The opinion of the court was delivered by: JOAN GOTTSCHALL, District Judge
MEMORANDUM OPINION AND ORDER
Count I of plaintiffs' third amended complaint alleges that
defendants violated the Emergency Planning and Community Right-to-know
Act ("EPCRA") by failing to create a local emergency response plan for
Cook County, Illinois, and by failing to provide a mechanism for making
the emergency response plan available to the public. In its order of May
21, 2003, the court ruled that Count I stated a claim under the EPCRA
insofar as plaintiffs sought relief for defendants' failure to make
information publicly available, but requested additional briefing on the
question of whether plaintiffs have standing to seek an injunction
ordering defendants to create a local emergency response plan.
The 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. 42 U.S.C. § 11001. Central to its
operation are reporting requirements compelling users of certain toxic
and hazardous chemicals to file annual forms which detail the kind and
amount of chemicals used and method and amount of releases of chemicals
into the environment. §§ 11021-23. From these reports and other
relevant environmental information the local agencies must develop and
annually review an emergency response plan for dealing with unexpected
chemical releases and must make this plan available for public review.
§§ 11003, 11044.
The EPCRA contains a citizen-suit provision that, with some
limitations, allows any person to enforce the act by commencing a civil
action against the Environmental Protection Agency ("EPA") Administrator,
State Governor, or State, regional, or local agency.
42 U.S.C. § 11046(a)(1). The statute describes in detail which persons
and entities may be sued and for which violations of the act they may
be held accountable in a citizen suit. Relevant to this case, §
11046(a)(1)(C) provides that any person may sue the "Administrator, a
State Governor, or a State emergency response commission, for failure to
provide a mechanism for public availability of information in accordance
with § 11044(a) of this title." Section 11044(ai) requires that "Each
emergency response plan . . . shall be made available to the general
public . . . during normal working hours at the location or locations
designated by the Administrator, Governor, State emergency response
commission, or Ideal emergency planning committee, as appropriate." The
requirements for the emergency response plan itself are found in §
11003, which states in part that "Each local emergency planning committee shall
complete preparation of an emergency plan in accordance with this section
not later than two years after October 17, 1986."
Defendants concede that plaintiffs have standing under the EPCRA to
pursue their claim that defendants failed to provide a mechanism for
making the emergency response plan available to the public. See
§ 11046(a)(1)(C). But defendants argue that plaintiffs do
not have standing to seek an injunction from this court
ordering defendants to create the emergency response plan because such a
claim for relief is not a cause of action enumerated in the EPCRA's
citizen suit provision. See § 11046(a)(1). Defendants'
approach to standing under the EPCRA is similar to the one rejected by
the Supreme Court in Steel Company v. Citizens for a Better
Environment, 523 U.S. 83 (1998). In that case the plaintiff notified
the EPA that a private company had violated the EPCRA's reporting
requirements, and the company remedied its violations during the EPCRA's
60-day notification period, before the plaintiff could file its lawsuit.
The plaintiff sued the defendant anyway, seeking to impose civil
penalties based on the prior violations. The defendant conceded that the
plaintiff would have had standing to bring its claim under §
11046(a)(1)(A) had the violations been ongoing, but argued that the
plaintiff did not have standing to seek civil penalties for past
violations because that specific cause of action is not enumerated in the
EPCRA's citizen suit provision.
In its analysis, the Supreme Court characterized the jurisdictional
question presented as "not whether the EPCRA authorizes this plaintiff to
sue (it assuredly does), but whether the scope of the EPCRA right of
action includes past violations." 523 U.S. at 92. "Such a question," the
Court continued, "goes to the merits and not to statutory standing."
Id. (explaining that whether a federal statute creates a claim
for a particular kind of relief, as compared to whether it permits a
private right of action in the first instance, is not jurisdictional), In
holding that the plaintiff did have standing, the Court opined that
federal courts have jurisdiction over citizen suits both asserting a
violation enumerated in § 11046(a) and those "contending
that § 11046(a) contains a certain requirement." Id, at 93.
Based on the reasoning in Steel Company, the court finds in
this case that plaintiffs have standing under the EPCRA to bring their
claims against defendants. As was the case in Steel Company,
there is no doubt here that the EPCRA accords plaintiffs the right to
challenge the public availability of the plan, see §
11046(a), and no doubt that defendants are actually required to have a
plan, see § 11003. Further, plaintiffs' claim here is
similar to the claim in Steel Company in that it argues that
§ 11046(a) contains a particular requirement: namely, that in order
for the Administrator, State Governor, or a State emergency response
commission to make a local emergency response plan publicly available, it
must actually have a local emergency response plan. Given the
similarities between this case and Steel Company, the court
concludes that the question presented here whether the EPCRA
permits plaintiffs to ask the court to grant injunctive relief ordering defendants to create a plan challenges the scope of the
statute rather than the court's jurisdiction.
Plaintiffs' claim for injunctive relief ordering defendants to create a
plan will not be dismissed for lack of standing. The form of and extent
to which relief may be granted on plaintiffs' EPCRA claims is a merits
question that is not presently before the court and therefore will not be
resolved at this time.
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