Ada-Cascade Watch Co. v. Cascade Resource Recovery, Inc.

MERRITT, Circuit Judge, dissenting.

I.

Plaintiffs are suing the present defendants under the citizen suits provision of the RCRA, 42 U.S.C. § 6972 , which creates a private right of action against alleged violators of the Act. The District Court did not abstain but reached the merits of the federal question and dismissed the complaint on defendants’ Motion to Dismiss, which the court treated as a Motion for Summary Judgment.

The District Court’s decision followed from its finding that defendants’ facility qualified for “interim status” as a “facility ... in existence on November 19, 1980” under 42 U.S.C. § 6925 (e) and was therefore exempt from the permit requirement cited in plaintiffs’ complaint. 1 In order to arrive at this conclusion, the District Court had to find that defendants’ project was an “existing facility” under the statute. The Environmental Protection Agency (EPA) has defined “existing facility” in 40 C.F.R. • § 260.10 (1982), the relevant portion of which reads as follows:

“Existing hazardous waste management (HWM) facility” or “existing facility” means a facility which was in operation or for which construction commenced on or before November 19,1980. A facility has commenced construction if:

(1) The owner or operator has obtained the Federal, State and local approvals or permits necessary to begin physical construction. ...

Thus, the question whether defendants’ facility was entitled to “interim status” hinged on defendants’ ability to demonstrate satisfaction of all applicable federal, state, and local permit requirements. Noting that the state agency in charge of enforcing Michigan’s environmental laws had informed defendants that they did not need to obtain any additional construction permits, the District Court held that defendants had met the condition contained in the “existing facility” definition.

On appeal, plaintiffs contend that the District Court erroneously failed to investigate the correctness of the state agency’s determination that no additional construction permit was required under state law. I do not believe that the District Court had jurisdiction to decide the merits of the case because the plaintiffs have not satisfied jurisdictional conditions placed on their right to sue under the RCRA. I do not agree with the majority that this is a proper case for abstention.

II.

The citizen suits provision of the RCRA, 42 U.S.C. § 6972 (b)(1), imposes an explicit, *907 clearly stated condition on the private right of action that the statute creates against both public and private defendants for violation of the Act:

No action may be commenced ... prior to sixty days after plaintiff has given notice of the violation (A) to the Administrator [of the EPA]; (B) to the State in which the alleged violation occurs; and (C) to any alleged violator of . .. [an RCRA] permit, standard, regulation, condition, requirement or order....

(emphasis added). In the instant case, plaintiffs did not give the requisite notices. They sent notice to all defendants (including those subsequently dismissed) 2 on November 21, 1980, and filed suit a week later on December 1, 1980. They thus failed to comply with the sixty-day notice requirement. This provision is jurisdictional in nature affecting the power of the court to adjudicate the claim, and accordingly the plaintiffs’ failure to observe it compels dismissal of their ease.

The District Court dealt with the notice provision by staying all action on the case for sixty days from the date plaintiffs gave notice of the alleged violations. The Court reasoned that because the complaint was served on all the parties who were required to be notified under the statute, they had notice of the violation and the intent of the sixty-day notice requirement would be satisfied if the Court refrained from acting for sixty days to give the parties time to consider what action if any to take regarding the alleged violations.

There is a split in the Circuits on the so-called “pragmatic approach” to the problem of construing this provision and the similar notice requirements contained in other federal environmental statutes. 3 For example, in Pymatuning Water Shed Citizens v. Eaton, 644 F.2d 995 (3d Cir.1981), the Third Circuit approved the District Court’s decision to stay proceedings in a citizen suit under the Federal Water Pollution Control Act (FWPCA) until the sixty-day notice period had elapsed, rather than dismiss the case. See also Susquehanna Valley Alliance v. Three Mile Island Nuclear Reactor, 619 F.2d 231 , 243 (3d Cir.1980), cert. denied sub nom. General Public Utilities Corp. v. Susquehanna Valley Alliance, 449 U.S. 1096 , 101 S.Ct. 893 , 66 L.Ed.2d 824 (1981); Natural Resources Defense Council, Inc. v. Train, 510 F.2d 692, 703 (D.C.Cir. 1974) (notice provision of FWPCA held not jurisdictional prerequisite); Conservation Society of Southern Vermont, Inc. v. Secretary of Transportation, 508 F.2d 927 (2d Cir.1974) (sixty-day notice provision does not erect absolute barrier to earlier suit by citizens).

On the other hand, in City of Evansville, Indiana v. Kentucky Liquid Recycling, 604 F.2d 1008 (7th Cir.1979), the Seventh Circuit held that plaintiff’s failure to comply with the notice provision of the FWPCA precluded reliance on the citizen suits provision of the Act as a jurisdictional basis for the action. Accord Commonwealth of Massachusetts v. United States Veterans Administration, 541 F.2d 119 (1st Cir.1976).

In this Circuit, the only other case addressing a statutory notice issue is Pinkney v. Ohio Environmental Protection Agency, 375 F.Supp. 305 (N.D.Ohio 1974), in which the District Court held that the notice provision of the Clean Air Act, 42 U.S.C. § 1857 , constitutes a jurisdictional prerequisite.

I believe that the Pinkney court’s interpretation of the notice provision of the Clean Air Act should be applied to citizen suits under the RCRA. The statute states unambiguously that “no action may be com *908 menced” against private defendants without sixty days notice. Compliance with this notice provision is an indispensable condition on the plaintiffs’ right to sue under the Act.

Logical construction of the statute dictates that the notice condition be considered a bar to adjudication of the claim. The notice requirement is not a mere technical wrinkle of statutory drafting or formality to be waived by the federal courts. As the Department of Justice points out in its brief as amicus curiae, section 6972(c) contains an explicit exception to the sixty-day notice requirement, an exception that authorizes an action against the Administrator immediately after notice is given, provided the action alleges violation of the Hazardous Waste Management provisions of the RCRA, 42 U.S.C. § 6912 et seq. 4

Although the legislative history does not discuss the purposes of the notice requirement, this provision and its exception rest on readily discernible policy grounds that reflect the fundamental institutional relationship between the specialized administrative agencies and the federal courts. As noted above, 5 there are at least eight environmental statutes — beginning with the Clean Air Act of 1970 — that condition a broadly worded private right of action on the plaintiffs’ having given prior administrative notice of the activities they believe violate the Act. The widespread occurrence of such a notice requirement demonstrates that the provision was intended to be taken seriously. See Note, Notice by Citizen Plaintiffs in Environmental Litigation, 79 Mich.L.Rev. 299 (1980) (Clean Air Act notice provision is jurisdictional prerequisite).

The notice requirement serves first to give the Administrator of the EPA and the state an opportunity to investigate the alleged violation, and then take a position on the plaintiff’s claims. Lawsuits of this type frequently involve problems arising from the promulgation, interpretation, and application of minimal environmental standards to promote a national policy. The resolution of such problems often demands scientific and technological sophistication that the federal courts are institutionally incapable of developing without expert assistance. The sixty-day notice requirement thus serves the crucial function of putting the environmental problems before the environmental agency in the first instance, where a fund of specialized knowledge and procedures will help evaluate claims of violations. Thereafter, a private citizen may invoke the power of the federal courts, where the institutional expertise of the EPA will be readily available to assist in the resolution of the dispute. Cf. Oscar Mayer & Co. v. Evans, 441 U.S. 750 , 99 S.Ct. 2066 , 60 L.Ed.2d 609 (1979) (plaintiff claiming violation of Age Discrimination in Employment Act of 1967 must seek relief from appropriate state administrative agencies before bringing suit in federal court).

Moreover, conditioning the accrual of a private right of action on prior notice gives the parties and the administrative authorities an opportunity to reach an accommodation of their individual grievances through compromise or arbitration, before requiring the federal courts to declare the rights of the parties. By enacting the sixty-day notice provision, Congress intended to encourage resolution of disputes outside the courts, and to secure the participation of the EPA in certain suits. If a court merely stays an action for sixty days after it is filed, there is little incentive for the plaintiffs to seek alternative methods of resolving their disputes. Positions may have hardened, lawyers employed and legal fees paid. Furthermore, under the threat of an impending lawsuit, the Administrator and state may have less room for maneuver and compromise.

The function of the sixty-day notice requirement in the enforcement scheme is thus too important to be labeled a mere *909 “formality.” This explicit requirement must be enforced if the administrative agencies and the courts are to function in ways best suited to their institutional capacities. Plaintiffs must notify the Administrator, the state and the alleged violators first, and allow the sixty-day period to elapse just as the statute says (“no action may be commenced”) before they are entitled to come to court on their own behalf under section 6972.

III.

I do not agree that so-called “Burford” or any other type of abstention is appropriate and the Court’s ruling to this effect is simply an effort to avoid deciding the federal jurisdictional and statutory construction issues clearly present in the ease. There is no pending, contemplated or other possible state court proceeding for us to abstain in favor of. The state trial and appellate courts have already ruled on the state law issues, as the majority recognizes in Part I of its opinion, and this decision is final and conclusive on these issues. Thus the only question remaining, other than the jurisdictional issue, is whether the facility acquired “interim status” and thus is “grandfathered” in under 42 U.S.C. § 6925 (e). This is a federal question. I do not see how we can properly abstain when there is nothing left to be done in the state court. The majority is giving up on the issues rather than abstaining according to governing legal principles. Federal law does not permit its judges to give up rather than decide a case according to law.

. This “grandfather provision” of 42 U.S.C. § 6925 (e), as amended, reads in part as follows:

Interim status. — Any person who—

(1) owns or operates a facility required to have a permit under this section which facility is in existence on November 19, 1980,

♦ # # Sfc #

shall be treated as having been issued such permit until such time as final administrative disposition of such application is made, unless the Administrator or other plaintiffs proves that final administrative disposition of such application has not been made because of the failure of the applicant to furnish information reasonably required or requested in order to process the application.

. See supra note 1.

. See, e.g., Toxic Substance Control Act, §§ 20, 21, 15 U.S.C. §§ 2619 , 2620 (1976); Surface Mining Control and Reclamation Act of 1977, § 520, 30 U.S.C. § 1270 (1976 & Supp. I); Marine Protection, Research, and Sanctuaries Act of 1972, § 105, 33 U.S.C. § 1415 (1976); Deepwater Port Act of 1974, § 16, 33 U.S.C. § 1515 (1976); Safe Drinking Water Act, § 2(a), 42 U.S.C. § 300j-8 (1976 & Supp. I); Noise Control Act of 1972, § 12, 42 U.S.C. § 4911 (1976); Resource Conservation and Recovery Act of 1976, § 2, 42 U.S.C. § 6972 (1976 & Supp. I); Clean Air Amendments of 1970, § 12(a), 42 U.S.C. § 7604 (1976 & Supp. I).

. The instant case now involves only private defendants. Thus, plaintiffs cannot avail themselves of this exception to the notice requirement.

. See supra note 3.