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May 20, 2003


The opinion of the court was delivered by: Joan Gottschall, District Judge


In the six count Third Amended Complaint ("TAC"), plaintiffs Lionel Trepanier, Kurt Leslie, Sheila Mulvey-Tatoris, The South Metro Greens ("SMG"), and The Chicago Greens/Green Party USA ("CG") have sued defendants George Ryan, in his official capacity as Governor of Illinois ("the Governor"),*fn1 Michael Chamness, individually and in his capacity as director of the Illinois Emergency Management Agency ("IEMA") and chair of Illinois' State Emergency Response Commission ("SERC"), and Julia Gentile,*fn2 individually and in her capacity as chief legal counsel to the Illinois SERC and IEMA, practicing director of the Illinois SERC, and manager of Hazardous Materials Compliance & Enforcement of the IEMA. In Count I, all plaintiffs sue the Governor, Chamness and Gentile in their official capacities*fn3 for allegedly violating the federal Emergency Planning and Community Right-to-Know Act ("EPCRA"). In Counts II-VI, each plaintiff brings an individual claim against Chamness and Gentile, in their individual and official capacities, for alleged violations of plaintiffs' First Amendment right to free speech and/or free association.*fn4 Defendants have moved to dismiss the complaint on multiple grounds, including that plaintiffs lack standing, fail to state a claim, and are barred by Eleventh Amendment. For the reasons explained below, defendants' motion to dismiss is granted in part and denied in part.

Background on EPCRA

EPCRA "was enacted as independent legislation within the Comprehensive Environmental Response Compensation and Liability Act." United States v. Murphy Oil, USA, Inc., 143 F. Supp.2d 1054, 1063 (W.D. Wisc. 2001). "EPCRA establishes a framework of state, regional, and local agencies designed to inform the public about the presence of hazardous and toxic chemicals, and to provide for emergency response in the event of health-threatening release." Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 86 (1998). Under EPCRA, the governor of each state had to appoint a SERC by April 1987. 42 U.S.C. § 11001 (a). Each SERC, in turn, had a specified amount of time to designate emergency planning districts and appoint members to a local emergency planning committee ("LEPC") for each such district. Id. at § 11001 (b-c). Each LEPC was required to prepare an emergency response plan no later than October 14, 1988, and had to submit the plan to the SERC for its review and recommendations for revisions. Id. at § 110003(a), (e). Under EPCRA, information regarding emergency response plans must be made publicly available. The SERC must "establish procedures for receiving and processing requests from the public for information. . . ." Id. at § 11001(a). Further, 42 U.S.C. § 11044 (a) states: "Each emergency response plan, material safety data sheet, . . . toxic chemical release form, and followup emergency notice shall be made available to the general public . . . during normal working hours at the location or locations designated by the Administrator, Governor, [SERC], or [LEPC], as appropriate." EPCRA authorizes citizens to bring civil actions against the Governor or the SERC "for failure to provide a mechanism for public availability of information in accordance with section 11044(a). . . ." Id. at § 11046(a)(1)(C).


The standard governing a motion to dismiss is well-established. A motion to dismiss tests only the sufficiency of the complaint, not the merits of the claims. Triad Assoc., Inc. v. Chicago Housing Auth., 892 F.2d 583, 586 (7th Cir. 1989). Accordingly, the court must accept as true all of the allegations in the complaint, and must construe the allegations in the light most favorable to the plaintiff. Bontkowski v. First Nat'l Bank of Cicero, 998 F.2d 459, 461 (7th Cir. 1993). A complaint may be dismissed only if "it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Hishon v. King & Spalding, 467 U.S. 69, 73 (1984).

A. Motion to Dismiss Count I

In Count I, plaintiffs allege that Chamness and Gentile, as chair and director of the Illinois SERC, respectively, and the Governor violated EPCRA by failing to provide a mechanism to make information regarding Cook County's emergency response plan publicly available. This allegation is intertwined with plaintiffs' claims that (1) although the Cook County Local Emergency Planning Committee ("Cook County LEPC") should have created an emergency response plan for Cook County years ago, no emergency response plan has yet been created, and (2) the Illinois SERC failed to adequately supervise the Cook County LEPC to ensure that an emergency response plan was established. Essentially, then, plaintiffs claim there was neither a mechanism to make information publicly available nor was there an emergency response plan to make publicly available.

Defendants argue that Count I should be dismissed for failure to state a claim. The court disagrees. Plaintiffs allege that Trepanier, on behalf of SMG, CG and himself, attempted to obtain the emergency response plan for Cook County, was repeatedly denied access to information regarding that plan, and that defendants failed to provide a mechanism to make information regarding that plan publicly available. These allegations are sufficient to satisfy the standards of federal notice pleading and state a claim. Moreover, EPCRA clearly authorizes a citizen suit against both the Governor and the Illinois SERC (or its officials) for such an alleged violation. See 42 U.S.C. § 11046 (a)(1)(C).

Count I does not end there, however. Plaintiffs seek not only a mechanism for making information publicly available, but also an injunction ordering defendants to develop a local emergency response plan for Cook County. Defendants counter that the "statutory responsibility for [emergency response] plan creation and development lies with the LEPC and not the SERC [or, presumably, the Governor]." (Defs.' Mem. Supp. Mot. Dismiss at 14.) Therefore, according to defendants, the Governor and Illinois SERC (or its officials) cannot be liable for the Cook County LEPC's failure to establish an emergency response plan. That conclusion does not follow. EPCRA mandates that each state governor shall appoint a SERC, the SERC shall appoint LEPCs, and the SERC "shall supervise and coordinate the activities of [its LEPCs]." 42 U.S.C. § 11001 (a). EPCRA also expressly requires each LEPC to "complete preparation of an emergency response plan. . . ." 42 U.S.C. § 11003 (a). Defendants offer no reasoned basis for the court to find that the Governor and the Illinois SERC officials cannot be liable for the Cook County LEPC's alleged failure to develop an emergency response plan. Indeed, if an LEPC fails to prepare an emergency response plan, the court sees no reason why the entity tasked with supervising and coordinating the LEPC's activities should not be held accountable.

It is not evident to the court, however, that plaintiffs have standing to bring a citizen action under EPCRA to force the creation of an emergency response plan. Compare 42 U.S.C. § 11046 (a)(1) (expressly delineating grounds for citizen suits) with § 11046(g) ("[n]othing in this section shall restrict or expand any right which a person may have . . . to seek enforcement of any requirement . . ."). Although defendants did not raise this issue, the court must do so because standing is a threshold jurisdictional requirement. See Perry v. Sheahan, 222 F.3d 309, 313 (7th Cir. 2000). The parties are therefore directed to submit additional briefs addressing whether plaintiffs have standing under EPCRA to seek an injunction ordering the development of a local emergency response plan.

Because plaintiffs have standing for at least some of the claims raised in Count I, the court will address defendants' alternative argument for dismissal. Defendants assert that Count I should be dismissed as to the Governor and Gentile because it would be redundant to permit the claim to proceed against all three defendants. Official-capacity claims are effectively claims against the relevant governmental entity. See Smith v. Metro. Sch. Dist. Perry Township, 128 F.3d 1014, 1021 n. 3 (7th Cir. 1997). Thus, official-capacity claims may be redundant with claims against the relevant governmental entity. Id. Here, plaintiffs have sued only the officials, however, not the governmental entity (e.g. the State of Illinois or the Illinois SERC). Naming all three defendants in their official capacities in Count I was proper. See 42 U.S.C. § 11046 (a)(1)(C). Nevertheless, in the event injunctive relief is ordered, it will likely be directed against the Illinois SERC officials, rather than the Governor. See Id. at § 11001 (designating the SERC to establish procedures for receiving and processing information requests from the public). Thus, although § 11046(a)(1) authorizes suit against a state's governor or its SERC, under the circumstances presented it is not necessary for plaintiffs to sue both in order to obtain the relief sought. The court agrees that it would be redundant for Count I to proceed against both the Governor and the Illinois SERC officials, and therefore dismisses the Governor from Count I. (See Order of July 26, 2001 at 8-9.) Gentile, however, remains a defendant as an official of the Illinois SERC.

B. The Effect of the Eleventh Amendment on Counts II-VI

Defendants Chamness and Gentile*fn5 argue that the Eleventh Amendment bars plaintiffs from bringing Counts II-VI (plaintiffs' individual claims) against them in their official capacities. The Eleventh Amendment, subject to certain limited exceptions, "divest[s] federal courts of subject mater jurisdiction over suits brought by private parties against a state. . . ." Marie O. v. Edgar, 131 F.3d 610, 615 (7th Cir. 1997). According to both the Supreme Court and the Seventh Circuit, "the Eleventh Amendment bars an action in federal court against a state, its agencies, or its officials in their official capacity." Gossmeyer v. McDonald, 128 F.3d 481, 487 (7th Cir. 1997) (citing Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100-02 (1984) and various Seventh Circuit cases). Plaintiffs, however, counter that their claims fall within an exception to this constitutional bar which allows "suits against state officials seeking prospective equitable relief for ongoing violations of federal law. . . . "*fn6 ...

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