# Petitioners Brief — Hallstrom v. Tillamook County

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petitioners Brief
- **Published:** January 1, 1989
- **Citation:** 489 U.S. 1077

## Text

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

oe
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833736 iF
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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0227%3A07. Public record. Not legal advice.