The state and federal political climate is just crazy these days! We now have one of our original 13 colonies claiming they have a constitutional right to manage their state EPCRA program as they see fit and not how Federal EPA believes it should be managed and how their own 2015 Manual said it was to be managed. The state of NJ, in some strange interpretation, have come to believe that the Emergency Planning and Community RIght-to-Know Act (EPCRA) does not require the state to release the chemical information to the “communities”. You just can not make this stuff up and good tax money is being wasted in courts to argue the “intent” of EPA’s EPCRA rule. In their lawsuit, the plaintiff’s claim the State of NJ’s State Emergency Response Commission (SERC) and the Local Emergency Planning Committee (LEPC) in Linden, NJ has failed to publicly disclose facility emergency response plans (ERPs) as required under EPCRA. The state has responded and argues that EPCRA only requires states to set up a system for industrial facilities to release information to LEPCs – but not for the state officials on a SERC to require the local planners to disclose the data to the public. Now, remember, the name of this Act is the Emergency Planning and Community RIght-to-Know Act (EPCRA). To show how this is just politics as usual here is the State of NJ’s own EPCRA compliance manual – pay close attention to pages 8-11. Here is the arguments put forth…
The Emergency Planning and Community Right-to-Know Act of 1986 (EPCRA), 42 U.S.C. §§ 11000-11050, was enacted to address preparedness and planning for hazardous chemical storage at specific facilities, and to provide a mechanism for limited public access to emergency response plans. EPCRA required the Governor of each State to appoint a State Emergency Response Commission (SERC) within six months of its passage.
The SERC was required to designate Emergency Planning Districts to prepare and implement emergency plans within nine months of EPCRA’s passage. The SERC was then required to appoint a Local Emergency Planning Committee (LEPC) for each District. Each LEPC must provide public meetings, respond to public comments, and allow the public limited access to emergency response plans. EPCRA requires the SERC to “supervise and coordinate the activities of” the LEPC. § 11001(a). In the event a Governor fails to appoint a SERC, EPCRA requires the Governor to operate as the SERC.
In response to EPCRA, New Jersey Governor Thomas Kean issued Executive Order No. 161. Ex.2 A; CM/ECF Doc No. 1, ¶ 8. The Executive Order
- created New Jersey’s SERC,
- constituted the SERC with representatives from eight State agencies, and
- designated each municipality and county as an Emergency Planning District
The Executive Order delegated the appointment of the LEPCs to the “mayor or chief executive officer of the municipality.” (referencing N.J. Stat. Ann. App. A:9-41). The Executive Order also required all State agencies to “cooperate with the [SERC] and to furnish it with such information, personnel and assistance as necessary to accomplish the purpose of [EPCRA] and this Executive Order.”
In about 2014, Plaintiff Work Environment Council contacted the SERC with allegations that various LEPCs failed to provide access to their emergency response plan. In response, the SERC, through the State Office of Emergency Management, engaged in extensive outreach with LEPCs, including providing multiple training programs, to facilitate compliance with EPCRA.
Despite the outreach and training efforts of the SERC and State Office of Emergency Management throughout 2015 and 2016, Plaintiffs continued to allege that certain LEPCs failed to provide public access to their respective emergency response plans. From October through December 2016, SERC members contacted ten municipalities identified by Plaintiffs to reiterate EPCRA’s requirements, discuss the trainings provided to municipalities over the prior two years, and the municipalities’ efforts toward full compliance with EPCRA. The municipalities were given the materials used at the training sessions and an emergency response plan template.
On April 28, 2017, the Plaintiffs filed a Complaint against the SERC, seeking an Order that requires the SERC to redress the alleged failures of various LEPCs to provide access to their emergency response plan. The SERC files this Motion to Dismiss the Complaint.
LEGAL ARGUMENT
THE COMPLAINT SHOULD BE DISMISSED BECAUSE THE SUIT IS BARRED BY THE ELEVENTH AMENDMENT.
THE COMPLAINT SHOULD BE DISMISSED BECAUSE EPCRA DOES NOT PROVIDE FOR THIS ACTION OR THE REMEDY SOUGHT IN THE COMPLAINT.
In the alternative, the Complaint should be dismissed because Congress did not provide for the action pursued by the Plaintiffs or the remedy sought in the Complaint. Specifically, the Complaint seeks an Order requiring the SERC to take enforcement actions against Linden Township and other LEPCs that have not granted public access to their emergency response plans. EPCRA only allows a citizen suit against the SERC where the SERC fails “to provide a mechanism for public availability of information.” However, as discussed above, EPCRA does not provide a remedy against the SERC in federal court.
The Supreme Court held that private rights of action and private remedies to enforce federal law must be created by Congress. Alexander v. Sandoval, 532 U.S. 275, 286 (2001). “[N]ot all private rights of action are created equally; Congress may (and does) tailor rights of action to suit various purposes and goals.” Three Rivers Ctr. for Indep. Living, Inc. v. Hous. Auth., 382 F.3d 412, 421 (3d Cir. 2004).
As discussed above, EPCRA places certain mandates on each State Governor and the SERC. EPCRA requires the Governor of each State to appoint a SERC. The SERC is then required to designate Emergency Planning Districts “to facilitate preparation and implementation of emergency plans,” § 11001(b), and to “appoint members of a Local Emergency Planning Committee for each emergency planning district,”
The balance of EPCRA’s responsibilities concerning emergency response plans falls mainly on the LEPCs. For example, EPCRA provides:
“Each Local Emergency Planning Committee shall complete
preparation of an emergency plan in accordance with this section.. . .” Each LEPC must review the emergency plan at least once per year and submit a copy of the plan to the SERC for its review. Limited access to emergency response plans at designated locations during normal working hours is required so the public can review and comment on the plan.
Each LEPC must publish notice in a local newspaper of the emergency plan’s availability and the location designated for public review.
The LEPC must also conduct public meetings to discuss the emergency plan, to hear public comments on the plan, and to respond to such comments. However, EPCRA does not authorize the SERC to take any enforcement actions against the LEPCs.
EPCRA limits the type of suit that may be filed against the SERC to the instance where the SERC fails “to provide a mechanism for public availability of information in accordance with section 324(a) [42 U.S.C. § 11044(a)].”
In this case, the Complaint does not allege that the SERC failed to provide a mechanism for public availability of information in accordance with 42 U.S.C. § 11044(a), nor does it seek a remedy related to such an allegation. In fact, the SERC has provided such a mechanism. On February 13, 1987, the Governor issued Executive Order No. 161, which created New Jersey’s SERC. The Executive Order also designated each township as an LEPC.
Those LEPCs are charged with the responsibility of making the emergency response plans available in accordance with EPCRA.
Plaintiffs instead allege that certain LEPCs have failed to provide public access to their emergency response plan, such as the City of Linden and they seek an Order against the SERC requiring it to take enforcement action against Linden and other non-compliant LEPCs. However, Congress has not provided such private rights of action to enforce EPCRA.
Furthermore, EPCRA does not provide an implied private right of action or remedy to require the SERC to take enforcement action against the LEPCs. Courts may infer a private right of action where such a right is found in Congressional intent to create such a right. Thompson v. Thompson, 484 U.S. 174, 179 (1988). Courts consider the following four factors in determining whether a private right of action exists.
First, is the plaintiff “one of the class for whose especial benefit the statute was enacted,”–that is, does the statute create a federal right in favor of the plaintiff?
Second, is there any indication of legislative intent, explicit or implicit, either to create such a remedy or to deny one?
Third, is it consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintiff? [Fourth,] is the cause of action one traditionally relegated to state law, in an area basically the concern of the States, so that it would be inappropriate to infer a cause of action based solely on federal law?
Plaintiffs fail to meet any of the four factors. First, EPCRA’s main purpose was not to benefit any one class of individuals by giving them additional federal rights. Instead, EPCRA is a public safety law. It is directed at States, local emergency management entities, and private chemical facilities for the purpose of developing appropriate emergency response plans for emergencies at chemical facilities.
Second, Congress did not intend to create the cause of action or the remedy sought in the Complaint. Although the LEPCs are required to develop the emergency response plan and to make them available to the public, EPCRA does not provide the SERC with the authority to take enforcement action against the LEPCs. The House debates reflect this lack of authority: “None of these provisions provide for suits against local emergency planning committees.” Staff of Senate Comm. on Env’t and Pub. Works, 101st Cong., A Legislative History of the Superfund Amendments and Reauthorization Act of 1986 (Public Law 99-499) 5340 (Comm. Print Sept. 1990) (statement of Rep. Swift) (Ex. B).
Furthermore, EPCRA does not provide relief against the SERC in district court.
Third, the Complaint’s cause of action and relief sought is not consistent with the underlying purposes of EPCRA’s legislative scheme. Even if Congress provided the SERC with enforcement authority against the LEPCs, the SERC’s decision on whether to take such enforcement action would not be reviewable by the courts. See Heckler, 470 U.S. at 831.
Finally, emergency response is primarily the responsibility and concern of State and local governments. Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528, 575 (1985) (Powell, J., dissenting). Thus, it would be inappropriate to infer a cause of action based solely on federal law.
Therefore, the Complaint should be dismissed because EPCRA does not provide the cause of action or remedy sought by the Plaintiffs.
CONCLUSION
For these reasons, the Court should grant the SERC’s Motion to Dismiss.
Respectfully submitted,
CHRISTOPHER S. PORRINO
ATTORNEY GENERAL OF NEW JERSEY
By:
ANDREW REESE
Deputy Attorney General
Dated: October 19, 2017