10,000 pounds. Neither nickel nor nickel compounds, which are classified as hazardous chemicals, were ever present at the Leybold facility in amounts greater than 30 - 40 pounds.
It is undisputed that Leybold is no longer in violation of EPCRA, nor was it at the time Williams filed the Complaint in this action. Williams relies on Atlantic States Legal Foundation, Inc. v. Whiting Roll-up Door Manufacturing Corp., 772 F. Supp. 745 (W.D.N.Y. 1991) to support his contention that EPCRA authorizes citizen suits for reporting violations which are not continuing at the time the suit was filed.
The Atlantic States court framed the issue before it as: Does EPCRA authorize citizen suits for reporting violations which are not continuing at the time the lawsuit was filed? Id. at 749. The court examined the language of the statute and held:
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.
Atlantic States involved a defendant who filed a MSDS only after it received notice that a suit was about to be filed against it. At the time the suit was filed the defendant was still required to submit an MSDS. Although Atlantic States did not involve a subsequent change in the federal regulations requiring reporting, nevertheless, its reasoning is sound and fully applicable here. In the absence of a "clearly expressed intention to the contrary" the court must rely on the plain language 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). EPCRA required Leybold to submit an MSDS by August 25, 1988. EPCRA authorizes citizen suits against any person (other than a government entity) who violates the reporting requirement of Section 11021(a)(1). The statute does not expressly require a continuing violation at the time of filing suit, but rather authorizes a suit against any person who failed to submit an MSDS by the applicable deadline.
EPCRA's legislative history establishes that the dual purposes of EPCRA are to (1) provide the public with information regarding the presence of hazardous chemicals in their communities, and (2) to establish emergency planning and notification requirements which would protect the public in the event of a release of hazardous chemicals. See, H.CONF.REP. NO. 962 99th Cong., 2d. Sess. (1986), reprinted in 1986 U.S.Code Cong. & Admin. News 3276. As the Atlantic States court pointed out, the filing of the MSDS is necessary to achieving the underlying purpose of EPCRA.
[The filing of the MSDS] 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. Atlantic States, 772 F. Supp. 745, 751 .
Together, the legislative history and the plain language of the statute compel the conclusion that past violations are not exempt from EPCRA's citizen suit provisions.
B. The EPCRA Penalty Provision
Defendant relies on an analysis of the factors set out in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 9 L. Ed. 2d 644 , 83 S. Ct. 554 (1961) to support its contention that the civil penalty provision of Section 11045(c)(2) is actually a criminal penalty in order to rely on the principle that the repeal of a criminal statute prevents prosecution under the statute. The Supreme Court has repeatedly held that whether a statutorily defined penalty is civil or criminal is a matter of statutory construction. United States v. Ward, 448 U.S. 242, 248, 65 L. Ed. 2d 742 , 100 S. Ct. 2636 (1980). See, e.g. One Lot Emerald Cut Stones v. United States, 409 U.S. 232, 237, 93 S. Ct. 489, 493 , 34 L. Ed. 2d 438 (1972). This involves a two step analysis. Ward, 448 U.S. 242, 248, 65 L. Ed. 2d 742 , 100 S. Ct. 2636 .
The first step is to determine whether Congress either expressly or impliedly indicated a preference for one label over the other. Ward, at 448. In Ward, the Supreme Court held that where Congress expressly labeled penalties as "civil" in one section and in the next section provides for criminal penalties, Congress intended to establish a civil penalty. Id. at 249. EPCRA's enforcement provision consists of 6 subsections. The subsections immediately preceding and following the section at issue in this case both expressly provide for criminal penalties for other types of EPCRA violations.
Thus, the statutory structure and language demonstrates Congress' express intention that the penalties provided for by subsection (c) be civil rather than criminal. As the Supreme Court stated in Ward: "[the civil penalty label] takes on added significance given its juxtaposition with the criminal penalties set forth in the immediately preceding paragraph, . . ." Id. at 249.
The second step in the inquiry is to determine whether "Congress, despite its manifest intention to establish a civil, remedial mechanism, nevertheless provided for sanctions so punitive as to transform what was clearly intended as a civil remedy into a criminal penalty." [emphasis added] Ward, at 249, citing, Rex Trailer Co. v. United States, 350 U.S. at 154, 76 S. Ct. 219, 222 , 100 L. Ed. 149 (1956). Only the clearest of proof, that the penalty in question is punitive in either purpose or effect is sufficient to support finding that a penalty which Congress expressly intended to be civil is actually criminal in nature.
While the factors outlined in Kennedy, 372 U.S. 144, 9 L. Ed. 2d 644 , 83 S. Ct. 554 (1961), may be helpful in making this determination, they are not dispositive. [emphasis added] Ward, at 249. The penalty provision at issue states:
[Any person who violates Section 11021] . . . shall be liable to the United States for a civil penalty in an amount not to exceed $ 10,000 for each such violation. Each day [such] violation continues shall . . . constitute a separate violation. 42 U.S.C. Section 11045(c)(2) and (3).
The statute establishes $ 10,000 per day of violation as an upper limit on the fine which may be imposed, but permits imposition of a lower fine. Therefore, the sanction is not so punitive as to transform what was clearly intended as a civil remedy into a criminal penalty. See, Ward, at 249.
Furthermore, application of the Kennedy factors to this case confirms that the penalty provided by Section 11045(c)(2) is civil. Defendant contends that because the statute exacts money from a violator, it imposes a large affirmative disability. Applying the Kennedy factors in Ward, the Supreme Court did not find that a maximum penalty of $ 5,000 was punitive.
Defendant cites to the Final Penalty Policy issued by EPA on June 13, 1990 in support of its contention that the penalty supports the traditionally aims of punishment associated with criminal statutes. However, following the provisions which defendant cites, the report states:
Because this policy is intended to provide guidance in assessing administrative and civil judicial remedies only, [emphasis added] it does not constitute a statement of EPA policy regarding the appropriate circumstances in which the United States may prosecute violations of CERCLA Section 103 and EPCRA Section 304, nor the criminal sentence that a court should impose upon conviction for violations of either of these two provisions of Federal law. . . . . The procedures set out in this document . . . are not intended and cannot be relied upon to create rights, substantive or procedural, enforceable by any party in litigation with the United States. Final Penalty Policy for Sections 302, 303, 304, 311, and 312 of the Emergency Planning and Community Right-to-Know-Act and Section 103 of CERCLA, issued by the United States EPA on July 13, 1990.
Furthermore, as Leybold points out, the penalty is designed to accomplish a general regulatory goal of compliance with the reporting requirements.
Although there is apparently no criminal statute for the identical violation, EPCRA does provide criminal penalties for other reporting violations. Furthermore, the sole purpose of the penalties under Section 11045 is to ensure that the public receives information about the location of hazardous materials within the community, thus enabling the community to develop emergency response plans. EPCRA has no alternative purpose. These factors provide further support for finding that the penalty at issue is civil. Since Congress expressly intended the penalty provided by 42 U.S.C. Section 11045(c)(2) to be civil, and an application of the Kennedy factors to this case provides no basis for finding it to be criminal or quasi-criminal, the Court finds that the penalty is civil.
The plaintiff may bring a citizen enforcement action pursuant to 42 U.S.C. Section 11046 seeking civil penalties for a past failure to comply with 42 U.S.C. Section 11021(a)(1) even though the defendant came into compliance prior to the filing of the complaint. Since plaintiff has established all statutory requirements for a citizen suit under EPCRA, and defendant has raised no other defenses, plaintiff is entitled to summary judgment on his claim that Leybold is liable for violation of the EPCRA reporting requirements. Accordingly, plaintiff's motion for summary judgment is hereby GRANTED, and defendant's counter motion for summary judgment is hereby DENIED. The only issue which remains for trial is the amount of civil penalty to be awarded. Court trial on that issue shall commence at 10:00 a.m. on March 13, 1992 at 10:00 am, the parties having waived jury trial.
IT IS SO ORDERED.
Dated: February 12, 1992.
Edward A. Infante
United States Magistrate Judge