ELR Citation: ELR 20987
No(s). C 91-20415 SW (N.D. Cal. Feb 12, 1992)

The court holds that a manufacturer's wholly past violation in failing to file a material safety data sheet (MSDS) for nickel and nickel compounds under §311 of the Emergency Planning and Community Right-to-Know Act (EPCRA) is not exempt from citizen enforcement under EPCRA §326, and the maximum penalty of $10,000 per day is not so punitive as to transform a civil remedy into a criminal penalty. The court holds that the plaintiff has satisfied the elements necessary to prevail in a citizen suit under EPCRA. The manufacturer is an operator within the meaning of EPCRA, and nickel and nickel compounds are listed as hazardous substances under EPCRA's implementing regulations. The plaintiff complied with relevant notice requirements, and the U.S. Environmental Protection Agency (EPA) is not prosecuting the manufacturer's violation. Moreover, the first regulations EPA promulgated under EPCRA required the manufacturer to submit an MSDS to local and state entities for any hazardous chemical present between 10,000 and zero pounds by August 25, 1988, and the court finds that the manufacturer did not submit a MSDS for nickel and nickel compounds used in its manufacturing operations by the 1988 deadline. Although subsequent EPCRA regulations reduced the threshold level of hazardous chemicals triggering the MSDS reporting requirements, and it is undisputed that the manufacturer is no longer in violation of EPCRA, the court holds that EPCRA does not expressly require a continuing violation at the time of filing suit and authorizes citizen suits against any person who fails to submit an MSDS by the applicable deadline. The court holds that the reasoning in Atlantic States Legal Foundation v. Whiting Roll-up Door Manufacturing, 21 ELR 21490, holding that EPCRA confers federal jurisdiction over citizen suits for past violations, is applicable. In a footnote, the court observes that its conclusion is distinguishable from Gwaltney of Smithfield v. Chesapeake Bay Foundation, 18 ELR 20142, where the U.S. Supreme Court ruled that the Federal Water Pollution Control Act (FWPCA) does not confer federal jurisdiction over citizen suits for wholly past violations. Unlike EPCRA's citizen suit provision, the FWPCA requires that the defendant be in violation at the time of filing suit. The court also holds that its conclusion is compelled by EPCRA's dual purposes of providing the public with information about hazardous chemicals in their communities and of establishing emergency planning requirements for releases of hazardous chemicals.

The court next holds that EPCRA's upper limit of $10,000 per day of reporting violation is a civil, not a criminal, penalty provision, and the manufacturer is not immune from its enforcement on the basis that repeal of a criminal statute prevents prosecution under the statute. Congress neither expressly nor impliedly intended to create a criminal rather than civil penalty for reporting violations. The civil penalty label in EPCRA's enforcement provision takes on added significance given its juxtaposition with the criminal penalties set forth in the immediately preceding and following subsections. Further, the court holds that the upper limit of $10,000 per day of violation, which allows imposition of a lower fine, is not so punitive in purpose or effect as to transform a civil remedy into a criminal penalty. The manufacturer's reliance on EPA's EPCRA penalty policy, ELR ADMIN. MATERIALS 35261, is misplaced, because it is intended to provide guidance in assessing administrative and civil judicial remedies only and does not constitute a statement concerning the criminal sentence a court should impose for EPCRA violations.

Counsel for Plaintiff
Jeffrey S. Lawson
Reed, Elliott, Creech & Roth
99 Almaden Blvd., Ste. 800, San Jose CA 95113
(408) 993-9911

Counsel for Defendant
Ralph Swanson
Berliner, Cohen & Biagini
10 Almaden Blvd., 11th Fl., San Jose CA 95113
(408) 286-5800