Enforcing Environmental Law
Law 561, First Year Elective, Spring 2006
State University of New York at Buffalo School of Law
Professors Boyer and Meidinger

 

Memorandum and Oral Argument Problem

This problem is based upon the following hypothetical complaint, recently filed on behalf of the Buffalo Niagara Riverkeeper against the Buffalo Research Laboratory. You should take both the facts alleged in the complaint and the supplementary ones offered below it as true.

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

______________________________________

 

BUFFALO NIAGARA RIVERKEEPER

617 Main Street, Suite M108
Buffalo, New York  14203
                                                            Plaintiff,

                                                                                                            COMPLAINT
vs. 

BUFFALO RESEARCH LABORATORY, INC.                               Civil Action No. CIV-2006-1260S
367 Elk Street                                                                          
Buffalo, New York 14210

                                                            Defendant.

_________________________________________

 

 
INTRODUCTION

            1.         This action is a citizen suit, brought under §326, 42 U.S.C. 11046, of the Emergency Planning and Community Right-to-Know Act (the “Act”), of 1986, also commonly known as SARA Title III, 42 U.S.C. 11001, et seq.  Plaintiff seeks a declaratory judgment, injunctive relief, the imposition of civil penalties and the award of costs, including attorneys' and expert witness' fees, for Defendant's violations of the terms and conditions of §313 of the Act, 42 U.S.C. 11023.

 
JURISDICTION AND VENUE

            2.         This Court has subject matter jurisdiction under §326(a) of the Act, 42 U.S.C. 11046(a).

            3.         On May 15, 2005, Plaintiff gave notice of the alleged violations and its intent to file suit to the Administrator of the U.S. Environmental Protection Agency (EPA), to the Regional Administrator of EPA Region II, to the New York State Department of Environmental Conservation (DEC), and to Defendant, as required by §326(d)(1) of the Act, 42 U.S.C. 11046(d)(1).  A copy of the Notice Letter is attached as Appendix A.

            4.         More than sixty (60) days have passed since notice was served and the EPA has neither commenced nor is diligently pursuing an administrative order or a civil action to redress the violations.

            5.         Venue is appropriate in the Western District of New York pursuant to §326(b)(1) of the Act, 42 U.S.C. 11046(b)(1), because the source of the violations complained of is located within this District.

 
PLAINTIFF

            6.         Plaintiff, Buffalo Niagara Riverkeeper (“Riverkeeper”) sues on behalf of both itself and its members.  Riverkeeper is a Not-for-Profit Corporation organized under the laws of the State of New York, with its principal place of business in Buffalo, New York.  Riverkeeper is a membership organization with members in Erie County and throughout Western New York and Southern Ontario.  Riverkeeper is dedicated to restoration and protection of the region's water resources.  To this end, Riverkeeper engages in activities designed to increase the public's awareness of the impact of human endeavors upon the riverine environment and to further the public's understanding of the need of people to live within the natural environment without destroying its ecology.

            7.         Members of Riverkeeper reside in Buffalo, New York, and Erie County in the vicinity of, or own property or recreate near, the Defendant's facility.  The safety, health, recreational, economic, aesthetic, and environmental interests of Riverkeeper's members have been, are being, and will be adversely affected by Defendant's violations of the terms and conditions of §313 of the Act, 42 U.S.C. 11023.

 
DEFENDANTS

            8.         Defendant, Buffalo Research Laboratory Inc., operates a facility known as the Buffalo Research Laboratory, at 20 Ω Peabody Street, Buffalo, New York, which uses reportable quantities of chemical substances subject to regulation under the Act and is within Standard Industrial Code (SIC) Numbers 20-39.  Specifically, defendant is within SIC Numbers 2869 or 2899.

 
FACTS

            9.         Defendant uses, or has used, more than the threshold reporting limits for chemicals which are required to be reported under §313 of the Act, 42 U.S.C. 11023.  The chemicals which defendant has used in 2003 in excess of 10,000 pounds per year (lbs./yr.) include, but are not limited to, Methylene Chloride (Chemical Abstract Survey No. 74-87-3) and Toluene (CAS No. 108--88-3).  Defendant is therefore subject to the Act's requirements. Section 313(f)(1)(A), 42 U.S.C. 11023(f)(1)(A).

            10.        Section 313 of the Act, 42 U.S.C. 11023, requires facilities in Standard Industrial Codes 20-39 and other specifically designated facilities to establish and maintain records concerning the chemicals required to be reported and to report beginning on July 1, 1988, and on an annual basis thereafter, to the Environmental Protection Agency (EPA) and the New York State Department of Environmental Conservation (DEC) regarding the facility's release of pollutants covered under §313.  The reports consist of Toxic Chemical Release Inventory Reporting Forms (EPA Form R).

            11.        Section 313, through the standard EPA Form Rs published pursuant to §313(g), requires covered facilities to report releases of covered toxic chemicals to all environmental media, i.e., air, land and water.

            12.        Defendant failed to submit EPA Form Rs from the effective date of the Act until after receiving our notice, and has still not filed all of the required forms.  The failure of Defendant to submit all required forms violates §313 of the Act, 42 U.S.C. 11023.

            13.        Each day constitutes a separate violation pursuant to §§325(c)(1) and (c)(3), 42 U.S.C. 11025(c)(1) and (c)(3).

            14.        Defendant's failure to complete and submit the EPA Form Rs as required has prevented the Federal, State and local governments, as well as the people of the communities surrounding the Defendant's facility, from knowing of the toxic chemicals used and released from Defendant's facility.  Such failure by Defendant is contrary to the purposes of the Act, specifically §§313(h) and (l), and §324(a), 42 U.S.C. 11023(h) and (l) and 11044(a), respectively.

 
RELIEF

            WHEREFORE,  Plaintiff respectfully requests this Court to grant the following relief:

            A.         Issue a declaratory judgment that Defendant, Buffalo Research Laboratory Inc. has violated §313 of the Emergency Planning and Community Right-to-Know Act, 42 U.S.C. 11023;

            B.         Enjoin Defendant from operating its Buffalo, New York, facility in such a manner as will result in further violation of the Act;

            C.         Authorize Plaintiff, for the period beginning on the date of the Court's Order and running through 2007, to inspect Defendant's facility and records for compliance with all of the provisions of EPCRA with the cost of inspection to be borne by Defendant;

            D.         Order Defendant to provide Plaintiff, for a period beginning on the date of the Court's Order and running through 2007, with a copy of each and every report and other document which Defendant submits to the U.S. EPA or to the DEC regarding Defendant's compliance with the provisions of EPCRA at the time it is submitted to these authorities;

            E.         Order Defendant to pay civil penalties of up to $25,000.00 per day of violation for each violation pursuant to §§325(c) and 326(c), 42 U.S.C. 11045(c) and 11046(c);

            F.         Award Plaintiff its costs, including reasonable attorneys' and expert witness' fees, as authorized by §326(f) of the Act, 42 U.S.C. 11046(f); and

            G.         Award such other and further relief as this Court deems appropriate.

 

DATED:            Buffalo, New York
                        March 10, 2006

                                                                        Respectfully submitted,

 

                                                                        _(signed)___________________________

                                                                        Roberta A. Vallone, ESQ.
                                                                        O'Brian Hall, North Campus
                                                                        State University of New York
                                                                        Buffalo, New York 14260-1100

Assume the following to be true:

1.       Buffalo Research Laboratory had not submitted the information required by § 313 of the Emergency Planning and Community Right-to-Know Act of 1986 prior to receiving Riverkeeper's Notice of Intent to Sue.

2.       Buffalo Research Laboratory was in fact required to submit such forms, since it regularly discharged significant amounts of acetonitrile, boron trifluoride, chlorine, and methyl tert-butyl ether, as well as other listed chemicals, into the environment and stored many other listed chemicals on site.

3.       Shortly after receiving Riverkeeper's Notice of Intent to Sue, Buffalo Research Laboratory  began taking steps to submit the missing data. This was quite difficult and time consuming. The company was 16 years behind on its submissions, and data older than 5 years were very difficult to compile. Many of the company's records were either buried in warehouses or possibly permanently lost. Because of the penalties for false submissions, however, the company worked hard to get accurate information so that it would be able to back up its reports with records of chemical purchases, sales, and the like.

4.       The company filed reports for the most recent two years approximately one month after receiving Riverkeeper's notice. 

5.       By the day before the complaint was filed, Buffalo Research Laboratory had filed all but the earliest 3 years' reports. When it received service of the complaint the company quickly made the best estimates it could for the remaining data, and submitted the remainder of its reports 7 days later.

6.       Riverkeeper reviewed all of Buffalo Research Laboratory's discharge monitoring reports under the Clean Water Act and found no evidence of violations.

7.       Riverkeeper reviewed Buffalo Research Laboratory's records under the Occupational Safety and Health Act has found a number of violations. In 2002 an OSHA inspector (the U.S. Occupational Safety and Health Administration is a separate agency from the U.S. EPA) cited 13 violations of standards for worker protection. Most of the violated standards involved storing or handling chemicals in such a way as to minimize the possibility of human exposure. A reinspection in 2005 found ten of those violations to have been cured, and three not to have been. It also found two new violations. One involved failure to post a sign in a prominent place informing workers of their rights to request OSHA inspections and the other involved failure to have a safety lock on a cabinet used to store chemicals.

8.       When Riverkeeper contacted Buffalo Research Laboratory's lawyers to discuss possible settlement of the suit, they refused, saying they fully expected to prevail in court because Riverkeeper had no standing to support the court's jurisdiction.

9.       Riverkeeper filed two sworn affidavits by members in support of its standing to bring suit.

10.   John Henry Schlegel's affidavit avers as follows: "I am a member of Buffalo Niagara Riverkeeper and a Professor of Law at the State University of New York at Buffalo. I teach courses on corporate financial transactions. These courses focus primarily on the acquisition of one corporation by another or the merger of two corporations in a new one. The most effective way to educate students about the realities and complexities of this legal practice area is to have them participate in simulated mergers and acquisitions involving real companies about which they can obtain the information necessary to conduct insightful analysis and provide sound legal advice. Thus, I use companies in the Buffalo-Niagara region as examples for simulated case studies of proposed corporate transactions because the full body of information necessary to these simulations is or should be available to the students in my courses.  An important consideration in corporate transactions concerns the existing and potential financial liabilities of the corporate entities involved. Very important among these are existing and potential environmental liabilities. One of the best sources of information on past and potential environmental liability is the data provided by firms under the Emergency Planning and Community Right-to-Know Act. Thus, students must be able to consult EPCRA data in order to carry out the case studies that are central to my courses. Buffalo Research Lab's failure to comply with the law reduces the amount of information available to students to use in my courses. Given the limited number of firms in the region on which students can do research and carry out simulated transactions, any failure to report creates a significant reduction in available education information. This undermines my ability to provide students with a diverse set of cases to study and creates added difficulties in managing course loads. Over the years the failure to report by Buffalo Research Labs and other such firms has forced me to use fewer cases involving a smaller number of variables than should have been available. Illegal behavior such as that by Buffalo Research Lab creates significant burdens on me as a teacher as well as on my students. Ultimately, it also affects the viability of business and public policy in the region because many of my students go on to practice corporate law in Western New York and are less well informed than they have a right to be. Given that Buffalo Research Labs is a profit-seeking entity which continually seeks to reduce its own costs, a legal remedy is necessary to ensure that it does not cause similar injuries in the future. While my right to have access to good information for education is the primary reason I have joined this suit, I have also joined it because I am a resident of Erie County and am affected in my daily life by the degraded policy and business environment that results from noncompliance with the environmental laws."

11.   Jill Jedlicka's affidavit avers in relevant part:  "In 2004, I accepted the position of Buffalo River Remedial Action Plan (RAP) Coordinator with Friends of the Buffalo Niagara Rivers, Inc., the predecessor organization to the Buffalo Niagara Riverkeeper, Inc.  (hereafter referred to as 'Riverkeeper').  This was and is a half-time salaried position.  At that time, Riverkeeper had just been awarded a contract from the United States Environmental Protection Agency (USEPA) to coordinate the efforts of state, federal and local agencies and other stakeholders involved in restoring beneficial uses of the Buffalo River, a stream designated as an 'Area of Concern' by the International Joint Commission under the Great Lakes Water Quality Agreement.  That contract was renewed for an additional two-year term in July of 2005.  My continued employment in this position was and is specifically conditioned on high quality performance of my duties, and on Riverkeeper's receipt of continued funding for RAP work through contract renewals or extensions from USEPA.  In the recent contract renewal, EPA indicated that it was satisfied with Riverkeeper's performance under the contract to date, and intended to continue funding the Coordinator if Riverkeeper could demonstrate steady progress toward restoration of beneficial uses."
      "My primary duty as RAP Coordinator, taking approximately forty percent of my time, is to facilitate and assist in remediation of contaminated sediments deposited over many years in the shallow areas outside the Buffalo River's navigation channel.  In this capacity, I took the lead in securing a two-year grant for habitat improvement studies on the Buffalo River, and negotiated a cost-sharing contract with the US Army Corps of Engineers (Buffalo District) to conduct a feasibility study for environmental dredging of pollution hotspots on the Buffalo River.  Under this agreement, the Corps is conducting technical data analyses to develop feasible and cost-effective proposals for dredging and removing contaminated sediments from the river, while Riverkeeper is gathering and analyzing data relating to the issue of whether, assuming existing contaminated sediments will be removed, the remaining river sediments will be recontaminated by other, current pollution sources.  If the river sediments would be recontaminated, this would affect the cost-benefit calculation for dredging and removing existing contaminants, and make it less likely that federal grants, contracts, or appropriations could be secured to support dredging and removal of contaminated sediments.  As part of this work, I am currently gathering data on pollution inputs to the Buffalo River Area of Concern over the past five years, including information contained in Permits and Discharge Monitoring Reports under the Clean Water Act, permit parameters and monitoring data under the Clean Air Act, and data on releases from facilities required to file reports for the Toxic Release Inventory as mandated by the Emergency Planning and Community Right to Know Act (EPCRA).  If the data gleaned from these and other sources are not complete, accurate and truthful, the feasibility analysis for dredging may be inaccurate or incomplete, and future funding available for remedial dredging on the Buffalo River may be reduced or denied.  If funding cannot be secured for remedial dredging in the near future, USEPA may decide to reduce or eliminate funding for RAP coordination."

2.       The judge has asked each side to write a memorandum of law on the question of Riverkeeper's standing. He wants separate memoranda, however, on the status of each affiant. The memoranda are to take the facts as stated in the complaint, additional facts, and supplementary affidavits above as accurate. They are to argue whether the plaintiffs have standing in light of those facts and the claims for relief that they request.   Assignments for memo-writing and arguing are as follows:

The memorandum should be no longer than 3000 words, or approximately 12 pages double-spaced with normal fonts and margins. It will basically be similar to an appellate brief, but without the formalities of tables of contents, tables of authorities, and so on. It also need not include a "facts" section (although you may want to write one to insert later if you expect to use it as a writing sample). Basically, the memorandum should contain a brief introduction, an argument broken down into key points, and a conclusion. Your references should follow blue book form, although we do not expect to grade this absent egregious violations. Most of the memorandum is likely be based on materials we have read for class; it may also refer to authorities found through additional research. Remember that the length limit is firm. Do not succumb to the temptation to add filler. The memorandum is due no later than 4:00 p.m. Thursday, April 13th. It should be emailed to Professor Meidinger (eemeid@buffalo.edu) and should carry the topic heading "EEL Memo", with a copy designated to Lois Stutzman at stutzman@buffalo.edu. If you have trouble emailing the memo, you should hand deliver a hard copy together with a digital version on disk to the Secretaries' office in Room 718 and explain that the memorandum is for Professors Meidinger and Boyer. The memorandum must be entirely your own work.