The opinion of the court was delivered by: EDWARD A. INFANTE
This is a citizen's enforcement action arising under the Emergency Planning and Community Right-To-Know Act ("EPCRA"), 42 U.S.C. Sec. 11001 et seq. The Complaint alleges that the defendant, Leybold Technologies Inc. ("Leybold"), failed to timely submit certain hazardous chemical information, in the form of a Material Safety Data Sheet ("MSDS"), to proper local authorities as required by one of the EPCRA reporting provisions, 42 U.S.C. Sec. 11021(a)(1), and the United States Environmental Protection Agency ("EPA") regulations promulgated thereunder. Plaintiff Christopher Williams ("Williams") admits that by the time this suit was filed, because EPA has modified the applicable regulations, Leybold was no longer, nor is it presently, in violation of Sec. 11021(a)(1). However, plaintiff contends that EPCRA authorizes citizen suits seeking civil penalties for wholly past violations.
Plaintiff seeks 1) civil penalties for violation of Sec. 11021(a)(1), pursuant to 42 U.S.C. Sec. 11045, and 2) attorney's fees and costs. The parties have cross-moved for summary judgment.
The material facts are not in dispute. From October 1984 through August 1990 Leybold employed Williams as a process technician at its facility located at 1876 Hartog Drive in San Jose. From 1986 to 1990 Leybold used nickel and nickel compounds in its manufacturing operations at the Hartog Drive facility. Pursuant to EPCRA, Leybold was required to submit a MSDS for nickel and nickel compounds to local agencies by August 25, 1988. Leybold has never submitted a MSDS for nickel or nickel compounds as required by EPCRA.
In July 1990, the United States EPA ("EPA") modified the EPCRA regulations, eliminating reporting requirements for hazardous substances present in amounts of less than 10,000 pounds. 40 C.F.R. Sec. 370.20. The amount of nickel and nickel compounds present at the Leybold facility never exceeded 40 pounds. The Complaint in this action was filed on May 30, 1991.
Williams has satisfied the essential elements necessary to prevail in a citizen suit under EPCRA. See, 42 U.S.C. Sec. 11046. Leybold is an operator of a facility within the meaning of EPCRA. 42 U.S.C. Sec. 11049(4). Nickel and nickel compounds are listed hazardous substances under 29 C.F.R. Sec. 1910(Z). Leybold's failure to file a MSDS for nickel and nickel compounds violated EPCRA. See, 42 U.S.C. Sec. 11021(a)(1). On September 10, 1990, Williams gave notice of this EPCRA violation to the Administrator of the EPA as required by 42 U.S.C. Sec. 11046(d), and the EPA is not prosecuting an action under this section. 42 U.S.C. Sec. 11046(e).
II. Summary Judgment Standard
Rule 56(c) F.R.Civ.P. provides that upon motion, summary judgment shall be rendered:
"if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine dispute as to material fact and that the moving party is entitled to a judgment as a matter of law."
Summary judgment is appropriate where there is no genuine issue of material fact and the only dispute is as to pure legal questions. Smith v. Califano, 597 F.2d 152 (9th Cir. 1979). Neither party contends that there is a genuine factual issue for trial as to defendant's past violation of Section 11021(a)(1). Rather these motions present the following pure questions of law: 1) Does EPCRA authorize citizen suits for past violations of Sec. 11021(a)?, and 2) is the penalty provided for by Section 11045 criminal in nature, and therefore unavailable where the law has changed making Leybold's past conduct non-actionable?
A. EMERGENCY PLANNING AND RIGHT TO KNOW ACT