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Ouar A. HaListmoM ano Many E. Hauistaow,

PETITIONERS ~

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

-

QUESTION PRESENTED

Whether petitioners’ action to enforce standards created

under the Resource Conservation and Recovery Act must

be dismissed because petitioners did not give the Ad-

ministrator of the Environmental Protection Agency

notice of this action 60 days before it was filed, as required

by 42 U.S.C. 6972(b)(1).

(I)

TABLE OF CONTENTS

Page

a seals wen aeesend odmednéeoesens 1

OTUs wise od Seas 0s 4b0 DLs de ceed w seb cm ese 4

ae hoe Dee a eee ee cbesesiocts 9

TABLE OF AUTHORITIES

Cases:

City of Highland Park v. Train, 519 F.2d 681 (7th Cir.

1975), cert. denied, 424 U.S. 927 (1976) .............. 5

Consumer Product Safety Comm’n v. GTE Sylvania, Inc.,

Ee 7

Garcia v. Cecos, Inc., 761 F.2d 76 (ist Cir. 1985) ........ 3, 4,

5,9

Gwaltney of Smithfield v. Chesapeake Bay Found., No.

86-473 (Dec. 1, 1987) ... 2. 2. 6 cc cece eens 7,9

Hempstead County & Nevada County Project v. EPA,

700 F.2d 459 CE 6

Middlesex County Sewerage Auth. v. National Sea Clam-

mers Ass'n, 453 U.S. 1 (1981) ................2.25.. 5

NRDC v. Callaway, 524 F.2d 79 (2d Cir. 1975) ......... 6

NRDC v. Train, 510 F.2d 692 (D.C. Cir. 1974) ......... 6

Proffitt v. Commissioners, Township of Bristol, 754 F.2d

$04 (3d Cir. 1985) ........... Aaseseccsesesecercces 5

Pymatuning Water Shed Citizens for a Hygienic Environ-

ment v. Eaton, 644 F.2d 995 (3d Cir. 1981) ........... 5

Walls v. Waste Resource Corp., 761 F.2d 311 (6th Cir.

ECU TEC Ace atac us et een ese ss ereeteeccece 5,8

Statutes and Rule:

Act to Prevent Pollution from Ships, § 11(b)(1), 33

a RR ae i 4

Clean Air Act of 1963, Pub. L. No. 88-206, § 5, 77 Stat.

ee ee os wae ccbecececeecanccose 4,5

Clean Air Amendments of 1970:

ES WU coc ccc ces ccccccccccece 4,8

§ 304(a), 42 U.S.C. 7604(a) ...... 2.22. 4

§ 304(b), 42 U.S.C. 7604(b) ..................... 4

(111)

IV

Statutes and Rule — Continued: Page

Comprehensive Environmental Response, Compensation,

and Liability Act, § 310(d)(1), 42 U.S.C. 9659(d)(1)

(Supp. TV 1966) ......... cc ccc c ccc ce eccecccevess 4

Deepwater Port Act of 1974, § 16(b)(1), 33 U.S.C.

So Se ee eo met er Pe rere 4

Endangered Species Act of 1973, § 11(g)(2), 16 U.S.C.

SSID neice ccccsvccccccnvccscevcscensseeees 4

Federal Water Pollution Control Act, § 505(b)(1), 33

OF Re BREE vc coor cc cascncestocneaamgnreccscs 4

Marine Protection, Research, and Sanctuaries Act,

§ 105(g)(2), 33 U.S.C. 1415(g)(2) .. .. eee eee 4

Noise Control Act of 1972, § 12(b)1), 42 U.S.C.

0 er PoP Ore ree Tae eer ies 4

Outer Continental Shelf Lands Act, § 23(a)(2), 43 U.S.C.

RUE Wi vcciccccdvccincvecbebvesvdcdocevdece 4

Resource Conservation and Recovery Act of 1976, 42

UF BE BNE wk cede enencecreccccccccenesenes l

§ 3008(a), 42 U.S.C. 6928(a) .... 6. eee ee 7

§ 7002, 42 U.S.C. 6972 .... 2... cece cece eee 4, 6,7, 8,9

§ 7002(a), 42 U.S.C. 6972(a) .. «2.66 eee eee 2

§ 7002(aX(1)(A), 42 U.S.C. 6972(a)(1 A) (Supp. IV

SE CRN Cc Aen dnsawocrnapesccncscere 7

§ 7002(b), 42 U.S.C. 6972(b) ... «2. eee eee 2,3

§ 7002(b)(1), 42 U.S.C. 6972(b)(1) .... eee eee ee

§ 7002(b)(2)(A), 42 U.S.C. 6972(b)(2)(A) (Supp. IV

SR i he, ee bet ons owes cepbnebeanes 2

Safe Drinking Water Amendments of 1977, § 1449(b)(1),

42 U.S.C. 300j-B(D)(1) . 6. cece ee eee eee 4

Surface Mining Control and Reclamation Act of 1977,

§ 520(b)(1), 30 U.S.C. 1270(b)(1) ... 2. ee eee eee 4

Toxic Substances Control Act, § 20(b)(1), 15 U.S.C.

EE as ck be beuctigine 64) U ua beEASONHs 692 co0nd 4

UPL Dy, cnc caedd vuseeudeastutscd cones see 7

Miscellaneous:

116 Cong. Rec. 32,381 (1970) ........................

Hearings on S. 5229, S. 3466 & S. 3546 Before the Sub-

comm. on Air and Water Pollution of the Senate

Comm. on Public Works, 91st Cong., 2d Sess. (1970) . .

ve

In the Supreme Court of the Bnited States

OCTOBER TERM, 1988

No. 88-42

OLAF A. HALLSTROM AND MAry E. HALLSTROM,

PETITIONERS

Vv.

TILLAMOOK CouNTY, A MUNICIPAL CORPORATION

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

This brief is submitted in response to the Court’s invita-

tion to the Solicitor General to express the views of the

United States.

STATEMENT

1. Petitioners own a dairy farm located next to the

Tillamook County landfill in Oregon. Petitioners believe

that the landfill violates standards established under the

Resource Conservation and Recovery Act of 1976

(RCRA), 42 U.S.C. 6901 ef seg. Accordingly, on April 20,

1981, petitioners mailed a notice to the County of their in-

tent to bring an action to compel compliance with RCRA.

Petitioners, however, did not notify the Administrator of

the Environmental Protection Agency (EPA) nor the

Oregon Department of Environmental Quality (DEQ) of

their intent to sue. Pet. App. 2a.

(1)

2

On April 9, 1982, petitioners filed this action against the

County (Pet. App. 2a). Petitioners stated a claim under

Section 7002(a) of RCRA (42 U.S.C. 6972(a)), which

allows private persons to bring actions to enforce re-

quirements established under the statute. Petitioners also

set forth state-law claims for inverse condemnation,

trespass, and nuisance (Pet. App. 2a).

On March 1, 1983, the County moved for summary

judgment on the ground that petitioners had failed to

comply with Section 7002(b)(1) of RCRA. That Section

provides that no private “action may be commenced under

[RCRA] * * * prior to sixty days after the plaintiff has

given notice of the violation to * * * the Administrator [of

the EPA and] the State in which the alleged violation oc-

curs” (42 U.S.C. 6972(b)(1)).! On March 2, 1983, peti-

tioners sent a notice of their intent to sue to the Ad-

ministrator and to the DEQ. Petitioners informed the

governmental agencies that they intended to refile their ac-

tion if the court dismissed their case. Pet. App. 19a.

2. On April 22, 1983, the district court denied the

County’s motion for sumimary judgment. The court stated

that the purpose of the notice provision in Section 7002(b),

42 U.S.C. 6972(b), was to give the administrative agencies

the chance to bring their own court actions (Pet. App.

19a). Here, the court observed, the EPA and the DEQ had

expressed no interest in bringing an action. The district

court concluded, therefore, that “[t}]o grant defendant’s

motion based on the notice provision would be a waste of

judicial resources” (ibid.).

Following a trial in July 1985, the district court ruled

that the County’s landfill did violate standards created

' RCRA does not have a 60-day notice period for private actions

alleging violations of the statute’s hazardous-waste provisions. See 42

U.S.C. 6972(b\(2)A) (Supp. IV 1986). This case, however, is not such

an action.

3

under RCRA (Pet. App. 2a).? The court therefore ordered _

the County to remedy the violation within two years

(ibid.). A jury, however, found in favor of the County on

all three state-law Claims (ibid.). The district court later

denied petitioners’ request for an award of attorneys’ fees

a divided aes of

3. of the court of appeals vacated the

judgment and remanded the case to the district court to be

dismissed. The court ruled that the 60-day notice require-

ment in Section 7002(b) is a jurisdictional prerequisite to

bringing a private suit under RCRA (Pet. App. 6a). The

court explicitly agreed with the First Circuit in Garcia v.

Cecos Int'l, Inc., 761 F.2d 76, 79 (1985), that “the plain

language of [§ 7002(b)} commands sixty days’ notice

before commencement of the suit. To accept anything less

constitutes, in effect, judicial Amendment in abrogation

of explicit, unconditional statutory language’ ” (Pet. App.

4a). The court further noted that its view of Section

7002(b) is supported by the provision’s purpose “of en-

couraging non-judicial resolution of environmental con-

flicts” (id. at 4a-Sa).°

In dissent, Judge Pregerson stated that “[o}ne of the

purposes of the 60-day notice requirement is to allow the

EPA to enforce the statute” (Pet. App. 7a). Accordingly,

he would not require notice 60 days before an action is

filed. Rather, _Judge Pregerson “would interpret the

Statute to require that 60 days elapse before the district

court may act” (ibid.). He stated that his view “furthers the

goal of agency enforcement” by “allow[ing] the agency to

consider the alleged violation for 60 days” (ibid.).

? The district court found that an offensive “leachate mixes with

‘ou run-off and runs down” through petitioners’ property (C.A. App.

* The court cf appeals amended its opinion on April 7, 1988, to

make it clear that, because the district court lacked jurisdiction over

Petitioner’s federal-law claim, it lacked pendent jurisdiction over the

State-law claims as well (Pet. App. 14a-15a).

4

1. Until 1970, the major federal environmental laws

could be enforced only by the government. See, ¢.g.,

Clean Air Act of 1963, Pub. L. No. 88-206 § 5, 77 Stat.

396. In Section 304(a) of the Clean Air Amendments of

1970, however, Congress gave private citizens the right to

bring an action to enforce emission standards established

under the Clean Air Act. See 42 U.S.C. 7604(a). Section

304(b) of the Amendments provided that a citizen could

commence an action 60 days after he notified the defend-

ant and the EPA of the alleged violation. Since 1970, Sec-

tion 304 of the Clean Air Amendments has served as a

model for similar provisions in at least 12 other federal en-

vironmental statutes, including Section 7002 of RCRA.‘

The courts of appeals have taken different apprcathes

in cases where the plaintiff failed to give the required

notice to the EPA. In Garcia v. Cecos Int'l, Inc., supra,

the First Circuit adopted the position followed by the

Ninth Circuit in this case. It held that a case must be

dismissed for want of jurisdiction “where the complaint is

filed less than sixty days after actual notice to the agency

* See also Section $05(b)(1) of the Federal Water Pollution Control

Act, 33 U.S.C. 1365(b)(1); Section 310(d\(1) of the Comprehensive

Environmental Response, Compensation, and Liability Act, 42

U.S.C. 965% d)\(1) (Supp. IV 1986); Section 16(b)(1) of the Deepwater

Port Act of 1974, 33 U.S.C. 1515(b\1); Section 11(g)2) of the En-

dangered Species Act of 1973, 16 U.S.C. 1540(g)(2); Section 105(g)(2)

of the Marine Protection, Research, and Sanctuaries Act, 33 U.S.C.

1415(g\2); Section 12(b)(1) of the Noise Control Act of 1972, 42

U.S.C. 4911(b\(1); Section 23(aX(2) of the Outer Continental Shelf

Lands Act, 43 U.S.C. 134%a)(2); Section 1449(b\(1) of the Safe

Drinking Water Amendments of 1977, 42 U.S.C. 300j-8(b)(1); Section

$20(b\1) of the Surface Mining Control and Reclamation Act of

1977, 30 U.S.C. 1270(b\(1); Section 20(b)(1) of the Toxic Substances

Control Act, 15 U.S.C. 2619(b)(1); Section 11(b)(1) of an Act to Pre-

vent Pollution from Ships, 33 U.S.C. 1910(b)(1).

5

and the alleged violators” (761 F.2d at 82). The Seventh

Circuit has also taken that position in a suit by a private

party against the EPA to compel the Administrator to take

steps allegedly required by the Clean Air Act. See City of

Highland Park v. Train, 519 F.2d 681, 690-691 (1975),

cert. denied, 424 U.S. 927 (1976).

The Third Circuit has a different rule. The plainuff in

Pymatuning Water Shed Citizens for a Hygienic Environ-

ment v. Eaton, 644 F.2d 995 (1981), failed to give the EPA

and state authorities notice before it commenced an action —

under the Federal Water Pollution Control Act. On ap-

peal, the defendant argued that the district court should

have dismissed the action. The Third Circuit disagreed.

The Third Circuit held that the district court followed the

correct procedure when it “stayed its proceedings until

notice was given to the proper persons and entities. This

stay allowed them the time contemplated by the statute for

taking appropriate action” (id. at 997). Accord Proffitt v.

Commissioners, Township of Bristol, 754 F.2d 504, 506

(3d Cir. 1985) (“sixty day notice provision should be ap-

plied flexibly to avoid hindrance of citizen suits”).°

The Sixth Circuit apparently follows a third approach.

In Walls v. Waste Resource Corp., 761 F.2d 311 (1985),

the plaintiffs failed to give the required notice before they

’ We disagree with respondent's contention (Br. in Opp. 11-13) that

the conflict in the circuits was implicitly resolved by this Court's deci-

sion in Middlesex County Sewerage Auth. v. National Sea Clammers

Ass'n, 453 U.S. 1 (1981). The issue in that case was whether there was

an imphed private right of action under the Federal Water Pollution

Control Act. In resolving that issue, the Court noted (id. at 14) the

Statute’s express provision authorizing citizen suits if the plaintiff gives

proper notice 60 days before he files suit. The Court, however, had no

occasion to address the consequences of failing to give such notice.

Thus, although the Court stressed the importance of the notice provi-

sion, the Court did not decide whether an action commenced without

prior notice must be dismissed (the Ninth Circuit approach) or stayed

pending proper notice (the Third Circuit approach).

6

brought their action under RCRA. The Sixth Circuit held

that the notice provision “is a jurisdictional prerequisite to

bringing suit” (id. at 316). The court therefore held that

the district court properly dismissed the RCRA claim. The

court of appeals stated, however, that its decision was

“without prejudice to any request plaintiff may make to

file an amended complaint respecting notice” (id. at 317).

Accordingly, the Sixth Circuit seemingly has sanctioned

an approach that allows a plaintiff to give the required

notice after he files suit if he then amends his complaint to

include allegations of adequate notice.®

2. Experience shows that plaintiffs sometimes fail to

give the required notice before bringing a private enforce-

ment suit under the environmental laws. This leads to

wasteful litigation over the proper procédure to fol-

low — whether to dismiss the action or to stay the pro-

ceedings. In those circuits that have not adopted a rule, the

uncertainty can be especially troubling. For example, a

plaintiff's cxse may be stayed by the district court, later

adjudicated, and then dismissed on appeal so that the

district court’s judgment becomes void. This Court can

* Contrary to the court of appeals’ opinion (Pet. App. 3a), the Sec-

ond, Eighth, and District of Columbia Circuits have not addressed the

precise issue presented in this case. In NRDC v. Train, 510 F.2d 692

(D.C. Cir. 1974), the court allowed a suit against the Administrator to

continue in the absence of prior notice because the court held that the

plaintiff stated a claim under the Administrative Procedure Act,

which does not require prior notice (id. at 703). The Second Circuit

agreed with that holding in NRDC v. Callaway, 524 F.2d 79, 83

(1975). In Hempstead County & Nevada County Project v. EPA, 700

F.2d 459 (1983), the Eighth Circuit transferred an action brought

under RCRA to the district court after it held that it lacked jurisdic-

tion over the plaintiffs’ claim. The court stated that the notice provi-

sion in Section 7002 had been satisfied (700 F.2d at 463) so that the

plaintiffs’ action could properly be commenced in the district court.

5

end the uncertainty ¢d the fruitless litigation by resolving

the conflict in the circuits.

Moreover, the different approaches adopted by the

courts of appeals can cause significantly different results.

RCRA, like many other environmental statutes,

authorizes the Administrator to issue orders assessing civil

fines. See 42 U.S.C. 6928(a). A private citizen may file an

action to enforce such an order. But RCRA allows a

citizen to bring such an action only if the defendant is cur-

rently “alleged to be in violation of any” RCRA require-

ment (42 U.S.C. 6972(a)(1A) (Supp. IV 1986)). See

Gwaltney of Smithfield v. Chesapeake Bay Found., No.

86-473 (Dec. 1, 1987). Accordingly, if a plaintiff's action is

dismissed for lack of proper notice, and the defendant

promptly comes into compliance with RCRA, the plaintiff

may not file his action again. By contrast, if the plaintiff's

case were stayed instead of dismissed, the same defendant

would remain liable for civil penalties and possibly at-

torneys’ fees in the private suit. Thus, we believe that the

Court should grant the petition to resolve the conflict in

the courts of appeals.

3. a. The decision of the Ninth Circuit in this case

follows from the plain language of Section 7002. See

generally Consumer Product Safety Comm'n v. GTE

Sylvania, Inc., 447 U.S. 102, 108 (1980) (statute’s

“language must ordinarily be regarded as conclusive”).

Section 7002(b)(1) states that “[njo action may be com-

menced under” Section 7002 until “sixty days after the

plaintiff has given notice” to the EPA, the state, and the

alleged violator. And Rule 3 of the Federal Rules of Civil

Procedure defines when an action is “commenced”: “A

civil action is commenced by filing a complaint with the

court.” Thus, a private plaintiff may not file a complaint

alleging a RCRA violation until 60 days after he has given

the required notice.

Section 7002 does not provide, as petitioners necessarily

contend, that a plaintiff may file a RCRA claim and then

give the proper notice as long as the court does not rule on

the plaintiff's claim for 60 days. We can imagine such a

statutory scheme, but that is not the scheme that Congress

adopted. The court of appeals’ decision in this case,

therefore, accurately followed the language of Section

7002.

b. Contrary to petitioners’ contention, the Ninth Cir-

cuit’s holding is not so patently inconsistent with the will

of Congress that the Court may appropriately “go beyond

the letter of the statute” (Reply Br. 8). Congress patterned

Section 7002 of RCRA after Section 304 of the Clean Air

Amendments of 1970. The legislative history of Section

304, in turn, shows that Congress intended the notice

provision to play an important role. Proponents of Sec-

tion 304 were concerned that private-enforcement suits

could interfere with governmental enforcement of the

Clean Air Act. See Hearings on S. 3229, S. 3466 & S. 3546

Before the Subcomm. on Air and Water Pollvtion of the

Senate Comm. on Public Works, 91st Cong., 2d Sess.

1184 (1970). And opponents of Section 304 testified that

citizen suits could create an unproductive adversary rela-

tionship between the public, government, and industry.

See id. at 1570. The Senate Subcommittee on Air and

Water Pollution addressed those concerns by adding the

provision requiring a plaintiff to give prior notice to the

alleged violator and the appropriate government agencies.

See 116 Cong. Rec. 32,381 (1970). Thus, as the Sixth Cir-

cuit stated in Walls v. Waste Resource Corp., 761 F.2d

311, 317 (1985), the notice provisions in environmental

statutes are “viewed by Congress as crucial in defining the

proper role of the citizen suit.” The notice period allows

“the EPA, state, and violator sixty days to resolve the

9

problem without being harassed by a lawsuit.’ ” Garcia v.

Cecos Int'l, Inc., 761 F.2d at 82 (citation omitted).

In Gwaltney of Smithfield v. Chesapeake Bay Found.,

supra, this Court noted that one of the purposes of the

notice provisions is to give the alleged violator “an oppor-

tunity to bring itself into complete compliance with the

[law] and thus likewise render unnecessary a citizen suit”

(slip op. 9). That purpose is not fulfilled simply by the

court’s not acting on a plaintiff's complaint for 60 days.

As the court of appeals in this case observed, “once a suit

is filed, positions become hardened, parties incur legal

fees, and relations become adversarial so that cooperation

and compromise [are] less likely” (Pet. App. Sa). Accord-

ingly, the court of appeals correctly interpreted Section

7002 of RCRA in holding that a citizen suit must be

dismissed, not merely stayed, if the plaintiff did not give

the required prior notice.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted.

WILLIAM C. BRYSON

Acting Solicitor General

DONALD A. CARR

Acting Assistant Attorney General

LAWRENCE G. WALLACE

Deputy Solicitor General

BRIAN J. MARTIN

Assistant to the Solicitor General

ANNE S. ALMY

JOHN T. STAHR

Attorneys

FEBRUARY 1989

- US GOVERNMENT PRINTING OFFICE 1989— 24169900108