Letter, the defendant failed to file the required information
under §§ 311, 312 and 313. (Whiting ¶¶ 4-8; Tebbutt, ¶ 4).
Maintaining that EPCRA authorizes citizen suits for wholly
past reporting violations, that is, for late filed reports
which have been filed by the time of suit, plaintiff seeks,
inter alia, civil penalties for the defendant's failure to
report according to the initial compliance dates contained in
Defendant moves for dismissal based on this Court's lack of
subject matter jurisdiction arguing that the Complaint alleges
no continuing violations of EPCRA's reporting provisions. The
defendant contends that EPCRA does not afford citizens the
right to sue for failure to report under §§ 311-313 where the
defendant has filed the required reports before the lawsuit is
Thus this Court must decide this narrow issue: Does EPCRA
authorize citizen suits for reporting violations which are not
continuing at the time the lawsuit is filed. This is an issue
of first impression. Having considered all arguments, based on
the statute's plain language and the legislation's underlying
purpose, which is well documented by its legislative history,
this Court must conclude in the affirmative.
Absent ". . . a clearly expressed legislative intention to
the contrary," this Court must conclusively rely on the words
of the statute." Consumer Product Safety Commission v. GTE
Sylvania, Inc., 447 U.S. 102, 108, 100 S.Ct. 2051, 2056, 64
L.Ed.2d 766 (1980). Accordingly, since this Court locates no
legislative intention to the contrary, it initially examines
the plain language of EPCRA.
The plain language of EPCRA's reporting, enforcement and
civil penalty provisions, when logically viewed together,
compel a conclusion that EPCRA confers federal jurisdiction
over citizen lawsuits for past violations.
As noted above, § 326(a)(1) authorizes citizen suits against
an owner or operator for ". . . failure . . ." to, inter alia,
submit an MSDS or List pursuant to § 311; complete and submit
an Inventory Form pursuant to § 312; or complete and submit a
Form R pursuant to § 313. Sections 325(c)(1) and (2) authorize
citizen suit civil penalties against "[a]ny person (other than
a government entity) who violates any requirement . . ." of §§
311, 312 or 313. As also noted above, EPCRA's reporting
provisions establish mandatory dates for initial
It logically follows that these mandatory compliance dates
must be considered to constitute §§ 311-313 "requirements" for
purposes of the citizen suit civil penalty provision under §
325, as Congress' choice of the word "shall" in §§ 311-313
In this case, it is undisputed that the defendant failed to
report information pursuant to §§ 311-313 by the compliance
dates therein. The defendant argues that as of the date
plaintiff commenced this lawsuit, there was no ". . . failure
to do the submissions required by the statute." (d. memo, p.
7). Defendant's interpretation of the statute is far too
restrictive, however, for according to the statute's plain
language, the compliance dates constitute requirements of the
reporting provisions; the unequivocal language of §§ 311-313
requires initial reporting on dates certain. Thus, this Court
cannot reconcile the defendant's interpretation with EPCRA's
civil penalty provision which authorizes civil penalties
against "[a]ny person . . . who violates any requirement . . ."
of EPCRA's reporting provisions. § 325(c)(1) & (2).
Moreover, this Court's acceptance of the defendant's
interpretation would render gratuitous the compliance dates for
initial submissions which Congress placed in EPCRA's reporting
EPCRA's underlying purpose, well documented by its
legislative history, supports the conclusion that citizens may
sue for violations which no longer continue at time of suit.
The introductory statement contained in H.REP. NO. 99-253, to
accompany H.R. 2817 which was by in large adopted by H.R. 2005,
the bill ultimately passed by Congress, states:
COMMUNITY RIGHT TO KNOW
A program is established that will provide the
public with important information on the hazardous
chemicals in their communities. The program would
require each owner or operator of a facility at
which a hazardous chemical is produced, used, or
stored to supply information on material safety
date sheets (MSDS) about each hazardous chemical
to state and local officials. The state and local
officials, designated by the governor of each
state, would make this information available to
HOUSE COMMITTEE ON ENERGY AND COMMERCE, SUPERFUND AMENDMENTS OF
1986, H.REP. NO. 253, 99th Cong., 2d Sess. (1986) reprinted in
U.S.Code Cong. & Admin.News 2835, 2841. Similarly, the preamble
to the Conference report describes the Senate and House
versions of EPCRA as
. . programs to provide the public with
important information on the hazardous chemicals
in their communities, and to establish emergency
planning and notification requirements which would
protect the public in the event of a release of
H.CONF.REP. NO. 962, 99th Cong., 2d Sess. (1986), reprinted in
1986 U.S.Code Cong. & Admin.News 3276.
The required filing of the MSDS pursuant to § 311 is
obviously a critical first step to achieving the intent of
EPCRA, for without the filing of this information, state and
local officials would have no way of receiving the necessary
information regarding hazardous chemicals to make available to
the public and to formulate an effective emergency response
plan.*fn4 Thus, Congress was concerned that "[o]nce the
material data sheets are developed, it is crucial that they may
be made available to he public in the quickest, most efficient
way possible." H.Rep. No. 253, 99th Cong., 2d Sess. (1986),
reprinted in 1986 U.S.Code Cong. & Admin.News 2835, 2893.
The legislative history also demonstrates Congress'
particular concern that hazardous chemical information be
readily accessible at the community level. Accordingly, with
respect to public availability to hazardous chemical
information disseminated via the MSDS, H.REP. NO. 99-253
. . all population groups that are located in an
area where they may come in contact with a
hazardous chemical, whether it is because they are
near a chemical manufacturing plant or a plant
which uses the chemical, must have reasonable
access to the information. This means that they
should not have to travel a great distance to
reach the nearest repository. Furthermore, the
repository should be open at reasonable hours.
As these passages indicate, Congress designed the concept of
the emergency response plan, which necessarily depends on
accurate and current information, as a public safety measure in
case of a hazardous chemical release. Thus, the legislative
history often refers to protection of the public health and
environment. See, e.g., H.REP. NO. 99-253 ("[e]ach Emergency
Response Plan must be designed to protect public health and the
environment in the event of a hazardous substance emergency. .
. .") (Id., 1986 U.S.Code Cong. & Admin.News at 2896).
As noted above, and as evident from these statements, EPCRA
embodies two fundamental objectives: public access to
information concerning hazardous chemicals in the community and
use of this information to formulate and administer local
emergency response plans in case of a hazardous chemical
release. The relative achievement of these objectives, then,
depends on accurate and current information. Via the reporting
requirements contained in §§ 311-313, Congress has placed the
burden on facility owners or operators to submit this
information to appropriate officials who can then implement an
emergency response plan. If owners or operators fail to comply
with the reporting requirements, including the mandatory
compliance dates, the development and success of emergency
response plans would be seriously, if not critically, undercut,
and the entire thrust of EPCRA could be defeated. To the extent
owners and operators, such as the defendant, delay reporting
beyond the compliance dates which Congress placed in §§
311-313, the public has access to less information and
emergency response plans are based on incomplete information.
Moreover, the public has no mechanism to ensure the accuracy of
information which is unreported. EPCRA provides that mechanism.
Clearly, for all these reasons, to overlook EPCRA's reporting
deadlines would subvert the objectives of EPCRA.
In support of its motion, the defendant relies on
Gwaltney of Smithfield v. Chesapeake Bay Foundation, Inc.,
484 U.S. 49,
108 S.Ct. 376, 98 L.Ed.2d 306 (1987), where the Supreme Court
held the citizen suit provision of the Clean Water Act, §
505(a), 33 U.S.C. § 1365(a) ("505(a)"), did not confer federal
jurisdiction over citizen suits for wholly past violations.
In Gwaltney, the citizen suit provision of the Clean Water
Act provided in relevant. part that
. . any citizen may commence a civil action on
his own behalf —
(1) against any person . . . who is alleged to be
in violation of (A) an effluent standard or
limitation under this chapter or (B) an order
issued by the Administrator or a State with
respect to such a standard or limitation. . . .
Id. 484 U.S. at 55, 108 S.Ct. at 380.
Examining the plain statutory language, the statutory scheme,
and the statute's legislative history the Supreme Court
concluded that the ". . . alleged to be in violation . . ."
language did not confer federal jurisdiction of citizen
lawsuits for wholly past violations.
Initially the Court found that, although ambiguous, the ". .
. to be in violation . . ." clause contemplated a ". . .
continuous or intermittent violation — that is, a reasonable
likelihood that a past polluter will continue to pollute in the
future." Rejecting the argument that Congress committed a
careless accident by incorporating this language and citing the
Clean Air Act, 42 U.S.C. § 7604, as an example, the Court noted
that Congress used ". . . identical language . . ." in citizen
suit provisions contained in other statutes which authorized
only prospective relief. Id., 484 U.S. at 57, 108 S.Ct. at 381.
The Court emphasized that ". . . the pervasive use of the
present tense . . ." throughout § 505 buttressed the conclusion
that the provision contemplated only prospective application.
Id., 484 U.S. at 59, 108 S.Ct. at 382.
Next, the Court found the Clean Water Act's notice provision
irreconcilable with an interpretation that citizen suits may
address wholly past violations. § 505(b)(1)(A) requires that
citizens give 60 days notice of their intent to sue to the
alleged violator, EPA Administrator and appropriate State
officials. Since, pursuant to § 505(b)(1)(B), the commencement
of an enforcement action by the Administrator or State within
the 60 day notice period barred a citizen enforcement suit, the
Court concluded, ". . . [i]t follows logically that the purpose
of notice to the alleged violator is to give it an opportunity
to bring itself into complete compliance with the [Clean Water]
Act and thus likewise render unnecessary a citizen suit."
Therefore, the Court said, if citizen suits could target solely
past violations, the notice requirement to past violators ". .
. becomes gratuitous." Id., 484 U.S. at 60, 108 S.Ct. at
Lastly, the Court found that the legislative history of the
Clean Water Act supported the conclusion that its citizen suit
provision remained inapplicable to suits for past violations.
Id., 484 U.S. at 61-63, 108 S.Ct. at 383-84.
However, this Court finds Gwaltney distinguishable from this
case. The factors cited by the Supreme Court to support its
holding that the Clean Water Act did not authorize citizen
suits for wholly past violations are substantially diminished
with respect to EPCRA in this case.
First, the plain language of EPCRA's citizen suit provision
is different than its Clean Water Act counterpart. Section 326
authorizes citizen suits for an owner's or operator's "failure
to" comply with EPCRA's reporting requirements, while § 505
authorizes citizen suits against a person ". . . who is alleged
to be in violation . . ." of certain provisions of the Clean
Water Act. The natural reading of the EPCRA provision at least
would seem to include past acts of noncompliance, while a
natural reading of the Clean Water Act provision, as the
Supreme Court has held, indicates that the statute contemplates
only prospective relief. This reading of § 326, of course, is
supported by viewing § 326 along with § 325 which authorizes
civil penalties against "[a]ny person . . . who violates any
requirement . . ." of EPCRA, including its reporting provisions
which require initial submissions by dates certain.
Moreover, unlike § 505 of the Clean Water Act, EPCRA § 326
does not contain
"pervasive use of the present tense . . ." which might indicate
its restricted applicability to continuing or intermittent
violations. In fact, the venue provision contained at §
326(b)(1) states that "[a]ny action under subsection (a) of
this section against an owner or operator of a facility shall
be brought in the district court for the district in which the
alleged violation occurred."*fn5 Contrary to the defendant's
interpretation, this clause arguably suggests that § 326
contemplates past violations.
Although § 326(d)(1)(2) contains a notice provision like that
in the Clean Water Act before the Court in Gwaltney, since
Gwaltney Congress has demonstrated that, in its view, such a
notice provision is not irreconcilable with an authorization of
suit for wholly past violations. Recently Congress amended the
Clean Air Act citizen suit provision, 42 U.S.C. § 7604(a), to
afford citizens the right to sue for past violations although
Congress left a similar 60 day notice provision intact.*fn6
Therefore, the fact that Congress amended the Clean Air Act
citizen suit provision to allow suits for past violations while
simultaneously leaving the Clean Air Act's notice provision
unchanged undercuts the importance of the Supreme Court's
discussion in Gwaltney that Congress would not have placed such
a notice provision in a statute where it also intended
authorize citizen suits for past violations.
In sum, this Court holds that the plaintiff may bring a
citizen enforcement action pursuant to § 326(a) to seek civil
penalties for failure to comply with EPCRA's reporting
provisions even though the plaintiff alleges no continuing
violations at the time it commenced suit. Therefore, this Court
must deny the defendant's motion to dismiss the Complaint for
this Court's lack of subject matter jurisdiction.
B. Defendant's Alleged Continuing Violations
Finally, and wholly separate from the issue of past EPCRA
violations, in its opposition to the defendant's motion, the
plaintiff contends that the defendant continues to violate
§ 313 pendente lite. Plaintiff's evidence of alleged continuing
non-compliance stems from a Freedom of Information Act ("FOIA")
request which Tebbutt sent to the EPA, on December 21, 1990,
regarding Form Rs filed by the defendant. The alleged
unreported information encompasses the 1987 and 1988 reporting
years. According to the EPA response dated January 16, 1991, no
1987 and 1988 § 313 reports were "found" as of the date of the
However, the defendant has submitted the following material
evidence to this Court which conclusively establishes that it
is engaging in no continuing violations of § 313: 1) copies of
Form Rs for the 1987 and 1988 reporting years submitted by the
defendant and received by an EPA official, including the
receipt date of July 30, 1990 stamped by the EPA; and 2) a
letter dated February 11, 1991 from the Chief of the EPA Public
Data Branch stating that the EPA is updating the plaintiff's
FOIA request to reflect the 1987 and 1988 Form R submissions.
(Meosky, and exhs. A & B thereto).
This evidence conclusively establishes to this Court that the
defendant is not engaging in continuing violations of § 313.
For the reasons set forth above, this Court denies the
defendant's motion to dismiss the Complaint pursuant to