The opinion of the court was delivered by: BY THE COURT; MARVIN KATZ
AND NOW, this 17th day of February, 1993, upon consideration of Motion of Kurz-Hastings, Inc. for Reconsideration, or in the Alternative, for Certification for Appeal of an Interlocutory Order, Pursuant to Local Rule 20(g), Rule 5 of the Federal Rules of Appellate Procedure and 28 U.S.C. § 1292(b), Plaintiffs' Memorandum of Law in Opposition to Defendant's Motion for Reconsideration of Court Order of December 29, 1992, or for Certification of that Order pursuant to 28 U.S.C. § 1292(b), and after hearing the parties at a pretrial conference, it is hereby ORDERED that the Motion is DENIED.
By Order of December 29, 1992, this court denied the defendant's Motion to Dismiss, or in the Alternative, for Summary Judgment. The defendant now asks that the court reconsider its decision, or, in the alternative, certify the question for interlocutory appeal pursuant to 28 U.S.C. § 1292(b).
This suit was filed by the plaintiffs under the Emergency Planning and Community Right-to-Know Act (EPCRA), 42 U.S.C. §§ 11001 et seq. (West Supp. 1992).
Under EPCRA, an operator of a facility subject to the requirements of 42 U.S.C. § 11023 annually "shall complete a toxic chemical release form" on July 1 of the following calendar year.
42 U.S.C. § 11023(a). This regulation was effective beginning in the calendar year 1987. Id.
Both plaintiffs in this case are non-profit tax-exempt groups. Plaintiff Delaware Valley Toxics Coalition ("DVTC") provides assistance to individuals and organizations in the greater Philadelphia area who are faced with environmental pollution problems or who are threatened by proposed facilities which may create environmental pollution problems. Complaint P 11. DVTC annually prepares and publishes toxic chemical release data for the greater Philadelphia area, and provides information on toxic chemical releases to organizations and individuals about the local environmental quality. Complaint P 12. DVTC also has presented its release data to the West Chester (Pa.) Borough Council and to community groups in the Philadelphia area. Pls.' Mem. of Law in Opp'n to Def.'s Mot. to Dismiss, Ex. A, P 17. DVTC undertook a computer study to determine if any area companies failed to submit the required reports, because it was concerned that its reports, based on EPA data, were not complete. Id. at PP 8-10, 19, 20. This study required the purchase of various items and the expenditure of at least 250 hours of time by DVTC staff. Id. at P 21. The expenditure of time to discover the defendant's alleged violation reduced the time and efforts that DVTC staff had to disseminate information and to educate and train others regarding its program. Id. at P 22.
The sole defendant in this case, Kurz-Hastings, operates a decorative foil manufacturing plant located in Northeast Philadelphia. Def. Motion to Dismiss, Ex. A, Frantz Aff. P 1. The defendant does not contest the fact that it was required under 42 U.S.C. § 11023(a) to file annual reports on its toxic chemical releases for the years 1987 through 1990.
Pursuant to EPCRA requirements, the defendant filed "Form R" reports with the United States Environment Protection Agency (EPA) for the calendar years 1987, 1988, 1989, 1990, 1991. Def. Motion to Dismiss, Ex. A, Frantz Aff. at P 10. Except for the 1988 report, all of these reports were filed late. Only after the plaintiffs transmitted a sixty day notice-to-sue letter to the defendant, did the defendant file the required forms on July 20, 1992. Complaint PP 21-24. Three days later, the defendant filed a revised Form R for the year 1988. Def. Motion to Dismiss, Ex. A, Frantz Aff. at P 12. Defendant filed its Form R for calendar year 1991 on August 28, 1992. Id. at P 11.
This suit was filed by the plaintiffs against the defendant on October 15, 1992. The plaintiffs may have given the proper authorities and the defendant the requisite sixty days prior notice pursuant to 42 U.S.C. § 11046(d). Complaint, Ex. A.
The defendant filed its original motion to dismiss pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. Rule 12(b)(1) allows the court to dismiss a suit for lack of jurisdiction over the subject matter. The court in deciding motions pursuant to Rule 12(b)(1) are not restricted just to the facts pleaded in the complaint, but can rely on affidavits and other evidence properly before the court. Warner Cable Communications v. Borough of Schuylkill Haven, 784 F. Supp. 203, 205 (E.D. Pa. 1992). Rule 12(b)(6) allows a court to dismiss a suit for failure to state a claim upon which relief can be granted. A complaint, however, "should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957). When evaluating a claim under Rule 12(b)(6), the plaintiff's allegations are assumed to be true, and are to be viewed liberally, "giving the plaintiff the benefit of all inferences which fairly may be drawn therefrom." Gluck v. Unisys Corp., 960 F.2d 1168, 1175 (3d Cir. 1992). If matters outside the pleadings are presented and considered by the court, the motion is treated as a motion for summary judgment. Fed. R. Civ. P. 12(b).
To the extent this court must rely on evidence other than just the complaint in deciding whether the plaintiffs have failed to state a claim for which this court may grant relief, the defendant requested that its motion be considered one for summary judgment. Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). At the summary judgment stage, the court does not weigh the evidence and determine the truth of the matter but rather it determines whether or not there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). The moving party has the burden of showing that there are no genuine issues of material facts. Gans v. Mundy, 762 F.2d 338, 340-41 (3d Cir.), cert. denied, 474 U.S. 1010, 88 L. Ed. 2d 467, 106 S. Ct. 537 (1985).
A. Unlawful delegation of executive power
Except as provided in subsection (e) of this section, any person may commence a civil action on his own behalf against the following:
(A) An owner or operator of a facility for failure to do any of the following:
(iv) Complete and submit a toxic chemical release form under section 11023(a) of this title.
42 U.S.C.A. § 11046(a) (West Supp. 1992).