United States District Court, D. Arizona
ORDER
Honorable G. Murray Snow United States District Judge.
Pending
before the Court is Plaintiff Don't Waste Arizona's
Motion for Partial Summary Judgment. (Doc. 60). For the
reasons below, the Court denies the motion.
BACKGROUND
Plaintiff
Don't Waste Arizona Inc. (“DWA”) is an
environmental non-profit with members who live near Defendant
Hickman's Egg Ranch Inc. facilities. (Doc. 1). Defendant
Hickman's Egg Ranch Inc. operates two large facilities
that produce chicken eggs. Each of the facilities has
millions of chickens which produce ammonia in their manure
every day. (Doc. 61, Exhs. 2-3). DWA brought this suit
against Hickman's based on Hickman's failure to
report ammonia emissions in violation of the Emergency
Planning and Community Right-to-Know Act. 42 U.S.C.
§§ 11001-11050.
Few
material facts are contested in the initial motion. One of
Hickman's experts estimates that the Arlington facility
emits 1, 599 pounds of ammonia from chicken manure per day,
and the Tonopah facility emits 1, 896 pounds of ammonia per
day. (Doc. 61, Exh. 4). Hickman's does not contest that
42 U.S.C. § 11004 requires facilities to immediately
report ammonia emissions in excess of 100 lbs per day to the
appropriate authorities. And, Defendant Hickman's Egg
Ranch “does not dispute that the ammonia emissions
released at its Tonopah and Arlington facilities may have
exceeded the general 100 lbs/day EPCRA emissions threshold
for the periods noted by Plaintiffs . . . .” (Doc. 63
¶ 7). Nevertheless, Hickman's notes that the
reporting obligation “does not apply to any release
which results in exposure to persons solely within the site
or sites on which the facility is located.” 42 U.S.C.
§ 11004(a)(4).
DWA's
initial Motion for Partial Summary Judgment thus presents
only one basic issue: whether Hickman's has raised an
issue of fact as to whether the ammonia that is produced by
the chickens results in exposure to persons “solely
within the site or sites on which the facility is
located.”[1]
DISCUSSION
I.
Legal Standard
The
Court grants summary judgment when the movant “shows
that there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). In making this determination, the Court
views the evidence “in a light most favorable to the
non-moving party.” Warren v. City of Carlsbad,
58 F.3d 439, 441 (9th Cir. 1995). “[A] party seeking
summary judgment always bears the initial responsibility of
informing the district court of the basis for its motion, and
identifying those portions of [the record] which it believes
demonstrate the absence of a genuine issue of material
fact.” Celotex Corp. v. Catrett, 477 U.S. 317,
323 (1986). The party opposing summary judgment “may
not rest upon the mere allegations or denials of [the
party's] pleadings, but . . . must set forth specific
facts showing that there is a genuine issue for trial.”
Fed.R.Civ.P. 56(e); see Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 586-87 (1986);
Brinson v. Linda Rose Joint Venture, 53 F.3d 1044,
1049 (9th Cir. 1995). Substantive law determines which facts
are material, and “[o]nly disputes over facts that
might affect the outcome of the suit under the governing law
will properly preclude the entry of summary judgment.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). “A fact issue is genuine ‘if the evidence
is such that a reasonable jury could return a verdict for the
nonmoving party.'” Villiarimo v. Aloha Island
Air, Inc., 281 F.3d 1054, 1061 (9th Cir. 2002) (quoting
Anderson, 477 U.S. at 248).
II.
Defendant's Reporting Requirements Under EPCRA
The
Emergency Planning and Community Right-to-Know Act
(“EPCRA”) maintains “a framework of state,
regional, and local agencies designed to inform the public
about the presence of hazardous and toxic chemicals, and
provide for emergency response in the event of
health-threatening release[s].” Steel Co. v.
Citizens for a Better Environment, 523 U.S. 83, 86
(1998); 42 U.S.C. §§ 11001-11050. The EPCRA
requires facilities to immediately report the release of a
hazardous substance. The EPCRA “is intended to
encourage and support emergency planning efforts at the State
and local levels and provide the public and local governments
with information concerning potential chemical hazards
present in their communities.” Id. See also United
States v. Gibson Wine Co., 2017 WL 1064658 at *10 (E.D.
Cal. Mar. 20, 2017).
More
specifically, the EPCRA requires entities to report any
large-scale release of certain hazardous chemicals to the
state emergency response commission (“SERC”) and
the local emergency planning commission (“LEPC”).
42 U.S.C. § 11004. Any facility that produces, uses, or
stores a hazardous chemical and releases a reportable
quantity must comply with emergency release notification
requirements. 40 C.F.R. § 355.30. Ammonia is an
extremely hazardous substance, and facilities must report
daily emissions of ammonia in excess of one hundred pounds.
40 C.F.R. § 302.4; 40 C.F.R. Part 35, Appendix A. Any
person may commence a lawsuit against an owner or operator
for failure to submit a follow-up emergency notice. 42 U.S.C.
§ 11046(a)(1)(A)(i).
Nevertheless,
pursuant to the terms of the EPCRA, the reporting obligation
does not apply to releases that result “in exposure to
persons solely within the site or sites on which a facility
is located.” 42 U.S.C. § 11004(a)(4). This
exception is in line with EPCRA's focus on public
notification of potential public risks. If a facility
maintains an emission within its boundaries, the emission
does not present an immediate risk to the surrounding
community, and there is no need for notice. Relatedly, the
EPA considered commentary on whether this exception means
that the EPCRA requires “actual exposure to persons
off-site in order to be subject to release reporting
requirements.” 52 Fed. Reg. 13378, 13380-81 (Apr. 22,
1987). The EPA final rule nearly mirrors the statute and
states that a facility need not report any release that
results “in exposure to persons solely within the
boundaries of [the] facility.” 40 C.F.R. § 355.31.
To trigger the reporting requirement under EPCRA, the release
of the hazardous chemical must elicit the need to either
“inform the public about the presence of hazardous and
toxic chemicals, ” or “provide for [an] emergency
response.” Steel Co., 523 U.S. at 86.
Hickman's
provides some evidence that air samples taken at both
facilities consistently show no emissions of ammonia at the
property boundaries. (Doc. 62 at 3). Hickman's puts forth
facts that “[a]ir quality samples collected by
Hickman's Tonopah and Arlington facilities and submitted
to the applicable regulatory agencies have consistently
indicated there are no emissions of ammonia at the property
boundaries.” (Doc. 31 at 4, ¶1). Hickman's
substantiates this claim with Robert Phalen's declaration
that he conducted monthly ammonia testing at the boundaries
of the facilities, and this testing registered minimal levels
of ammonia. (Doc. 31 at 5-6). Hickman's also provided
copies of these reports. (Doc. 31, Exh. A). Hickman's
thus alleges that there are issues of fact as to whether it
has a reporting obligation under the EPCRA because of its
evidence that the only persons exposed to the ammonia coming
from the chicken fertilizer are “persons solely within
the site or sites on which” their facilities ...