Joint Appendix — Hallstrom v. Tillamook County

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In The cme

Supreme Court of the United States |

October Term, 1988

+ :

OLAF A. HALLSTROM and

MARY E. HALLSTROM,

Petitioners,

TILLAMOOK COUNTY,

a municipal corporation,

Respondent

On Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

o—

JOINT APPENDIX

Km Bucxiey* I. FRANKLIN HuUNSAKER*

Micnaet J. Esier James G. Driscoit

Joun W. STEPHENS Tuomas D. Apams

Esier, SterHens & Buck.ey BuLLIVANT, Houser, Bai.ey,

101 S.W. Main, Suite 1870 Penpercrass & HorrmMan

Portland, 97204-3226 1400 Pacwest Center

(503) 223-151 1211 S.W. Fifth Avenue

a Portland, 97204

Attorneys for Petitioners (503) a Vs

*Counsel of Record Attorneys for Respondent

*Counsel of Record

Petition for Certiorari Filed July 6, 1988

Certiorari Granted March 20, 1989

Oe Tee ss

Qa a

TABLE OF CONTENTS

Docket Entries, Olaf A. Hallstrom and Mary E.

Hallstrom v. Tillamook County, United States

trict Court for the District of Oregon, Civil

Action No. 82-481-JU ... 2... 6... ccc ccc ecw c eens

States District Court for the District of n,

re ky x 82-481-JU, Dated March 1, 1983 ....

Affidavit of Earnest A. Schmidt, United States

District Court for the District of Oregon, Civil

Action No. 82-481-JU, Dated February ___ 1983....

Affidavit of James G. Driscoll, United States

District Court for the District of Oregon, Civil

Action No. 82-481-JU, Dated March __, 1983 ..

[Plaintiff’s) Memorandum in Opposition to

Action No. 82-481-JU, Dated March 1983 ...

y to Plaintiffs’ Memorandum in tion

to nt’s Motion for Summary Judgment,

United States District Court for the District of

n, Civil Action No. 82-481-JU, Dated

A Bp Ce oceccccccosvccoccccessecececcccccs

Page

coos OS

TABLE OF CONTENTS - Continued

Order Denying Defendant’s Motion for Sum-

mary Judgment (Motion to Dismiss), United

roe nny hg ett phe phe ig

Civil Action No. 82-481-JU, Dated April

for the District of

Oregon, Civil Action No

82-481-JU, Dated September 30, 1985...........

Final Jud and Decree, United States Dis-

Action No. 82-481-JU, Dated June 23, 1986.....

Amended Opinion, United States Court of

A ls, Ninth Circuit, Nos. 86-4016, 86-4100,

and 86-4257, Dated April 7, 1988 ..............

RELEVANT DOCKET ENTRIES

PLAINTIFF

DEFENDANT

OLAF A. HALLSTROM, et al. TILLAMOOK COUNTY

DOCKET NO. 82-481

DATE NR. PROCEEDINGS

1982

APR 9 1) COMPLT FOR VIOLATIONS OF SOLID

June 18 7)

1983

MAR 2 | 15)-

22 19).

APR 1 = 20)

22 22)

JUN 8 Q)

1985

SEP 30 120)

WASTE DISPOSAL ACT, TRESPASS &

NUISANCE - DEMAND FOR J/T

ANS & demand for J/T

Deft’s Mot for s/j (oa req), affids

Memo in opposition to motion for S/J

Reply to pltfs’ memo in oopos to deft’s

mot for S/J

ORD denying deft’s mot for s/j (mot to

dismiss) e/m 4-25 s/4-22-83 PA ntfd

PTO LODGED

OPINION & ORD Deft ord to submit pro-

posal outlining steps nesc to achieve

& complete containment of leachate

w/in boundaries of landfill site w/in 60

days entry of this ord. Claims for atty

fees be addressed in supp submissions

——— ES ae a a eS ee SoS =

JUN 23 129)

by parties. This my finds of fact & con-

clusions of law per Rule 52(a) FRCP. e/m

10/1 s JU 9/30/85 ntfd

Final Judgment & decree 1) deft comply

w/terms of ord & decree 6/23/86 & 2)

deft have judgment in its favor on plt’s

claims for trespass, nuisance & inverse

condemnation. e/m & s JU 6/23/86 ntfd

Michael J. Esler

Kim T. Buckley

ESLER & SCHNEIDER

519 S.W. Park Avenue

Suite 510

Portland, Oregon 97205

Telephone: (503) 223-1510

Of Attorneys for Plaintiffs

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

OLAF A. and MARY E. )

HALLSTROM, )

husband and wife, ) Civil No. 82-481

Plaintiffs, } COMPLAINT FOR VIOLA-

: ) TIONS OF SOLID WASTE

) DISPOSAL ACT, TRES-

TILLAMOOK COUNTY, ? PASS, AND NUISANCE

a municipal corporation, )

Defendant. ) DEMAND FOR JURY TRIAL

Plaintiffs demand a jury trial and allege:

JURISDICTION AND VENUE

1. The jurisdiction of this court is predicated on 28

U.S.C. §1331 (federal question).

2. The first count arises out of violations of the

Solid Waste Disposal Act, as amended, 42 U.S.C.

§§6901-87. This court has jurisdiction of this claim pur-

suant to 42 U.S.C. §6972(a).

3. This court has jurisdiction of the second, third,

and fourth counts because they arise out of facts that are

substantially identical to the first count.

4. The amount in controvei.y exceeds $10,000

exclusive of interest and costs.

5. Venue is proper in this judicial district under 15

U.S.C. §1391(b) and under 42 U.S.C. §6972 because defen-

dant resides here, the claim arose in this judicial district,

and the violations of the Solid Waste Disposal Act

occurred in this judicial district.

PARTIES

6. Plaintiffs are Oregon residents who own and live

on farmland adjacent to an open dump owned and oper-

ated by defendant.

7. Defendant is an Oregon county and a municipal

corporation duly incorporated and organized under Ore-

gon law.

Ill

COUNT ONE

(Violation of Solid Waste Disposal Act)

8. Defendant owns and operates an illegal open

dump, the Tillamook County Landfill, in Tillamook

County, Oregon, in violation of the following statutes and

regulations:

42 U.S.C. §6945

40 C.F.R. §§241.200-1, 241.202-1, 241.203-1, 241.204-1,

241-205-1, 241.207-1, 241.208-1, 241.209-1, and

241.210-1.

40 C.RR. §§257.1, 257.3-1, 257.3-2, 257.3-3, 257.3-4,

257.3-6, and 257.3-7.

40 C.F.R. §§264.1-.77.

40 C.R.R. §§265.1-.94 and 265.220-.315.

9. The Tillamook County Landfill is being operated

as an illegal open dump. Hazardous wastes have been

disposed of on the site on a regular basis with little or no

controls. Surface water and leachate discharged from the

site onto plaintiffs’ farmland and the groundwater under

the site and plaintiffs’ farmland are contaminated with

dangerously high concentrations of hazardous wastes

and dissolved solids. Emissions, including dust, from the

site violate applicable air quality standards and adversely

affect the quality of air around plaintiffs’ resiuence and

farmland. Conditions are maintained at the site that are

favorable for the harboring, feeding, and breeding of

vectors. The surface area of exposed solid waste has not

been minimized, adequate and effective cover material

has not been applied, and the solid waste has not been

compacted. The site was improperly designed, and mea-

sures taken to direct the leachate produced at the site

have not been effective. The leachate produced at the site

has been allowed to drain onto plaintiffs’ land, the tide-

water areas adjacent to the site, and into Sutten Creek

and the Tillamook River.

10. More than 60 days prior to the commencement

of this action, plaintiffs served a notice of intent to file a

citizen’s suit pursuant to 42 U.S.C. §6972 and 40 C.F.R.

§254. Since service of the notice of intent to sue, contam-

ination of groundwater has substantially increased and

the leachate treatment system has failed.

11. Plaintiffs are entitled to injunctive relief requir-

ing the immediate closure of the Tillamook County Land-

fill pursuant to 40 C.R.F. §§264.50-.56, 264.110-120,

265.50-.56, and 265.112-.118.

12. Plaintiffs are entitled to injunctive relief

restraining defendant from operating the Tillamook

County Landfill until it has been brought in compliance

with the Solid Waste Disposal Act and regulations

enacted thereunder.

13. As a result of defendant’s conduct, plaintiffs’

residence and farmland and the groundwater beneath

have been contaminated with hazardous wastes and dis-

solved solids, and the value of plaintiffs’ farmland has

been reduced by more than $10,000, the exact amount to

be determined at trial.

14. Under 42 U.S.C. 6972, plaintiffs are entitled to

recover the costs of this litigation. including reasonable

attorney and expert witness fees. A reasonable sum to

award plaintiffs for their costs of the litigation is

$35,000.00.

COUNT TWO

(Nuisance)

15. Plaintiffs reallege paragraphs 1 through 10 and

13, above.

ve a a a ee es aaeeeeeererl ee le 7 oo — —_ ale

16.. Defendant’s conduct has unreasonably inter-

fered and continues to interfere with plaintiffs’ use and

enjoyment of their residence and farmland.

17. Plaintiffs have requested and given notice to

defendant to control the continuing contamination of the

surrounding land and water, but defendant has failed and

refused to do so.

18. Plaintiffs are entitled to injunctive relief

restraining defendant from operating the Tillamook

County Landfill until it can be operated without unrea-

sonable inter:crence with plaintiffs’ use and enjoyment of

their residence and farmland.

19. Plaintiffs have been damaged by more than

$10,000, the exact amount to be determined at trial,

because of defendant’s unreasonable interference with

their use and enjoyment of their residence and farmland.

COUNT THREE

(Trespass)

20. Plaintiffs reallege paragraphs 1 through 10 and

13, above.

21. Defendant’s conduct has caused and continues

to cause leachate to be discharged upon plaintiffs’ resi-

dence and farmland and to contaminate the groundwater

beneath plaintiffs’ residence and farmland without the

consent and contrary to the desire of plaintiffs.

22. Such entry and contamination is inconsistent

with plaintiffs’ ownership of their farmland, and is in

violation of plaintiffs’ right to exclusive possession.

23. Plaintiffs are entitled to injunctive relief

restraining defendant from operating the Tillamook

County Landfill until it can be operated without trespass

to plaintiffs’ residence and farmland or the groundwater

underneath.

COUNT FOUR

(Inverse Condemnation)

23. Plaintiffs reallege paragraphs 1 through 10, 16,

17, 21, and 22, above.

24. Defendant’s conduct has substantially interfered

and continues to substantially interfere with plaintiffs’

use and enjoyment of their residence and farmland.

25. Def.ndant is authorized to exercise eminent

domain, and it could have exercised eminent domain in

pursuit of operating the Tillamook County Landfill.

26. Defendant’s conduct constitutes a wrongful tak-

ing of plaintiffs’ land for public use without

compensation.

27. As a result of defendant's wrongful taking of

plaintiffs’ land, plaintiffs have been damaged by more

than $10,000, the exact amount to be determined at trial.

28. Defendant's conduct was and continues to be

willful and intentional. Exemplary damages should be

assessed against defendant in the amount of $100,000.00

to deter defendant and others from similar conduct.

29. Under ORS 20.085, plaintiffs are entitled to

recover reasor~ble attorney fees incurred in this case. A

eee

reasonable sum to award plaintiffs for their attorney fees

is $25,000.00.

WHEREFORE, PLAINTIFFS PRAY for the following

relief against defendant:

1. An injunction requiring the immediate closure of

the Tillamook County Landfill pursuant to 40 C.R.F.

§§264.50-.56, 264.110-120, 265.50-.56, and 265.112-.118.

2. An injunction restraining defendant from operat-

ing the Tillamook County Landfill until it has been

brought in compliance with the Solid Waste Disposal Act

and regulations enacted thereunder.

3. An injunction restraining defendant from operat-

ing the Tillamook County Landfill until it can be operated

without unreasonable interference with plaintiffs’ use

and enjoyment of their residence and farmland.

4. An injunction restraining defendant from operat-

ing the Tillamook County Landfill until it can be operated

without trespass to plaintiffs’ residence and farmland or

the groundwater underneath.

5. Damages in an amount greater than $10,000

caused by defendant’s unreasonable interference with

plaintiffs’ use and enjoyment of their residence and

farmland.

6. Damages in an amount greater than $10,000

caused by defendant's trespass on and under plaintiffs’

residence and farmland.

7. Damages in an amount greater than $10,000

caused by defendant’s wrongful taking of plaintiffs’ resi-

dence and farmland.

8. Exemplary damages in the amount of $100,000.

9. Plaintiffs’ costs of this litigation, including

$25,000 for reasonable attorney fees and $10,000 for

expert witness fees.

10. Plaintiffs’ costs and disbursements incurred in

this case.

11. Such other relief as the court deems just and

equitable.

DATED this 9 day of April, 1982.

Respectfully submitted,

ESLER & SCHNEIDER

By: /s/ Kim T. Buckley

Kim T. Buckley

Of Attorneys for

Plaintiffs

(Certificate of Service omitted in printing)

121 S.W. Salmon Street

Portland, — 97204

Telephone: ) 228-6351

Attorneys for Defendant

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

)

Plaintiffs, pone: No. 82-481

7 ) ANSWER AND DEMAND

) FOR JURY TRIAL

TILLAMOOK COUNTY,

a municipal corporation, )

Defendant. )

Defendant alleges:

FIRST DEFENSE

1. Defendant admits that it is a municipal body duly

organized and existing under Oregon law and that it

operates a sanitary landfill in the vicinity of land owned

by the Plaintiffs.

2. Except as specifically and expressly admitted

above, Defendant denies each and every allegation, mat-

ter and thing contained in the Plaintiffs’ Complaint and

the whole thereof.

SECOND DEFENSE

This Court lacks jurisdiction of Plaintiffs’ claims for

the recovery of money damages for alleged violations of

the Solid Waste Disposal Act (hereinafter referred to as

“the Act”). The sole basis for this Court’s jurisdiction of

this controversy is the grant of jurisdiction at 42 USC

§ 6972(a). This grant of jurisdiction is limited to the

enforcement of regulations or orders which have become

effective pursuant to the Act.

THIRD DEFENSE

This Court lacks jurisdiction of Plaintiffs’ pendant

suits to enjoin Defendant. Defendant is immune from

suits for injunctive relief by virtue of its sovereign

immunity.

FOURTH DEFENSE

Plaintiffs have failed to commence this action within

the time allowed by law.

FIFTH DEFENSE

Plaintiffs have failed to give Defendant notice of its

claims as required by the Act and as required by Oregon

law.

SIXTH DEFENSE

Plaintiffs have failed to state a claim upon which

relief can be granted against this Defendant.

SEVENTH DEFENSE

Plaintiffs previously prosecuted an action against this

Defendant in the Tillamook County Circuit Court in

which the present claims were or could have been liti-

gated to a final determination. Plaintiffs are therefore

barred from maintaining the present action by the princi-

pal of res judicata.

EIGHTH DEFENSE

The matters of which Plaintiffs complain constitute

the performance of or the failure to exercise or perform

discretionary functions for which this Defendant is

immune from liability under Oregon law.

NINTH DEFENSE

There is no basis under the Act for the recovery of

punitive or exemplary damages, and Plaintiffs are barred

by Oregon law from the recovery of punitive or exempl-

ary damages from this Defendant.

TENTH DEFENSE

There are no standards or regulations for the opera-

tion of a landfill in effect in Oregon which have been

authorized or approved pursuant to the Act. Defendant

therefore cannot have committed any violation of the Act.

ELEVENTH DEFENSE

Under 42 USC § 6972, Defendant is entitled to

recover the cos* of this litigation, including reasonable

attorney fees and expert witness fees.

WHEREFORE, having fully answered Plaintiffs’

Complaint, Defendant prays that Plaintiffs take nothing

thereby, and for its costs, disbursements and attorney fees

incurred herein.

DATED this 18th day of June, 1982.

BULLIVANT, WRIGHT, LEEDY,

JOHNSON, PENDERGRASS

& HOFFMAN

By (SIGNED) RONALD E. BAILEY

Ronald E. Bailey

By (SIGNED) JAMES G. DRISCOLL

James G. Driscoll

Attorneys for Defendant

(Certificate of Service omitted in printing)

James G. Driscoll

BULLIVANT, WRIGHT, LEEDY, JOHNSON,

PENDERGRASS & HOFFMAN

1000 Willamette Center

121 S.W. Salmon Street

Portland, 97204

Telephone: ) 228-6351

Of Attorneys for Defendant

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

)

HALLSTROM, ) Civil No. 82-481

husband and wife, )

Plaintiffs, ) MOTION FOR SUMMARY

)JUDGMENT (ORAL ARGU-

” ) MENT REQUESTED)

TILLAMOOK COUNTY, a ?

municipal corporation, )

Defendant. )

Defendant moves the Court for summary judgment

in its favor and against the plaintiffs on the grounds that

there exists no genuine dispute as to any material fact

and the defendant is entitled to judgment in its favor as a

matter of law. Defendant further moves the Court for a

judgment in its favor and against the plaintiffs for its

reasonable attorneys’ fees and other litigation costs

incurred herein. Defendant requests oral argument.

This motion is based on the provisions of FRCP 56;

the matters on file herein; the affidavits of Ernest A.

Schmidt and James G. Driscoll, attached hereto as

Exhibits A and B, respectively; and the following state-

ment of points and authorities.

POINTS AND AUTHORITIES

FACTS

Plaintiffs own and reside on property located adja-

cent to the site of the Tillamook County Sanitary landfill

in Tillamook County, Oregon. In this action, the plaintiffs

assert claims for violations of the Solid Waste Disposal

Act (SWDA), 42 USC § 6901-6987 and pendent claims for

common law trespass and nuisance and for inverse con-

demnation. The plaintiffs seek both damages and injunc-

tive relief against Tillamook County arising out of the

operation of the landfill. Plaintiffs allege jurisdiction in

this Court based upon the “citizen suit” provisions of

SWDA, 42 USC § 6972. Plaintiffs’ common law and

inverse condemnation claims are based on the Court’s

pendent jurisdiction.

The affidavits attached as Exhibits A and B establish

that the plaintiffs have never given notice of the claimed

violations of the Solid Waste Disposal Act to either the

State of Oregon or to the Environmental Protection

Agency.

Il.

LAW

Subsection (a) of 42 USC § 6972 provides that:

“Except as provided in Subsection (b) or (c) of

this section, any person may commence a civil action

on his own behalf -

Or ee es i PS 2 ee, eae ee

(1) against any person (including (a) the United

States, and (b) any other quvemmmentel instru-

mentality or a , to the extent permitted by

= ‘fe alleged — ment fe the constitution)

who is to be in violation of any it,

standard, regulation, condition, sequbeann, | or

order which has become effective pursuant to

this chapter;

“Any action under Paragraph (a)(1) of this sub-

section shall be brought in district court for the

district in which the alleged violation occurred... .”

Subsection (b) of the statute provides:

“Actions prohibited. - No action may be com-

menced under Paragraph (a)(1) of this section -

(1) — to 60 days after the plaintiff has given-

no of the violation (A) to the Administrator;

(B) to the State in which the alleged violation

occurs; and (C) to any alleged violator of such

permit, standard, regulation, condition, require-

ment, or order; ... ”

The Environmental Protection Agency has supple-

mented the provisions of Subsection (b) of 42 USC § 6972

by promulgating specific requirements concerning where

the requisite notice is to be sent, in what manner, and

what information is to be contained in the notice. (40 CFR

§ 254.1-254.3)

This notice requirement has been expressly held to be

a jurisdictional prerequisite to an action by a private

citizen under 42 USC § 6972. In McCastle v. Rollins Envi-

ronmental Services, 514 F Supp 936 (M.D. La., 1981) the

court stated:

“Section 6972 (c), as amended in 1978, provides, how-

ever, that no action may be commenced under the

Act until after plaintiff has given notice to the admin-

istrator of the Environmental Protection Agency.

Notice of this sort has been held to be jurisdictional and no

action may be instituted in its absence. See National Sea

Clammers Association v. City of New York, 616 F2d 1222

(3rd Cir. 1980), cert. granted, 449 US 917, 101 S. Ct.

314, 66 L.Ed.2d 145 (1981), dealing with a similar

notice provision under the Federal Water Polution

Control Act.

“It is undisputed that plaintiffs have given no

notice of this action and none is alleged in the peti-

tion. Under these circumstances, it is clear that plain-

tiffs have not brought and could not have brought

this action under 42 USC § 6972 (a).” (514 F Supp at

939). (Emphasis added).

See also the decision in Middlesex Cty. Sewerage Auth.

v. Sea Clammers, 453 US 1, 69 L.Ed.2d 435, 101 S.Ct. 2615

(1981), interpreting and applying the identical citizen suit

provisions of the federal Water Pollut‘on Control Act

(FWPCA) and the nearly identical citizen suit provisions

of the Marine Protection, Research and Sanctuaries Act of

1972 (MPRSA).

The District Court in the Sea Clammers Litigation had

originally dismissed the action for failure of the plaintiffs

to give the prior sixty-day notice of intent to sue required

by those Acts. In describing the District Court decision,

the Supreme Court stated:

“ ... With respect to the claims based on alleged

violations of the FWPCA, the court noted that

respondents had failed to comply with the 60-day

notice t of the ‘citizen suit’ provision in

§§ 505(b)(1)(A) of the Act, . . . This vision allows

suits under the Act by private citizens, but authorizes

only prospective relief, and the citizen plaintiffs first

must give notice to the EPA, the State and any

alleged violator.” (453 US at 6).

The United States Court of Appeals for the Third

Circuit upheld that portion of the District Court’s deci-

sion, and no appeal was taken by any party to that

portion of the opinion. However, the Court of Appeals

went on to rule that the plaintiffs could maintain claims

under FWPCA and MPRSA independent of the express

citizen suit provisions and, also, under federal common

law for public nuisance and under maritime tort law.

(National Sea Clammers Assn. v. City of New York, supra).

The United States Supreme Court granted certiorari to

consider those portions of the Court of Appeals opinion.

The Supreme Court vacated the Court of Appeals

decision, and rujed that Congress intended the express

enforcement provisions of both Acts to be exclusive.

Accordingly, the Supreme Court held the plaintiffs barred

to maintain any suit or action under any legal theory or

form of action except as expressly set forth in the Acts.

Since the plaintiffs had failed to comply with the 60-day

prior notice requirement and therefore could not main-

tain their action under the express statutory provisions,

they were wholly barred from proceeding on those claims

in federal court.

Applying the Middlesex County decision to the identi-

cal language in SWDA and the present circumstances, it

is apparent that these plaintiffs are barred from proceed-

ing further in this Court on these claims. The failure to

comply with the 60-day prior notice requirement

deprives the Court of jurisdiction under the citizen suit

provisions of SWDA, and there is no other basis available

to plaintiffs for federal jurisdiction.

Ill.

CONCLUSION

This Court's jurisdiction is based entirely on plain-

tiffs’ claims for violations of the solid Waste Disposal Act.

However, the provisions of that Act authorizing private

suits by citizens expressly reqyire the plaintiffs to give

notice to both the Administrator of the EPA and the State

of Oregon more than 60 days prior to commencing their

lawsuit. No such notice has been given, and this Court

therefore lacks jurisdiction of these claims.

IV.

ATTORNEYS’ FEES AND COSTS

Subsection (e) of 42 USC § 6972 provides:

Mand Lt. any final order in any action

intgatont Gnchading, senoonabte attorney and expert

witness fees) to any , whenever the court deter-

mines such an award is approproate.”

In the event the Court grants defendant’s Motion for

Summary Judgment set forth immediately above, this

defendant moves the court for its further Order awarding

judgment in its favor and against the plaintiffs for its

reasonable attorneys’ fees and other costs incurred in

defending this lawsuit.

Respectfully submitted this Ist day of March, 1983.

BULLIVANT, WRIGHT, LEEDY, JOHNSON,

PENDERGRASS & HOFFMAN

James G. Driscoll

BULLIVANT, WRIGHT, LEEDY, JOHNSON,

PENDERGRASS & HOFFMAN

1000 Willamette Center

121 SW Salmon Street

Portland, OR 97204

Telephone: (503) 228-6351

Of Attorneys for Defendant

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

OLAF A. and MARY

HALLSTROM, Civil No. 82-481

husband and wife,

Plaintiffs, AFFIDAVIT OF

EARNEST A. SCHMIDT

See ee ee ee ee ee ee ee

STATE OF OREGON )

) ss.

County of )

I, EARNEST A. SCHMIDT, being first duly sworn, do

depose and say:

1. lam the administrator of the solid Waste Division

uf the Oregon Department of Environmental! Quality and

a custodian of the records of that division. | am respons-

ible for supervising the state-wide regulatory program

for solid waste disposal sites. | am also for

implementing the federal Resource Conservation and

Recovery Act program in Oregon. As such, | would nor-

mally be aware of any litigation concerning violations of

the RCRA criteria by any DEQ permitted disposal site.

DATED this __ day of February, 1983.

Earnest A. Schmidt

(Jurat omitted in printing)

UNITED STATES ENVIRONMENTAL

CERTIFICATION OF ABSENCE OF

ENTRY AND ABSENCE OF RECORD

For of Federal Rules of Evidence 803(7),

, official hat I ha

— st s e

Notice of Intent to File Suit pursuant to 42 U.S.C.

§6972 re

Tillamook County Landfill (Plaintiff Hallstrom).

Certifying Employee: /s/ Michael Garcia

(Title): Assistant Regional Counsel

(Jurat omitted in printing)

James G. Driscoll

BULLIVANT, WRIGHT, LEEDY, JOHNSON, |

PENDERGRASS & HOFFMAN

1000 Willamette Center

121 S.W. Salmon Street

Se ie tanan

Telephone: ) 228-6351

Of Attorneys for Defendant

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

OLAF A. and MARY

HALLSTROM, Civil No. 82-481

husband and wife,

Plaintiffs, AFFIDAVIT OF

JAMES G. DRISCOLL

TILLAMOOK COUNTY, a

municipal corporation,

Defendant.

STATE OF OREGON

8s.

County of Multnomah)

ee ee ee ee ee ee ee ee ee”

l, JAMES G. DRISCOLL, being first duly sworn, do

depose and say:

I am an attorney engaged in the private practice of

law in Portland, Oregon with the firm of Bullivant,

Wright, Leedy, Johnson, Pendergrass and Hoffman. | am

one of the attorneys representing the defendant

Tillamoook County in this litigation.

On January 14, 1983 I wrote Mr. james Moore,

Regional Counsel, Environmental Protection Agency in

Seattle, Washington to inquire whether his agency had

ever received formal written notice from the plaintiffs or

their attorneys of their intention to file under the provi-

sions of the Solid Waste Disposal Act against Tillamook

County for the operation of its landfill.

I was advised by Assistant Regional Counsel, Mr.

Michael Garcia, that a search of their records, both in

Seattle at the regional headquarters and also in the cen-

tral administrative offices in Washington, D.C., failed to

reveal any notice nor anyone who could recall having

seen such a notice.

I thereafter received from EPA a Certificate of

Absence of Entry and Absence of Record which | attach

to this affidavit. °

DATED this __ day of March, 1983.

James G. Driscoll

(Jurat omitted in printing)

FOR THE DISTRICT OF OREGON

)

HALLSTROM, )

husband and wife, ) Civil No. 82-481

Plaintiffs )

) MEMORANDUM IN

¥ ) OPPOSITION TO

)

INTRODUCTION

Defendant's Motion for Summary Judgment should

be denied because any failure to give forma! notification

to the D.E.Q. and the B.P.A. has been cured, the D.E.Q.

and the E.P.A. received actual notice more than 60 days

ago, defendant has not been prejudiced, and the purpose

of the notice requirements of 42 U.S.C. §§ 6901-87

(Resource Conservation and Recovery Act of 1976)

(“RCRA”) has been accomplished.

Plaintiffs’ live on farmland and tidelands adjacent to

the Tillamook County Landfill, which is owned and

operated by defendant. In April 1981, plaintiffs sent to

defendant written notice of several violations of RCRA

and of plaintiffs’ intention to file a citizen's suit under

RCRA. Plaintiffs were particularly concerned about sur-

face water and ground water pollution by leachate pro-

duced at the site. A copy of the notice is attached as

Exhibit A. Copies of the notice were not sent to the D.E.Q.

and the E.P.A.

After receiving the notice, defendant made some

changes at the site, but the changes were inadequate and

did not correct the RCRA violations set forth in plaintiffs’

notice. Consequently, plaintiffs’ filed this action on April

9, 1982. Depositions have been taken and all requested

documents have been produced and inspected.

Despite the lack of formal notice in its files, the

D.E.Q. knew that this case had been filed and the subs-

tance of plaintiffs’ complaints at least as early as June

1982. See Interoffice Memo attached to Robert L. Brown's

affidavit. The supervisor of the Solid Waste Section of the

D.E.Q. knew about this case in December 1982. Robert L.

Brown's affidavit at 1-2.

Despite the lack of forma! notice in its file, the E.P.A.

knew that this case had been filed at least since January

1983, when defendant asked the E.P.A. to search its

records for any notices of “intention to file under provi-

sions of the Solid Waste Disposal Act against Tillamook

County for the operation of its landfill.” See James G.

Driscoll’s affidavit ttached as Exhibit B to defendant's

Motion for Summary Judgment.

On March 2, 1983, plaintiffs mailed copies of the

April 1981 notice to the E.P.A. (Washington, D.C. and

Region 10) and the D.E.Q. together with a notice of this

motion and of plaintiffs’ intent to refile this case if neces-

sary. A copy of this notice and the return receipts are

attached as Exhibit B.

ARGUMENT

A. DEFENDANT'S MOTION FOR SUMMARY JUDGC-

MENT SHOULD BE DENIED BECAUSE RCRA‘’S

NOTICE REQUIREMENTS SHOULD BE INTERPRETED

PRAGMATICALLY.

The Ninth Circuit has not decided what significance

should be given the failure of a citizen to give notice of a

citizen's suit to the E.P.A. when the EPA. is not named as

a defendant. The Third Circuit, however, has interpreted

identical citizen suit provisions in the Federal Water Pol-

lution Control Act (“FWPCA") to require a pragmatic

approach.

In Susquehanna Valley Alliance v. Three Mile Island

Nuclear Reaction, 619 F.2d 231 (3rd. Cir. 1980) cert. denied

449 US. 1096, 101 S.Ct. 893, 66 L.Bd2d 824 (1981), plain-

tiffs sought relief pursuant to the FWPCA, among other

theories. Statutor, notices were given the E.P.A. and the

N.R.C. two days prior to the filing of the lawsuit. The

court ruled that “to require dismissal and refiling of

premature suits would be excessively formalistic.” Id at

243. In that case, the agencies involved had actual notice

of the FWPCA violations, and had acted on plaintiff's

claim prior to the trial court's disposition of the

complaint.

In Pymatuning Water Shed Citizens for a Hygemc Envi-

ronment v. Eaton, 644 F.2d 995 Grd. Cir. 1981), the Third

Circuit reiterated this rule. In this case, when the defen-

dants moved to dismiss the case for failure to give the

statutory notices, the trial court denied the motion, but

stayed proceedings until the notices were given. Affirm-

ing the trial court’s action, the Third Circuit said that

... “appellant’s argument, [that the notice requirement is

jurisdictional] . . . if adopted, would frustrate citizen

enforcement of the Act . . . [and] . . . be a waste of judicial

resources.” The court held:

“Here the district court stayed its proceedings

ee a ee perene ond

OS ae ee ee

ee ppropriate action.

a ae Pula teow hear-

ing evidence in the case. The district court did not err

ss cuundidinn Sep feotedietten. Id at 996-97.

In this case, all the proper entities have had actual

notice of this suit for more than 60 days prior to this

hearing. The statutory notices were sent to the required

agencies March 2, 1983. It would be unduly formalistic to

grant defendants’ motion and require plaintiffs to refile

this lawsuit in May 1983.

A similar rule has been adopted ir this district,

though under somewhat different circumstances. Stin v.

City of Eugene, Case No. 80-41 (April 29, 1980) (copy

attached). Stin is an employment discrimination suit

under Title VIII, 42 U.S.C. § 2000e, the Civil Rights Act of

1871, 42 U.S.C. 1983, and the Equal Pay Act of 1963, 29

U.S.C. § 206(d)(1). Title VII has a statutorily mandated

jurisdictional exhaustion requirement which, though dif-

ferent in form from 42 U.S.C. § 6972 and 33 U.S.C. § 1365,

has a similar effect. The claimant must receive a “right to

sue letter” from the appropriate agency before initiating

i i a ee Mite be a ae a I

legal action against the offender. 42 U.S.C. 2000e-5(f)(1).

The claimant had not received that letter when the action

was filed, thought she received it soon thereafter. Judge

Juba held that plaintiff's subsequent receipt of the letter

effectively complied with the statutory requirements.

Eldridge v. Carpenter 46 440 FSupp. 506, 517 (N.D. Cal.

1977). He pointed out that recognizing the subsequently

issued letter was both judicially efficient and did not

offend any major statutory policies. Budreck v. Crocker

National Bank 407 FSupp. 635, 646-47 (N.D. Cal., 1976).

Thus the court took a pragmatic view of that “juris-

dictional requirement” similar to the one plaintiffs argue

here.

B. THE PURPOSE OF THE NOTICE REQUIREMENT

HAS BEEN SERVED.

The overall purpose of the RCRA is to eliminate “the

last remaining loophole in environmental law, that of

unregulated land disposal and hazardous wastes.” [1976]

U.S. Code Cong. & Admin. News 6238, 6241. “The exist-

ing methods of land disposal often result in pollution,

subsurface leachate and surface run-off, which affect air

and water quality.” Id. at 6242. As noted above, plaintiffs’

primary concerns are the pollution of surface water and

ground water the landfill is causing.

The legislative history of RCRA says little about the

purpose of the citizen suit provisions. However, the Fed-

eral Water Pollution Control Act, which contains identical

citizen suit provisions, sheds more light on their purpose

and upon whether or not they were to be seen as

jurisdictional.

The purpose of the citizen suit provisions if to “pro-

vide for citizen participation in the enforcement

. this Act.” [1972] U.S. Code Cong. & Admin. News

3668, 3745. The purpose of the notice provisions is to

... encourage and provide for agency enforcement” of

the Act. Id. The waiting period “should give the adminis-

trative enforcement office an opportunity to act on the

alleged violation.” Id. Thus, the only purpose behind the

sixty day warning period is to give the E.P.A. and the

D.E.Q. an opportunity to act against the alleged violation.

This purpose is in no way offended if the agency gets

notice after the lawsuit is actually filed, so long as the

trial court has taker no action on the suit such as issuing

an injunction, or temporary restraining order. This inter-

pretation is reenforced by the Senate Conference Report,

ee in relevant part, which states

hy + that no action on a suit may

a, for 60 da notification to the alleged

polluter. If the A Administration or State begins a civil

or criminal action on its own against an alleged pol-

luter, no court action could take on the citizen's

suit. [1972] U.S. Code Cong. & Admin. News 3823

(emphasis added).

Thus, at least pursuant to the Senate version of the

bill, it envisioned the filing of a complaint prior to the

passage of 60 days, so long as no Court action was taken

before the 60 day period ended.

C. THIS COURT SHOULD NOT RELY UPON THE

CASES CITED BY DEFENDANT.

In Middlesex County Sewage Authority v. Sea Clammers,

435 U.S. 1, 98 S.Ct. 906, 55 L.Ed.2d 65 (1980), the Court

was never asked to address the question whether the

a a

notice requirement of 42 U 5.C. § 6972 is jurisdictional.

The language defendant quotes is from the Court's repeti-

tion, in their statement of fact, of the holdings of the trial

court; it is not the holding of the Supreme Court. The

Court said:

In holdings relevant here, the District Court

rejected ’ nuisance claim under federal

common law, see Illinois v. Milwaukee, 406 U.S. 91

(1972), on the ground that such a cause of action is

not available to private — With to the

claims based on tions of the FWPCA, the

court noted that had failed to comply

with the 60-day of the “citizen

<P pra fe 1A) of the Act, 86 Stat.

888, 33 U.S.C. § 1365(b)(1(A). This provision allows

suits under the Act by private citizens, but authorizes

only prospective relief, and the citizen plaintiffs first

must give notice to the EPA, the State, and any

alleged violator. Ibid. Because respondents did not

ve the requisite notice, the court refused to allow

t to proceed with a claim under the Act indepen-

dent of the citizen-suit provision and based on the

general jurisdictional grant in 28 U.S.C. § 1331. The

court applied the same analysis to respondents’

claims under the MPRSA, which contains similar

citizen-suit and notice provisions. 33 U.S.C. § 1415(g).

Finally, the court rejected a possible claim of mar-

itime tort, both because they had failed to comply

with the procedural requirements of the federal and

state Tort Claims Acts. 435 U.S. at 6-8.

The primary question the Court addressed was

whether the Circuit had been correct in finding an

implied right of action under the FWPCA, in addition to

the citizen suits provided for in 33 U.S.C. § 1365.

We granted these petitions, limiting review to

three questions: (i) whether FWPCA and MPRSA imply

a private right of action independent of their citizenship

anemenenne

provision, (ii) whether all federal common-law nui-

sance actions ocean pollution now are

pre-empted the tive contained in

Ene FWPCA and the and (iii) if not, whether

citizen has standing to sue for dama

malian tho Setenehcnamman test of cattsanse, Wo band

there is no implied t of action under these

Bn athe adler pba

has been fully in the area of ocean pollu-

tion. (emphasis nddea) Id. at 10-11.

The Supreme Sourt over-ruled the Third Circuit on

the question of the implied cause of action.

The history of the Sea Clammers case is germane here,

even though its holding does not apply. The Third Circuit

opinion, reported at 616 F.2d 1222 (1980), pre-dates Sus-

quehanna and Pymatuning. In Sea Clammers, the Third

Circuit affirmed the district court’s ruling that the notice

requirement was jurisdictional. However, in dicta, the

court discussed this “pragmatic approach” it later

adopted, choosing not to rule upon it because of its view

that there existed an implied cause of action under the

FWPCA. 616 F.2d at 1226.

In Susquehanna, while Sea Clammers was pending

before the Supreme Court, the Third Circuit adopted the

pragmatic approach to the notice requirement and, as an

alternative ground, found plaintiff's had an implied right

of action under FWPCA, 619 F.2d at 243. In Pymatuning,

while Sea Clammers was still pending, the Third Circuit

explicitly based their decision only upon their pragmatic

interpretation of 33 U.S.C. § 1365. 644 F.2d at 996 n.2.

Thus while the Supreme Court reiterated the trial court's

holding in its opinion, the Third Circuit adopted the

pragmatic approach that over-ruled the trial court

holding.

McCastle v. Rollins Environmental Services, 514 F.Supp.

936 (M.D.La., 1981), relied upon by defendant, is factually

bizarre. There, plaintiffs sued defendant in state court

and defendants sought removal to federal court. The trial

court addressed the notice issue in this context: Defen-

dants were arguing that plaintiffs had unintentionally

pleaded a cause of action under RCRA, thus the federal

court had jurisdiction over the matter. It was in this

context that the court held the plaintiff had not brought

an action under the RCRA, because they had filed no

notices. It should be noted that the McCastle court relied

upon the Third Circuit’s decision in the Sea Clammers

case, an opinion that has been superceded by the Sus-

quehanna and the Pymatuning cases.

CONCLUSION

This Court should take a pragmatic view of the notice

requirements of 42 U.S.C. § 6972. All relevant parties

have had actual notice of the pendency of this case for

more than 60 days. If the Court finds that insufficient,

plaintiffs respectfully request a one month stay of any

proceeding to cure any formal failure to give the E.P.A.

and the D.E.Q. notice. Such an approach would conserve

judicial resources, satisfy the policies behind the Act, and

not unduly delay plaintiffs’ day in court.

DATED this 22nd day of March, 1983.

Respectfully submitted,

ESLER & SCHNEIDER

By /s/ Robert A. DeGrath

Robert A. DeGrath, No. 78176

Of Attorneys for Plaintiffs

(Certificate of Service omitted in printing)

Michael J. Esler

ESLER & SCHARIDER

ESLER &

519 S.W. Park Avenue

Suite 510

Portland, Oregon 97204

(503) 223-1510

Of Attorneys for Plaintiffs

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

Civil No. 82-481

AFFIDAVIT OF ROBERT

L. BROWN

ee ee ee ee ee ee ee ee

l, ROBERT L. BROWN, on oath say:

1. lam Supervisor of the Solid Waste Section of the

Solid Waste Division of the Oregon Department of Envi-

ronmental Quality and a custodian of the records of that

section. I am responsible for supervising the state-wide

regulatory program for solid waste disposal sites that do

not involve the disposal of hazardous waste. The

Tillamook County Landfill falls within my jurisdiction.

2. I first became aware that this lawsuit was pend-

ing in December 1982.

3. Attached to this affidavit is a copy of an Inter-

office Memo dated June 29, 1982, taken from DEQ’s files.

Tim Spencer is an employee of the Oregon Department of

Environmental Quality under my supervision.

/s/Robert L. Brown

Robert L. Brown

(Jurat omitted in printing)

STATE OF OREGON

DEPARTMENT OF

ENVIRONMENTAL QUALITY

TO: Tom Bispham,

NW Region

FROM: Tim Spencer, SW

SUBJECT: Tillamook Landfill - Monitoring Wells

INTEROFFICE MEMO

DATE: June 29, 1982

On May 19, 1982, Greg Pettit (DEQ Laboratory staff) and I

visited the Tillamook Landfill for a routine water quality

sampling run. Sampling efforts were hampered, however,

because two of the monitoring wells are damaged:

(1) Well no. 3 (the upgradient well) - The casing is

bent because of landsliding. We were able to

sample well no. 3 but could not bail it. Conse-

quently, our most recent sample results and

future samples may not be representative of

actual water quality conditions in the ground-

water system at this location.

(2) Well no. 1 - the shallow well casing is

obstructed. We were unable to bail or sample

this well.

Recommendations

I recommend that we pressure the county to repair or

replace the monitoring wells quickly. Overall, the county

has done a poor job of maintaining the monitoring wells

(see past correspondence in file). Prompt action is espe-

cially important in light of the ongoing leachate problems

at the site and the legal action that has been initiated

against the landfill by a local resident (Mr. Hallstrom vs.

Tillamook County). Mr. Hallstrom has retained a consult-

ing geologist to investigate the landfill.

I will follow this up with a more detailed memo describ-

ing overall conditions at the landfill.

$C531

cc: John Smits, Astoria Office

EXHIBIT “A”

ESLER & SCHNEIDER

Attorneys at Law

610 S.W. Broadway, Suite 510

Portland, Oregon 97205

(503) 223-1510

April 16, 1981

Mr. Jerry Woodward CERTIFIED MAIL

Tillamook County RETURN RECEIPT

Commissioner REQUESTED

Tillamook County Courthouse

Tillamook, Oregon 97141

Re: Tillamook County Landfill - Notice of Intent to

file Suit Pursuant to 42 U.S.C. § 6972

Dear Mr. Woodward:

This office represents Mr. and Mrs. Olaf Hallstrom.

This letter is written to you pursuant to 42 U.S.C. § 6972

and 40 C.F.R. § 254.

Please take notice that Mr. and Mrs. Hallstrom intend

to file a citizen’s suit in United States District Court for

the District of Oregon against Tillamook County and its

commissioners, administrators, and employees respons-

ible for the Tillamook County landfill.

Since it became a solid waste disposal site, the

Tillamook County Landfill has been and continues to be

in violation of the following statute and regulations:

42 U.S.C. § 6945

40 C.R.R. §§ 241.200-1, 241.202-1, 241.203-1,

241.204-1, 241.205-1, 241.207-1, 241.208-1,

241.209-1, and 241.210-1.

40 C.RR. §§ 257.1, 257.3-1, 257.3-2, 257.3-3,

257.3-4, 257.3-6. amd 257.3-7.

40 C.RR. §§ 264.1-.77

40 CER. §§ 265.1-.94 and 265.220-.315

The Tillamook County Landfill is being operated as

an illegal open dump. From time to time, hazardous

wastes have been disposed of on the site. Water dis-

charged from the site is contaminated with dangerously

high concentrations of hazardous waste and dissolved

solids. Emissions, including dust, from the site violate

applicable air quality standards. Conditions are main-

tained at the site which are favorable for the harboring,

feeding, and breeding of vectors. The surface area of the

exposed solid waste has not been minimized, cover mate-

rial has not been applied, and the solid waste has not

been compacted. The site was improperly designed, and

measures taken to treat the leachate produced at the site

have been grossly inadequate. The leachate produced at

the site has been allowed to drain onto the Hallstrom’s

land and the tidewater areas adjacent to the site.

Tillamook County is the owner of the Tillamook

County Landfill, and it is responsible for these violations.

Mr. and Mrs. Hallstrom’s address and telephone

number are

1350 Hallstrom Road

Tillamook, Oregon 97141

(503) 842-6962

As noted above, they have retained this office to repre-

sent them in this matter. Accordingly, please direct all

inquiries and responses to Michael Esler or Kim Buckley

of this office.

Very truly yours,

/s/. Kim T. Buckley

Kim T. Buckley

KTB:meg

cc: Mr. and Mrs. Olaf Hallstrom

(Post Office Return Receipts from Tillamook County

omitted in printing)

EXHIBIT “B”

ESLER & SCHNEIDER

Attorneys at Law

510 Park Washington Building

519 S.W. Park Avenue

Portland, Oregon 97205

March 2, 1983

Kim T. Buckley 503-223-1510

Solid Waste Administrator CERTIFIED MAIL

Tillamook County Courthouse RETURN RECEIPT

201 Laurel Avenue REQUESTED

Tillamook, Oregon 97141

Administrator

Environmental Protection Agency

Washington, D.C. 20460

Regional Administrator

Environmental Protection Agency, Region 10

1200 Sixth Avenue

Seattle, Washington

Mr. Ernest A. Schmidt

Administrator, Solid Waste Division

Department of Environmental Quality

P.O. Box 1760

Portland, Oregon 97207

Re: Hallstrom v. Tillamook County, United States Dis-

trict Court, District of Oregon, Civil No. 82-481

Tillamook County Landfill - Notice of Pending

Litigation and Intent to File Suit Pursuant to 42

U.S.C. § 6972 and 40 C.F.R. § 254

Gentlemen:

Here is a copy of a letter I sent to Tillamook County

on April 16, 1981, advising the county that I intended to

file a citizen’s suit pursuant to 42 U.S.C. § 6972. Copies of

the notice were not mailed to you as a result of inadver-

tence. A citizen’s suit was filed more than 60 days after

the enclosed notice was sent to Tillamook County.

Tillamook County has filed a motion requesting judg-

ment in its favor because the enclosed notice was not sent

to you. I intend to ask the court to stay the case for 60

days to satisfy any objection Tillamook County might

have to any failure of notice. If the court allows Tillamook

County’s motion for summary judgment, I will refile this

case upon expiration of the 60-day period and seek an

expedited trial date.

The conditions and violations described in the

enclosed notice continue to exist despite efforts by

Tillamook County since April 16, 1981.

Very truly yours,

ESLER & SCHNEIDER

By: /s/ Kim T. Buckley

Kim T. Buckle

Of Attorneys for Olof A. and

Mary Hallstrom

KTB:meg

cc: Atorney General of the United States

Mr. and Mrs. Olof Hallstrom

Mr. James G. Driscoll

Enclosure

ESLER & SCHNEIDER

Attorneys at Law

610 S.W. Broadway, Suite 510

Portland, Oregon 97205

(503) 223-1510

April 16, 1981

Mr. Jerry Woodward CERTIFIED MAIL

Tillamook County RETURN RECEIPT

Commissioner REQUESTED

Tillamook County Courthouse

Tillamook, Oregon 97141

Re: Tillamook County Landfill - Notice of Intent to

File Suit Pursuant to 42 U.S.C. § 6972

Dear Mr. Woodward:

This office represents Mr. and Mrs. Olaf Hallstrom.

This letter is written to you pursuant to 42 U.S.C. § 6972

and 40 C.FR. § 254.

Please take notice that Mr. and Mrs. Hallstrom intend

to sile a citizen’s suit in United States District Court for

the District of Oregon against Tillamook County and its

commissioners, administrators, and employees respons-

ible for the Tillamook County Landfill.

Since it became a solid waste disposal site, the

Tillamook County Landfill has been and continues to be

in violation of the following statute and regulations:

42 U.S.C. § 6945

40 C.F.R. §§ 241.200-1, 241.202-1, 241.203-1,

241.204-1, 241.205-1, 241.207-1, 241.208-1,

241.209-1, and 241.210-1.

40 C.F.R. §§ 257.1, 257.3-1, 257.3-2, 257.3-3,

257.3-4, 257.3-6, and 257.3-7.

40 C.FE.R. §§ 264.1-77

40 C.F.R. §§ 265.1-.94 and 265.220-.315

The Tillamook County Landfill is being operated as

an illegal open dump. From time to time, hazardous

wastes have been disposed of on the site. Water dis-

charged from the site is contaminated with dangerously

high concentrations of hazardous waste and dissolved

solids. Emissions, including dust, from the site violate

applicable air quality standards. Conditions are main-

tained at the site which are favorable for the harboring,

feeding, and breeding of vectors. The surface area of the

exposed solid waste has not beene minimized, cover

material has not been applied, and the solid waste has

not been compacted. The site was improperly designed,

and measures taken to treat the leachate produced at the

site have been grossly inadequate. The leachate produced

at the site has been allowed to drain onto the Hallstrom’s

land and the tidewater areas adjacent to the site.

Tillamook County is the owner of the Tillamook

County Landfill, andit is responsible for these violations.

Mr. and Mrs. Hallstrom’s address and telephone

number are

1350 Hallstrom Road

Tillamook, Oregon 97141

(503) 842-6962

As noted above, they have retained this office to repre-

sent them in this matter. Accordingly, please direct all

inquiries and responses to Michael Esler or Kim Buckley

of this office.

Very truly yours, ”

/s/ Kim T. Buckley

Kim T. Buckley

KTB:meg

cc; Mr. and Mrs. Olaf Hallstrom

(Post Office Return Receipts from the EPA,

Tillamook County, DEQ, Regional Administrator

of EPA omitted in printing) .

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

KAREN STEIN,

Plaintiff,

CITY OF EUGENE,

CHARLES T. HENRY, indi-

vidually and in his capacity )

as City Manager, City of )

Eugene, and GARY LONG, ?

individually and in his

)

FINDINGS AND

RECOMMENDATION:

AND ORDER

(Filed April 29, 1980)

)

) Civil No. 80-41

)

capacity as Personnel

Director City of Eugene,

Defendants.

Plaintiff alleges that her former employer, the City of

Eugene (City), discriminated against her on the basis of

her sex in violation of Title VII, 42 U.S.C. § 2000e, the

Civil Rights Act of 1871, 42 U.S.C. § 1983, and the Equal

Pay Act of 1963, 29 U.S.C. § 206(d)(1).

The City now moves the court for an order designat-

ing Eugene as the place where all pre- and post-trial

matters will be heard and as the place of trial. In her

affidavit, the City’s attorney states that the events under-

lying this action occurred in Eugene, all defendants, wit-

nesses, and all records are located in Eugene, artd

defendants’ attorneys are located in Eugene. She states

that the only person connected with this action who is

located in Portland is plaintiff’s co-counsel, Clinton Lon-

ergan. (Plaintiff’s counsel, Mr. Oler, is located in San

Francisco.) Defendant’s motion is unopposed.

Pursuant to Local Rule 2, Eugene may be designated

as the place of trial for actions arising in Lane County.

The City’s motion for all pretrial and post-trial proceed-

ings, and for trial in Eugene is granted.

The City also moves to dismiss plaintiff’s Title VII

claim for lack of subject matter jurisdiction. The City

contends that plaintiff failed to obtain a “Notice of Right

to Sue” letter before filing this action, as required by 42

U.S.C. § 2000e-5(f)(1). In paragraph 7 of her complaint,

plaintiff alleges that she has “duly requested a ‘Notice of

Right to Sue’ letter and accordingly awaits receipt of

same.” Plaintiff contends this jurisdictional prerequisite

has been cured. On January 25, 1980, eleven days after

this action was filed, plaintiff was sent a “Notice of Right

to Sue” Letter. (See Exhibit A to Declaration of Curtis G.

Oler.)

Courts within the Ninth Circuit have recognized that

“subsequent receipt of a right-to-sue letter can cure the

jurisdiction in a suit initially filed without one.” Eldredge

_v. Carpenters 46, 440 FSupp. 506, 517 (N.D. Cal. 1977);

Budreck ». Crocker National Bank. 407 F.Supp. 635, 646-647

(N.D. Cal. 1976). See also, Berg v. Richmond Unified School

District, 528 F.2d 1208, 1212 (9th Cir, 1975), vacated on

other grounds 434 U.S. 158 (1977). Although a right-to-sue

letter is considered to be a jurisdictional prerequisite to

filing a Title VII action, ‘recognition of a subsequently

issued letter is judicially efficient and does not offend any

major statutory policies.” Budreck, supra, 407 F.Supp. at

646. Since plaintiff obtained a right-to-sue letter very

shortly after she filed her complaint, she has effectively

complied with the requirements of 42 U.S.C

§ 2000e-5(f)(1).

Defendant’s motion to dismiss plaintiff’s Title VII

claim for lack of subject matter jurisdiction should be

denied.

Dated this 29 day of April, 1980.

/s/ George E. Juba

United States Magistrate

Ronald E. Bailey

James G. Driscoll

BULLIVANT, WRIGHT, LEEDY, JOHNSON,

PENDERGRASS & HOFFMAN

1000 Willamette Center

121 S.W. Salmon Street

Portland, Oregon 97204

Telephone: (503) 228-6351

@f Attorneys for Defendant

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

OLAF A. and MARY

HALLSTROM,

husband and wife,

Civil No. 82-481

)

a ) REPLY TO PLAINTIFFS’

Plaintiffs, ) | MEMORANDUM IN

) OPPOSITION TO

) DEFENDANT'S MOTION

) FOR SUMMARY JUDGMENT

)

TILLAMOOK COUNTY,

a municipal corporation,

Defendant.

INTRODUCTION

In their Memorandum in Opposition to the defen-

dant’s Motion for Summary Judgment, the plaintiffs

advance two arguments why this Court should ignore the

plain language of the statute and allow the plaintiffs to

proceed, despite the admitted failure to comply with the

notice requirements of the Solid Waste Disposal Act

(SWDA) (42 USC § 6901-6987).

The plaintiffs first argue that there has been actual

notice and substantial compliance with the notice require-

ment sufficient to accomplish its purposes. For their

second argument, the plaintiffs cite two decisions from

the Third Circuit Court of Appeals, for the proposition

that notice is neither jurisdictional nor a prerequisite as a

matter of law: Susquehanna Valley Alliance v. Three Mile

Island Nuclear Reaction, 619 F2d 231 (3rd Cir. 1980) cert.

denied, 449 US 1096, 101 S.Ct. 893, 66 L.Ed.2d 824 (1981)

and Pymatuning Watershed Citizens For A Hygenic Enviro-

ment v. Eaton, 644 F2d 995 (3rd Cir. 1981).

Plaintiffs’ first argument is effectively refuted by the

statement of facts set forth in its own Memorandum.

Plaintiffs’ second argument, to the extent that it ever

existed under the Susquehanna and Pymatuning decisions,

has been expressly rejected by the United States Supreme

Court in the case of Middlesex Co. Sewerage Authority v. Sea

Clammers, 453 US 1, 69 L.Ed.2d 435, 101 S.Ct. 2615 (1981).

. I]

PURPOSE OF THE NOTICE REQUIREMENT

The plaintiffs’ Memorandum discusses the purpose

behind the federal pollution control legislation, including

RCRA, and also the purpose behind the citizens’ suit

provisions in those Acts. However, the Memofandum is

notably silent as to the purpose of the notice requirement.

That question was, however, addressed in the case of

So.Car. Wildlife Federation v. Alexander, 457 F.Supp. 118

(D.SC 1978). That case involved an effort to stop the

construction and potential operation of one dam and the

continuing operation of two existing dams on the

grounds that the dams would constitute sources of pollu-

tion in violation of the Federal Water Pollution Control

Act (FWRCA). However, the plaintiffs’ pricr notice of

their claim mentioned only the one dam that had not yet

beer constructed. With respect to any claim concerning

either of the other two, already existing dams, the Court

held that the failure to mention them in the notice of

claim defeated the purpose of the notice requirement and

therefore barred any claims with respect to those two

dams. The Court stated:

. . » The omission of Clark Hill and Hartwell as

sources of violations would not provide defendants

with notice sufficient to allow possible administrative

resolution of the claims as to those projects. Plain-

tiffs’ argument that defendants have not been preju-

diced by these omissions because the filing of the suit

in this court gave them actual notice simply begs the

question. One of the major purposes of the notice

provision is to allow for possible administrative reso-

lution prior to filing suit. Since the notice is jurisdic-

tional such a significant omission divests this court of

the authority to further proceed with an adjudication

of this matter as it relates to Hartwell and Clark

Hill. . . . ” (457 FSupp. at 124) (Orig. emphasis).

If the purpose of the notice provision is to allow for

possible administrative resolution of the plaintiffs’ claims

prior to the filing of a lawsuit, that purpose has clearly

not been accomplished in the present case. Although the

plaintiffs filed their suit in April 1982, the Department of

Enviromental [sic] Quality (DEQ) did not learn of the

claim until December 1982, and the Enviromental [sic]

Protection Agency (EPA) did not learn of it until January,

1983. See the Affidavits of Ernest A. Schmidt and James

G. Driscoll and attached Certificate of Absence of Entry

and Absence of Record of EPA, attached to defendant's

Motion for Summary Judgment. See also the Affidavit of

Robert L. Brown and the Statement of Facts set forth in

the Introduction in the plaintiffs’ Memorandum in

Opposition.

The plaintiffs suggest that the Department of Eviro-

mental [sic] Quality may have had actual knowledge of

this lawsuit as early as June 29, 1982, based upon an

inter-office memo from the files of DEQ. In the first place,

it is apparent from the Affidavits of Mr. Schmidt and Mr.

Brown that any knowledge of this litigation did not reach

to the level of any person in authority within the agency.

Mr.’ Schmidt identifies himself in his Affidavit as the

Administrator of the Solid Waste Division of DEQ,

responsible for supervising solid waste disposal sites and

for implementing RCRA in Oregon. Mr. Brown identifies

himself in his Affidavit as the Supervisor of the Solid

Waste Section of the Solid Waste Division of DEQ and

res; onsible for supervising solid waste disposal sites that

do not involve hazardous waste, including the Tillamook

County landfill. Both Affidavits establish that neither of

these individuals had any actual notice or knowledge of

this litigation until December 1982.

Moreover, it is doubtful that the inter-office memo

even refers to this litigation. The plaintiffs have previ-

ously filed a lawsuit in Tillamook County Circuit Court

alleging claims of trespass and nuisance against

Tillamook County for the operation of the sanitary land-

fill. That action was voluntarily dismissed by the plain-

tiffs shortly before filing the present proceeding in

Federal Court. That lawsuit did not involve any claims of

violations of any federal standards, and therefore would

not have served as notice, actual or constructive, of any

claims under RCRA. Given the lack of any action on the

part of DFQ from June to December 1982, it appears

much more likely that the reference in the inter-office

memo is to the earlier, state court, litigation. Knowledge

of that litigation would not constitute notice, either actual

or constructive, of the present claims.

’ Plaintiffs concede that neither EPA nor DEQ had any

notice or knowledge of this lawsuit prior to the time it

was filed, and it appears from the record that neither

agency had either notice or knowledge of these claims for

nine to ten months thereafter. Moreover, plaintiffs con-

cede they only gave notice to these agencies within the

last 30 days. Under these circumstances, it is apparent

that the plaintiffs have not “substantially complied” with

the statutory requirement that they give notice of the

claimed violations of the federal standards to these two

agencies at least 60 days prior to commencing litigation.

Moreover, it is equally apparent that the purposes of

the notice requirement have not been served. Neither

EPA nor DEQ have had an opportunity to consider the

plaintiffs’ claims and address them through available

administrative procedures, thereby perhaps resolving

quickly and efficiently whatever problems may exist

without imposing upon the defendant the burden and

expense of this litigation.

Ill

LEGAL SUFFICIENCY OF NOTICE

No case cited by the plaintiffs supports the exercise

of subject matter jurisdiction by this Court under the

present circumstances, and the arguments and authorities

cited by the plaintiffs have been rejected by the United

States Supreme Court.

Defendants agree that prior court decisions have

found legally sufficient notice where the agency in ques-

tion had actual knowledge of the plaintiffs’ claims more

than 60 days prior to the filing of the lawsuit, although

there may have been lack of any formal notice to the

agency. See, e.g., Save Our Sound Fisheries Assn. v. Calla-

way, 429 F.Supp. 1136 (D.RI 1977). Other federal courts

have found jurisdiction for these types of citizens’ suits

despite lack of the 60-day prior notice either by implying

_ a private right of action under the statutes but separate

from the express citizen suit provisions (Nat'l. Sea Clam-

mers Assn. v. City of New York, 616 F2d 1222 (3rd. Cir.

1980)), while others have characterized these claims as

federal common law nuisance claims and found jurisdic-

tion under the general federal question jurisdiction of 28

USC 1331 (Twp. of Long Beach v. City of New York, 445

F.Supp. 1203 (D.NJ 1978). Finally, some courts have found

substantial compliance where the agency had actually

received notice of the claims prior to the filing of the

lawsuit and had in fact reviewed the matter and made an

agency determination prior to any action by the federal

court (Susquehanna Valley Alliance v. Three Mile Island,

supra). This elastic approach to jurisdiction has been

expressly repudiated by the Supreme Court in the Mid-

dlesex Co. Sewerage Authority case.

The plaintiffs seek to limit the holding in Middlesex

by ignoring the actual decision of the Court. In that case,

the Supreme Court considered the jurisdictional basis for

claims for water pollution brought by private citizens.

The Court quoted with approval the district court decision

that the plaintiffs could not proceed under the citizens’

suit provisions of either FWPCA or the Marine Protec-

tion, Research, and Sanctuaries Act (MPRSA) because the

plaintiffs had failed to give 60 days prior notice as required by

those Acts! (453 US at 6-7).

The Court then went on to hold that there was no

implied right of action under those statutes which would

permit an action absent compliance with the notice

requirement (453 US at 11). The Court also held that

Congress intended these statutes to preempt the area of

water pollution, and therefore there was no right of

action under either federal common law or under 28 USC

§ 1983.

Contrary to the plaintiffs’ assertion, the Supreme

Court in Middlesex directly addressed the notice require-

ment as a jurisdictional prerequisite. In discussing the

citizens’ suit provisions of FWPCA and MPRSA, the

Court stated:

“. .. These citizen suits provisions authorize private

persons to sue for injunctions to enforce these stat-

utes. Plaintiffs invoking these provisions first must

a with specified procedures - which respon-

dents here ignored — including in most cases 60 days

prior notice to potential defendants.” (453 US at 14).

After disposing of all alternative bases for jurisdic-

tion, the Court concluded by expressly holding that the

plaintiffs were barred from maintaining any claim

because they had failed to comply with the notice

requirement and no other basis for federal jurisdiction

existed. The concluding paragraph of the Court’s decision

states:

“We therefore must dismiss the federal common law

claims because their underlying legal basis is now

preempted by statute. As discussed above, we also dis-

miss the claims under MPRSA and the FWPCA because

respondents lack a right of action under those statutes. We

vacate the judgment below with respect to these two

claims and remand for further proceedings.” (453 US

at 22).

The gist of the Middlesex Decision is that claims such

as the present lawsuit may be brought only under the

relevant regulatory statutes (in this case, RCRA) and only

in strict compliance with the procedural requirements of

those statutes. The Third Circuit’s Decision in Sea Clam-

mers was expressly overruled. Since the decisions cited by

the plaintiffs, Susquehanna and Pymatuning, relied upon

the Third’ Circuit’s Decision in Sea Clammers for their

result, they too must fall. See the discussion in Susquehanna at

619 F2d 243 and in Pymatuning at 644 F2d 996.

CONCLUSION

Plaintiffs concede that they have wholly failed to

comply with the statutory notice requirement under

RCRA. Neither DEQ nor EPA had notice or knowledge,

actual or constructive, of the plaintiffs’ claims at any time

prior to the filing of this lawsuit, nor for nine to ten

month thereafter. It is clear that the purpose of the notice

ote ome mee 2 oe

A tl

requirement has not been served, since there has been no

opportunity for prior, and possibly dispositive, agency

action on the plaintiffs’ complaints. Moreover, it is appar-

ent that the defendant has been prejudiced by the plain-

tiffs’ failure in this regard. The defendant has been

subjected to the burden and expense of having to defend

this lawsuit, when the entire matter might have been

resolved expeditiously by EPA and DEQ.

It is equally apparent that any problems resulting

from any delay were invited by the plaintiffs. In their

Complaint, the plaintiffs specifically allege that they had

given notice “More than 60 days prior to the commence-

ment of this action . . . pursuant to 42 USC § 6972 and 40

CFR § 254.” (Complaint, p.3, Par.10, 11. 19-21). It is appar-

ent from the face of the Complaint that the plaintiffs were

aware from the outset of the existence of this requirement

and simply declined to take the necessary steps to com-

ply with it.

Plaintiffs fundamental problem is that they seek to

ignore the plain language of the statute, as construed by

the United States Supreme Court. Under the present cir-

cumstances, this Court simply lacks subject matter juris-

diction and the case must be dismissed.

Respectfully submitted this 1st day of April, 1983.

BULLIVANT, WRIGHT, LEEDY, JOHNSON

PENDERGRASS & HOFFMAN

By (SIGNED) RONALD E. BAILEY

~ Ronald E. Bailey

By (SIGNED) JAMES G. DRISCOLL

James G. Driscoll

Attorneys for Defendant

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

OLAF A. and MARY )

HALLSTROM, ) CIVIL NO. 82-481

husband and )

wife, ) ORDER DENYING

inti ) DEFENDANT’S MOTION

Plaintiffs, FOR SUMMARY

v. ) JUDGMENT

TILLAMOOK COUNTY, a) (MOTION TO DISMISS)

municipal corporation, ) (Filed April 22, 1983)

Defendant.

Defendant Tillamook County seeks dismissal of

plaintiffs’ complaint. The motion is framed as one for

summary judgment under Fed. R. Civ. P. 56. However, it

is more accurately characterized as one for dismissal for

lack of subject matter jurisdiction pursuant to Fed. R. Civ.

P. 12(b)(1). Defendant contends that plaintiffs have failed

to strictly comply with the provisions of 42 U.S.C. § 6972

under which they claim subject matter jurisdiction. See

also 40 C.F.R. § 254.2(a)(2).

Section 6972 of the Resource Conservation and

Recovery Act of 1976 (RCRA) provides for sixty (60) days

notice of intent to file suit to the Environmental Protec-

tion Agency (EPA), to the relevant State authorities, and

to the alleged violator. See 42 U.S.C. § 6972(b)(1). Notifica-

tion is required before individual enforcement action may

proceed. Id. Tillamook claims that plaintiffs failed to

notify either the EPA or the Oregon Department of Envi-

ronmental Quality (DEQ), prior to the filing of this law-

suit. Because of this defect, Tillamook argues that

plaintiffs lack jurisdiction over them as well.

The purpose of the notice requirement is to aliow

administrative agencies an opportunity to cure any

alleged violations. South Carolina Wildlife Federation v.

Alexander, 457 FSupp. 118, 124 (D.S.C. 1978). Defendant

Tillamook County received notice from plaintiffs of their

intent to file suit in April, 1981. Since then, defendant has

done nothing to correct any of the alleged violations.

Tillamook has also actively participated in this action

since its filing in April, 1982.

Neither the EPA nor the DEQ is a party in this action.

In addition, plaintiffs have cured any defect by formally

notifying the EPA and DEQ on March 2, 1983. The agen-

cies have sixty (60) days from that date to take appropri-

ate steps to cure any violations it finds at the Tillamook

County Landfill. Over thirty (30) days have passed with

no action from either State or Federal officials.

To grant defendant’s motion based on the notice pro-

vision would be a waste of judicial resources. Pymatuning

Water Shed Citizens v. Eaton, 644 F.2d 995, 996 (3rd Cir.

1981); Susquehanna Valley Alliance v. Three Mile Island

Nuclear Reactor, 619 F.2d 231 (3rd Cir. 1980), cert. denied,

449 U.S. 1096 (1981).

Defendant’s motion to dismiss for lack of subject

matter jurisdiction is hereby DENIED.

IT IS SO ORDERED.

DATED this 22 day of April, 1983.

/s/ Owen M. Panner

UNITED STATES DISTRICT JUDGE

Michael J. Esler

Kim T. Buckley

ESLER & SCHNEIDER

519 S.W. Park Avenue

Ronald E. Bailey ,

James G. Driscoll

BULLIVANT, WRIGHT,

LEEDY, JOHNSON,

PENDERGRASS &

Suite 510

HOFFMAN

Portland, Oregon 97204

(503) 223-1510 1000 Willamette Center

121 S.W. Salmon Street

Of Attorneys for Plaintiffs Portland, Oregon 97204

(503) 228-6351

Of Attorneys for Defendant

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

TILLAMOOK COUNTY, a

municipal body,

Defendant.

OLAF A. and MARY E. _)

HALLSTROM, ) Civil No. 82-481

husband and wife, )

| Plaintiffs, ) PRETRIAL ORDER

)

vs. )

)

The following proposed Pretrial Order is lodged with

the court pursuant to L.R. 235-2.

1. Nature Of Action.

This is a suit brought under the provisions of 42

U.S.C. § 6972 [the Resources Conservation and Recovery

Act of 1976 (RCRA), as amended], against defendant

Tillamook County, the owner and operator of the

Tillamook County Landfill.

Plaintiffs’ Position

Plaintiffs allege that the Tillamook County Landfill is

being operated in violation of the standards and require-

ments established under RCRA. Plaintiffs also assert pen-

dent state law claims against defendant Tillamook

County for common law nuisance and trespass and for

inverse condemnation.

Plaintiffs seek injunctive relief restraining defendant

from operating the Tillamook County Landfill until it has

been brought into compliance with the Resource Conser-

vation and Recovery Act and the regulations enacted

thereunder, and plaintiffs seek damages for the alleged

nuisance, trespass, and inverse condemnation.

Defendant's Position

Defendant contends it has operated the Landfill in

compliance with the standards and regulations estab-,

lished under RCRA. Defendant denies there has been any

trespass or nuisance or any inverse condemnation of

plaintiffs’ property from the operation of the Landfill.

Trial will be to a jury.

2. Subject Matter Jurisdiction.

The plaintiffs assert jurisdiction of this Court under

28 U.S.C. § 1331 (federal question) and 42 U.S.C. § 6972.

Jurisdiction of the nuisance, trespass, and inverse

condemnation claims is asserted as arising out of a com-

mon nucleus of operative facts.

3. Agreed Facts As To Which Relevance Is Not Disputed.

Plaintiffs are Oregon residents who own and reside

on a commercial dairy farm located adjacent to the

Tillamook County Sanitary Landfill.

Tillamook County is a municipal body duly orga-

nized and existing under Oregon law with power of

eminent domain.

Prior to 1949 Tillamook County established a County

solid waste disposal site on an 80 acre parcel of forest

land owned by the County and located approximately

three miles south of the town of Tillamook. Since 1951 the

plaintiffs have owned property adjacent to the County’s

land. At all times from 1951 to the present the plaintiffs

have resided on their land, and, at all times from 1951 to

1979, the plaintiffs have operated a successful commercial

dairy farm on their property. Since 1979 the plaintiffs

-have leased the dairy operation to a neighbor, who has

continued to operate the dairy farm to the present time.

In 1975 Tillamook County began a study to identifv

the best site in the County for a modern solid waste

disposal facility. The study was completed in 1978. The

existing County waste disposal sites located near the

towns of Manzanita and Pacific City were closed and all

solid waste disposal activities in the County were concen-

trated at the main County facility near the plaintiffs’

property. Subsequent to 1978, the main County solid

waste disposal facility was converted from an open burn-

ing dump to a landfill.

Since at least 1974 plaintiffs have repeatedly com-

plained to Tillamook County about the operation of the

main solid waste disposal site and have claimed that

contaminated water from the site has polluted their prop-

erty. Since at least 1974 plaintiffs have repeatedly com-

plained that the solid waste disposal site was causing

contamination of the land and water surrounding the site.

In April 1979 plaintiffs sued Tillamook County in

State Circuit Court for pollution of their property by the

solid waste disposal site.

On April 20, 1981, plaintiffs gave Tillamook County

written notice of the claims against the County asserted

by them in this case. Plaintiffs filed this action against

Tillamook County on April 9, 1982. On March 2, 1983, the

plaintiffs gave written notice of their claims to EPA and

DEQ.

4. Agreed Facts As To Which Relevance Is Disputed.

The permit to operate the landfill issued by DEQ in

April, 1981 required daily compacting of all solid waste

deposited at the site and weekly covering with at least six

inches of compacted earth. This permit required the area

of exposed solid waste not to exceed 50 feet by 100 feet.

The permit required a leachate system that would not

discharge any leachate off of the site or over the contain-

ment berm.

The solid waste disposal cells at the Tillamook

County Landfill are not lined with an impermeable

membrane.

The original solid waste containment cell was located

over a natural spring.

5. Contentions Of Fact.

PLAINTIFFS’

1.) The Tillamook County Landfill is an illegal open

dump.

2.) There are inadequate controls to prevent the dis-

posal of hazardous wastes on the site. Solid waste dis-

posed on the site is inspected for hazardous waste only

cursorily, if at all. The site was not designed to handle

hazardous waste.

3.; Surface water and leachate has been discharged

from tlie Tillamook County Landfill onto plaintiffs’ farm-

land and off the County’s land on a regular basis. The

groundwater under the site and plaintiffs’ farmland is

contaminated with dangerously high concentrations of

hazardous wastes, dissolved solids, and chemicals. These

concentrations exceed applicable water quality

requirements.

4.) Emissions, including dust, from the Tillamook

County Landfill violate applicable air quality require-

ments and adversely effect the quality of air around

plaintiffs’ residence and farmland.

5.) Conditions are maintained at the site that are

favorable for the harboring, feeding, and breeding of

vectors, particularly seagulls. These conditions violate

applicable solid waste disposal site requirements.

- 6.) The surface area of exposed solid waste has not

been minimized, contrary to DEQ Permit requirements

and applicable solid waste disposal site requirements.

Adequate and effective cover material has not been

Aeon ee

applied, and the solid waste has not been compacted on a

daily basis as required.

7.) The landfill was improperly designed, and the

site was poorly chosen. The site geology is likely to cause

groundwater contamination and surface water runoff.

8.) Measures taken to treat the leachate produced +t

the site have not been effective. The leachate distribution

system was approved by DEQ on an experimental basis.

It is an experiment that failed because leachate is dis-

charged on a regular basis from the Tillamook County

Landfill onto the surrounding land and tidelands.

9.) The leathate produced at the site has been

allowed to drain onto plaintiffs’ land, the tidewater areas

adjacent to the site, and into Sutten Creek and the

Tillamook River. The leachate discharged onto plaintiffs’

land contained a gas and oil residue. The leachate distri-

bution system designed by Tillamook County and Boat-

wright Engineering has been ineffective and inadequate.

10.) Leachate production at the Tillamook County

Landfill has also resulted in the contamination of ground-

water beneath plaintiffs’ residence and farmland without

the consent and contrary to the desi:- of plaintiffs. Since

service of the notice of intent to sue, contamination of

groundwater has substantially increased and the leachate

system has failed.

11.) Defendant’s conduct has unreasonably inter-

fered and continues to interfere with plaintiffs’ use and

enjoyment of their residence and farmland.

12.) Defendant Tillamook County has failed and

refused to control the continuing contamination of the

land surrounding the Tillamook County Landfill. Defen-

dant Tillamook County has continued to operate the

Tillamook County Landfill in violation of the DEQ

Permit.

13.) Efforts to maintain the operation of the

Tillamook County Landfill have been inadequate and

poorly conceived.

14.) Defendant’s conduct constitutes a taking of

plaintiffs’ land for public use without just compensation.

The taking occurred after mid-1980 when plans were

finalized to convert the burning dump to a Landfill.

15.) As a result of defendant’s trespass, nuisance,

and wrongful taking of plaintiffs’ land, plaintiffs have

been damaged by more than $210,000.00.

16.) More than 60 days before the commencement of

this action, plaintiffs served a Notice of Intent to file a

citizen suit pursuant to 42 U.S.C. § 6972 and 40 C.FR.

§ 254.

17.) Plaintiffs’ property includes tidelands.

18.) Leachate produced at the Tillamook County

Landfill has been discharged upon plaintiffs’ real prop-

erty without the consent and contrary to the desire of the

plaintiffs.

19.) The blowing of debris (e.g., paper and plastic

bags) has been a constant problem of the Tillamook

County Landfill.

20.) Since 1979 the lessee of plaintiffs’ dairy has

kept the milk-producing portion of the herd on the far

side of Beaver Creek away from the Landfill.

ee —

21.) The geologist hired by the County as part of the

1978 study wrote that the burning dump was probably

not developable, but that 80 acres owned by the County

nearby may warrant further consideration.

22.) The cost of converting the open burning dump

to a Landfill was $193,770 plus engineering costs.

23.) From May 31, 1979, through April 22, 1979,

Tillamook County operated its solid waste betmeees facil-

ity without a DEQ permit.

24.) Since March 2, 1983, Tillamook County has not

been instructed to do anything concerning the Landfill by

DEQ or EPA.

25.) Except as admitted above, plaintiffs deny

defendant’s factual contentions.

DEFENDANT'S

1.) Since 1975 Tillamook County has at all times

operated its solid waste disposal facility under a series of

permits from the State of Oregon Department of Enviro-

mental [sic] Quality (DEQ). No citations have ever been

issued by DEQ against Tillamook County for this

operation.

2.) Tillamook County has at all times operated the

facility in question in compliance with a State plan for the

elimination or amelioration of conditions which might

otherwise constitute prohibited forms of waste disposal.

3.) Operation of the Tillamook County Sanitary

Landfill has not violated the applicable standards and

regulations established by the EPA under RCRA.

4.) Federal standards and regulations under RCRA

for the construction and operation of solid waste disposal

facilities were first promulgated by the Enviromental [sic]

Protection Agency (EPA) on July 31, 1979. These regula-

tions first became applicable to solid waste disposal facil-

ities in the State of Oregon on June 22, 1982.

5.) Operation of the Tillamook County facility has

not resulted in pollution of the land, surface water,

ground water, or air in the vicinity of the landfill. In

particular, operation of the landfil! has not resulted in

pollution or contamination of the piaintiffs’ property or

water flowing through or under plaintiffs’ property.

6.) Tillamook County has not allowed disposal of

hazardous waste materials as defined by EPA at its solid

waste disposal facility except as aliowed by special

authorization of DEQ. Tillamook County maintains ade-

quate procedures to inspect and prevent disposal of

unauthorized hazardous waste at its disposal facility.

7.) The site of the Tillamook County Sanitary Land-

fill was properly chosen, the facility was properly

designed and constructed, and the facility has been prop-

erly operated and maintained by Tillamook County at all

times. Conversion of the open dump to a sanitary landfill

after 1978 cost in excess of $1,000,000, and is ongoing to

the present day.

8.) The operation of the sanitary landfill has not

unreasonably interfered with plaintiffs’ use and enjoy-

ment of their property so as to effectively deprive them of

substantially all beneficial use of that property.

9.) The operation of the sanitary landfill has not

interfered with plaintiffs’ use and enjoyment of their

property so as to effectively deprive them of substantially

all beneficial use of that property.

10.) Plaintiffs have been aware of the damages

claimed in this proceeding and of the County’s involve-

ment in those claims for more than 180 days prior to their

written notice of claim.

11.) Plaintiffs have been aware of the basis for their

claims for trespass and nuisance and of the County’s

involvement in those matters for more than two years

prior to the filing of this action.

12.) Plaintiffs have been aware of the basis for their

claim for inverse condemnation and of the County’s

involvement in that matter for more than six years prior

to the filing of this action.

13.) Except as admitted above, defendant denies

plaintiffs’ factual contentions.

6. Contentions Of Law.

PLAINTIFFS’

1.) Defendant Tillamook County owns and operates

an illegal open dump, the Tillamook County Landfill, in

Tillamook County, Oregon, in violation of the following

statutes and regulations:

42 U.S.C. § 6945

40 C.F.R. §§ 241.200-1, 241.202-1, 241.203-1, 241.204-1,

241.205-1, 241.207-1, 241.208-1, 241.209-1, and

241.210-1 [effective 1974]

40 C.FR. §§ 257.1, 257.3-1, 257.3-2, 257.3-3, 257.3-4,

257.3-6, and 257.3-7 [effective October 15, 1979]

40 C.F.R. §§ 264.1-.77 [effective November 9, 1980]

40 C.FR. §§ 265.1-.94 and 265.220-.315. [effective

November 9, 1980]

OAR Chapter 342, Divisions 61, 62, and 63.

2.) The “requirement” sections of 40 C.F.R. Part 241

delineate minimum levels of performance required of any

solid waste land disposal site operation. The “criteria” of

40 C.FR. Part 257 are for determining whether a solid

waste disposal facility is an illegal open dump.

3.) Plaintiffs are entitled to injunctive relief requir-

ing the immediate closure of the Tillamook County Land-

fill pursuant to 40 C.F.R. Parts 241 and 257, and

§§ 264.50-.56, 264.110-.120, 265.50-.56, and 265.112-.118.

4.) Plaintiffs are entitled to injunctive relief restrain-

ing defendant Tillamook County or anyone from operat-

ing the Tillamook County Landfill until it has been

brought in compliance with the Resource Conservation

and Recovery Act and the above regulations.

5.) Under 42 U.S.C. § 6972, plaintiffs are entitled to

recover the cost of this litigation, including reasonable

attorney and expert witness fees.

6.) Plaintiffs are entitled to injunctive relief restrain-

ing defendant from operating the Tillamook County

Landfill until it can be operated without unreasonable

interference with plaintiffs’ use and enjoyment of their

residence and farmland.

7.) The discharge of leachate and the emission of

dust and odors constitutes a nuisance and trespass of

plaintiffs’ real property by Tillamook County. Such nui-

sance and trespass is in violation of plaintiffs’ right to

exclusive possession.

8.) Plaintiffs are entitled to injunctive relief restrain-

ing defendant Tillamook County from operating the

Tillamook County Landfill until it can be operated with-

out trespass to plaintiffs’ residence and farmland or the

groundwater underneath.

9.) Defendant’s conduct constitutes a taking of

plaintiffs’ land for public use without just compensation.

10.) Plaintiffs are entitled to recover $210,000.00, the

damages they have sustained as a result of defendant's

taking of their land, plus interest thereon at the legal

rates from mid-1980, the date of taking.

11.) Plaintiffs are entitled to recover $210,000.00, the

damages they sustained because of defendant's unreason-

able interference with plaintiffs’ use and enjoyment of

their residence and farmland and because of defendant's

trespass upon plaintiffs’ residence and farmland.

12.) Under ORS 20.085, plaintiffs are entitled to

recover reasonable attorney fees incurred in this case for

inverse condemnation.

13.) Defendant Tillamook County is required to

operate its landfill in accordance with the regulations

promulgated under the Resource Conservation and

Recovery Act, 32 U.S.C. §§ 6901-87.

14.) The doctrine of sovereign immunity does not

apply to defendant.

15.) The doctrine of sovereign immunity does not

protect defendant Tillamook County from suits to enjoin

defendant from operating the Tillamook County Landfill

as a nuisance or a trespass.

16.) The doctrine of sovereign immunity does not

protect defendant from suits for inverse condemnation.

17.) Plaintiffs have commenced this action within

the time allowed by law. The claims stated in plaintiffs’

Complaint are continuing torts.

18.) Plaintiffs have given defendant adequate notice

of their claims as required by the Resource Conservation

and Recovery Act and as required by Oregon law.

19.) Plaintiffs have stated claims for violations of

the Resource Conservation and Recovery Act, for nui-

sance, for trespass, and for inverse condemnation.

20.) The doctrine of res judicata does not bar plain-

tiffs from prosecuting any of the claims alleged in plain-

tiffs’ complaint against defendant Tillamook County.

21.) The doctrine of discretionary /mandatory func-

tions does not protect defendant from liability to plain-

tiffs for damages caused by defendant’s wrongful and

illegal operation of the Tillamook County Landfill.

22.) Defendant has never possessed plaintiffs’ prop-

erty adversely, i.e. hostily, exclusively, under color of title

or claim of right.

23.) Except as admitted above, plaintiffs deny

defendant's legal contentions.

DEFENDANT’S

1.) Tillamook County’s operation of the sanitary

landfill in compliance with the schedule established by

DEQ is an absolute defense to the plaintiffs’ claims for

alleged violation of the federal standards and regulations

established under RCRA.

2.) By the terms of RCRA, no federal standards or

regulations were applicable to solid waste disposal activ-

ities conducted in the State of Oregon prior to June 22,

1982, and, therefore, no violation of those standards was

possible prior to that date.

3.) State solid waste disposal standards and regula-

tions promulgated by Oregon DEQ are irrelevant to the

plaintiffs’ federal claims prior to their acceptance by EPA

on June 22, 1982.

4.) The decisions concerning the location, design,

construction, and management and operation of the

Tillamook County Sanitary Landfill are discretionary

functions for which Tillamook County is immune from

liability.

5.) Plaintiffs’ claims for nuisance and trespass are

barred by plaintiffs’ failure to give adequate and timely

notice of these claims to Tillamook County as required by

the Oregon Tort Claims Act.

6.) Plaintiffs’ claims for nuisance, trespass and

inverse condemnation are barred by plaintiffs’ failure to

commence this action within the applicable statutes of

limitations.

7.) The State of Oregon has never waived sovereign

immunity for suits for injunctions. Plaintiffs’ claims for

injunctive relief for nuisance, trespass and inverse con-

demnation are barred by the doctrine of sovereign

immunity.

8.) Plaintiffs failed to give written notice of their

claims for violation of the federal standards and regula-

tions to either DEQ or EPA at least 60 days prior to

commencing this action. This court therefore lacks subject

matter jurisdiction of the plaintiffs’ claims.

9.) Tillamook County’s operation of the Landfill has

not unreasonably interfered with the plaintiffs’ use and

enjoyment of their property.

10.) Tillamook County’s operation of the landfill

has not so substantially interfered with the plaintiffs’ use

and enjoyment of their property as to constitute inverse

condemnation.

11.) Many of the plaintiffs’ claims do not constitute

violations of RCRA, nor do they constitute common law

nuisance or trespass, nor inverse condemnation.

12.) The plaintiffs did or could have litigated the

present claim to a final conclusion in their prior State

Court proceeding against Tillamook County in 1979. The

plaintiffs’ claims are therefore barred as res judicata.

13.) The defendant is entitled to recover from the

plaintiffs the cost of this litigation, including reasonable

attorneys fees and expert witness fees.

14.) Except as admitted above, defendant denies

plaintiffs’ legal contentions.

7. Amendments To Pleadings.

Plaintiffs want to amend their Complaint by inter-

lineation by inserting “17” in line 20 on page 5 of plain-

tiffs’ Complaint, and to allege violations of OAR Chapter

340, Divisions 61, 62, and 63. Defendant does not object to

the first proposed amendment, but does object to the

second proposed amendment.

ESLER & SCHNEIDER

By: /s/ Kim T. Buckley

Kim T. Buckley

Attorneys for Plaintiffs

BULLIVANT, WRIGHT, LEEDY, JOHNSON,

PENDERGRASS & HOFFMAN

By /s/ Ronald E. Bailey

Ronald E. Bailey

By: /s/ James G. Driscoll

James G. Driscoll

Attorneys for Defendant

IT IS ORDERED the foregoing Pretrial Order is

___ Approved as lodged.

___ Approved as amended by interlineation.

DATED this __ day of __, 1983.

United States District Magistrate

IN THE UNITED STATES DISTRICT COUR*®

FOR THE DISTRICT OF OREGON.

OLAF A. and MARY E.

HALLSTROM, husband

and wife, Civil No. 82-481JU

Plaintiffs, | OpiINION AND

V. ORDER

TILLAMOOK COUNTY, a

municipal corporation,

Defendant.

ee ee ee ee ee oe

KIM T. BUCKLEY

519 S.W. Park Avenue

Suite 510

Portland, Oregon 97204

Of Attorneys for Plaintiffs

RONALD E. BAILEY

JAMES F. DRISCOLL

1400 Pacwest Center

1211 S.W. Fifth Avenue

Portland, Oregon 97204

Of Attorneys for Defendant

JUBA, Magistrate:

I. BACKGROUND

This is a suit brought under the provisions of the

Resources Conservation and Recovery Act of 1976

(RCRA), 42 U.S.C. § 6901 et seq. Plaintiffs own and reside

on a commercial dairy farm located adjacent to a sanitary

landfill owned and operated by defendant, Tillamook

County. Plaintiffs maintain that the Tillamook County

landfill is being operated in violation of the standards

and requirements established under RCRA. Plaintiffs

have also made pendent state claims against defendant

for common law nuisance, trespass and inverse

condemnation.

Trial of this matter began on July 23, 1985 and was

completed on July 26, 1985. The jury found for defendant

and against plaintiff on all of the common law claims.

The case is before me at present for a determination

regarding the statutory claims. The parties presented evi-

dence on this issue throughout the four day trial.

Il. FACTS

Plaintiffs’ property is located approximately two and

one-half miles from the city of Tillamook. It is primarily

agricultural in nature with portions classified as forest

land and flood plain. At all times from 1951 to the pre-

sent, the plaintiffs have resided on the land. From 1951 to

1979, plaintiffs operated a commercial dairy farm on their

property. Since 1979 they have leased the dairy operation

to Jack and Sharon Bennet, their neighbors. In 1983 the

Bennett’s purchased the dairy herd and approximately

one acre of land including a house from plaintiffs. At the

present time, the Bennetts lease only the grazing land.

Prior to 1949, Tillamook County established a County

solid waste disposal site on an 80 acre parcel of forest

land owned by the County. Prior to the fall of 1980, the

land was used as an open dump. Subsequent to that date

the site was converted to a sanitary landfill.

A brief description of the area is in order. The landfill

lies on a slope and consequently, water moves down the

hill in the direction of the Hallstrom property. Ekloff

Road runs between the County property and that belong-

ing to the Hallstroms. Water flows down from the

County’s property and under Ekloff Road through what

is called the Hallstrom culvert and into the Hallstrom

ditch which carries the water to Beaver Creek. Beaver

Creek runs through the Hallstrom land in a generally east

to west direction. The land between Beaver Creek and

Ekloff Road is flood plain and thus is subject to flooding

every winter.

Plaintiffs contend that the discharge of leachate (con-

taminated liquid) from the landfill has caused or contrib-

uted to bacterial and chemical pollution of the surface

and ground water found on their land. They assert that

this constitutes violations of RCRA and seek to enjoin the

operation of the landfill

Ill. DISCUSSION

Section 6972 of RCRA provides the jurisdictional

basis for citizen suits. This provision authorizes private

citizens to sue to enjoin solid waste practices that consti-

tute “open dumping.” RCRA prohibits “open dumping”

except when a compliance schedule has been established

in a state plan, and the facility is operated in conformity

with the compliance schedule. 42 U.S.C. § 6945.

The criteria for determining what facilities and prac-

tices constitute open dumping are set forth in regulations

enacted by the Environmental Protection Agency. 40

C.F.R. § 257. The regulations set out eight criteria, the

violation of which constitutes open dumping. Plaintiffs

focus on the criteria relating to surface and ground water.

A. Surface Water

Section 257.3-3(c) provides that:

“(c) A facility or practice shall not cause non-

point source pollution of waters of the United States

that violates applicable legal requirements imple-

menting an areawide or Statewide water quality

management plan that has been approved by the

Administrator under Section 208 of the Clean Water

Act, as amended.”

Non-point source pollution “refers to diffuse or uncon-

fined sources of pollution where wastes can either enter

into - or be conveyed by the movement of water to -

public waters.” OAR 340-31-006(17). The parties agree

that the landfill is a non-point source.

Thus, we next turn to Oregon’s State-Wide Water

Quality Management Plan found at OAR Chapter 340,

Division 41. OAR 340-41-205 sets forth specific water

quality standards applicable to Tillamook County. The

standards for bacterial pollution are set forth in OAR

340-41-205(2)(e) and (f):

“(2) No wastes shall be discharged and no activ-

ities shall be conducted which either alone or in

combination with other wastes or activities will cause

violation of the following standards in the waters of

the North Coast - Lower Columbia River Basin:

“(e) Organisms of the coliform group where associ-

ated with fecal sources (MPN or equivalent MF using a

representative number of samples):

“(C) Estuarine waters other than shellfish growing

waters: A log mean of 200 fecal coliform per 100 ml.

based on a minimum of 5 samples in a 30-day period with

no more than 10% of the samples in the 30-day period

exceeding 400 per 100 ml.

“(f) Bacterial pollution or other conditions delete-

rious to waters used for domestic purposes, livestock

watering, irrigation, bathing, or shellfish propagation or

otherwise injurious to public health shall not be

allowed.”

1. Fecal Coliform

A large portion of both parties’ proof concentrated

on the presence or absence of fecal coliform on plaintiffs’

land. Plaintiffs contend that the water leaving the dump

and entering their land contains large amounts of fecal

coliform in violation of OAR 340-41-205(2)(e)(C). The evi-

dence presented by plaintiff indicated that in the fall of

1984, that was indeed the case. On the other hand, defen-

dant put on equally persuasive evidence that from Janu-

ary 17, 1985 through June 24, 1985 the bacterial

concentrations at the Hallstrom culvert did not exceed

the statutory limit. Plaintiffs argue that their data is more

accurate in that it was obtained during a time of normal

rainfall whereas the winter and spring of 1985 were

unusually dry. Defendant argues that its data is more

representative of the conditions present in that it was

taken over a longer period of time, ie., six months rather

than three.

This apparent contradiction in the evidence would

present a significant problem for the fact finder, however,

I find that plaintiffs have failed in their burden of proof

as dictated by the Oregon regulations. OAR

340-41-205(2)(e)(C) requires that evidence of bacterial

contamination be presented in terms of logarithmic

means. The only evidence at trial concerning log means

was the testimony of Terry Rahe, on behalf of defendants.

He testified that the use of log means presents a more

realistic picture of the bacterial distribution. Mr. Rahe is a

microbiologist and a consulting soil engineer. He testified

that the samples taken between January and June of 1985

from the Hallstrom ditch showed a log mean of 61 fecal

coliform per 100 millileters.

Plaintiffs, in their post-trial brief, reanalyzed their

data, indicating the log means. However, I have reviewed

the exhibits and evidence from trial and determined that

plaintiffs failed to present their data in the manner

required by the administrative rules. For that reason, I

cannot find a violation of OAR 34-41-205(2)(e).

2. Other Bacteria — Salmonella

Subsection (2)(f) of OAR 340-41-205(2) makes “bac-

terial pollution . . . deleterious to waters used for-

.. livestock watering . . . or otherwise injurious to public

health” a violation. Plaintiff contends that surface water

leaving the garbage dump contains Salmonella and Shig-

ella bacteria in numbers that present a public health

hazard.

Exhibit 218, presented by Paul Stevens, president of

the Water, Food and Research Lab, Inc., is the summary of

data resulting from three sampling trips made on October

18, 25 and November 1 of 1984. The results show the

presence of Salmonella and Shigella in Middle Beaver

Creek and the Hallstrom culvert. The presence of Salm-

onella and Shigella was confirmed biochemically and

serologically. Plaintiffs argue that because none of these

bacteria were found in Upper Beaver and large numbers

were found in the Hallstrom culvert and Middle Beaver

Creek, the source of the bacteria is the garbage dump

located directly above and draining into the culvert.

According to the testimony of Jay Vasconcelos, a

regional microbiologist for EPA who specializes in medi-

cal microbiology, Salmonella is considered to be an “indi-

cator organism” which indicates the presence of

pathogenic bacteria. Salmonella can cause disease in

humans and animals, including typhoid fever. During

cross examination, Mr. Vasconcelos testified that the con-

centrations of Salmonella found in the fall of 1984 consti-

tute a “definite health hazard.” In his opinion the

problem is a surface one, not involving the ground water.

Further testing for Salmonella was done in June of

1985. None were found at that time by experts for either

party. Plaintiffs once again argue that the absence of

appreciable rainfall distorted the figures arising from the

June sampling. Mr. Vasconcelos explained that rain influ-

ences the composition of surface water. Since bacteria is

moved by water, higher concentrations of bacteria would

be expected at times of greater rainfall.

OAR 340-41-205(2)(f) requires that plaintiff bring for-

ward proof tending to establish by a preponderance of

the evidence that there is in fact bacterial pollution either

deleterious to waters used for livestock watering or inju-

rious to public health. There is evidence of harmful con-

centrations of Salmonella in the fall of 1984. However,

a ae ee

there is no evidence of the presence of Salmonella from

June of 1985 through the time of trial. Further, as defen-

dant points out, there is no evidence that the waters of

Beaver Creek are used for domestic purposes, irrigation,

bathing or shellfish ,ropagation. The creek is used for

livestock watering. Norm Bennett, one of the leasees of

the property testified that the Bennett cattle routinely

drink from Beaver Creek without suffering any ill effects.

The land between Ekloff Road and Beaver Creek is

used to pasture heifers in all seasons but winter. During

the winter months the pasture area is flooded. The only

practical use of the area is as pasture land. Plaintiffs did

not present any evidence of particular health hazards

associated with the presence of Salmonella on plaintiffs’

land. There was no actual proof of harmful effects from

rs landfill operation on the only beneficial use of the

nd.

There is some question in my mind whether OAR

340-41-205(2)(f) requires only proof of potential public

health hazards or if there must be proof of actual injury

to public health. There is certainly proof in this case that

a potential hazard existed in the fall of 1984, however, as I

said above, the only possible beneficial use of the land

adjacent to and flooded by Beaver Creek is as pasture

land. I need not resolve that question, however, as I find

that plaintiff has proven other violations of the Oregon

State-Wide Quality Management Plan having to do with

surface water which mandate the remedy | will set out

below.

3. Other Water Quality Standards

OAR 340-41-205(2)(j), (k) and (1) prohibit:

“(j) The formation of —_ — vd

ludge deposits or the formation of any organ

tneagente deposits deleterious to fish or other aquatic

life or injurious to public health, recreation, or indus-

try shall not be allowed.

“(k) objectionable discoloration, scum, oil

sleek, or floating solids, or coating of aquatic life

with oil film shall not be allowed.

“(1) Aesthetic conditions offensive to the human

senses of sight, taste, smell, or touch shall not be

allowed.”

Ample proof was presented at trial to persuade me, by a

preponderance of the evidence that leachate escapes from

the confines of the landfill onto plaintiffs’ land. The testi-

mony at trial indicated that the leachate is generally dark

yellow or brown in color with an offensive odor. There

was evidence of “ponding” and overflows of leachate at

the pumphouse and sump. The escaping leachate mixes

with rain run-off and runs down the hill in channels

through the Hallstrom culvert, into the Hallstrom ditch

and on into Beaver Creek. Mr. Hallstrom testified that

although there was no leachate spilling at the time of

trial, there was no improvement in the amount of leachate

on his land over the winter months. As this summer has

admittedly been drier than usual, the amount of leachate

produced would be expected to be less.

There was testimony from several witnesses that the

leachate has had an adverse effect on the waters of Bea-

ver Creek and the Hallstrom ditch. Norm Bennett testi-

fied that he could see that the leachate had contaminated

the stream. He has noticed leachate flowing into the creek

making it look “ugly.” He has also noted that it sticks to

the bottom, creating a build-up of sludge. On several of

his sampling trips, Mr. Stevens observed a reddish cast to

the water in the Hallstrom ditch and a build-up of “gunk

on the bottom.” Mr. Hallstrom testified that water mixed

with foul-smelling leachate drains onto his land and into

the Hallstrom ditch and Beaver Creek. The leachate cre-

ates an oily film on the water and causes the build-up of

sludge on the bottom of the ditch.

All of his convinces me that there has been and will

continue to be violations of OAR 340-41-205(2)(j), (k) and

(1). Furthermore, although plaintiffs did not provide

ample proof of violations regarding fecal coliform and

there is question about further bacterial violations in the

form of Salmonella, these problems are undoubtedly con-

tributed to by the escape of leachate from the confines of

the landfill. For those reasons, I conclude that some rem-

edy is necessary to rectify the situation. Since that is my

conclusion, I need not go further and address plaintiffs’

other allegations of violation of RCRA. As noted above,

RCRA incorporates the standards of water quality set out

in Oregon’s State-Wide Water Quality Management Plan.

Therefore, a violation of OAR 340-41-205(2) is also a

violation of RCRA.

IV. REMEDY AND CONCLUSION

Plaintiffs seek injunctive relief and ask that | order

the landfill closed. I do not feel that in this instance that

would be an appropriate remedy. It is within my discre-

tion to refuse to issue an order of immediate cessation.

The better interpretation of RCRA is that it permits the

court to order the relief it considers necessary to secure

prompt compliance with the Act. See Weinberger 0.

Romero-Barcelo, 456 U.S. 305, 320 (1982) (interpreting the

citizen suit provisions of the Federal Water Pollution

Control Act, which are nearly identical to those of RRA).

I do not believe closure of the dump is necessary to

obtain compliance with RCRA. It is my intention to

obtain complete and permanent containment of the leach-

ate generated by the landfill. To achieve that goal, defen-

dant is ordered to submit a proposal outlining the steps

necessary to achieve permanent and complete contain-

ment of the leachate within the boundaries of the landfill

site within sixty (60) days of entry of this order.

Subsequent to the entry of an Order consistent with

the above, claims for attorney fees will be addressed in

supplementary submissions by the parties.

The foregoing constitutes my Findings of Fact and

Conclusions of Law pursuant to Rule 52(a) Fed. Civ. P.

Dated this 30 day of September, 1985.

/s/ George E. Juba

' United States Magistrate

James G. Driscoll ‘

Ronald E. Bailey

BULLIVANT, HOUSER, BAILEY, HANNA,

PENDERGRASS, HOFFMAN, O’CONNELL & GOYAK

1211 SW Fifth Avenue

1400 Pacwest Center

Portland, OR 97204

Telephone: (503) 228-6351

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

OLAF A. and MARY E.

HALLSTROM, husband

Civil No. 82-481-JU

and wife,

FINAL JUDGMENT

AND DECREE

(Filed June 23, 1986)

Plaintiffs,

vs.

TILLAMOOK COUNTY, a

municipal corporation,

Defendant.

ee eee ee ee

This case was tried commencing July 23, 1985, The

Honorable George E. Juba presiding. Plaintiffs’ claims for

common law nuisance and trespass and for inverse con-

demnation under the Oregon Constitution were tried to a

jury. Plaintiffs’ claims for violation of the Resource Con-

servation and Recovery Act of 1976 (RCRA), 42 USC

§ 6901, et seq., were tried to the Court.

On July 29, 1985 the jury returned its verdict for the

defendant and against the plaintiffs on all of plaintiffs’

state law claims for damages for compensation.

On September 30, 1985, the Court entered its OPIN-

ION AND ORDER, finding that defendant had violated

Section 257.3-3(c) of RCRA.

On June 23, 1986, the Court entered its ORDER AND

DECREE, requiring defendant to take steps as set forth

therein to prevent future escapes of leachate from the

landfill boundary.

Accordingly, it is hereby ADJUDGED AND

DECREED that:

(1) Defendant comply with the terms of the ORDER

AND DECREE of June 23, 1986; and that

(2) Defendant have judgment in its favor on plain-

tiffs’ claims for trespass, nuisance and inverse

condemnation.

DATED this 23 day of June, 1986.

/s/ Comm Spee

George E. Ju

UN ED STATES MAGISTRATE

Presented By:

/s/ James G. Driscoll

James G. Driscoll

Of Attorneys for Defendant

er eo

Olaf A. HALLSTROM and Mary E. Hallstrom, husband

and wife, Plaintiff-Appellants, and Cross-Appellees,

Vv.

TILLAMOOK COUNTY, a municipal corporation,

Defendant-Appellee, and Cross-Appellant.

Nos. 86-4016, 86-4100 and 86-4257.

United States Court of Appeals,

Ninth Circuit

Argued and Submitted Sept. 10, 1987.

Decided Nov. 3, 1987.

As Amended on Denial of Rehearing and

Rehearing En Banc April 7, 1988.

Appeal from the United States District Court for the

District of Oregon.

Before WRIGHT, WALLACE and PREGERSON, Cir-

cuit Judges.

ORDER

The panel voted unanimously to deny the petition for

rehearing. The majority of the panel voted to reject the

suggestion for rehearing en banc. Judge Pregerson was in

favor of granting the suggestion for rehearing en banc.

A call for an en banc vote was made and the case

failed to receive a majority of the votes of the active

circuit judges in favor of rehearing en banc.

The petition for rehearing is denied and the sugges-

tion for a rehearing en banc is rejected.

AMENDED OPINION

EUGENE A WRIGHT, Circuit Judge:

This case requires us to determine whether failure to

comply with the 60 day notice requirement of the

Resource Conservation and Recovery Act of 1976 (RCRA)

deprived the district court of subject matter jurisdiction

to hear this case. Of the seven circuits that have consid-

ered this issue, three have found that notice is a jurisdic-

tional prerequisite and four have held that notice is

merely procedural.

We hold that proper notice is a precondition of the

district court’s jurisdiction. Because the Hallstroms failed

to notify the Environmental Protection Agency (EPA) and

the Oregon Department of Environmental Quality (DEQ)

before filing suit, the district court lacked subject matter

jurisdiction to hear the case. We remand for dismissal.

BACKGROUND

The Hallstroms own property near the Tillamook

County landfill. They allege that leachate (contaminated

liquid) discharged from the landfill caused or contributed

to bacterial and chemical pollution of their surface and

ground water. In April 1982, they filed suit against the

county under 42 U.S.C. § 6972, claiming that the county

was violating RCRA, 42 U.S.C. § 6901, et seq. Nine months

later they notified in writing the EPA and the DEQ of the

suit. They also made pendent state law claims for com-

mon law nuisance, trespass, and inverse condemnation.

— oe |

ete

The district court found that leachate from the land-

fill was poiluting the Hallstroms’ land in violation of

RCRA and the Oregon State-Wide Water Quality Manage-

ment Plan, which is incorporated by RCRA. The court

ordered the county to contain the leachate within two

years. The state claims were heard by a jury, which found

for the county on all three claims.

DISCUSSION

42 U.S.C. § 6972(b)(1) provides:

No action may be commenced under . . . this sec-

tion . . . prior to sixty days after the plaintiff has

eS notice of the violation to—(i) the Administrator

of the EPA]; (ii) the State in which the alleged viola-

tion occurs; and (iii) any alleged violator of [any]

permit, standard, regulation, condition, requirement,

prohibition, or order [pursuant to RCRA]...

At least eight environmental statutes contain identical or

similar notice provisions. Susquehanna Valley Alliance v.

Three Mile Island, 619 F.2d 231, 242 n. 12 (3d Cir.1980), cert.

denied, 449 U.S. 1096, 101 S.Ct. 893, 66 L.Ed.2d 824 (1981).

Courts have construed these provisions identically

despite slight differences in wording. See, e.g., Garcia v.

Cecos Int'l, Inc., 761 F.2d 76, 79 (1st Cir.1985); Natural

Resources Defense Council v. Train, 510 F.2d 692, 699-700

(D.C.Cir.1974).

This notice requirement is designed to balance the

value of citizen enforcement of federal environmental

policies against the burdens that such enforcement places

on the EPA and the federal courts. By notifying the EPA

and the state of potential legal action, the citizen plaintiff

allows them to avoid litigation by investigating and cor-

recting the alleged violation through non-judicial means.

Garcia, 761 F.2d at 81; National Resources Defense Council,

510 F.2d at 700.

This court considers for the first time the significance

of the § 6972(b)(1) requirement. Two conflicting inter-

pretations divide the circuits that have considered this

section.

The “pragmatic approach,” adopted by the Second,

Third, Eighth, and District of Columbia Circuits, treats

the notice requirement in the federal environmental stat-

utes as procedural. See, e.g., Natural Resources Defense

Council v.-Callaway, F.2d 79, 83-84 (2d Cir.1975); Sus-

quehanna Valley Alliance, 619 F.2d at 243; Hempstead County

and Nevada County Project v. U.S.E.P.A., 700 F.2d 459, 463

(8th Cir.1983); Natural Resources Defense Council v. Train,

510 F.2d 692 (D.C.Cir.1974). Failure to satisfy its terms

may be cured by the court staying proceedings for 60

days so that the purpose of the notice requirement may

be met. Under this approach, so long as 60 days elapse

before the district court takes action, formal compliance

with the terms of the requirement is not required.

This approach focuses on the role and right of the

citizen in enforcing federal environmental policies. See,

e.g., Natural Resources Defense Council, 510 F.2d at 700

(“[clitizens can be a useful instrument for detecting viola-

tions and bringing them to the attention of the enforce-

ment agencies and courts alike.”) Adhezents of this view

believe that strict application and enforcement of the

notice requirement is contrary to Congress’ intent in per-

mitting citizen actions. Such a construction would frus-

trate citizen enforcement of the act, Pymatuning Water

Shed Citizens, etc. v. Eaton, 644 F.2d 995, 996 (3d Cir.1981),

and treat citizens as “troublemakers” rather than “wel-

come participants in the vindication of environmental

interests.” Projjitt v. Commissioners, Township of Bristol, 754

F.2d 504 (3d Cir.1985)

We adopt Judge Wisdom’s better reasoned “jurisdic-

tional prerequisite approach,” set forth in Garcia, 761 F.2d

at 78. See also Walls v. Waste Resource Corp., 761 F.2d 311,

316 (6th Cir.1985); City of Highland Park v. Train, 519 F.2d

681 (7th Cir.1975), cert. denied, 424 U.S. 927, 96 S.Ct. 1141,

47 L.Ed.2d 337 (1976). This approach focuses on the plain

language of the statute and the policy concerns underly-

ing the notice requirement.

Judge Wisdom wrote, “The plain language of

§ 6972(b) commands sixty days’ notice before commence-

ment of the suit. To accept anything less ‘constitutes, in

effect, judicial amendment in abrogation of explicity,

unconditional statutory language.’” Garcia, 761 F.2d at 78.

“The notice requirement is not a technical wrinkle or

superfluous formality that federal courts may waive at

will. . . . [I]t is part of the jurisdictional conferral from

Congress that cannot be altered by the courts.” Id. at 79.

Strict application of the notice requirement is sup-

ported by an exception within § 6972 which waives the 60

day notice requirement if the alleged violation involves

hazardous waste. 42 U.S.C. § 6972. This provision makes

«92

clear that Congress considered the 60-day notice require-

ment and intended that it apply in all cases, except those

involving hazardous waste.

We also agree with the First Circuit that the jurisdic-

tional interpretation of § 6972(b) serves better the under-

lying policy aims of encouraging non-judicial resolution

of environmental conflicts. As it noted, once a suit is

filed, positions become hardened, parties incur legal fees,

and relations become adversarial so that cooperation and

compromise is less likely. Garcia, 761 F.2d at 82. The

pragmatic approach fails to recognize that “a mere adjust-

ment of the trial date or the filing of a supplemental or

amended complaint to cure defective notice cannot

restore a sixty day non-adversarial period to the parties.”

Id.

Section 6972(b) and its legislative history reflect Con-

gress’s belief that the citizen-plaintiff working with the

state or the EPA can better resolve environmental dis-

putes than can the courts. Congress believed that citizen

enforcement through the courts should be secondary to

administrative enforcement by the EPA. The notice

requirement of § 6972(b) was intended to “trigger admin-

istrative action to get the relief that [the citizen] might

otherwise seek in the courts.” 116 Cong.Rec. 32,927

(1970).

Anything other than a literal interpretation of the 60-

day notice requirement of the federal environmental stat-

utes would effectively render those provisions worthless.

For instance, if a citizen-plaintiff could file a suit under

RCRA without following the notice requirements and

avoid a motion to dismiss simply by arguing that the EPA

or other relevant authority had more than 60 days to act

prior to the commencement of trial or discovery proceed-

ings, then, under the realities of modern-day litigation

no one would ever comply with this requirement. We will

not attribute to Congress an intent to enact a provision

after hours of debate that could be evaded by ev

potential plaintiff, thus rendering it meaningless. 7

Non-judicial resolution of such conflicts is more

likely if parties consider their interests and positions ina

nonadversarial setting before suit if filed. Litigation

should be a last resort only after other efforts have failed.

See comments of Senators Muskie and Hart, 116

Cong. Rec. at 33,103-33,104 (1970). We believe that the

jurisdictional prerequisite” approach is more consistent

with this design than the pragmatic approach.

The Hallstroms’ failure to notify the EPA and DEQ 60

days before filing suit against the county barred the dis-

trict court’s subject matter jurisdiction over the RCRA

claim. Because the court lacked federal jurisdiction at the

time the suit was filed, it lacked pendent jurisdiction also.

The federal court’s power to exercise pendent jurisdiction

derives from its federal jurisdiction. See United Mine

Workers of America v. Gibbs, 383 U.S. 715, 725, 86 S.Ct.

1130, 1138, 16 L.Ed.2d 218 (1966); Hunter v. United Van

Lines, 746 F.2d 635, 649 (9th Cir. 1984), cert. denied, 474

U.S. 863, 106 S.Ct. 180, 88 L. Ed.2d 150 (1985).

Without federal jurisdiction, a federal court has no

power to hear state claims. Hunter, 746 F.2d at 649: “the

federal court acquires its power over the [pendent] claim

se - only if the court has previously properly been seized

of jurisdiction. The federal court’s jurisdiction over the

state-law claim is entirely derivative of its jurisdiction

over the federal claim.” (citations omitted).

Because the jurisdiction issue is dispositive, we do

not reach the other issues. The case is remanded to dis-

miss and vacate the court’s opinion. We reverse the

award of fees to the county.

PREGERSON, Circuit Judge, dissenting:

The majority holds that the 60-day notice require-

ment of 42 U.S.C. § 6972(b) is jurisdictional. It therefore

holds that the district court lacked jurisdiction over this

action, even though the EPA and the Oregon Department

of Environmental Quality received written notice of the

action more than two years before trial began. By requir-

ing dismissal, the majority exalts form over substance. I

therefore dissent.

The Hallstroms filed their complaint on April 9, 1982.

They gave written notice to the EPA and the Oregon

Department of Environmental Quality (DEQ) on March 2,

1983. The EPA had actual notice in December 1982; the

DEQ in January 1983. The trial began on July 22, 1985.

Section 6972 of the Resource Conservation Recovery

Act (RCRA), 42 U.S.C. § 6972 allows for citizen enforce-

ment of certain statutory provisions. Section 6972(b)(1)

provides that “[n]o action may be commenced . . . under

this section . . . prior to 60 days after the plaintiff has

given notice of the violation to—(i) the Administrator; (ii)

the state in which the alleged violation occurs; and (iii) to

any alleged violator . . . ” We must decide whether this

requirement acts to deprive a district court of jurisdiction

over an action filed in the court before 60 days have

elapsed.

The majority of the circuits that have addressed this

issue have held the the 60-day notice requirement is

procedural, not jurisdictional. See, e.g., Hempstead County

& Nevada County Project v. EPA, 700 F.2d 459, 463 (8th Cir.

1983); Susquehanna Valley Alliance v. Three Mile Island

Nuclear Reactor, 619 F.2d 231 243 (3d Cir.1980) (construing

an identical provision of the Federal Water Pollution Con-

trol Act), cert. denied, 449 U.S. 1096, 101 S.Ct. 893, 66

L.Ed.2d 824 (1981); Natural Resources Defense Council v.

Callaway, 524 F.2d 79, 83-84 (2d Cir.1975) (construing the

Federal Water Pollution Control Act): Natural Resources

Defense Council v. Train, 510 F.2d 692, 699-700 (D.C.

Cir.1974) (construing amendments to the Clean Air Act). |

agree.

One of the purposes of the 60-day notice requirement

is to allow the EPA to enforce the statute. The majority,

while recognizing this purpose, contends that “the juris-

dictional interpretation of §§ 6972(b) serves better the

underlying policy aims of encouraging non-judicial reso-

lution of environmental conflicts.” At 601. This case illus-

trates the weakness of that view. At oral argument,

counsel for the Hallstroms stated that the EPA was well

aware of the conflict between the Hallstroms and

Tillamook County. In fact, EPA personnel had called him

at various stages of the district court action to ask how it

was proceeding. At no time did the EPA indicate any

interest in enforcing the statute; it was content to let the

Hallstroms proceed with their citizens’ suit.

I would interpret the statute to require that 60 days

elapse before the district court may act. This approach

furthers the goal of agency enforcement; it allows the

agency to consider the alleged violation for 60 days. If the

agency has taken no action after 60 days, the district

court may proceed. It would be “excessively formalistic”

to require the district court to dismiss the action and the

parties to refile. Susquehanna Valley Alliance, 619 F.2d at

243.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.