GOSSNER FOODS v. Environmental Protection Agency, 93-NC-109 B.
| Court | United States District Courts. 10th Circuit. United States District Court of Utah |
| Citation | 918 F. Supp. 359 |
| Docket Number | No. 93-NC-109 B.,93-NC-109 B. |
| Parties | GOSSNER FOODS, INC., a Utah corporation, Plaintiff, v. ENVIRONMENTAL PROTECTION AGENCY, Defendant. |
| Decision Date | 05 March 1996 |
Thompson E. Fehr, Ogden, UT, for Plaintiff.
Rebecca A. Lloyd, Denver, CO, for Defendant.
This case is before the court on the plaintiff's objection to a Report and Recommendation recommending that the defendant's motion to dismiss be granted pursuant to Rule 12(b)(6), F.R.C.P. Gossner Foods, Inc. (Gossner), filed a complaint seeking judicial review of an administrative order imposing penalties for failure to comply with the toxic chemical release reporting requirements of the Emergency Planning and Community Right-to-Know Act (EPCRA), 42 U.S.C. § 11023.
On December 30, 1992, the EPA issued an administrative complaint against plaintiff for failure to submit "timely, complete, and correct" Toxic Chemical Release Inventory Reporting Forms (Form R) for the calendar years 1988, 1989, and 1990, as required by EPCRA, 42 U.S.C. § 11023. On May 26, 1993, the Administrative Law Judge requested that the EPA identify the effect of the Paperwork Reduction Act (PRA) on this administrative action. Counsel for Gossner, allegedly believing that the EPA's identification of PRA issues meant "that the EPA's counsel would merely be collecting data on how much time was required to complete some paperwork," consented to relieve the EPA of this burden. That administrative action was settled by a consent agreement and a final order filed July 19, 1993, which required Gossner to pay a penalty of $71,400. Counsel for Gossner later learned that the PRA may have supported a theory that, absent the display of a current control number assigned by the OMB on the EPA forms or instructions, there could be no penalty for failing to provide information to the EPA. See, 44 U.S.C. § 3512. Subsequently, Gossner submitted a letter to the Administrative Law Judge seeking to stay the consent order pending further consideration of the PRA's applicability. The Administrative Law Judge responded that the consent agreement and order were final and had removed the case from his jurisdiction.
Gossner's appeal of the settlement agreement and order gives rise to the present action. Gossner asserts that the EPA does not have authority to impose a civil penalty for failure to file a form required under 42 U.S.C. § 11023 because of the application of the PRA, 44 U.S.C. § 3512; and therefore, that the penalty agreed to in the consent decree should be set aside for lack of consideration.
The EPA moved to dismiss the complaint for failure to state a claim, contending that (1) Gossner cannot first raise a PRA defense on appeal; (2) Gossner waived any right to contest the terms of the consent agreement as a part of the settlement; (3) the EPA substantially complied with the PRA; and (4) Gossner cannot avoid EPCRA penalties based on the PRA.1
The EPA's motion to dismiss was considered by the U.S. Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B). On September 15, 1995, the Magistrate Judge issued a Report and Recommendation recommending that the defendant's motion be granted, concluding that the PRA is inapplicable to reporting obligations imposed by congressional statute (such as EPCRA). Gossner filed a timely objection to each of the magistrate judge's conclusions and recommendations, contending (1) that the magistrate judge's rationale ignored the plain language of the PRA and its legislative history, (2) that the discretion vested in the EPA alone invokes the protections of the PRA, and (3) that the cases on which the magistrate judge relied were erroneously decided and factually inapplicable to this case. This court reviews de novo those portions of the Report and Recommendation to which timely objection is made. 28 U.S.C. § 636(b)(1).
Paperwork Reduction Act. The applicability of the PRA to the reporting requirements of the EPCRA is a question of first impression.2 The PRA was enacted to reduce the burden imposed by federal regulatory agencies on small businesses, individuals, and state and local governments.
The Act PRA prohibits any federal agency from adopting regulations which impose paperwork requirements on the public unless the information is not available to the agency from another source within the Federal Government, and the agency must formulate a plan for tabulating the information in a useful manner. Agencies are also required to minimize the burden on the public to the extent practicable. In addition, the Act institutes a second layer of review by the OMB for new paperwork requirements. After an agency has satisfied itself that an instrument for collecting information — termed an "information collection request" — is needed, the agency must submit the request to OMB for approval. If OMB disapproves the request, the agency may not collect the information.
Dole v. United Steelworkers of America, 494 U.S. 26, 32-33, 110 S.Ct. 929, 933, 108 L.Ed.2d 23 (1990) (citations omitted); see also, United States v. Collins, 920 F.2d 619, 630 (10th Cir.1990).
Under the PRA, an agency may not conduct or sponsor the collection of information unless the information collection request has been submitted to and approved by the OMB, 44 U.S.C. § 3507(a); and an agency may not engage in a collection of information without obtaining from the OMB a control number to be displayed upon the information collection request, 44 U.S.C. § 3507(f). Where these requirements are not met, the PRA provides:
Notwithstanding any other provision of law, no person shall be subject to any penalty for failing to maintain or provide information to any agency if the information collection request involved was made after December 31, 1981, and does not display a current control number assigned by the Director, or fails to state that such request is not subject to this chapter.
Gossner's Objection. As noted above, Gossner objects to the U.S. Magistrate Judge's conclusion that the PRA does not apply to statutorily imposed reporting requirements. Gossner argues that the Code of Federal Regulations (CFR) did not include the OMB control number as a part of the regulatory text or as a technical amendment until June 23, 1993,3 and that because the EPA failed to properly "display" the OMB control number, the PRA explicitly precludes the imposition of a civil penalty. Further, Gossner argues that a plain reading of the PRA clause "notwithstanding any other provision of law" refers a fortiori to congressional statutes, not merely to agency regulations.
Analysis. This court agrees with the analysis and conclusion in the Report and Recommendation. The Magistrate Judge's recommendation is adopted in its entirety. The PRA is inapplicable to information explicitly required by statute.
In the instant case, Gossner's liability clearly does not stem from any "information collection request" by an agency, as plainly presumed by PRA. 44 U.S.C. § 3512. See also, Dole, 494 U.S. at 32-33, 110 S.Ct. at 933. Rather this case involves a congressional requirement for information under EPCRA which includes an express mandate illustrating the inapplicability of PRA:
Not later than June 1, 1987, the Administrator shall publish a uniform toxic chemical release form for facilities covered by this section. If the Administrator does not publish such a form, owners and operators of facilities subject to the requirements of this section shall provide the information required under this subsection by letter postmarked on or before the date on which the form is due.
EPCRA, 42 U.S.C. § 3512 (emphasis added).
The language of EPCRA makes clear that the information requirement originates with Congress (not the EPA) and exists independently of Form R. Moreover, had the EPA failed to provide any form at all, Gossner explicitly would still have had the obligation to submit the information required under EPCRA. For this court to relieve Gossner of its duty to provide the requested information solely because of an alleged lack of an OMB number on instructions pertaining to a form would assault the plain language EPCRA and be contrary to the Supreme Court's interpretation of PRA as discussed in Dole. The EPCRA reporting requirements not met by Gossner are wholly independent of the EPA's obligations under the PRA.
The court ADOPTS the U.S. Magistrate Judge's Report and Recommendation. Gossner's objections are OVERRULED. The EPA's motion to dismiss pursuant to Rule 12(b)(6) is GRANTED.
IT IS SO ORDERED.
REPORT & RECOMMENDATION
Plaintiff seeks judicial review of an administrative order imposing penalties for failure to comply with the toxic chemical release reporting requirements of section 313 of the Emergency Planning and Community Right-to-Know Act (EPCRA), 42 U.S.C. § 11023. The case was referred to the magistrate judge under 28 U.S.C. § 636(b)(1)(B) and is presently before the court on defendant's motion to dismiss for failure to state a claim upon which relief can be granted pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.
On December 30, 1992, defendant issued an administrative complaint against plaintiff for failure to submit "timely, complete, and correct" Toxic Chemical Release Inventory Reporting Forms (Form R) for the calendar years 1988, 1989, and 1990 as required by section 313 of EPCRA, 42 U.S.C. § 11023. Section 313 requires the owner or operator of any facility which has manufactured, processed, or otherwise used certain chemicals in amounts exceeding threshold quantities to file a form (Form R) by July 1 of the following year reporting the maximum quantities of the chemical on-site at any time during the year and the...
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U.S. v. Ionia Management S.A., 3:07cr134 (JBA).
...imposed by Congress." Id. at 699 (citing Dole, 494 U.S. at 32-33, 110 S.Ct. 929). As the courts in Jho and Gossner Foods, Inc. v. EPA, 918 F.Supp. 359, 362 (D.Ut.1996), observed, even where Congress delegates the administration of reporting requirement specifics to an agency, where the requ......
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Table of authorities
...119 Good v. United States, 189 F.3d 1355, 30 ELR 20102 (Fed. Cir. 1999) .....................954 Gossner Foods, Inc. v. EPA, 918 F. Supp. 359 (D. Utah 1996) ................................... 597 Greenield Mills, Inc. v. Macklin, 361 F.3d 934 (7th Cir. 2004) .....................................
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Inspections and information gathering
...Finally, it does not bar enforcement of collection of information that is required by statute. See Gossner Foods, Inc. v. EPA , 918 F. Supp. 359 (D. Utah 1996). Does EPA need to obtain OMB approval for the following?: • Its discharge monitoring report (DMR) form. • Information that EPA requ......