Petitioners Brief — Hallstrom v. Tillamook County

In The

Supreme Court of the United States

October Term, 1988

-@—

OLAF A. HALLSTROM and

MARY E. HALLSTROM,

<

101 S.W. Main, Suite 1870

Portland,

(503) 223-151

97204-3226

QUESTION PRESENTED

The Resource Conservation and Recovery Act, 42

U.S.C. §§ 6901-6987 (1982 ed. and Supp. III) (“RCRA”)

provides for citizen enforcement by “citizen suits.” RCRA

requires each citizen suit to be preceded by 60 days notice

of the violation from the plaintiff to the Administratur of

the Environmental Protection Agency, the State where the

alleged violation occurred, and the alleged violator.

The Hallstroms gave the required 60 day notice to

Tillamook County before filing this citizen suit, but they

did not notify the Administrator or the State until after

the suit was filed. Neither the Administrator nor the State

were parties. The State had actual notice of the violation

for a year and a half before the citizen suit was filed.

The question presented is whether the 60 day notice

requirement is jurisdictional (requiring dismissal fol-

lowed by refiling 60 days after formal notice) or pro-

cedural, and therefore subject to waiver, equitable

modification, and cure.

Si , d eee - _

TABLE OF CONTENTS

Page

OPINIONS BELOW...... 2.2... 060 ccc cece cece eeeeee 1

DE th rubs adecesdebcccccccccsscccecccccs 2

STATUTES AND REGULATIONS INVOLVED ...... 2

STATEMENT OF THE CASE..............00000005: 6

SUMMARY OF ARGUMENT...............00000055 10

SE PE JE dbanbbabebSccccocccccccceseccesess 11

1. The Text And Structure Of The Statute Do

Not Limit Jurisdiction To Cases In Which 60

Days Notice Was Given................+++0005: 11

Be ITD sare cccccccsccccccccccces 12

b. Subsection (b)(1)..............--00000e- 13

c. Subsection (b)(2)............-.0eee eens 14

2. A Procedural In tion Serves The

Particular of The Provision With-

out Doing To The Ov

of RCRA Of Protecting The Environment And

Encouraging Citizen Enforcement. ............. 16

a. The Purpose of RCRA............... 16

b. The Purpose Of RCRA’s Citizen Suit

PU Sadececescccctedsocesce-coccccces 16

c. The Purpose Of The Notice Provision 19

les Of Statutory Construction

Indicate That Notice Requirement Is Not

EE Si tincsbcebcccccerccccccecccccces 20

a. The Language Is The Starting Point.... 20

b. Interpret According To Purpose...... 22

iv

TABLE OF CONTENTS - Continued

Page

c. Int to Avoid Futile, Absurd, Or

Unreasonable Results That Defeat Purpose 28

4. A Procedural Interpretation Is Consistent

With Case Law. ..........0ccccccceeeeeeceneees 32

a. A Procedural Interpretation Is Consis-

tent With Gwaltney ..........660..ceeee eens 32

b. A Procedural Interpretation Is Consis-

tent With Middlesex... ..........2ccceeeeees 33

c. A Procedural tion Is Consis-

tent With Zipes v. Trans Airlines And Its

FUORI « o ccccccccccscccescecssseeseccccccs 34

5. The Notice Requirement Is Subject To

Waiver, Estoppel, And Equitable Modification. 35

6. The Failure To Give Notice To The Govern-

I... ce oddalenendededdrdeedeeoes 38

CRONE ccc dcccesccccccccocectocesccccsccces 39

Le == -_ - wee, =

v

TABLE OF AUTHORITIES

Page

CasEs

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

720 F.2d 897 (6th Cir. 1983)............. cece eens 26

American and Construction Co. v. Utah, 414 U.S.

Pe as AbSubndcdccsccescscccsvectvevccccccess 36

Baldwin County Welcome Center v. Brown, 466 U.S.

Lf OSE e eT oTe rr errr TTT TTTY TT Tree 35

v. Richmond Unified School District, 528 F.2d

1208, 1212 (9th Cir. 1975)........ 6. cceeeeeeees 38, 39

Burnett v. New York Central Railroad Company, 380

et vnchocdedbiqucicdecdcccctvcccccce 35

Chesapeake Bay Found. v. American Recovery Co., 769

F.2d 207, 208-09 (4th Cir. 1985) .............00005. 32

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

i075, cert. denied 424 U.S. 927 (1976)............. 37

Clanton v. Orleans Parish School Board, 649 F.2d

1084, 1095 n. 13 (Sth Cir. 1981) ...........6 eee eens 38

Conolly v. Taylor, 27 U.S. (2 Pet.) 556, 565 (1829)..... 38

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

447 U.S. 102, 108 (1980) ........ ccc cece cece eens 20

Crown, Cork & Seal Co., Inc. v. Parker, 462 U.S. 345

Ceahdedbnecccocceoscecescestedapensdeeceseses 36

Friends of the Earth v. Carey, 535 F.2d 165, 172 (2d

Sie MEE adecncenccesdcedccesendaseveesetevececes 18

Garcia v. Cecos Intern., Inc., 761 F.2d 76 (ist Cir.

GA onpenurenconcoccesccontocenencest 24, 26, 28, 37

Gibson v. Croger Co., 506 F.2d 647 (7th Cir. 1975),

cert. denied, 421 U.S. 914 (1975) ..........0 000 c eee 38

vi

TABLE OF AUTHORITIES - Continued

Gooding v. Warner-Lambert Co., 744 F.2d 354, 358 n.

en oo a eee cenebescns

Griffin v. Oceanic Contractors, Inc., 458 U.S. 564

a ak i a et a og

Gutierrez v. Municipat Court of the Southeast Judicial

District, 838 F.2d 1031, 1053-54 (9th Cir. 1988).....

Gwaltney of Smithfield v. Found., __

US» 108 SCt. 376, 386-86 (1

ccccccconsensseceseneeessseedeseehens 10, 13, 14, 23,

Hallstrom v. Tillamook County, 844 F.2d 598 (9th Cir.

OMPPTTTTTITT LITT TTT TTT LTT Lee 26,

Hempstead oy and Nevada Cty. Project v.

U.S.E.P.A., F.2d 459, 463 (8th Cir 1983).......

Hendersen v. Eastern Freight Ways, Inc., 460 F.2d

rom 260 (4th Cir. 1972), cert. denied, 410 U.S. 912

BEPPPVTTITITI ITT T TIT TL TT TTT

Holy Trinity Church v. United States, 143 U.S. 457

BPPPITITTITIT TTL? Ce

Horn v. Lockhart, 84 U.S. (17 Wall.) 570, 579 (1873) ....

Lynch v. Overholser, 369 U.S. 705 (1962)..............

Middlesex Cty. Sewerage Auth. v. Sea Clammers, 453

SD © ED whvccccdedccceccccedecceesqeccoecs 10,

Natural Resources Defense Council v. Train, 510 F.2d

wm fF iekien | MPPPIITITTTI TIT TTT TTT Te

Pinkard v. Pullman-Standard, a Div. of Pullman, Inc.,

678 F.2d 1211 (Sth Cir. 1982)..............6055. 35,

Susquehanna Valley Alliance v. Three Mile Island, 619

F.2d 231, 243 (3rd Cir. 1980), cert. denied, 449

Se He ED c ccccecdbbvdedscccesddeessevoceccs

vii

TABLE OF AUTHORITIES - Continued

Page

United States v. Shirey, 359 U.S. 255 (1959)........... 22

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

Phiaibhdeenbbaesenetabetcaserocessccces 27, 28, 37

White v. Texas, 310 U.S. 534 (1940) .................. 28

Zipes v. Trans World Airlines, Inc., 455 U.S. 385

iabéacvalee saben dssceces 10, 11, 22, 23, 34, 36, 38

STATUTES

SID 4. cn ndccccntennceetencesoneseeoum 2

ee IA a ch dickhovinédensecsccnccsenscnccos 6

Act to Prevent Pollution from ry § 11(a) and

(b), 94 Stat. 2302, 33 U.S.C. § 1910(a) and (b)

+ ane ae 6, 31

Civil Act of 1954, 78 Stat. 253, 42 U.S.C.

8 2008 et — CPPPPTTTIT TTT TT LITT TTT TTT TT TT TTT 34

Clean Air Amendments of 1970, § 304 (a) and (b),

84 Stat. 1706, 42 U.S.C. § 7604(a) and (b) (1982

GRAD chcducedecacnéeeeseséetsceese 5, 13, 15, 16, 17, 18

Comprehensive Environmental Response, Com-

oy yo gs Act, § 310(a) and (b),

t. ».

703, 42 U.S.C. § 9659(a) through

Se BU ds occcdvavcctacsccceceuccoccccce 5

Consumer Product Sa Act, § 24(a), 86 Stat.

1226, 15 U.S.C. § 2073{a) (1982 ed.)................ 6

Deepwater Port Act of 1974, § 16(a) and (b), 88

Stat. 2140, 33 U.S.C. § 1515(a) and (b) (1982 ed.) ..... 5

Endan Species Act of 1973, § 11(g)(1) and

(2), 87 Stat. 897, 16 U.S.C. § 1540(g)(1) and (2)

GENE GED 6 cnc ccserdsnseesbecesees cocesccecceses 5

viii

TABLE OF AUTHORITIES - Continued

—Page

Federal Water Pollution Control Act, § 505 (a) and

(b), 86 Stat. 888, 33 US.C. § 1365(a) and (b)

liane ocdeasedaccdileckbdabeces 5, 19, 32, 33

Marine Protection, Research, and Sanctuaries Act

of 1972, § 1 ) and (2), 86 Stat. 1057, 33

U.S.C. § 141 1) and (2) (1985 ed.) ........... 5, 33

Noise Control Act of 1972, § 12(a) and (b), 86 Stat.

1243, 42 U.S.C. § 4911(a) and (b) (1982 ed.)........ 5

Outer Continental! Shelf Lands Act, § 23(a)(1) and

(2), 92 Stat. 657, 43 U.S.C. § 1349%(a)(1) and (2)

ths di Jenteuistbbadineadsnepitnatsees od 6, 31

Resource Conservation and Recovery Act, § 7002

(a) and (b), 90 Stat. 2825, 42 U.S.C. § 6972 (1982

GB GH. TED cn nccccccvccccccccccs 2, 6, 8, 11, 12, 29

Safe Drinking Water Act, § 1449%(a) and (b), 88

Stat. 1690, 42 U.S.C. § 300}-8(a) and (b) (1982

ke ne cncctccce 5

Surface Control and Reclamation Act of

1977, § and (b), 91 Stat. 503, 30 U.S.C.

§ 1270(a) and (b) (1982 ed.)....... 2... 2... 6c eee eee 5

Toxic Substance Control Act, § 20(a) and (b), 90

Stat. 2041, 15 U.S.C. § 2619%a) and (b) (1982 ed.) ..... 5

ix

TABLE OF AUTHORITIES - Continued

Page

Lecistative History

116 Cong. Rec. 32,926 (1970)..........-.---eeeees 14, 15

116 Cong. Rec. 32,927 (1970)... .........- ee eee eeeees 17

116 Cong. Rec. 33,104 (1970)... ..........- cece eeees 18

H.R. No. 94-1491 - Part I, 94th , at 4,

reprine in [1976] U.S. Code Cong. & News

BBMER, .w cc cccccccccccccccccccccccccccccceccces 16

S. 92-414, 92d reprinted in [1972] U.S.

‘Cale Cong. & Ad. Ad. News 3745 accceguessecccoceses 19

Rutes

Pe RGR. We)... ccccccccccccccccccccccsccccesees 31

The opinion of the court of appeals (Pet. App. 1a-8a)

is reported at 831 F.2d 889 (1987). The amended opinion

of the court of appeals (J.A. 87-96) is reported at 844 F.2d

598 (1988). The opinion of the district court (J.A. 56-57) on

the question presented is not reported.

>

2

JURISDICTION

The judgment of the court of appeals (Pet. App.

la-8a) was entered on November 3, 1987. A timely peti-

tion for rehearing was denied and an amended judgment

(J.A. 87-96) was entered on April 7, 1988. The petition for

a writ of certiorari was timely filed on July 6, 1988. The

petition was granted on March 20, 1989. The jurisdiction

of this Court is invoked under 28 U.S.C. § 1254(1).

—~~—

STATUTES AND REGULATIONS INVOLVED

1. Section 7002-of the Resource Conservation and

Recovery Act, 90 Stat. 2825, 42 U.S.C. § 6972 (1982 ed.,

Supp. III) provides:

§ 6972. Citizens suits

(a) In general

Except as provided in subsection (b) or (c) of this

section, any person may commence a civil action on

his own behalf -

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

United States, and (b) any other governmental

who is alleged to be in violation of any permit,

standard, tion, condition, requirement, or

order which become effective pursuant to this

chapter; or

(2) against the Administrator where there is

alleged a failure of the Administrator to rm

any act or duty under this chapter which is not

discretionary with the Administrator.

Any action under paragraph (a)(1) of this subsection

shall be brought in the district court for the district in

as the Administrator shall prescribe by eguibtien.

Any action respecting a violation under

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App. D 20a-23a.

(2)

lL. Section 11(a) and (b) of the

tion from Ships, 94 Stat. 2302, 33 U.S.C. § 1910{a)

and (b) (1982 ed.).

m. Section 24(a) of the Consumer Product Act,

86 Stat. 1226, 15 U.S.C. § 2073a) (1982 ed.

Recovery Act, 42 U.S.C. § 6972 (“RCRA”), and under 28

U.S.C. § 1331 (federal question). J.A. 3-4 (complaint), 59,

70-72 (pretrial order).

The Halistroms own and reside on a dairy farm

located next to the Tillamook County Landfill. J.A. 60.

The Hallstroms filed this action to compel Tillamook

County to operate its landfill in compliance with

standards and requirements established under RCRA.

].A. 3-10. The Hallistroms also sought damages for state

claims of inverse condemnation, trespass, and nuisance.

Id.

z

On April 20, 1981, the Hallstroms mailed formal

notice of the violation and of their intention to sue

Tillamook County to compel compliance with RCRA. J.A.

61. The Hallstroms did not send a copy of this formal

notice to the Administrator of the Environmental Protec-

tion Agency or Oregon's Department of Environmental

Quality (“DEQ”). J.A. 27.

7

On April 9, 1982, the Hallstroms filed the complaint

in this case. They did not name the Administrator or DEQ

as parties defendant. J.A. 3-10; 61.

For at least a year and a half before the Hallstroms

filed this citizen suit, DEQ had actual knowledge of the

violations and sent several enforcement letters to

Tillamook County. Plaintiffs’ Exhibit 7 is a chronology

that DEQ prepared. Some of the events listed are:

10/14/80 - “Informative” enforcement letter sent

12/23/80 - Stronger enforcement letter sent to

1/26/81 - enforcement letter sent to

pee Benge Ame wells damaged,

problems, erosion problems, too

much exposed waste.

4/23/81 - Permit issued for “new” landfill (cur-

rent permit).

7/12/82 - Notice of Violation issued to county.

Monitoring wells damaged, leachate

system problems, too h exposed

refuse, excessive — 2

1/03/83 - Notice of Violation issued to county.

Excessive litter.

3/21/83 - “Informative” enforcement letter sent

to county. Additional monitoring

wells needed. Better wet months

cover material needed. Leachate sys-

tem improvements needed.

———

By June 29, 1982, and certainly no later than Decem-

ber 1982, DEQ had actual knowledge of the Hallstroms’

citizen suit. J.A. 35-37.

By January 17, 1983, EPA had actual knowledge of

the Hallstroms’ citizen suit. J.A. 23-25.

On March 1, 1983, Tillamook County filed a motion

for summary judgment asking the district court to dis-

miss the case because 60 days advance notice had not

been given to the EPA or DEQ. J.A. 15-25.

The next day, on March 2, 1983, the Hallstroms sent a

copy of their original notice of the violation to the EPA

and DEQ. J.A. 40-43. At the same time, the Hallstroms

notified the EPA and DEQ of their intention to refile the

citizen suit if the trial court dismissed the case. Id.

On April 22, 1983, nine (9) days before the 60 day

notice period would have expired, the district court held

that dismissal for failure to give notice to the EPA and

DEQ “would be a waste of judicial resources.” J.A. 56-57.

The district court said in its opinion:

Neither the EPA nor the DEQ is a party in this

action. In addition, plaintiffs have cured any defect

formall notifying the EPA and DEQ on March 2,

1983, The a sensieg Lave sixty (60) days from that

date to take 1 a priate 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.

Id.

In the pretrial order lodged with the district court,

the Hallstroms again alleged subject matter jurisdiction

under 42 U.S.C. § 6972 and notice. J.A 58-59, 70, 72.

a eee i ell ‘ —_ Ew a

|

9

Trial began over two years later on July 23, 1985, and

was completed on July 26, i985. J.A. 75. The district court

found that Tillamook County had violated and would

continue to violate RCRA, and it ordered Tillamook

County to propose a plan that would completely and

permanently contain leachate generated by the landfill

within the landfill boundaries. J.A. 83-86. The state claims

were tried to a jury, which found for Tillamook County

on the three state claims. J.A. 75.

After the final judgment was entered, the Hallstroms

moved for an award of $42,000 in attorney fees and

$53,000 in expert witness fees that they paid in connec-

tion with their citizen suit. Excerpt at 181-190. The district

court denied the Hallstroms’ motion even though it

found that Tillamook County had violated RCRA and

would continue to do so unless restrained. J.A. 74-86;

Excerpt at 228-236.

The Hallstroms appealed this decision and other rul-

ings to the Ninth Circuit. The Ninth Circuit, however,

limited its review to the question now before this Court.

The majority interpreted the statute to say that 60

days notice is a precondition to the district court's subject

matter jurisdiction, and remanded the case for dismissal.

J.A. 88. The dissent intetpreted the statute to require that

60 days elapse before the district court may act. The

dissent reasoned that a stay would further the goal of

agency enforcement while avoiding the excessively for-

malistic requirement of dismissal followed by refiling.

J.A. 96.

10

SUMMARY OF ARGUMENT

The text, structure, and legislative history of RCRA’s

citizen suit provi-ions indicate that the 60 day notice

requirement is not jurisdictional. It is instead a pro-

cedural requirement that should be applied in light of its

purpose, and is subject to waiver, estoppel, and equitable

modification or cure.

Subsection (a) creates the right of citizens to enforce

RCRA by civil action in court and expressly grants to the

district courts subject matter jurisdiction over citizen

enforcement actions. The remaining subsections govern

other matters such as ~ otice, the effect of pending gov-

ernment actions, litigation costs, intervention, and the

preservation of other rights. Subsection (a) does not limit

this district court’s jurisdiction to cases commenced after

60 days notice.

An interpretation that the notice requirement is not

jurisdictional furthers the general purpose of RCRA and

its citizen suit provision, to protect the environment from

open dumping and to encourage citizen enforcement as a

supplement to government enforcement, without under-

mining the particular purpose of the notice requirement,

to trigger government action.

A nonjurisdictional interpretation is consistent with

the general principles of statutory construction to inter-

pret to accomplish. the purpose of the legislation and to

avoid unreasonable or futile results plainly inconsistent

with the general purpose of the legislation as a whole.

A nonjurisdictional interpretation is consistent with

this Court’s decisions in Gwaltney, Middlesex, and Zipes v.

—— ees eee

11

Trans World Airlines. In Zipes, this Court unanimously

held that timely filing of a charge with the EEOC was not

a jurisdictional requirement to a Title VII suit in federal

court, but was instead subject to waiver, estoppel, and

equitable modification. The same analysis used in Zipes

applies with equal force here.

The notice requirement was waived by the govern-

ment —- neither EPA nor DEQ commenced an enforcement

action after receiving actual or formal notice of the viola-

tion. The failure to give notice was cured by formal notice

of the violation and of intent to sue after the case was

filed but over two years before trial (and before

Tillamook County was ordered to comply with RCRA).

The Hallstroms justifiably relied on the district court's

decision that dismissal and refiling was not required.

+

ARGUMENT

1. The Text And Structure Of The Statute Do

Not Limit Jurisdiction To Cases In Which 60 Days

Notice Was Given.

The two subsections of the citizen suit section of

RCRA, § 7002(a) and (b), 42 U.S.C. § 6972(a) and (b)

provide in pertinent part:

Citizen suits.

(a) In general

Except as provided in subsection (b) . . . of this

section, any person may commence a civil action on

his own behalf -

(1) - ay any person . . . who is alleged to be

in violation of any permit, standard, regulation,

a

—_—————_ oo

12

condition, requirement, or order which has become

effective pursuant to this chapter;

in

wvhich the elites

(a)(1) of this subsection

court for the district in

court shall have od phen

amount in or citizenship par-

ties, to enforce such regulation or order, .. . .

(b) Actions prohibited

No action may be commenced under paragraph

(a1) of this section -

(1) r to days after the plaintiff has

gunna tn tion (A) to the Administra-

tor; (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; or

(2) if the Administrator or State has com-

menced and is diligently a cvil or

ae ee £-}.. . ~ a

te to compliance permit, stan-

dard, tion, condition, requirement, or order:

Provided, however, That in any such action in a court

of the United States, any person may intervene as a

matter of right.

a. Subsection (a).

Subsection (a) creates the right of citizens to er.force

RCRA and expressly grants to the district courts subject

matter jurisdiction over such enforcement actions. The

remaining subsections of § 7002 govern other matters

such as notice, the effect of pending government enforce-

ment actions, costs and attorney fees, intervention by

— ee ee | —_—— =

ee ————————EO— =— - = lie ~—— — ~~

13

citizens and the government, and the preservation of

other rights.

To invoke the district court’s jurisdiction, the citizen

must allege in good faith a continuing violation of RCRA.

Gwaltney of Smithfield v. Chesapeake Bay Found., ____ US.

__, 108 S.Ct. 376, 385-86 (1987).

Subsection (a) does not limit jurisdiction to those

cases where 60 days notice was given or where there is no

pending government enforcement action. The provision

requiring 60 days notice is entirely separate and does not

speak in jurisdictional terms or refer to the jurisdiction of

the court.

b. Subsection (b)(1).

Subsection (b)(1) requires the citizen to give 60 days

notice of the violation to the alleged violator and the

government.

Notice to the violator gives him a chance to bring

himself into complete compliance in 60 days. If the viola-

tor comes into complete compliance in 60 days and it is

absolutely clear that the violation cannot reasonably be

expected to recur, then the citizen suit is unnecessary. If

the citizer. cannot in good faith allege a continuing viola-

tion, the district court does not have subject matter juris-

diction under subsection (a). Gwaltney of Smithfield v.

Chesapeake Bay Found., __ U.S. ___, 108 S.Ct. 376, 385-86

(1987).

Notice of the violation to the government should

trigger government action. The Senate Committee Report

on the Clean Air Amendments said:

ae

14

In order to further encourage and provide for

agency enforcement, the Committee has added a

requirement that prior to filing a petition with the

court, a citizen or group of citizens would first have

to serve notice of intent to file such action on the

Federal and State air pollution control agency and

the alleged polluter.

116 Cong. Rec. 32,926 (1970).

If government action is successful in compelling the

violator into complete compliance in 60 days, then the

citizen suit is unnecessary and the district court lacks

subject matter jurisdiction, again under subsection (a),

because the citizen could no longer allege in good faith a

continuing violation. Gwaltney of Smithfield v. Chesapeake

Bay Found., ___ U.S. ___, 108 S.Ct. 376, 385-86 (1987).

c. Subsection (b)(2).

Subsection (b)(2) provides that if the government has

commenced, and is diligently prosecuting, an action in

court to compel compliance, a citizen suit is prohibited.

Thus, if the government decides to act after receiving

notice, but is unsuccessful in compelling the violator to

comply with RCRA, the government then has a choice of

(1) doing nothing further, (2) continuing efforts to compel

compliance by action out of court, or (3) filing an enforce-

ment action in court. Only one of these three alternatives

can prevent a citizen suit from proceeding, i.e. filing and

diligently prosecuting an enforcement action in court. See

Gwaltney of Smithfield v. Chesapeake Bay Found., _ USS.

__, 108 S.Ct. 376, 379, 383 (1987).

15

If the government commences an enforcement action

within the 60 day period and diligently prosecutes it, the

citizen suit is barred. This bar, however, is not a jurisdic-

tional bar. The legislative history to the Clean Air

Amendments of 1970 indicates that the district courts

have jurisdiction over citizen suits even when the govern-

ment has commenced and is diligently prosecuting an

action in court. The Senate Committee Report states:

It should be emphasized that if the agency had

not initiated abatement proceedings following notice

or if the citizen believed efforts initiated by the

agency to be inadequate, the citizen might choose to

file the action. In such case, the courts would be

expected to consider the petition against the back-

ground of the agency action and could determine

that such action would be adequate to justify suspen-

sion, dismissal, or consolidation of the citizen peti-

tion. On the other hand, if the court viewed the

agency action as inadequate, it would have jurisdic-

tion to consider the citizen action notwithstanding

any pending agency action.

116 Cong. Rec. 32,926 (1970).

Thus, if the district court determined that the govern-

ment had commenced and was diligently prosecuting an

action in court to require compliance, the district court

would still have authority to do one of three things:

dismiss, stay, or consolidate the citizen suit. If the district

court has authority to do any of those things, then it has

subject matter jurisdiction.

16

_

2. A Procedural Interpretation Serves The Par-

ticular Purpose Of The Notice Provision Without

Doing Violence To The Overriding Purposes Of

RCRA Of Protecting The Environment And Encour-

aging Citizen Enforcement.

a. The Purpose Of RCRA.

The purpose of RCRA is to protect the environment

from the hazards of open dumps such as the Tillamook

County Landfill. The House Committee Report said:

The existing methods of land disposal often result in

air pollution, subsurface leachate and surface run-off,

which affect air and water quality. This legislation

will eliminate this problem and permit the environ-

mental laws to function in a coordinated and effec-

tive way.

H.R. Rep. No. 94-1491 - Part I, 94th Cong., at 4, reprinted

in [1976] U.S. Code Cong. & Ad. News 6241-42.

b. The Purpose Of RCRA’s Citizen Suit

Provision.

The purpose of the citizen suit provision of RCRA, as

well as similar provisions in the other federal statutes, is

to authorize citizens to act as private attorneys general to

protect the environment as a supplement to government

enforcement.

The Senate Committee, in its report on the proposed

citizen suit provisions of the Clean Air Amendments of

1970, 42 U.S.C. § 7604(a) and (b), said:

The Courts should recognize that in bringing

legitimate actions under this section citizens would

be performing a public service and in such instances

the courts should award costs of litigation to such

party. This should extend to plaintiffs in actions

17

which result in successful abatement but do not reach

a verdict. For instance, if as a result of a citizen

proceeding and before a verdict is reached, a defen- °

dant abated a violation, the court may award litiga-

tion expenses borne by the plaintiffs in prosecuting

such actions.

116 Cong. Rec. 32,927 (1970).

As Senator Hart observed while speaking in support

of the citizen suit provision of the Clean Air Amend-

ments, citizen suits were designed to protect the environ-

ment when government resources are inadequate:

The basic argument for the [citizen suit] provi-

sion is plain: namely that Government simply is not

equipped to take court action against the numerous

violations of legislation of this type which are likely

to occur. In testifying on a similar bill before the

Senate Subcommittee on Energy, Natural Resources

and the Environment, former Attorney General

Ramsey Clark spoke convincingly of this inevitable

incapability. Mr. Clark stated:

It will be impossible for government enforce-

ment to control all significant acts of pollu-

tion. . . .The extension of private right, . . . and

effective sanctions for the persons directly affected

or concerned will be essential if vital interests are

to be protected. Our experience in areas of massive

unlawful racial discrimination, such as in school-

ing, employment, and housing tells us that how-

ever hard it might try, government will never have

the manpower, the techniques, or the awareness

necessary to enforce the law for all. Private

enforcement of those laws is the only way the

individual can be assured that the rights cannot be

violated with impunity.

Pollution control is another such area. If we are

really serious about controlling the quality of our

environment before it destroys the quality of our

18

lives, we must give the individuals affected by, or

concerned about pollution in his life, the power to

stop them through legal process.

Far from risking an undue or inhibiting inter-

ference with Government enforcement, it will pro-

vide powerful oy ys enforcement ... and

an effective and desirable prod to officials to do

their duty.

116 Cong. Rec. 33,104 (1970).

In answer to a concern that citizen suits might bur-

den the courts with a flood of litigation, Senator Hart

observed that it would be the rare citizen who would

undertake the financial burden of acting as a private

attorney general:

First of all, it should be noted that the bill makes no

provision for damages to the individual. It therefore

provides no incentives to suit other than to protect

the health and welfare of those suing and others

similarly situated. It will be the rare, rather than the

ordinary, person, I suspect, who, with no hope of

financial gain and the very real prospect of financial

loss, will initiate court action under this bill. For the

most part, only in the case where there is a crying

need for action will action in fact be likely.

Id.

Because citizen suits were designed to supplement

government enforcement efforts hampered by inadequate

resources, they should be encouraged and welcomed. In

Friends of the Earth v. Carey, 535 F2d 165, 172 (2d Cir.

1976), the Second Circuit said:

In enacting § 304 of the 1970 Amendments [to the

Clean Air Act], Congress made clear that citizen

groups are not to be treated as nuisances or trouble-

makers but rather as welcomed participants in the

19

vindication of environmental interests. Fearing that

administrative enforcement might falter or stall, “the

citizen suits provision reflected a deliberate choice by

Congress to widen citizen access to the courts, as a

supplemental and effective assurance that the Act

would be implemented and enforced.” [Citation

omitted.]

c. The Purpose Of The Notice Provision.

When subsections (b)(1) and (b)(2) are read together

and considered in light of their legislative history, it is

apparent that the purpose of the notice requirement is to

prod the government to act and act quickly, i.e. within 60

days, by (1) pressuring the violator to come into complete

compliance or (2) commencing an enforcement action in

court.

The purpose of triggering government action is

served when notice of the violation is received by the

government, regardless of whether it is received before or

after commencement of the citizen suit, as long as the

district court takes no action on the suit such as issuing

an injunction or temporary restraining order. The Senate

Report on the citizen suit provision of the Federal Water

Pollution Control Act, 33 U.S.C. § 1365, provides:

No action on a suit may begin for 60 days follow-

ing notification. If EPA or the State begins a civil or

criminal action on its own against the alleged viola-

tor, no court action may take place on the citizen’s

suit.

S.Rep. 92-414, 92d Cong., reprinted in [1972] U.S. Code

Cong. & Ad. News 3745.

If the citizen fails to give notice of the violation to the

government before commencing suit, a stay until 60 days

20

after notice will serve the particular purpose of triggering

government action. If the government succeeds in com-

pelling the violator into complete compliance in 60 days,

then the case would be dismissed for lack of subject

matter jurisdiction under subsection (a) and Gwaltney

because the citizen could no longer allege in good faith a

continuing violation. If the government files an enforce-

ment action in court, then the district court has jurisdic-

tion to dismiss, stay, or consolidate the citizen suit. If the

government does nothing and the violator does not bring

itself into complete compliance, then the citizen suit

could proceed with no prejudice to the violator and with

no violence to the general purpose of RCRA (to protect

the environment from open dumping) or to the particular

purpose of the notice requirement (to trigger government

action).

Thus, the text, structure, legislative history, and pur-

pose of the citizen suit provision indicate that notice is a

procedural, not a jurisdictional, requirement that should

be applied in light of its particular purpose of encourag-

ing government enforcement while not defeating the

overriding purpose of RCRA to protect the environment.

3. The Principles Of Statutory Construction

Indicate That The Notice Requirement Is Not

Jurisdictional.

a. The Language Is The Starting Point.

As is frequently said, “the starting point for inter-

preting a statute is the language of the statute itself.”

Consumer Product Safety Comm'n v. GTE Sylvania, Inc., 447

U.S. 102, 108 (1980). The reason why the language of the

21

statute itself is the starting point, and not the end point,

is because the purpose of the statute may be defeated by

a literal reading. In Lynch v. Overholser, 369 U.S. 705

(1962), Justice Harlan said:

The decisions of this Court have repeatedly

warned against the dangers of an approach to statu-

tory construction which confines itself to the bare

words of a statute, for “literalness may strangle

meaning.”

369 U.S. at 710.

Justice Stevens said much the same thing in his dis-

sent in Griffin v. Oceanic Contractors, Inc., 458 U.S. 564

(1982):

In final analysis, any question of statutory con-

struction requires the judge to decide how the legis-

lature intended its enactment to apply to the case at

hand. The language of the statute is usually sufficient

to answer that question, but “the reports are full of

cases” in which the will of the legislature is not

reflected in a literal reading of the words it has

chosen.

458 U.S. at 578 (quotation in footnote from Holy Trinity

Church v. United States, 143 U.S. 457 (1892), omitted).

Here, subsection (b) provides that no citizen suit may

be commenced until 60 days after notice of the violation.

The statute does not provide that notice is a jurisdictional

requirement. The provision granting jurisdiction to the

district courts and the provision requiring notice are in

separate subsections. The notice section does not speak in

jurisdictional terms or refer in any way to the district

court’s jurisdiction.

22

A similar question was presented in Zipes v. Trans

World Airlines, Inc., 455 U.S. 385 (1982). In that case, the

question presented was whether the timely filing of a

charge with the Equal Employment Opportunity Com-

mission was a jurisdictional requirement for bringing a

Title VII action in federal court. Justice White, writing for

a unanimous Court, held that the filing requirement was

not jurisdictional, in part because the provision granting

jurisdiction does not, by its terms, limit jurisdiction to

cases preceded by a timely filing with the EEOC. 455 U.S.

at 394-95.

b. Interpret According To Purpose.

When the words of the statute do not resolve the

question, the statute should be interpreted to give effect

to its purpose. In United States v. Shirey, 359 U.S. 255

(1959), Justice Frankfurter said:

Statutes, including penal enactments, are not

inert exercises in literary composition. They are

instruments of government, and in construing them

“the general purpose is a more important aid to

meaning than any rule which grammar or formal

logic may lay down.” This is so because the purpose

of an enactment is imbedded in its words even

though it is not always pedantically expressed in

words. Statutory meaning, it is to be remembered, is

more to be felt than demonstrated, or, as Judge

Learned Hand has put it, the art of interpretation is

“the art of proliferating a purpose.”

359 U.S. at 260-61 (citations omitted).

As noted above, the primary purpose of RCRA is to

protect the environment from open dumping. The partic-

ular purpose of the citizen suit provision is to provide for

23

citizen enforcement to supplement government enforce-

ment. The particular purpose for notice to the govern-

ment is to trigger government action that might render a

citizen suit unnecessary. However, there are only two

kinds of government action that can prevent a citizen

suit: (1) action that compels a violator into complete

compliance within 60 days, and (2) a civil or criminal

action filed in court by the government within 60 days to

compel compliance. Of those two, only complete compli-

ance by the violator with no reasonable expectation of

recurrence of the wrongful behavior can affect the district

court’s subject matter jurisdiction. Gwaltney of Smithfield

v. Chesapeake Bay Found., ___ U.S. __, 108 S.Ct. 376, 386

(1987); see discussion of subsection (b)(2) in Part 1.c., pp.

14-15 above.

An interpretation that notice is not a jurisdictional

requirement serves the particular purpose of the notice

requirement without defeating the general purposes of

RCRA and its citizen suit provision of (1) protecting the

environment from open dumping, and (2) encouraging

citizen enforcement when the government lacks the

human and financial resources for its own enforcement

action.

It should be mentioned that in Zipes, the Court con-

sidered legislative history, case law, and the purpose to

be served by the filing requirement in addition to the

words of the statute. Legislative history and case law

were not dispositive, so the Court considered both the

remedial purpose of Title VII and the particular purpose

of the filing requirement.

24

The Third, Eighth, and District of Columbia Circuits

have interpreted the notice requirement to be procedural,

not jurisdictional. Susquehanna Valley Alliance v. Three Mile

Island, 619 F.2d 231, 243 (3rd Cir. 1980), cert. denied 449»

U.S. 1096 (1981); Hempstead Cry. and Nevada Cty. 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, 702 (D.C.

Cir. 1975)(court has jurisidiction but should exercise dis-

cretion to stay suit when requested by EPA).

In Susquehanna, the Third Circuit concluded that

interpreting the notice requirement “to require dismissal

and refiling would be excessively formalistic.” 619 F.2d at

243. In Hempstead, the Eighth Circuit said that notice is a

requirement that had not been formally met, “but [we]

note that the purpose of such notice has long been satis-

fied in the instant action.” 700 F.2d at 463.

In contrast, circuit court cases that interpret the

notice requirement as jurisdictional ignore the general

purpose of federal environmental law, elevate form over

substance, and are based on an erroneous analysis of the

purpose of the notice requirement.

In Garcia v. Cecos Intern., Inc., 761 F.2d 76 (1st Cir.

1985), the court began its analysis with the legislative

history that indicated that the purpose of the notice pro-

vision was “to trigger the [EPA’s] enforcement mecha-

nism.” 761 F.2d at 81. From that, the court inferred that

Congress must have intended the notice provision to be

an absolute requirement because Congress must have

believed that afte: a citizen suit is filed (rather than

merely threatened in a formal written notice) positions

will become hardened, lawyers employed, legal fees paid,

25

and the government will somehow have “less room for

maneuver and compromise.” 761 F.2d at 82. The court

concluded that settlement is much more likely when suit

is threatened rather than filed:

Permitting immediate suit ignores the possibility that

a violator or agency may change its mind as the

threat of suit becomes more imminent. After the com-

plaint is filed the parties assume an adversary rela-

tionship that makes cooperation less likely. Because a

mere adjustment of the trial date or the filing of a

supplemental or amended complaint to cure defec-

tive notice cannot restore a sixty-day non-adversarial

period to the parties, we would therefore dismiss

suits where the complaint is filed less than sixty days

after actual: notice to the agency and the alleged

violators.

761 F.2d at 82.

There are several problems with this analysis.

First, it is well known that the threat of a lawsuit is

“not nearly as strong an inducement to settlement as an

actual lawsuit. Indeed, there is nothing like an imminent

trial date to get people into the spirit of compromise.

Second, there is nothing in the text of the statute or in

its legislative history that supports the idea that the pur-

pose of the 60 day period was to keep the citizen-plaintiff

and the violator from being adversaries. Once the citizen

suit procedures are initiated, whether by giving formal

notice to the violator or by commencing an action, the

citizen and the violator are adversaries.

Third, the court does not explain how a dismissal of a

pending lawsuit can “restore a sixty-day non-adversarial

period to the parties.” The reality is that people become

26

adversaries long before they resort to court procedures.

People do not magically become non-adversaries when

their case is dismissed, particularly when the case is

dismissed because of a technical procedural requirement.

Quite the contrary.

» Fourth, the court does not explain how a non-judicial

resolution would become more likely if the citizen suit

were dismissed rather than merely stayed for the 60 day

period. The court did quote the dissenting opinion of

Judge Merritt in Ada-Cascade Watch Co. v. Cascade Resource

Recovery, 720 F.2d 897 (6th Cir. 1983) as arguing that a

stay for 60 days “would provide little incentive for plain-

tiffs to seek alternative methods of resolving their dis-

putes” because “positions may have hardened, lawyers

employed and legal fees paid.” However, that analysis

ignores the reality that lawyers will have to be employed

and legal fees will have to paid for the formal written

notice as well as the initial complaint.

The Ninth Circuit relied heavily on Garcia in Hall-

strom v. Tillamook County, 844 F.2d 598 (9th Cir. 1988), J.A.

87-96:

We also agree with the First Circuit that the

jurisdictional interpretation of § 6972(b) serves better

the underlying policy aims of encouraging non-

judicial resolution of environmental conflicts. As it

noted, once a suit is filed, positions become hard-

ened, parties incur legal fees, and relations become

adversarial so that cooperation and compromise is

less likely.

844 F.2d at 601, J.A. at 92 (citation to Garcia omitted).

27

Again, the Ninth Circuit does not explain how dis-

missal and refiling can work better than a stay to encour-

age non-judicial resolution of the conflict or the

triggering of government action.

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

1985), the court concluded that notice is a jurisdictional

requirement because:

Congress evidently believed that the filing of a pri-

vate lawsuit hardens bargaining positions and leaves

the Administrator with less room to maneuver, and

that the private lawsuit should be a supplemental

enforcement tool, rather than a substitute for agency

enforcement.

761 F.2d at 317.

There are several problems with this analysis as well.

First, there is nothing in the statute or its legislative

history to support the inference that Congress believed

that the filing of a lawsuit hardens bargaining positions.

Second, there is nothing in the statute or its legisla-

tive history to support the inference that a citizen suit

would leave the government with “less room to maneu-

ver.” There is nothing about the filing of a citizen suit

that will somehow curtail the government's authority,

and there is certainly nothing magical about dismissal of

citizen suit that will enhance the government's author-

ity. If anything, dismissal of a citizen suit would most

likely encourage the violator to continue to violate the

law rather than obey it.

28

Third, the court does not explain how a stay for 60

days would be any less effective than dismissal in honor-

ing Congress’s intention that citizen suits be a supple-

ment*to, rather than a substitute for, government

enforcement.

Garcia, Hallstrom, and Walls have the same basic

flaws. They misconstrue the purpose of the notice provi-

sion, they ignore the general remedial purposes of federal

environmental law to protect the environment and

encourage citizen enforcement, and they do not ade-

quately explain how dismissal and refiling serves the

purpose of the statute better than a stay.

c. Interpret to Avoid Futile, Absurd, Or

Unreasonable Results That Defeat Purpose.

If the bare words of the statute would produce an

absurd or futile result, or one contrary to the underlying

purpose of the statute, the court should interpret the

statute to carry inio effect the end Congress wanted to

accomplish. In White v. Texas, 310 U.S. 534 (1940), Justice

Reed observed:

There is, of course, no more persuasive evidence

of the purpose of a statute than the words by which

the legislature undertook to give expression to its

wishes. Often these words are sufficient in and of

themselves to determine the purpose of the legigla-

tion. In such cases we have followed their plain

meaning. When that meaning has led to absurd or

futile results, however, this Court has looked beyond

the words to the purpose of the act. Frequently, how-

ever, even when the plain meaning did not produce

absurd results but merely an unreasonable one

“plainly at variance with the policy of the legislation

29

as a whole” this Court has followed that purpose,

rath rt than the literal words. ™

310 U.S. at 543 (citations omitted).

In this case, the Hallstroms successfully brought an

action against Tillamook County to compel compliance

with RCRA. DEQ had actual knowledge of the violation

for a year and a half before the citizen suit was com-

menced. Although the EPA and DEQ were not formally

notified of the violation before the citizen suit was filed,

they had actual knowledge, as well as formal notice, of

the violation and the citizen suit more than two years

before trial began. The EPA and DEQ did not object to not

having received notice, and they did not file enforcement

actions of their own. The case proceeded to trial, and the

environment was at least partly protected. The district

court ordered Tillamook County to contain all surface

water pollution within the landfill boundaries. It was the

purpose of RCRA and its citizen suit provisions to allow

citizens like the Hallstroms to bring this kind of enforce-

ment action and obtain this kind of result.

The Ninth Circuit’s jurisdictional interpretation

would undo all that for no reason. After all, DEQ knew

about the violation, and only DEQ, not the EPA, has

authority under RCRA to initiate an administrative pro-

ceeding to enforce compliance with the solid waste sub-

chapter, §§ 4001-4009, 42 U.S.C. §§ 6941-6949.

Furthermore, neither the EPA nor DEQ filed an enforce-

ment action in court or voiced any objection to having -

received notice after the Hallstroms’ citizen suit was

filed.

In Hallstrom, the Ninth Circuit also based its decision

on its conclusion that a procedural interpretation would

30

render the notice provision worthless. 844 F.2d at 601, J.A.

at 92-93. This is not true.

First, the purpose of triggering government action is

served whether the citizen suit is stayed or required to be

dismissed and refiled. Second, an interpretation that the

notice requirement may be waived or modified when

required by equity does not make the notice requirement

worthless. Here, DEQ, the agency with administrative

enforcement authority, had notice of the violation a year

and a half before the citizen suit was commenced. Third,

citizen-plaintiffs would ordinarily comply with a pro-

cedural notice requirement in the hope of triggering gov-

ernment enforcement action while still having a right to

intervene under subsection (b) (2). Fourth, citizen-

plaintiffs would ordinarily comply with a procedural

notice requirement to avoid the expense and delay of

responding to a defense based on failure to give notice.

Fifth, citizen-plaintiffs would ordinarily comply with a

procedural notice requirement to avoid the loss of court

costs and attorney fees if the violator brought himself

into complete compliance during the 60 day period while

the case was stayed.

Thus, a procedural interpretation would lead to

results consistent with the remedial purpose of the stat-

ute and with the particular purpose of the notice require-

ment. A jurisdictional interpretation, on the other hand,

would often lead to absurd or unreasonable results

plainly at variance with the general purpose of RCRA

and other federal environmental statutes in other

instances.

31

For example, suppose that before bringing a citizen

suit, the citizen contacts the EPA, DEQ, and the violator.

The EPA and DEQ both tell the citizen that they lack the

resources even to investigate, much less do anything,

about the problem. The violator does not have much use

for meddling citizens or environmental laws and says,

“Go ahead and sue.” A jurisdictional interpretation

would require 60 days to elapse after formal notice even

though the notice and the waiting period would be

entirely futile. A procedural interpretation, on the other

hand, would make the notice and 60-day waiting period

subject to waiver.

For another example, suppose a citizen suit is

brought under the Outer Continental Shelf Lands Act, 43

U.S.C. § 1349(a)(1) and (2), after giving the required for-

mal notices to the government and the violator. Suppose

further that additional facts come to light during discov-

ery that support a claim under the Act to Prevent Pollu-

tion From Ships, 33 U.S.C. § 1911(a) and (b). If the citizens _

gave the required notices under the Ships Act and then

waited 60 days before amending their original complaint

to state a claim under the Ships Act, a jurisdictional

interpretation would result in the district court’s not hav-

ing subject matter jurisdiction over the Ships Act claim

because the action was not commenced 60 days after

notice. See Fed.R.Civ.P. 15(c) (Relation Back of Amend-

ments). Instead, the citizen would have to file a new

action based on the Ships Act violation, and then move to

consolidate the two cases. There may also be a issues

concerning whether discovery in the first case could be

used in the second case and whether a bifurcated trial

was required.

32

As a final example, suppose three companies are

acting together in flagrant violation of the Federal Water

Pollution Control Act, 33 U.S.C. § 1251 et seq., that the

citizen gave 60 days formal notice to the government but

only two of the three violators, and that the three com-

panies refused to comply. A jurisdictional interpretation,

the interpretation that Tillamook County wants this Court

to adopt, would result in dismissal of the citizen suit

against all three violators.

4. A Procedural Interpretation Is Consistent

With Case Law.

a. A Procedural Interpretation Is Consis-

tent With Gwaltney.

In Gwaltney of Smithfield v. Chesapeake Bay Found., __

U.S. __, 108 S.Ct. 376 (1987), this Court wrote that the

purpose of the 60-day notice requirement in an identical

citizen suit provision in the Federal Water Pollution Con-

trol Act, 33 U.S.C. § 1365(a)(1), is to give the violator an

opportunity to bring itself into complete compliance and

to give the government time to file a civil enforcement

action in court. 108 S.Ct. at 382-83. This Court’s inter-

pretation of the purpose of the notice provision is consis-

tent with Chesapeake Bay Found. v. American Recovery Co.,

769 F.2d 207, 208-09 (4th Cir. 1985) (60-day waiting period

gives government opportunity to control course of litiga-

tion if it acts within 60 days).

This Court did not in any way suggest that the pur-

pose of the waiting period was to maintain a non-

adversarial period to encourage non-judicial resolution or

to relieve any perceived burden that citizen suits place on

Oe eM EE

te em

——_

33

federal courts or the government. The only kind of gov-

ernment action that can stop a citizen suit is a civil

enforcement proceeding filed in court. Thus, the Ninth

Circuit’s concern that a pragmatic interpretation of the

notice requirement would not encourage non-judicial res-

olution misses the point. The statutory framework for

RCRA and the other similar environmental statutes

assumes that the only kind of non-judicial resolution of

the conflict is if the violator brings itself into complete

compliance within 60 days. Otherwise, the violator will

face court action either by the government or by citizens

acting as private attorneys general.

b. A Procedural Interpretation Is Consis-

tent With Middlesex.

In Middlesex Cty. Sewerage Auth. v. Sea Clammers, 453

U.S. 1 (1981), this Court did not decide whether notice

was a jurisdictional or procedural requirement for envi-

ronmental citizen suits, nor did this Court discuss the

purpose of the notice requirement. Instead, this Court

limited its review to whether Congress intended to imply

a private right of action independent of the citizen suit

provisions of the Federal Water Pollution Control Act, 33

U.S.C. § 1251 et seq. and the Marine Protection, Research,

and Sanctuaries Act of 1972, 33 U.S.C. § 1401 et seq. The

Court observed that FWPCA and MPRSA had “unusually

elaborate enforcement provisions” that required compli-

ance “with specified procedures - which respondents here

ignored — including in most cases 60 days’ prior notice to

the potential defendants.” 453 U.S. at 14 (emphasis

added).

34

Although this Court did not decide whether the

notice provision was jurisdictional or procedural, the lan-

guage this Court chose, i.e., “specified procedures,” sug-

gests that notice is a procedural, rather than a

jurisdictional, requirement.

c. A Procedural Interpretation Is Consis-

tent With Zipes v. Trans World Airlines And Its

Progeny.

In Zipes v. Trans World Airlines, Inc., 455 U.S. 385

(1982), this Court held that a similar prefiling require-

ment was not a jurisdictional prerequisite. In that case,

the question presented was whether the statutory time

limit for filing charges with the Equal Employment

Opportnnity Commission under Title VII of the Civil

Rights Act of 1954, 78 Stat. 253, 42 U.S.C. § 2000e et seq.

was a jurisdictional prerequisite to a suit in district court.

The court considered the statutory language, the legisla-

tive history, case law, the purpose of the filing require-

ment, and the remedial purpose of the legislation as a

whole, and concluded that the filing requirement was not

a jurisdictional prerequisite. Instead, this Court held that

it was a requirement that was subject to waiver, estoppel,

and equitable tolling:

By holding compliance with the filing period to

be not a jurisdictional p ite to filing a Title VII

suit, but a requirement subject to waiver as well as

tolling when — so , we honor the reme-

dial purpose of the tion as a whole without

negating the particular purpose of the filing require-

ment, to give prompt notice to the employer.

455 U.S. at 399.

A A le a a et ia

35

5. The Notice Requirement Is Subject To

Waiver, Estoppel, And Equitable Modification.

In Baldwin County Welcome Center v. Brown, 466 U.S.

147 (1984), another Title VII case, this Court said that

equitable tolling of the 90-day filing requirement after

receipt of the right-to-sue letter might be appropriate

“where the court has led the plaintiff to believe that she

had done everything required of her.” 466 U.S. at 152.

_ Here, the Hallstroms justifiably relied on the district

court’s decision that they need not dismiss and refile

because they had “cured any defect by formally notifying

the EPA and DEQ on March 2, 1983.” J.A. at 57.

In Pinkard v. Pullman-Standard, a Div. of Pullman, Inc.,

678 F.2d 1211 (Sth Cir. 1982), the Fifth Circuit held that

receipt of a right-to-sue letter before filing a Title VII suit

was a condition precedent subject to equitable modifica-

tion. Specifically, the court held that receipt of a right-to-

sue letter while an action was still pending “furthers the

remedial purposes of the act without undermining the

particular purpose of that requirement, to give the EEOC

an opportunity to fulfill its function of investigating the

charge in attempting conciliation.” 678 F.2d at 1218.

In reaching that conclusion, the Fifth Circuit

observed that allowing subsequent receipt of the right-to-

sue letter to cure would probably not “encourage plain-

tiffs to attempt to bypass the administrative process

because premature suits are subject to a motion to dis-

miss at any time before notice of the right to sue is

received.” Id. The court further observed:

36

To distinguish such an action, once’ dismissed and

then renewed, from an action where the defect is

cured while the action remains ing is to distin-

guish between a glass half-full and a glass half-

empty.

Id.

The court also based its decision on the “general

policy of the law to find a way to prevent the loss of

valuable rights, not because something was done too late,

but rather because it was done too soon.” Id.

The same reasons that supported Pinkard’s inter-

pretation also support a procedural interpretation of the

notice requirement at issue in this case. See also Burnett v.

New York Central Railroad Company, 380 U.S. 424 (1965)

(FELA statute of limitations tolled to effectuate Congres-

sional purpose); American Pipe and Construction Co. v.

Utah, 414 U.S. 538 (1974) (commencement of class action

tolls statute of limitations for class members who timely

move to intervene after denial of class certification

because purpose of statute of limitations served); Crown,

Cork & Seal Co., Inc. v. Parker, 462 U.S. 345 (1983) (90-day

statutory period for filing claims under Title VII suit was

tolled during pendency of class action because purpose of

statute of limitations served).

The reasoning used in Zipes and its progeny should

also be used here. An interpretation that the notice

requirement is subject to waiver, estoppel, and equitable

modification or cure serves the particular purpose of the

notice requirement as well as the general purpose of

RCRA. Under the facts presented here, the requirement

was either waived or subject to equitable modification or

cure.

- i A I NED

fa AT tm At a

37

As noted above, the EPA and DEQ did not file an

enforcement action in court against Tillamook County,

and neither voiced any objection to not having received

formal notice of the violation before the citizen suit was

filed.

Although Tillamook County did not waive notice to

the EPA and DEQ, it is doubtful that Congress intended it

to have any standing to do so. Furthermore, Tillamook

County has never demonstrated how it could have been

prejudiced by the Hallstroms’ failure to give notice to the

government, and there is no indication how Tillamook

County’s conduct would have been any different.

Furthermore, this case presents circumstances justify-

ing equitable modification of the notice requirement. The

purpose of the notice was served by notice given after

filing of the lawsuit. Trial began more than two years

after formal notice was given to the government, and

Tillamook County was not ordered to comply with RCRA .

until after trial. Furthermore, the Hallstroms justifiably

relied on the district court’s decision not to require dis-

missal and refiling. When the district court made its

decision, Garcia and Walls had not yet been decided.

Although the Seventh Circuit had decided City of High-

land Park v. Train, 519 F.2d 681 (7th Cir. 1975), cert. denied,

424 U.S. 927 (1976), that case was filed against the EPA

before notice to the EPA had been given. In the case now

before the Court, of course, neither the EPA nor DEQ are

parties. Indeed, neither has sought to intervene.

38

6. The Failure To Give Notice To The Govern-

ment Was Cured.

Finally, the Hallstroms’ failure to give notice before

the suit was filed was cured because formal notice was

given to the government more than 60 days before trial.

This Court has long permitted parties to cure alleged

jurisdictional defects. For example, when diversity juris-

diction was challenged because of a lack of complete

diversity, it was held that this defect could be cured by

plaintiffs’ voluntary dismissal of the nonessential non-

diverse parties. Horn v. Lockhart, 84 U.S. (17 Wall.) 570,

579 (1873); Conolly v. Taylor, 27 U.S. (2 Pet.) 556, 565 (1829)

(Marshall, C.J.). In a similar context of Title VII cases, the

circuit courts, with one arguable exception, have all held

that the requirement of a right-to-sue letter before an

action can be commenced can be cured as long as the

right-to-sue letter is received before trial. E.g., Gooding v.

Warner-Lambert Co., 744 F.2d 354, 358 n. 5 (3d Cir. 1984); ©

Hendersen v. Eastern Freight Ways, Inc., 460 F.2d 258, .260

(4th Cir. 1972), cert. denied, 410 U.S. 912 (1973); Clanton v.

Orleans Parish School Board, 649 F.2d 1084, 1095 n. 13 (Sth

Cir. 1981); Gutierrez v. Municipal Court of the Southeast

Judicial District, 838 F.2d 1031, 1053-54 (9th Cir. 1988); but

see Gibson v. Croger Co., 506 F.2d 647 (7th Cir. 1974), cert.

denied, 421 U.S. 914 (1975) (defect could be cured by

amending complaint after receiving right-to-sue letter, or

by refiling). This ability to cure is found even in those

pre-Zipes opinions that appear to characterize the require-

ment of a right-to-sue letter as jurisdictional. E.g., Berg v.

Richmond Unified School District, 528 F.2d 1208, 1212 (9th

Cir. 1975).

39

In Berg, the court held that the “later issuance of the

‘right to sue’ letter coupled with a filing of the supple-

mental complaint operated to cure any initial jurisdic-

tional defect.” 528 F.2d at 1212. The court recognized that

some courts consider the requirement to be jurisdictional,

but that it was more of a “procedural nicety.” The court

said:

True, such letters have often been characterized as a

“jurisdictional prerequisite” to a lawsuit under Title

VII. [Citation omitted.] However, we read the statu-

tory requirement in the light of the well-established

principle that procedural niceties should not be

employed to impede a Title VII claimant from obtain-

ing a judicial hearing on the merits.

528 F.2d at 1212.

Here, the failure to give notice was cured. Had the

EPA or DEQ filed an enforcement action within 60 days

of receiving formal notice, then the Hallstroms’ citizen

suit could have been dismissed, stayed, or consolidated.

The EPA and DEQ, however, chose to do nothing and

were content to allow the citizen suit to proceed. It would

be an extreme elevation of form over substance and an

“unreasonable result plainly at variance with the policy

of [RCRA] as a whole” to require this successful citizen

suit to be dismissed and then refiled.

o—

CONCLUSION

The Hallstroms respectfully request this Court to

reverse the decision of the Ninth Circuit and remand the

_

40

case to the circuit court for consideration of the other

issues raised on appeal.

May 4, 1989

101 S.W. Main, Suite 1870

Portland, n 97204-3226

(503) 223-151

Attorneys for Petitioners