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ATLANTIC STATES LEGAL FOUND. v. BUFFALO ENVELOPE

March 31, 1993

ATLANTIC STATES LEGAL FOUNDATION, INC., Plaintiff,
v.
BUFFALO ENVELOPE, A Division of AMERICAN ENVELOPE CO., Defendant.



The opinion of the court was delivered by: WILLIAM M. SKRETNY

 INTRODUCTION

 Presently before this Court is defendant's motion to dismiss this action for plaintiff's lack of standing to sue or, in the alternative, because the statute under which this action is brought is unconstitutional.

 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.1 Plaintiff alleges that defendant has failed timely to submit certain hazardous chemical information to the proper state and federal authorities pursuant to § 313 of EPCRA, 42 U.S.C. § 11023, for the 1987 and 1988 reporting years.

 Plaintiff seeks the following relief: 1) a declaratory judgment regarding defendant's liability for failure to comply with the reporting requirements of EPCRA; 2) civil penalties for violations of § 313 for the 1987 and 1988 reporting years; 3) an order of this Court authorizing plaintiff to inspect defendant's records for EPCRA compliance; (4) an order of this Court requiring defendant to provide plaintiff copies of materials that defendant submits to the United States Environmental Protection Agency ("EPA"); and 5) attorneys' fees and costs.

 By a Decision and Order entered on September 10, 1991 this Court denied defendant's previous motion to dismiss plaintiff's Complaint for lack of subject matter jurisdiction, pursuant to Fed. R. Civ. P. 12(b)(1). The relevant facts of this case are fully set forth therein, and will not be repeated here. Familiarity with that Decision and Order is presumed.

 In connection with the present motion to dismiss, defendant argues that plaintiff lacks standing to sue under EPCRA because it has failed to allege a personal injury fairly traceable to defendant's conduct that is redressable by the requested relief. See Valley Forge Christian College v. Americans United, 454 U.S. 464, 472, 102 S. Ct. 752, 758, 70 L. Ed. 2d 700 (1982). In the alternative, defendant argues that the citizen enforcement provisions of EPCRA are unconstitutional because they violate the principle of the separation of powers, and because the statute's filing requirements violate the Fifth Amendment Due Process Clause.

 In support of its motion, defendant has submitted a Brief of Defendant in Support of its Claim that Plaintiff Lacks Standing to Sue ("D. Brief"); a Memorandum of Law Regarding Claims of Unconstitutionality ("D. Memo"); and a Reply Brief ("D. Reply").

 In opposition to defendant's motion, plaintiff has submitted a Memorandum in Support of its Standing to Sue under EPCRA and in Opposition to Defendant's Position ("P. Standing Memo."); a Memorandum of Law in Support of the Constitutionality of the Emergency Planning and Community Right-to-Know Act ("P. Const. Memo."); the Affidavit of James P. Keane ("Keane Affid."); the Affidavit of Lester W. Milbrath ("Milbrath Affid."); and the Affidavit of Karen C. Murphy ("Murphy Affid.").

 In ruling on defendant's motion, this Court has considered all these submissions, as well as oral argument held on May 15, 1992.

 For the reasons set forth below, this Court will deny defendant's motion to dismiss plaintiff's Complaint.

 DISCUSSION

 I. Standing

 Defendant argues that plaintiff lacks standing to maintain this action. It argues that the only injury that plaintiff has alleged is "conjectural and abstract disaffection with defendant's alleged violation" of EPCRA (D. Brief, p. 3). On the other hand, plaintiff argues that EPCRA has conferred standing on a broad class of individuals, and that plaintiff and its members have been injured by defendant's failure timely to file the information required by the statute. Specifically, plaintiff argues that defendant has infringed upon its members' "right to know" about the presence of toxic chemicals at or near defendant's facility (P. Standing Memo, p. 4).

 Congress has not expressly limited the class of persons who can bring citizen suits under EPCRA. 42 U.S.C. § 11049(7). As will be developed below, "statutory rights and obligations are established by Congress, and it is entirely appropriate for Congress, in creating these rights and obligations, to determine in addition who may enforce them and in what manner." Davis v. Passman, 442 U.S. 228, 241, 99 S. Ct. 2264, 2275, 60 L. Ed. 2d 846 (1979). Nonetheless, standing is, as always, a prerequisite to a federal forum. Muskrat v. United States, 219 U.S. 346, 31 S. Ct. 250, 55 L. Ed. 246 (1911).

 A three-pronged test for standing has been articulated by the Supreme Court. To have standing: (1) plaintiff must suffer a personal injury; (2) the injury must be fairly traceable to the defendant's conduct; and (3) the injury must likely be redressable by the requested relief. Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 472-73, 102 S. Ct. 752, 758-59, 70 L. Ed. 2d 700 (1982). The Second Circuit has expounded on this standard, explaining that plaintiff's injury must be "concrete in nature and particularized to them." In Re Catholic Conference, 885 F.2d 1020, 1023 (2d Cir. 1989). The plaintiffs have the burden of establishing all three elements listed above. Lujan v. Defenders of Wildlife U.S. , 112 S. Ct. 2130, 2136, 119 L. Ed. 2d 351 (1992).

 A. Injury

 The right that the statute was intended to protect is essentially a "right to know." The statute provides:

 
The release forms required under this section are intended to provide information to the Federal, State, and local governments and the public, including citizens of communities surrounding covered facilities. The release form shall be available, consistent with section 11044(a) of this title, to inform persons about releases of toxic chemicals to the environment; to assist governmental agencies, researchers, and other persons in the conduct of research and data gathering; to aid in the development of appropriate regulations, guidelines, and standards; and for other similar purposes.

 42 U.S.C. § 11023(h). The introductory statement contained in H. REP. NO. 99-253 to accompany H.R. 2817, which was largely 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 data 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 the public.

 HOUSE COMMITTEE ON ENERGY AND COMMERCE, SUPERFUND AMENDMENTS OF 1986, H. REP. NO. 253, 99th Cong., 2d Sess. (1986) reprinted in 1986 U.S.C.C.A.N. 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 hazardous chemicals.

 H. REP. NO. 962, 99th Cong., 2d Sess. (1986), reprinted in 1986 U.S.C.C.A.N. 3276. Therefore, to have standing to sue, plaintiff must have been injured by the lack of information that resulted from defendant's failure timely to file the reports required by the statute.

 In Sierra Club v. Morton, 405 U.S. 727, 92 S. Ct. 1361, 31 L. Ed. 2d 636 (1972) an environmental organization sought declaratory and injunctive relief against the Secretary of the Interior due to the proposed construction of recreational facilities in a semi-wilderness park. The organization alleged that construction of the park "would destroy or otherwise adversely affect the scenery, natural and historic objects and wildlife of the park and would impair enjoyment of the park for future generations. Id. at 734, 92 S. Ct. at 1365. The Supreme Court explained that this type of injury was cognizable under the Administrative Procedure Act, 5 U.S.C. § 702. Nonetheless, the Court held that the organization did not have standing to sue. The organization had not shown injury in fact because it failed to allege that it or any of its members used the park or would be affected in any way by the construction of the recreational facilities. "The Morton Court recognized that an organization whose members were injured could sue on their behalf; but it ruled that an organization whose members were not injured but merely interested could not. . . ." Sierra Club v. SCM Corp., 747 F.2d 99, 104 (2d Cir. 1984). The Morton Court wrote:

 
[A] mere "interest in a problem," no matter how longstanding the interest and no matter how qualified the organization is in evaluating the problem, is not sufficient by itself to render the organization "adversely affected" or "aggrieved" within the meaning of the APA. The Sierra Club is a large and long-established organization, with a historic commitment to the cause of protecting our Nation's natural heritage from man's depredations. But if a "special interest" in this subject were enough to entitle the Sierra Club to commence this litigation, there would appear to be no objective basis upon which to disallow a suit by any other bona fide "special interest" organization, however small or short-lived. And if any group with a bona fide "special interest" could initiate such litigation, it is difficult to perceive why any individual citizen with the same bona fide special interest would not also be entitled to do so.

 Id. at 739-40, 92 S. Ct. at 1368-69 (footnotes omitted).

 Similarly, in Sierra Club v. SCM Corp., 747 F.2d 99 (1984), the Second Circuit held that the organization lacked standing to bring suit for violations of the Clean Water Act. The court wrote, "Accordingly, we conclude that Sierra could establish standing under [the Act] only by showing actual injury within the meaning of Morton, by, for example, providing a concrete indication that Sierra or one or more of its members used the [polluted tributary] or would be affected by its pollution. . . . Here, as in Morton, 'the Club apparently regard[s] any allegations of individualized injury as superfluous. . . ." Id. at 107 (quoting Morton, 405 U.S. at 736, 92 S. Ct. at 1367).

 In this case, plaintiff has alleged and shown individualized injury. Furthermore, the injury is of the type that EPCRA was intended to redress. Plaintiff has alleged the following in its Complaint:

 
6. Plaintiff, Atlantic States Legal Foundation, Inc. (ASLF) sues on behalf of both itself and its members. ASLF is a Not-for-Profit Corporation organized under the laws of the State of New York, with its principal place of business in Syracuse, New York. ASLF is a membership organization with members in Erie County and throughout the United States and Puerto Rico. ASLF is dedicated to protecting and restoring the natural resources of the United States and its territories. To this end, ASLF engages in activities designed to increase the public's awareness of the impact of human endeavors upon the natural environment and to further the public's understanding of the need of people to live within the natural environment without destroying its ecology.
 
7. Members of ASLF reside in Orchard Park, New York or Erie County in the vicinity of, or own property or recreate near, the Defendant's facility. The safety, health, recreational, economic, aesthetic, and environmental interests of ASLF's members have been, are being, and will be adversely affected by Defendant's violations of the terms and conditions of § 313 of the Act, 42 U.S.C. 11023.
 
* * * *
 
11. Section 313 of the Act, 42 U.S.C. 11023, requires facilities in Standard Industrial Codes 20-39 with ten or more full-time employees, and other specifically designated facilities, to establish and maintain records concerning the chemicals required to be reported and to report beginning on July 1, 1988, and on an annual basis thereafter, to the Environmental Protection Agency (EPA) and the New York State Department of Environmental Conservation (DEC) regarding the facilities' ...

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