Atlantic States Legal Foundation, Inc. v. United Musical Instruments, U.S.A., Inc., 93-4379

• Decision Date: 16 October 1995
• Docket Number: No. 93-4379,93-4379
• Parties: , 64 USLW 2163, 25 Envtl. L. Rep. 21,412 ATLANTIC STATES LEGAL FOUNDATION, INC., Plaintiff-Appellant, v. UNITED MUSICAL INSTRUMENTS, U.S.A., INC., Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 473

61 F.3d 473

41 ERC 1091, 64 USLW 2163, 25 Envtl.

L. Rep. 21,412

ATLANTIC STATES LEGAL FOUNDATION, INC., Plaintiff-Appellant, v. UNITED MUSICAL INSTRUMENTS, U.S.A., INC., Defendant-Appellee.

No. 93-4379.

United States Court of Appeals Sixth Circuit.

Argued March 10, 1995.

Decided Aug. 3, 1995.

Rehearing and Suggestion for Rehearing En Banc Denied Oct. 16, 1995.

Jeffrey A. Kodish, Sowash, Carson & Shostak, Athens, OH, Charles M. Tebbutt (argued and briefed), Allen, Lippes & Shonn, Buffalo, NY, for plaintiff-appellant.

Keith L. Pryatel (argued and briefed), Harley M. Kastner, Millisor & Nobil, Cleveland, OH, for defendant-appellee.

Anne S. Almy (briefed), U.S. Dept. of Justice, Mark R. Haag, U.S. Dept. of Justice, Environment & Natural Resources Div., Washington, DC, for amicus curiae U.S.

Before: KENNEDY and NORRIS, Circuit Judges; TAYLOR, District Judge. ^*

ALAN E. NORRIS, Circuit Judge.

Plaintiff, Atlantic States Legal Foundation, Inc. ("ASLF"), appeals from the dismissal of its complaint alleging that defendant, United Musical Instruments, U.S.A., Inc. ("UMI"), violated the Emergency Planning and Community Right-to-Know Act of 1986 ("EPCRA"), 42 U.S.C. Secs. 11001-11050 (1988 & Supp. V 1993), by failing to file required reports about its storage and release of toxic chemicals. ASLF contends that the district court erred in concluding that the complaint was not timely filed. UMI defends that conclusion and offers alternative reasons to affirm the dismissal. We agree that the district court correctly dismissed the complaint, although our reasoning differs from that of the district court.

I.

Section 313 of EPCRA requires owners and operators of facilities using specified toxic chemicals to file toxic chemical release forms, which provide information about the storage and release of those chemicals, with the federal Environmental Protection Agency ("EPA") and designated state officials. 42 U.S.C. Secs. 11023(a), 11023(g). The EPA created the "form R" as the toxic chemical release reporting form. 40 C.F.R. Sec. 372.85 (1994). Form Rs for a given calendar year are due the following July 1. 42 U.S.C. Sec. 11023(a). Violators of Sec. 11023 are liable to the United States for civil penalties of up to $25,000 for each violation. 42 U.S.C. Sec. 11045(c)(1). The EPA can seek civil penalties either administratively or by bringing an action in federal district court. 42 U.S.C. Sec. 11045(c)(4).

EPCRA also authorizes citizen enforcement suits. The citizen suit provision at issue in this case provides, "any person may commence a civil action on his own behalf against ... [a]n owner or operator of a facility for failure to ... [c]omplete and submit a toxic chemical release form under section 11023(a) of this title." 42 U.S.C. Sec. 11046(a)(1)(A)(iv). ¹ District courts have jurisdiction over citizen enforcement actions "to enforce the requirement concerned and to impose any civil penalty provided for violation of that requirement." 42 U.S.C. Sec. 11046(c). Prevailing parties may recover reasonable costs and attorneys' fees. 42 U.S.C. Sec. 11046(f). A citizen may not commence an enforcement action until sixty days after he or she provides notice of the alleged violation to the EPA, state officials, and the alleged violator. 42 U.S.C. Sec. 11046(d). Citizens may not sue for the redress of violations that the EPA is addressing administratively or in litigation in federal court. 42 U.S.C. Sec. 11046(e).

UMI, a manufacturer of musical instruments, uses some of the specified toxic chemicals at its production facility in Eastlake, Ohio. ASLF is a not-for-profit organization based in Syracuse, New York. On July 17, 1992, ASLF notified UMI of its intention to file a citizen enforcement action against UMI for violating EPCRA Sec. 313. Specifically, the notice stated that UMI had failed to file the required form Rs for the years 1987-1990. It is undisputed that at the time it received the notice, UMI had not filed these forms. On July 21, 1993, ASLF filed its complaint alleging that UMI failed to timely submit form Rs for the years 1988-1991 and seeking declaratory judgment, injunctive relief, imposition of civil penalties, and attorneys' fees. The complaint acknowledged that UMI had submitted the required forms after it received ASLF's notice of intent to sue.

UMI filed a motion to dismiss the complaint under Federal Rule of Civil Procedure 12(b)(1) and (6), arguing (1) that the applicable statute of limitations barred the complaint, (2) that ASLF failed to comply with EPCRA's jurisdictional requirements to sue, (3) that the district court lacked subject matter jurisdiction, and (4) that the complaint was moot. The district court, "borrowing" a one-year statute of limitations from Ohio law, concluded that the claim was indeed time-barred and granted the motion to dismiss. ² The district court did not reach UMI's other asserted grounds for dismissal.

II.

On appeal UMI argues, inter alia, for affirmance on the alternative ground that EPCRA does not authorize citizen enforcement actions for purely historical violations of Sec. 313. ASLF addressed this argument in its reply brief to this court. ³ Because we agree with UMI that EPCRA does not allow citizen suits for past violations that have been cured by the date the action commences, we hold that the dismissal of ASLF's complaint was proper. Therefore, we affirm the district court's judgment on an alternative ground. See Allen v. Diebold, Inc., 33 F.3d 674, 676 (6th Cir.1994) (noting that this court has power "to affirm on alternative grounds not reached by the court below"). ⁴

In determining the meaning of a statute, we of course begin with its plain language. Equal Employment Opportunity Comm'n v. Monclova Township, 920 F.2d 360, 362 (6th Cir.1990). EPCRA authorizes citizen suits for "failure to ... [c]omplete and submit [form Rs] under section 11023(a) of this title." 42 U.S.C. Sec. 11046(a)(1)(A)(iv). Although Sec. 11023(a) requires submission of the form Rs by a certain date, the citizen suit provision emphasizes the completing and submitting of the forms. This language suggests that only the failure to complete and submit the required forms can provide the basis for a citizen suit. While among the provisions of Sec. 11023(a) is the requirement that the form be filed by July 1 for the preceding calendar year, the citizen suit provision speaks only of the completion and filing of the form. The form is completed and filed even when it is not timely filed.

If Congress had intended to authorize citizen suits for any violation of Sec. 11023(a)--such as a late submission--it could easily have done so. For example, EPCRA authorizes civil penalties against any person "who violates any requirement" of Sec. 11023. 42 U.S.C. Sec. 11045(c)(1). Congress authorized the EPA to bring actions to assess and collect "any civil penalty for which a person is liable." 42 U.S.C. Sec. 11045(c)(4). Rather than give citizen plaintiffs this same broad power, however, Congress limited citizen suits by emphasizing that it is the failure to submit the requisite forms that gives rise to a citizen action. Congress did not authorize citizen suits for other violations of Sec. 11023. This difference between the grants of authority to the EPA and citizen plaintiffs is significant because it indicates a congressional intent to limit citizen suits to ongoing violations and to give the EPA sole authority to seek penalties for historical violations.

UMI failed to submit form Rs in a timely manner but did file them after receiving notice from ASLF. We see no basis upon which one must conclude that Congress, when contemplating citizen enforcement suits, intended such a late submission to be the equivalent of a complete failure to submit the information.

Opinions of the United States Supreme Court support this interpretation. In Gwaltney of Smithfield v. Chesapeake Bay Found. Inc., 484 U.S. 49, 108 S.Ct. 376, 98 L.Ed.2d 306 (1987), the Court held that the Clean Water Act, 33 U.S.C. Secs. 1251-1387 (1988 & Supp. V 1993), does not authorize citizen enforcement suits for wholly past violations. The Clean Water Act prohibits the unauthorized discharge of pollutants into navigable waters. Gwaltney, 484 U.S. at 52, 108 S.Ct. at 378-79 (citing 33 U.S.C Sec. 1311(a)). Its citizen enforcement provision permits citizens to bring suit against any person "alleged to be in violation." Id. at 54, 108 S.Ct. at 380 (citing 33 U.S.C. Sec. 1365(a)). Like EPCRA, the Clean Water Act requires that citizens provide the alleged violator, the EPA, and state officials, with sixty days' notice of their intent to sue. Id. at 59, 108 S.Ct. at 382 (citing 33 U.S.C. Sec. 1365(b)(1)(A)). Also like EPCRA, the Clean Water Act prohibits citizen suits for violations that are the basis of an EPA enforcement action. Id. at 59-60, 108 S.Ct. at 382-83 (citing 33 U.S.C. Sec. 1365(b)(1)(B)).

The Court held that the Clean Water Act authorizes citizens to seek civil penalties "only in a suit brought to enjoin or otherwise abate an ongoing violation." Id. at 59, 108 S.Ct. at 382. It recognized that "[a]ny other result would render incomprehensible [the] notice provision." Id. The Court concluded as follows:

If the [EPA] or the State commences enforcement action within the 60-day period, the citizen suit is barred, presumably because governmental action has rendered it unnecessary. It follows logically that the purpose of notice to the alleged violator is to give it an opportunity to bring itself into complete compliance with the Act and thus likewise render unnecessary a citizen suit. If we assume ... that citizen suits may target wholly past violations, the requirement of notice to the alleged violator becomes gratuitous.

Id. at 59-60, 108 S.Ct. at 382-83 (footnote and citation omitted).

The Court reiterated this reasoning in Hallstrom v. Tillamook County, 493 U.S. 20, 33, 110 S.Ct. 304, 312, 107 L.Ed.2d 237 (1989), in which it held...