Amicus Curiae Brief — Hallstrom v. Tillamook County

No. 88-42 i

IN THE

SUPREME COURT OF THE UNIT

OCTOBER TERM, 1988

OLAF E. HALLSTROM and MARY E. HALLSTROM,

Petitioners,

b.

TILLAMOOK COUNTY, A MUNICIPAL CORPORATION,

Respondent.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF AMICI CURIAE OF

SIERRA CLUB, DEFENDERS OF WILDLIFE, INC.,

NATIONAL AUDUBON SOCIETY, NATURAL RESOURCES

DEFENSE COUNCIL, INC.,

AND THE WILDERNESS SOCIETY IN SUPPORT

OF THE PETITIONERS

+

MICHAEL TRAYNOR* DOUGLAS L. HONNOLD

PETER H. CARSON Sierra Club Legal

MICHAEL S. SHACHAT Defense Fund

COOLEY GODWARD CASTRO 1660 Broadway, Suite 1600

HUDDLESON & TATUM Denver, Colorado 80202

One Maritime Plaza Telephone: (303) 863-9898

20th Floor

San Francisco, California 94111

Telephone: (415) 981-5252

Attorneys for Amici Curiae

Sierra Club, Defenders of Wildlife, Inc.,

National Audubon Society,

Natural Resources Defense Council, Inc.,

and The Wilderness Society

* Counsel of Record

i

QUESTION PRESENTED

The Resource Conservation and Recovery Act, 42

U.S.C.A. §§ 6901-6987 (West 1983 & Supp. 1989)

(“RCRA”), provides for citizen enforcement through

“citizen suits.” RCRA requires that the commencement of

each citizen suit be preceded by sixty days’ notice from the

citizen plaintiff to the Administrator of the United States

Environmental Protection Agency, the State in which the

alleged violation occurred and the alleged violator.'

The question presented is whether the sixty-day notice

requirement is jurisdictional (requiring dismissal of the

citizen suit and subsequent refiling sixty days after notice)

or procedural (requiring a stay instead of a dismissal).?

l. The particular statute in issue, 42 U.S.C.A. § 6972 (West 1983

& Supp. 1989), is reprinted in full for the Court's information in

Appendix B.

2. Amici note that this is how the Petitioners have framed the

question presented in their Petition for a Writ of Certiorari to the

United States Court of Appeals for the Ninth Circuit. Although under

a procedural rule a stay usually will be sufficient to cure the deficient

notice, in certain circumstances it may instead be appropriate for the

court to dismiss the action. See infra at 19 n. 11.

TABLE OF CONTENTS

Page

STATEMENT OF INTEREST OF AMICICURIAE ... 1

SUMMARY OF ARGUMENT ............-..-.. 2

PC QUOTE ST TT Le ee 4

I.

RCRA IS ONE OF A COMPREHENSIVE SET OF

REGULATORY STATUTES INTENDED TO PRO-

TECT THE ENVIRONMENT, AND THIS COURT

SHOULD THEREFORE BE AWARE OF THE PO-

TENTIAL IMPACT ITS DECISION IN THIS CASE

WILL HAVE ON MANY ENVIRONMENTA« STAT-

GED 00 0 6 os ow oe a alee © eae ea

Il. THE LEGISLATIVE HISTORY PERTAINING TO

CITIZEN SUIT PROVISIONS AND NOTICE RE-

QUIREMENTS DEMONSTRATE THAT CON-

GRESS’ PRIMARY CONCERN IN ENACTING

TPESE PROVISIONS WAS TO ENCOURAGE CIT-

IZEN PARTICIPATION IN THE ENFORCEMENT

OF ENVIRONMENTAL LEGISLATION .......

A. Citizen Suit Provisions, Which Were First Codified

as Part of the Clean Air Act Amendments, Were

Enacted to Encourage Citizen Participation in the

Enforcement of Environmental Legislation as a

Supplement to Agency Enforcement ........

B. The Notice Requirement Was Not Added to Create

a Rigid Barrier to Citizen Suits, But Rather to

Encourage Agency Enforcement...........

C. Although the Federal Courts Are Divided, Those

That Follow the Pragmatic Rather Than the Juris-

dictional Approach Best Serve the Underlying Pur-

poses of the Notice Requirement ..........

il

ate eae.

—*

TABLE OF CONTENTS—(Continued)

Ill. THE COURT SHOULD APPLY A PRAGMATIC

APPROACH TO THE SIXTY-DAY NOTICE RE-

QUIREMENT TO ACCOMPLISH RCRA’S GOALS

AND AVOID ANOMALOUS RESULTS ...

A. The Statute does not Preclude Federal Jurisdiction

and to Interpret it to do so would Defeat its

Re Rea -6 a6 ounce 6'6 see 0 0

B. The Pragmatic Approach Avoids the Unfair and

Absurd Results that would Arise from a Formalistic

Application of the Notice Requirement ..... .

C. A Formalistic Jurisdictional Rule Would Need-

lessly Hamper Courts and Leave the Environment

at Risk During the Sixty-Day Notice Period .. .

D. The Notice Provision Speaks of Commencement

of an Action, Not Judicial Jurisdiction, and There-

fore is Subject to Pragmatic Construction Akin to

the Principles Governing Exhaustion

SS

1. Congress Could Have Expressly Stated the

Notice Provision as a Predicate to Jurisdiction

ek dw a» 6 0

2. The Sixty-Day Notice Provision is Analogous

to a Requirement that a Party First Exhaust

All Administrative Remedies Before Com-

mencing an Action; This Court has Consis-

tently Held Such Requirements to be Proce-

ES SS ee

E. Given Congress’ Demonstrated Ability to Limit

Federal Court Jurisdiction in Explicit Terms, its

Nonjurisdictional Language in the Notice Provi-

sions Should Not Be Converted into a Jurisdic-

eS Ie a

Page

16

20

20

21

21

TABLE OF CONTENTS—{(C ontinued)

Page

F. The Sixty-Day Notice Provision Should Not Be

Construed to Allow Polluter Defendants Stand-

ing to Raise Technical Objections Applicable

Not to Themselves But to Third Parties. . . . 24

IV. AN INFLEXIBLE JURISDICTIONAL RULE

WILL LEAD TO THE DISRUPTION OF CON-

GRESS’ PURPOSE OF FOSTERING CITIZEN

ENFORCEMENT UNDER AT LEAST EIGH-

TEEN OTHER MAJOR STATUTES .....- rae

A. The Endangered Species Act Affords a Striking

Example of the Absurd and Harsh Results of a

Formalistic Jurisdictional Rule. .....---- 26

1. The Statutory Framework of the Endangered

Species Act ...--- seer crete?

2. The Citizen Suit Provision of the Endangered

Species Act ...---- ese err rrteee

3. Because Congress did not Intend to Permit a

Species to Become Extinct During the Notice

Period, a Pragmatic Rather Than a Jurisdic-

tional Rule is Essential Under the Endan-

gered Species Act ..---- +s see?

‘oS ee a

iv

TABLE OF AUTHORITIES

CASES:

Page

Atlantic Coast Line Railroad Co. v

: . vt. Brotherhood o

Lwcomotive Engineers, 398 U.S. 281 (1970) ..... j 23

Avery v. Health and Human Services,

762 F.2d 158 (Ist Cir. 1985).............. 24

Bob Jones University v. United States,

ES 15

California v. Grace Brethren Church,

Co EE 23

City of Highland Park v. Train, 519 F.2d 68

! ; ' : 1

(7th Cir. 1975), cert. denied, 424 U.S. 927 (1976). . 11, 12

Coit Independent Joint Venture v. FSLI

; C, No. 87-

(Sup. Ct. March 2], 1989) povinesy

Pe a aw 46" bons '¢ 22

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

= Cir. 1976), cert. denied, 434 U.S. 902

RRR TENE Ein aa Niet CO 8, 11, 16

— for Animals v. Andrus, 11 Env’t Rep. Cas. (BNA)

2189, 2199 (D. Minn. July 14 and Aug. 30, 1978) . 38

Garcia v. Cecos Int'l, Inc., 761 F.2d 76 (1st Cir. 1985) 12, 14

Gwaltney of Smithfield v. Chesapeake Bay Foundation

tne U.S. _, 108 S. Ct. __ 95 L. Ed. 2d 306.

i

ae ee Oe oe OED Onee ee ks 8

Hallstrom v. Tillamook County, 844 F.2d 598

SUS Sie te agar 12, 14, 18

Hempstead County and Nevada Cou j 7

ty Project v.

United States Environmental Preteation 7

A

F.2d 459 (8th Cir. 1983) .......... conden”

Honig v. Doe, 484 U.S. 305 (1988) ........... 22

Kennedy v. Whitehurst, 690 F.2d 951 (1982)... .. . 22

Lauf v. E.G. Shinner & Co., 303 U.S. 323 (1938) .. 2

Vv

TABLE OF AUTHORITIES—{Continued)

CASES:

Lockerty v. Phillips, 319 U.S. 182 (1943)... .....

Maine Audubon Society v. Purslow, 672 F.Supp. 528

vi

SP ee ee eee , 29

Mathews v. Eldridge, 424 U.S. 319 (1976) ....... 22

McNeese v. Board of Education, 373 U.S. 668 (1963) 22

Metropolitan Washington Coalition for Clean Air v.

District of Columbia, 373 F.Supp. 1089

(D. D.C. 1974); rev'd on other grounds, 511 F.2d 809

(D.C. Cir. 1975) ...... Of FOES ee ee 17

National Wildlife Federation v. Coleman, 400 F.Supp.

705 (S.D. Miss. 1975), rev'd on other grounds, 529

F.2d 359, reh’g rehearing denied, 532 F.2d 1375, cert.

denied, 429 U.S. 979 (1976) .........-.4-. , 29

Natural Resources Defense Council v. Callaway,

524 F.2d 79 (2d Cir. 1975)...........2-0 eee eee 11, 17, 18

Natural Resources Defense Council v. Train,

510 F.2d 692 (D.C. Cir. 1975)...........--5-05- 8, 12, 21

Phillips Petroleum Co. v. Shutts, 472 U.S. 797 (1985). 24

Proffitt v. Comm'rs, Township of Bristol, 754 F.2d 504

CB Cie, BGR. oc icc cc cece vccvccscees li, 18, 22

Pymatunirig Water Shed Citizens v. Eaton,

644 F.2d 995 (3d Cir. 1981)..........--565. , 22

Save the Yaak Comm. v. Block,

840 F.2d 714 (9th Cir. 1988) ...........4.-.. , 30

Secretary of State of Maryland v. J.H. Munson Co.,

FP a ae oe ee , 25

Sierra Club v. Block,

614 F.Supp. 488 (D.D.C. 1985) .............5-. 8, 29, 30

TABLE OF AUTHORITIES~{Continued)

CASES:

Sierra Club v. Froehlke,

534 F.2d 1289 (8th Cir. 1976)

South Carolina v. Katzenbach,

ee.

State of California v. Dept. of Navy,

431 F.Supp. 1271 (N.D. Cal. 1977), aff'd, 624 F.2d

CS en

Susquahanna Valley Alliance v. Three Mile Island,

619 F.2d 231 (3d Cir. 1980) ..............

Tennessee Valley Authority v. Hill, 437 U.S. 153 (1978)

Trans Alaska Pipeline Rate Cases, 436 U.S. 631,

. (1978)

ao 2 gt Tie oh et ae ee ee ee a

SE RG. ahd bode hatin akc @ AaB os

Village of Kaktovik v. Corps of Engineers, 12 Env't Rep.

Cas. (BNA) 1740, 1744 (D. Alaska, Dec. 29, 1978) .

Walls v. Waste Resource Corp., 761 F.2d 311

TGR aaa

Warth v. Seldin, 422 U.S. 490 (1975) ..........

Weinberger v. Salfi, 422 U.S. 749 (1975)

Zipes v. Trans World Airlines, Inc.,

455 U.S. 387 (1982)

a ie a a. fe i

vii

Page

ai

TABLE OF AUTHORITIES—{Continued)

STATUTES: saa

15 U.S.C.A. §$§ 2601-2671 (West 1982 & Supp. 1989) 5

16 U.S.C.A. §$§ 1531-1543 (West 1985 & Supp. 1989) 5

16 U.S.C.A. § 1532 (West 1985) .....---+-+s: 27, 28

16 U.S.C.A. § 1533 (West 1985 and Supp. 1989) .. . 27

16 U.S.C.A. § 1536 (West 1985) .....----- ee 28

16 U.S.C.A. § 1538 (West 1985 & Supp. 1989) .... 27

16 U.S.C.A. § 1540 (West 1985) ......---- +s: 28, 29

98 U.S.C.A. § 1341 (West 1976) .....-----+s> 23

28 U.S.C.A. § 1342 (West 1976) ...-,---- +--+: 23

98 U.S.C.A. § 2283 (West 1978) .....-- +--+: 23

99 U.S.C.A. § 107 (West 1983)... .-.- +--+ s> 23

33 U.S.C.A. $$ 1201-1328 (West 1986 & Supp. 1989) . 5

33 U.S.C.A. §§ 1251-1375 (West 1986 & Supp. 1989) 5

33 U.S.C.A. $§ 1401-1445 (West 1986 & Supp. 1989) 5)

33 U.S.C.A. §§ 1501-1524 (West 1986 & Supp. 1989) 5

33 U.S.C.A. §§ 1901-1912 (West 1986 & Supp. 1989) 5

42 U.S.C.A. §§ 300f-300j-10 (West 1982 & Supp. 1989) 5

42 U.S.C.A. §§ 4321-4370 (West 1977 & Supp. 1989) 5

42 U.S.C.A. §§ 4901-4918) (West 1983 & Supp. 1989) 5

42 U.S.C.A. §§ 6901-6987 (West 1983 & Supp. 1989) 2, 4

42 U.S.C.A. § 6972 (West 1983 & Supp. 1989) .... passim

42 U.S.C.A. §§ 7401-7642 (West 1983 & Supp. 1989) 5

9

42 U.S.C.A. § 7604 (West 1983) ... 2... eee eee :

42 US.C.A. §§ 9601-9675 (West 1983 & Supp. 1989). 5

43 U.S.C.A. §§ 1331-1356 (West 1986 & Supp. 1989). 5

Vill

TABLE OF AUTHORITIES—{ Continued)

OTHER AUTHORITIES:

Air Pollution—1970: Hearings on $3229, $3466 ¢> $3546

Before the Subcomm. on Air and Water Pollution of

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

EE SAIL

EPA's Responsibilities Under RCRA: Administrative

Law Issues, 9 Ecology L.Q. 555 (1981)........

Miller, Private Enforcement of Federal Pollution Con-

trol Laws, Part I, 13 Envtl. L. Rep. 10309 (1983).

Notice by Citizen Plaintiffs in Environmental Litigation,

79 Mich. L. Rev. 279(1980)..............

Petition For Writ of Certiorari to the United States

Court of Appeals for The Ninth Circuit,

ist gg SSE ES

116 Cong. Rec. $33,103 (daily ed. Sept. 22, 1970). . .

116 Cong. Rec. $33,104 (daily ed. Sept. 22, 1970). . .

116 Cong. Rec. $42,387 (daily ed. December 18, 1970)

$4358, 91st Cong., 2d Sess., 116 Cong. Rec. 32,281

Re EE SR A rae a ce

H. Rep. No. 1491, 94th Cong., 2d Sess. 2 (1976),

reprinted in 1976 U.S. CODE CONG. & AD. NEWS

6238

Conf. Rep. No. 1783, 9st Cong., 2d Sess. (1970)

reprinted in 1970 U.S. CODE CUNG. & AD. NEWS

5374-5391

S. Rep. No. 307, 93rd Cong., Ist Sess., reprinted in

1973 U.S. CODE CONG. & AD. NEWS 2989 . . .

S. Rep. No. 1196, 91st Cong., 2d. Sess. (1970)

‘,

Page

ou

6, 7

D>

“oS Sh

u

No. 88-42

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1988

OLAF E. HALLSTROM AND MARY E. HALLSTROM,

Petitioners,

TILLIMOOK COUNTY, A MUNICIPAL CORPCHATION,

t.

ON WRIT OF CERTIORARI T9) THE UNITED STATES

COURT OF APPEALS FOR THE NINTH CIRCUIT

BRIEF AMICI CURIAE OF

SIERRA CLUB, DEFENDERS OF WILDLIFE, INC.,

NATIONAL AUDUBON SOCIETY, NATURAL RESOURCES

All parties have consented in writing to the filing of

this brief on behalf of amici curiae Sierra Club, Defenders

of Wildlife, Inc., National Audubon Society, Natural Re-

sources Defense Council, Inc., and The Wilderness Soci-

ety in support of the Petitioners. '

STATEMENT OF INTEREST OF AMICI CURIAE

Amici Curiae are nonprofit public interest organiza-

tions with large nationwide memberships? whose broad

purposes include both the enjoyment, study and explora-

tion of this country’s vast national resources and the

enlistment of public interest in and support for the protec-

tion, conservation and preservation of these resources.

1. Petitioners’ consent and Respondent's consent are being filed

concurrently with the Clerk of the Court in accordance with Rule 36.2

of the Rules of the Supreme Court of the United States.

2. Appendix A hereto provides additional information regarding

the individual amicus organizations.

%)

2

Amici participate extensively in and sponsor numerous

recreational activities, educational programs and scientific

and other research projects to promote a better apprecia-

tion and understanding of our natural resources and atten-

dant environmental concerns.

Amici have been actively involved at the federal, state

and local level in the comment process on new environ-

mental legislation and amendments to existing legislation

and have also instituted or participated in numerous

administrative and judicial proceedings to ensure the

effective implementation and enforcement of this country’s

environmental laws, including the Resource Conservation

and Recovery Act, 42 U.S.C.A. §§ 6901-6987 (West 1983 &

Supp. 1989) (“RCRA”), the statute ct issue in this case. As

an important part of their efforts to promote compliance

with federal environmental laws, amici have on numerous

occasions used the citizen suit provisions in RCRA and

other environmental statutes to enjoin public or private

activities which violate statutory standards or to compel

government agencies to perform statutorily mandated du-

ties. Accordingly, amici have a direct interest in the

Court's holding in this case, particularly as to how it will

impact future citizen suits.

SUMMARY OF ARGUMENT

Prior to 1970, there was a paucity of federal statutes

and regulations to protect and conserve this country’s

environment and natural resources. Because of deep and

widespread public concern for the impact of rapid growth

on the environment, beginning with the National Environ-

mental Policy Act of 1969 and the Clean Air Act Amend-

ments of 1970, Congress passed and Presidents Nixon,

Ford, Carter and Reagan signed into law a far-reaching and

complex set of environmental statutes.

These statutes provided for enforcement of their pro-

visions by federal and state agencies. Commencing with

the Clean Air Act Amendments, Congress in addition

3

sought to augment government enforcement and to enlist

the help of citizens by authorizing citizens to bring suit in

federal courts to enjoin violative activities and to compel

government agencies to perform their statutory duties.

Accordingly, citizen suit provisions were included in sub-

stantially identical form in at least thirteen major environ-

mental statutes, including the Resources Conservation and

Recovery Act (“RCRA”), the statute at issue in this case.

Comparable provisions were also included in at least five

other statutes affecting such diverse areas as energy,

consumer protection and civil defense.

To encourage and enable government agencies to carry

out their enforcement responsiblities, Congress included

in the citizen suit provisions the sixty-day notice provision

at issue in this case. Congress did not intend, and therefore

did not provide, that the notice provision should be a

jurisdictional barrier to citizen action, nor did it intend or

provide that necessary relief should be delayed when

government agencies decline or refuse to act or waive

notice. Accordingly, Congress enacted a notice provision

that is akin to an exhaustion of remedies requirement.

Although compliance should be required in all appropriate

cases, the provision should be held to be waivable and held

when strict compliance would otherwise be

futile or lead to anomalous results, or preclude essential

temporary relief.

Indeed, treating the notice provision as an inflexible,

formalistic jurisdictional barrier would vitiate Congress’

purpose of encouraging citizen enforcement and lead to

harsh or absurd results. Without advancing any legitimate

purpose, a jurisdictional construction would also disable

federal courts from providing essential temporary injunc-

tive relief in cases when notice would otherwise be waived

or excused. Finally, a jurisdictional construction would

arm polluters with the weapon of a jurisdictional objection

4

pertaining not to themselves, but to governmental agen-

cies who have waived notice or have no interest in raising

the notice issue.

Although the issue as framed is deceptively narrow

and simple, i.e., is the RCRA notice provision “proce-

dural” or “jurisdictional,” the Court's ruling may well

impact each of the statutes providing for citizen enforce-

ment. Parties effected by those statutes are not before the

Court. A “jurisdictional” construction would seriously im-

pede citizen enforcement not only of RCRA, but of each of

those statutes. Under the Endangered Species Act, for

example, such a jurisdictional interpretation could lead to

the extinction or widespread destruction of a species while

citizens, whom Congress intended to encourage, waited

—— and helplessly for the sixty-day period to

e

ARGUMENT

L.

RCRA IS ONE OF A COMPREHENSIVE SET OF

REGULATORY STATUTES INTENDED TO PRO-

TECT THE ENVIRONMENT, AND THIS COURT

SHOULD THEREFORE BE AWARE OF THE PO-

TENTIAL IMPACT ITS DECISION IN THIS CASE

WILL HAVE ON MANY ENVIRONMENTAL STAT-

UTES

In 1976, Congress passed and President Ford signed

into law the Resource Conservation and Recovery Act

(codified at 42 U.S.C.A. §§ 6901-6987 (West 1983 & Supp.

1989)) (“RCRA”) to regulate the disposal of hazardous

wastes and minimize the harms to health and environment

caused by unsafe disposal.*

3. “The Resource Conservation and Recovery Act of 1976 is a

multifaceted approach toward solving the problems associated with the

5-4 billion tons of discarded materials generate’ «ach vear and the

problems resulting from the anticipated 8% annual increase in the

5

RCRA is one of a comprehensive set of federal regu-

latory statutes enacted during the 1970s in response to

widespread public concern over the devastaiing environ-

mental impact resulting from this country’s rapid growth.

Commencing with the National Environmentai Policy Act

of 1969 (codified at 42 U.S.C.A. §§ 4321-4370 (West 1977

& Supp. 1989)) (“NEPA”) and the Clean Air Act Amend-

ments of 1970 (codified at 42 U.S.C.A. §§ 7401-7642 (West

1983 & Supp. 1989)) (“Clean Air Act Amendments’),

Congress enacted numerous environmental statutes, in-

cluding the Federal Water Pollution Control Act (codified

at 33 U.S.C.A. §§ 1251-1375 (West 1986 & Supp. 1989))

(“Clean Water Act”), the Endangered Species Act (codified

at 16 U.S.C.A. $§ 1531-1543 (West 1985 & Supp. 1989))

and the Comprehensive Environmental Response, Com-

pensation, and Liability Act (codified at 42 U.S.C.A.

§§ 9601-9675 (West 1983 & Supp. 1989)) (“CERCLA”),

which, together with other statutes, provide a regulatory

framework for protecting and conserving the

environment.‘ Because RCRA is but one component of a

volume of such waste.” H. Rep. No. 1491, 94th Cong., 2d Sess. 2

(1976), reprinted in 1976 U.S. CODE CONG. & AD. NEWS 6238,

6239. See generally Note, EPA's Responsibilities Under RCRA: Ad-

ministrative Law Issues, 9 Ecology L.Q. 555, 555 (1981).

4. Other statutes include the Safe Drinking Water Act (codified at

42 U.S.C.A. §§ 300f-300j-10 (West 1982 & Supp. 1989)); the Toxic

Substance Control Act (codified at 15 U.S.C.A. §§ 2601-2671 (West

1982 & Supp. 1989)); the Marine Protection, Research, and Sanctuar-

ies Act (codified at 33 U.S.C.A. §§ 1401-1445 (West 1986 & Supp.

1989)); the Surface Mining Control and Reclamation Act (codified at 33

U.S.C.A. §§ 1201-1328 (West 1986 & Supp. 1989)); the Noise Control

Act (codified at 42 U.S.C.A. §§ 4901-4918 (West 1983 & Supp. 1989));

the Act to Prevent Pollution From Ships (codified at 33 U.S.C.A.

§§ 1901-1912 (West 1986 & Supp. 1989)); the Outer Continental Shelf

Lands Acts (codified at 43 U.S.C.A. §§ 1331-1356 (West 1986 & Supp.

1989)); and the Deepwater Port Act (codified at 33 U.S.C.A.

§§ 1501-1524 (West 1986 & Supp. 1989)). The purpose provisions of

these statutes are set forth alphabetically for the Court's information in

Appendix B.

6

complex set of statutes, the Court should be aware of the

potential irapact its decision will have on these statutes.

I.

THE LEGISLATIVE HISTORY PERTAINING TO

CITIZEN SUIT PROVISIONS AND NOTICE RE-

QUIREMENTS DEMONSTRATE THAT CON-

GRESS’ PRIMARY CONCERN IN ENACTING

THESE PROVISIONS WAS TO ENCOURAGE

CITIZEN PARTICIPATION IN THE ENFORCE-

MENT OF ENVIRONMENTAL LEGISLATION

A. Citizen Suit Provisions, Which Were First Codified as

Part of the Clean Air Act Amendments, Were En-

acted to Encourage Citizen Participation in the En-

forcement of Environmental Legislation as a Supple-

ment to Agency Enforcement.

There was a notable absence of federal environmental

regulation prior to the enactment of NEPA in 1969 and the

Clean Air Act Amendments in 1970. To the extent federal

environmental regulations existed, often the only available

means for private citizens to participate in the enforcement

of these regulations was to attend public hearings. Accord-

ingly, violations of environmental statutes often continued

unabated when the federal or state enforcement agencies

chose not to act, or for lack of resources could not act. See

Note, Notice by Citizen Plaintiffs in Environmental Liti-

gation, 79 Mich. L. Rev. 279, 299 (1980). See generally

Miller, Private Enforcement of Federal Pollution Control

Laws, Part I, 13 Envtl. L. Rep. 10309, 10310 (1983).

With the passage of the Clean Air Act Amendments,

Congress afforded private citizens the right to sue to

enforce the provisions of an environmental statute. The

citizen suit provision in the Clean Air Act Amendments

became the model for citizen suit provisions that were

included in substantially identical form in nearly every

subsequent new environmental statute, in amendments to

existing federal environmental statutes and in at least five

OW eth ie,

7

nonenvironmental regulatory statutes.> Because of the

paucity of relevant legislative history of the citizen suit

provisions in these other statutes,® the starting point to

understanding Congress’ purposes is the legislative history

of the Clean Air Act Amendments.

The citizen suit provision in the Clean Air Act Amend-

ments recognized the need for citizen participation in the

enforcement of the Clean Air Act both to help achieve the

Act’s goals and to augment the limited resources of federal

and state agencies:

Citizens in bringing such actions are performing a

public service. The limited resources of many State

enforcement agencies, bearing the first line of respon-

sibility under this bill, will be fully extended. This

[citizen suit] provision, requiring 30 days notice to

State and Federal agencies, in which they may initiate

abatement proceedings, will allow many violations to

come to their attention which otherwise might escape

notice.

116 Cong. Rec. $33,103 (daily ed. Sept. 22, 1970) (mem-

orandum submitted by Senator Muskie). See also 116

Cong. Rec. $42,387 (daily ed. December 18, 1970) (re-

marks of Senator Muskie) (“The Senate committee felt it

would be impe*sible to do the total job of air pollution

cleanup relying wholly upon the Federal bureaucracy.”).

5. See discussion infra at 25-26 and Appendix B.

6. See, e.g., Maine Audubon Society v. Purslow, 672 F. Supp.

528, 529 n.3 (D. Maine 1987)“In enacting the citizen suit of the

Endangered Species Act, Congress appeared to have adopted the

notice requirement of other statutes without discussion” [citing S.

Rep. No. 307, 93rd Cong. Ist Sess., reprinted in 1973 U.S. CODE

CONG. & AD. NEWS 2989, 2999]). See generally Miller, Private

Enforcement of Federal Pollution Control Laws, Part I, 13 Envtl. L.

Rep. 10309, 10311 (1983) (“There are perhaps no sections of the

environmental statutes where precedent under one statute so clearly

applies to others.”).

8

While providing for citizen enforcement, Congress

anticipated that governmental agencies, federal and state,

would be primarily responsible for enforcement.’ Private

citizens were encouraged to uncover violations that other-

wise might escape notice, and motivate the agencies to

take action. See S. Rep. No. 1196, 91st Cong., 2d Sess.

36-37 (1970) (report of Public Works Committee) (“Autho-

rizing citizens to bring suits for violations of standards

should motivate governmental agencies charged with the

responsibility to bring enforcement and abatement pro-

ceedings. . . .”). However, when the government agencies

failed to act, citizens should be “unconstrained” to bring

enforcement actions, and the federal courts “should not be

hesitant to consider them.” Id.

Thus, by encouraging private citizens to support gov-

ernmental enforcement and empowering citizens to ini-

tiate enforcement actions themselves, Congress sought to

accomplish the Clean Air Act’s stated purpose to protect

and enhance the quality of this country’s air resources.

Citizen plaintiffs were therefore not to be viewed as

“nuisances or troublemakers, but rather as welcome par-

ticipants in the vindication of environmental rights.”

Friends of the Earth v. Carey, 535 F.2d 165, 175 (2d Cir.

1976), cert. denied, 434 U.S. 902 (1977). See Natural

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

(D.C. Cir. 1975) (“[T]he citizen suit provisions reflected a

deliberate choice by Congress to widen citizen access to

the courts as a supplemental and effective assurance that

the [Clean Air] Act would be implemented and enforced”).

7. Indeed, the citizen suit provision in the Clean Air Act Amenc-

ments contains a statutory bar to the filing of a citizen suit where “the

Administrator or State has commenced and is diligently prosecuting”

its own enforcement action. 42 U.S.C.A. § 7604 (West 1983). See

Gwaltney of Smithfield v. Chesapeake Bay Foundation, Inc., 484 U.S.

__, 108 S. Ct. __, 98 L. Ed. 2d 306, 318 (1987) (relating to similar

provision in Clean Water Act, 33 '' S.C.A. § 1365(b)(1)(B) (West

1986)).

I

9

B. The Notice Requirement Was Not Added to Create a

Rigid Barrier to Citizen Suits, But Rather to Encour-

~ age Agency Enforcement.

~ Although Congress envisaged private citize1.s under-

eaktans an essential role in the enforcement of the Clean Air

Act, proponents as well as opponents of the amendments to

the Act expressed concern that citizen suits could overbur-

den the courts and interfere with government enforcement

of alleged violations. See Air Pollution—1970: Hearings on

S. 3229, S. 3466 & S. 3546 Before the Subcomm. on Air

and Water Pollution of the Senate Comm. on Public Works,

91st Cong., 2d Sess. 1184 (1970). For example, proponents

were careful to note that the proposed citizen suit provi-

sions did not provide for the award of damages to private

plaintiffs, 42 U.S.C.A. § 7604(a) (West 1983), and empow-

ered the courts to award attorneys’ fees and costs to the

prevailing party, thereby deterring frivolous lawsuits, 42

U.S.C.A. § 7604(d) (West 1983).

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 the bill.

116 Cong. Rec. $33,104 (daily ed. Sept. 22; 1970) (remarks

of Senator Hart).

The Senate subcommittee also included a notice re-

quirement. As originally drafted, it required citizen plain-

tiffs to give thirty days notice to the Environmental

Protection Agency (“EPA”), its field representative, the

state air pollution control agency and the alleged violator

before filing suit. See S. 4358, 91st Cong., 2d Sess., 116

Cong. Rec. 32,381 (1970). Committee members believed

“7

10

that the notice provision would serve to trigger adminis-

trative action to remedy the alleged violation, thereby

eliminating the need for the private citizen to seek relief in

the courts.

[B]efore any citizen can bring an action, he is required

to notify the enforcement agency concerned of his

intent to do so, and the specific, alleged violation

which he has in mind. In other words, the idea is to

use citizens to trigger the enforcement mechanism. If

that enforcement mechanism does not respond, then

the citizen has his right to go to court.

116 Cong. Rec. $33,103 (daily ed. Sept. 22, 1970) (remarks

of Senator Muskie) (emphasis added).

In its report on the proposed amendments to the

Clean Air Act, however, the Senate Committee on Public

Works emphasized that the notice requirement, though

intended to encourage intervention by the appropriate

government agencies, was not meant to discourage citizen

suits.

The regulations to be promulgated by the Secretary [of

the Interior] should reflect simplicity, clarity, and

standardized form. The regulations should not require

notice that places impossible or unnecessary burdens

on citizens but rather should be confined to requiring

information necessary to give a clear indication of the

citizens’ intent.

S. Rep. No. 1196, 91st Cong., 2d Sess. 37 (1970). Thus, the

citizen plaintiff was not expected to provide detailed or

technical information so long as the federal and state

agencies and the alleged violator understood the general

scope of the citizen's allegations.

Without comment, a joint House-Senate conference

committee responsible for resolving inconsistencies be-

tween the House and Senate versions of the bill length-

ened the notice requirement to sixty days. Conf. Rep. No.

1783, 91st Cong., 2d Sess. 1, 55 (1970) reprinted in 1970

a

11

U.S. CODE CONG. & AD. NEWS 5374-5391. This

version of the notice provision was enacted into law as part

of the Clean Air Act Amendments.

C. Although the Federal Courts Are Divided, Those

That Follow the Pragmatic Rather Than the Juris-

dictional Approach Best Serve the Underlying Pur-

poses of the Notice Requirement.

Those federal courts that have considered the notice

requirement in the Clean Air Act Amendments and other

federal environmental statutes have consistently recog-

nized that Congress sought to facilitate and encourage

citizen involvement while preserving the primary enforce-

ment role of the federal and state regulatory agencies and

shielding the federal courts from an unmanageable number

of citizen suits. See, e.g., Natural Resources Defense

Council v. Callaway, 524 F.2d 79, 84 n.4 (2d Cir. 1975)

(purpose of sixty-day notice requirement of Clean Water

Act is to give the administrative agencies time to investi-

gate and act on an alleged violation); City of Highland Park

v. Train, 519 F.2d 681, 690-91 (7th Cir. 1975), cert. denied,

424 U.S. 927 (1976) (Congress intended to provide for

citizen suits in a manner least likely to clog the courts and

most likely to trigger agency enforcement). These courts,

however, have divided on how to interpret the notice

requirement to best serve these congressional purposes.

The federal circuit courts have generally split into two

groups, adopting either a “pragmatic approach” toward the

notice requirement—in essence treating the notice re-

quirement in environmental statutes as procedural—or a

“jurisdictional approach,” which requires dismissal for lack

of subject matter jurisdiction if the citizen plaintiff has not

strictly complied with the sixty-day notice requirement.

The “pragmatic approach” has been adopted by the Sec-

ond, Third and Eighth Circuits, see, e.g., Friends of the

Earth v. Carey, 535 F.2d 165, 175 (2d Cir. 1976) cert.

denied, 434 U.S. 902 (1977); Proffitt v. Comm'rs, Township

of Bristol, 754 F.2d 504, 506 (3d Cir. 1985); Hempstead

12

County and Nevada County Project v. United States

Environmental Protection Agency, 700 F.2d 459, 463 (8th

Cir. 1983), while the “jurisdictional approach” has been

adopted by the First, Sixth, Seventh and Ninth Circuits,

see, e.g., Garcia v. Cecos Int'l, Inc., 761 F.2d 76, 78 (1st

Cir. 1985); Walls v. Waste Resource Corp., 761 F.2d 311,

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

F.2d 681, 691 (7th Cir. 1975); Hallstrom v. Tillamook

County, 844 F.2d 598, 600-601 (9th Cir. 1988).®

The courts adopting the pragmatic approach reason

that a rigid, literal reading of the notice requirement would

hinder rather than encourage the filing of citizen suits, thus

frustrating Congress’ intent in adopting the citizen suit

provisions that “any citizen [should be able] to bring action

directly against polluters . . . or against the Administrator

grounded on his failure to discharge his duty to enforce the

statute against polluters.” Natural Resources Defense

Council v. Train, 510 F.2d at 700. See Friends of the Earth

v. Carey, 535 F.2d at 172; Proffitt v. Commr’s, 754 F.2d at

506. A pragmatic rather than a jurisdictional reading of the

notice requirement ensures that the regulatory agencies

have been given sufficient opportunity to act on the alleged

violation but does not discourage citizen plaintiffs from

participating in the enforcement process. See Proffitt, 754

F.2d at 506 (sixty-day notice requirements of Clean Water

8. While some courts have cited Natural Resources Defense

Council v. Train, 510 F.2d 692 (D.C. Cir. 1974) in support of the

pragmatic approach, the D.C. Circuit in that case found jurisdiction on

other grounds, namely under the “savings” clause, Section 505(e), of

the Clean Water Act. In dictum, however, the court indicated that it

would adopt the pragmatic approach if it were required to interpret the

notice requirement of the Clean Water Act. See id. at 703 (“Sound

discretion bids a court stay its hand upon petition by the Administrator

where it has reason to believe that further agency consideration may

resolve the dispute. . . . However, the court has jurisdiction and may

maintain the action on its docket in a suspense status, and even grant

temporary relief.”). .

13

Act and RCRA “should be applied flexibly to avoid hin-

wn Wally Altonee a Theor Bde Iolond, 610 F.32

quahanna Valley Alliance v. Three Mile I q :

231, 243 (3d Cir. 1980) (“We agree . . . that reading [the

notice requirement of the Clean Water Act] to require

dismissal and refiling of premature suits would be exces-

sively formalistic.”).

The pragmatic approach also avoids the waste of

judicial resources which results under the jurisdictional

approach, which would require the dismissal and refiling of

an action after months, or in some cases years, of legal

proceedings due solely to a failure to meet the formal

notice requirements, even when the defendants are not

prejudiced by the failure to give such notice. As the Third

Circuit Court of Appeal noted in Pymatuning Water Shed

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

Requiring [the dismissal and refiling of actions] after

proceeding to the stage of the case presently before us

would . . . waste judicial resources. Moreover, the

appellant’s argument, if adopted, would frustrate citi-

zen enforcement of the [Clean Water] Act. Almost two

years have now passed since the filing of the complaint

in this action and in the meantime, the alleged flow of

sewage has continued unabated.

See State of California v. Dept. of Navy, 431 F.Supp. 1271,

1278-79 (N.D. Cal. 1977), aff'd, 624 F.2d 885 (9th Cir.

1980) (“[N]o purpose would be served by dismissing here

since plaintiffs could and would immediately refile this

lawsuit. [Footnote omitted]. Dismissal now would be, in

effect, the ultimate disservice to judicial economy.”).®

9. It also should be noted that if failure to give strictly complying

sixty-day notice creates a jurisdictional barrier, defendants will be

encouraged, even as statutory violations continue unabated, to raise

the jurisdictional sword for the first time on appeal or to seek to reopen

adverse final judgments. The resultant need to refile the action and

relitigate the merits in order to enforce statutory standards would be a

disservice to judicial economy.

14

Those courts adopting the jurisdictional approach have

interpreted the language of the notice provision as a

jurisdictional barrier. They reason that where Congress has

“clearly” set forth the requirements for notice, the courts

need not, and should not, engage in any speculative

interpretation of the notice provision. “The notice require-

ment is not a technical wrinkle or superfluous formality

that federal courts may waive at will. . . . [I]t is part of the

jurisdictional conferral from Congress that cannot be al-

tered by the courts.” Garcia, 761 F.2d at 79. See also

Hallstrom, 844 F. 2d at 600 (citing Garcia); Walls, 761 F.2d

at 316. They view the express exceptions to the sixty-day

notice requirement under certain circumstances (e.g., the

exception in RCRA for hazardous waste, 42 U.S.C.A.

§ 6972(b\1\A), and (2A) (West Supp. 1989)), as further

evidence that Congress intended the notice requirement

to be a rigid jurisdictional barrier to citizen suits. See, e.g.,

Hallstrom, 844 F.2d at 601; Walls, 761 F.2d at 316. To

ignore the sixty-day notice requirements would in their

view “‘constitute[sic], in effect, judicial amendment in

abrogation of explicit, unconditional statutory language. ~

Garcia, 761 F.2d at 78, quoting City of Highland Park v.

Train, 374 F. Supp. 758, 766 (N.D. Ill. 1974), aff'd 519

F.2d 681 (7th Cir. 1975), cert. denied 424 U.S. 927 (1976).

These courts reason further that the notice require-

ment was adopted primarily to encourage regulatory agen-

cies to step in and obtain a nonjudicial resolution of the

alleged violation, and that this goal would be thwarted if

citizens were allowed to file suit prior to the completion of

the sixty-day notice period. See Hallstrom, 844 F.2d at 601;

Garcia, 761 F.2d at 82. Simply staying the proceeding for

sixty days to provide the parties with an opportunity to

resolve the dispute would in their view not satisfy the

statute, for “once a suit is filed, positions become hard-

ened, parties incur legal fees, and relations become adver-

sarial so that cooperation and compromise is less likely.”

Hallstrom, 844 F.2d at 601. Thus, these courts have

concluded that nothing short of dismissal and the giving of

15

full sixty-day notice will suffice to encourage the non-

judicial resolution of the environmental conflict et issue.

For the reasons that follow, the pragmatic roach

best serves the statutory purpose. ~~

Ii.

THE COURT SHOULD APPLY A PRAGMATIC APPROAC

H

TO THE SIXTY-DAY NOTICE REQUIREMENT TO AC-

COMPLISH RCRA’S GOALS AND AVOID ANOMALOU

RESULTS = .

A. The Statute does not Preclude Federal Jurisdiction

and to Ratorgeet ft to do so would Defeat ie Perpeen

This Court has repeatedly held, however, that fede

suncten dean be tntonpested to erumpert ath and one-

mote the purposes of the entire statute. See, e.g., Bob

Jones University v. United States, 461 U.S. 574, 586 (1983)

(“It is a well-established canon of statutory construction

that a court should go beyond the literal language of a

statute if reliance on that language would defeat the plain

purpose of the statute. . .”); Trans Alaska Rate Cases, 436

U.S. 631, 643 (1978). Where a literal reading of a statute

arava wafer sna = iy so na

variance policy of the

whale,’ Gite Const hen Gilieeed thas panes enhahens

the statute rather than its literal words.” United States v.

American Trucking Ass'ns, 310 U.S. 534, 543 (1940),

quoting Ozawa wv. United States, 260 U.S. 178, 194 (1922).

16

As the cases discussed below demonstrate, a formalis-

tic jurisdictional reading of the notice requirement con-

tained in RCRA and other environmental statutes would

produce harsh and absurd results that would frustrate,

rather than further, the underlying congressional purpose

to protect and conserve the environment. In such cases,

courts should have the discretion to interpret the notice

requirement flexibly in a manner that avoids such anoma-

lous results while furthering the congressional purpose.

B. The Pragmatic Approach Avoids the Unfair and

Absurd Results that would Arise from a Formailistic

Application of the Notice Requirement.

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

1976), cert. denied, 434 U.S. 902 (1977), plaintiffs filed suit

under the Clean Air Act to enjoin an increase in New York

City transit fares and to enforce the “clean air” provisions

of the Transportation Control Plan for the New York

metropolitan area. Id. at 168. Before filing suit, plaintiffs

sent proper sixty-day notices to the Governor of New York,

the EPA, the State environmental protection agency and to

each of fifteen agents and agencies of the State to whom

some enforcement authority had been delegated, including

the Metropolitan Transit Authority (“MTA”). Id. at 174.

After filing suit, plaintiffs added the New York City Transit

Authority (“TA”), which was responsible for authorizing the

fare increase, as an additional defendant. The district court

refused to enjoin the fare increase primarily on the basis

that the TA received inadequate notice, even though

plaintiffs sent proper notice to the MTA, the TA’s sister

agency, and to both the chairman of the TA and its general

counsel in their capacities as MTA rather than TA officials.

Id. On appeal, the Second Circuit found the district court s

“technical, crabbed reading” of the notice requirement to

be “completely at odds with the announced purpose of the

statute, which looks to substance rather than to form in an

effort to facilitate citizen involvement,” and reirstated the

complaint as to the TA. Id. at 175. See also National

17

Wildlife Federation v. Coleman, 400 F.Supp. 705, 709

(S.D. Miss. 1975), rev'd on other grounds, 529 F.2d 359.

rod Sei. 532 F.2d o_o cert. denied, 429 U.S. 979

notice requirement of the Endangered Species Act

satisfied even though plaintiff's letter to appropriate gov-

ernment agencies did not expressly state intention to file

suit); Metropolitan Washington Coalition for Clean Air v.

District of Columbia, 373 F.Supp. 1089 (D. D.C. 1974),

revd on other grounds, 511 F.2d 809 (D.C. Cir. 1975)

(notice requirement of Clean Air Act met even though

notice sent by regular mail rather than by certified mail as

required by applicable regulations).

In Natural Resources Defense Council v. Callaway,

524 F.2d 79 (2d Cir. 1975), plaintiffs filed suit under NEPA

and the Clean Water Act to enjoin further dumping by the

United States Navy of highly polluted dredged spoil at a

designated dumping site in Long Island Sound. The dis-

trict court held that it lacked jurisdiction to determine the

merits of the Clean Water Act claim because the sixty-day

notice requirement of the Act had not been met (plaintiffs

had filed suit fifty days from the notice date). Id. at 83. The

court of appeals rejected such a technical reading of the

notice requirement and instead sought to determine

whether the underlying purpose of the notice require-

ment, to give the agencies time to act, had been met.

Noting that the administrative agencies had sufficient time

to investigate plaintiffs’ allegations prior to the filing of the

complaint and had in fact informed plaintiffs that no

administrative action would be taken, the court found that

the purpose of the notice requirement had in fact been

met.

[T]he purpose of the 60-day waiting period, which is to

give the administrative agencies time to investigate

and act on an alleged violation, has been served. The

EPA and other agencies were given notice by plaintiffs

18

of the alleged violations and plaintiffs were informed

before this suit was commenced that no action would

be taken.

Id. at 84 n.4.%° Cf. Proffitt v. Comm'rs, Township of

Bristol, 754 F.2d 504, 506 (3rd Cir. 1985) (where agencies

had received reports of alleged violations three years

before citizen suit was filed and plaintiff met with agency

officials to discuss alleged violations five months prior to

filing suit, defendants received notice-in-fact sufficient to

satisfy Clean Water Act and RCRA notice requirements);

Pymatuning Water Shed Citizens for a Hygienic Environ-

ment v. Eaton, 644 F.2d 995 (3d Cir. 1981) (sixty-day notice

requirement of Clean Water Act met where district court

stayed proceeding for sixty days, and eleven months

elapsed before court began hearing evidence in the case).

In Sierra Club v. Froehlke, 534 F.2d 1289 (8th Cir.

1976), plaintiffs sought to enjoin construction of several

proposed dams in the state of Missouri, claiming that the

original environmental impact study was inadequate in its

attempt to assess the effect of the dams on the region and

on a species of bat native to that region. Defendants moved

to dismiss the Endangered Species Act claim for lack of

subject matter jurisdiction, alleging that plaintiffs had

failed to give the requisite sixty-day notice. Although the

district court did not dispute that sixty-day notice had not

been given, it nonetheless denied defendants motion,

finding that, because of the unique nature of the evidence

presented at trial, the motion should be denied in the

interests of justice.

[Clonsidering the fact that there are only five or six

experts in the study of Myotine Bats in the world and

10. Although the Callaway court did not ultimately rely on

Section 505(a) of the Clean Water Act Amendments (containing the

citizen suit provision), in finding that the trial court had subject matter

jurisdiction to determine the merits of plaintiffs’ claim, instead relying

on the statute's “savings” clause, the court suggested in dictum that it

would also have found jurisdiction under Section 530%a). Id. at 84 n.4.

— —

19

that the habits, biology and other characteristics of the

bats were fully developed at the trial, this Court feels

that a dismissal of plaintiffs’ claim for failure to comply

ee 0 Sate Sa Sees te ho stent would week an

justice to adjudication of ntiffs’ claim.

allow defendants to further Be gm trial, in Pe

opinion of this Court, would produce no added evi-

dence which would help this Court in its decision.

Id. at 1303, quoting Sierra Club v. Froehlke, 392 F.Supp.

130, 143 (E.D. Mo. 1975). The Eighth Circuit affirmed the

district court's ruling, agreeing with the district court that

the unique evidentiary situation involved in the case

required a less formal reading of the notice iremen

Id. at 1303. . — *

If there is a common thread running through all these

cases, it is a willingness of the courts to respond to the

exigencies of the case at hand and fashion a result that best

serves the interests of justice while adhering to the under-

lying congressional purpose in enacting the citizen suit

provisions. These courts do not ignore the sixty-day notice

requirement, but instead look to the facts involved in the

case to determine if the plaintiff has provided sufficient

notice to afford the government agencies adequate oppor-

tunity to investigate the alleged violation and initiate

enforcement action if necessary. In this way, Congress’

intention to encourage government enforcement prior to

the filing of a citizen suit is satisfied without risking the

anomalous results that could arise from a formalistic juris-

dictional reading of the notice requirement. '!

11. Under the pragmatic approach, a stay of the litigation will

normally be sufficient to cure the deficient notice. However, in some

circumstances it may instead be appropriate for the court, based

considerations such as the direct and adverse impact of continuing the

action on the party not receiving notice, to dismiss the action

20

C. A Formalistic Jurisdictional Rule Would Needlessly

Hamper Courts and Leave the Environment at Risk

During the Sixty-Day Notice Period.

The flexibility afforded by the procedural appzoach to

the notice requirement is particularly important during the

sixty-day period following notice. Frequently, citizens do

not uncover a statutory violation until the situation is

critical. Although citizens can then notify the appropriate

authorities immediately, the governmental response may

be both insufficient and untimely. Under a jurisdictional

approach, citizen plaintiffs in these situations would be

compelled to await the expiration of the sixty-day notice

period even if the government agencies explicitly declined

to act.'2 Thus, the courts would be prevented from pro-

viding interim temporary relief to preserve the status quo

during the sixty-day period. In the meantime, irreparable

(and preventable) injury to the environment may result.

This is a concern that a rigid jurisdictional rule does not

adequately address.

D. The Notice Provision Speaks of Commencement of

an Action, Not Judicial Jurisdiction, and Therefore is

Subject to Pragmatic Construction Akin to the Prin-

ciples Governing Exhaustion of Remedies.

!

oo

12. In 1984, hwo on —-

the sixty-dav notice requirement if the citizen suit is respecting a

violation of RCRA Subchapter III (relating to the discharge of hazard-

ous wastes). 42 U.S.C.A. § 6972(b\1\/A) (West Supp. 1989). Although

the 1984 amendment anticipates some emergency situations where

citizens should be able to go to court without giving any notice

whatsoever to halt a noncomplying activity, it is unlikely that Congress

intended by inference that Subchapter III violations include the full

range of harmful activities to which a court should respond immedi-

ately. unhindered by a jurisdictional requirement that the sixty davs

first run. Actions against government agencies to compel performance

addressing the concerns of the latter. It is this latter type of action.

actions to enjoin violative activities during the sixty-day period. which

a formalistic jurisdictional rule would preclude. regardless of the

nature of the harm threatened.

21

1. Congress Could Have Expressly Stated the No-

tice Provision as a Predicate to Jurisdiction But

Did Not. ,

The enabling provision of RCRA’s citizen suit statute, 42

U.S.C.A. § 6972(a) (West Supp. 1989), expressly provides

that the “district court shall have jurisdiction, without

regard to the amount in controversy or the citizenship of

the parties, to enforce the permit, standard, regulation,

condition, requirement, prohibition or order.” (emphasis

added). Such express jurisdictional language is in sharp

contrast to RCRA’s sixty-day notice requirement, 42

U.S.C.A. § 6972(b) (West Supp. 1989). This latter provi-

sion does not begin with the words “The court shall not

have jurisdiction unless . . .” or words of similar import.

Instead, the provision begins “No action may be com-

menced . . . .” In fact, nowhere in the notice provision or

elsewhere in the statute is federal court subject matter

jurisdiction expressly precluded if an action is commenced

prior to the expiration of the sixty-day notice period. This

omission is for good reason: the notice provision is far more

akin to an exhaustion of remedies requirement, subject to

pragmatic construction and waiver, than a jurisdiction

requirement. See National Resources Defense Council v.

Train, 510 F.2d 692, 703 (D.C. Cir. 1975) (“the courts may

properly give effect to the salutary purpose underlying the

notice provision [of the Clean Water Act] by resorting to

familiar doctrines such as those underpinning the require-

ment of exhaustion of administrative remedies.”).

2. The Sixty-Day Notice Provision is Analogous to a

Requirement that a Party First Exhaust All

Administrative Remedies Before Commencing

an Action; This Court has Consistently Held Such

Requirements to be Procedural.

RCRA’s requirement that sixty days notice be given

before commencing a citizen suit is analogous to statutory

require;..ients that a plaintiff exhaust all available adminis-

trative remedies before commencing the action. In each

22

case, Congress has required the would-be plaintiff to first

complete a specified act, designed to relieve the burden on

the court system, before he may commence the action.

This Court has consistently held exhaustion statutes to be

procedural and applied flexibly in accordance with the

court's sound equitable discretion. See, e.g., Mathews v.

Eldridge, 424 U.S. 319, 330 (1976); Weinberger v. Salfi,

422 U.S. 749, 76566 (1975). See also Kennedy v. White-

hurst, 690 F.2d 951, 961 (D.C. Cir. 1982) (“exhaustion

requirements are not jurisdictional in nature but rather are

statutory conditions precedent to the instigation of litiga-

tion”) (emphasis included). Thus, they can be waived or

held inapplicable in cases of emergency or when applica-

tion would otherwise be futile or absurd. See Coit Inde-

pendent Joint Venture v. FSLIC, No. 87-996, slip op. at 23

(Sup. Ct. March 21, 1989) (“Administrative remedies that

are inadequate need not be exhausted.”); Honig v. Doe,

484 U.S. 305 (1988) (“It is true that judicial review is

normally not available under (20 U.S.C.A.] § 1415(e)(2) [of

the Education of the Handicapped Act] until all adminis-

trative proceedings are completed, but as we have previ-

ously noted, parties may by-pass the administrative pro-

cess where exhaustion would be futile or inadequate );

Salfi, 422 U.S. at 765-66 (“further exhaustion would not

merely be futile for the applicant, but would also be a

commitment of administrative resources unsupported by

any administrative or judicial interest”); McNeese v. Board

of Education, 373 U.S. 668, 674-76 (1963) (the require-

ment that administrative remedies be exhausted does not

include the performance of clearly useless acts). Cf. Zipes

v. Trans World Airlines, Inc., 455 U.S. 385, 393-94 (1982)

(timely filing of charge of discrimination with EEOC not a

jurisdictional prerequisite to suit in federal court, but

instead is subject to waiver, estoppel, and equitable toll-

ing).

The reasoning this Court has applied to its construc-

tion of the exhaustion of ac.ninistrative remedies statutes

applies to the sixty-day notice provision at issue in this

~ ae

23

case. The kindred principles of exhaustion of remedies and

prior notice should therefore be construed harmoniously.

E. Given Congress’ Demonstrated Ability to Limit Fed-

eral Court Jurisdiction in Explicit Terms, its Nonju-

risdictional Language in the Notice Provisions Should

Not Be Converted into a Jurisdictional Barrier.

. In the past, Congress has demonstrated that when it

intends to limit federal court jurisdiction, it will do so in

express terms, such as “Except as provided in this section,

no court of the United States shall have jurisdiction .. . ,”

a limitation that this Court has consistently upheld. See

Lockerty v. Phillips, 319 U.S. 182, 18687 (1943) (upholding

grant to Emergency Court of exclusive equity jurisdiction

to restrain enforcement of price orders under Emergency

Price Control Act of 1942); Lauf v. E.G. Shinner & Co.,

303 U.S. 323, 329 (1938) (upholding the limitations in the

Norris-La Guardia Act, 29 U.S.C.A. § 107 (West 1983),

that “No court of the United States shall have jurisdiction

to issue a temporary or permanent injunction in any case

involving or growing out of a labor dispute, [except in strict

conformity with the provisions of this chapter].”); South

Carolina v. Katzenbach, 383 U.S. 301, 331-32 (1966)

(upholding limit in the Voting Rights Act of 1965 to

litigation in a single court in the District of Columbia).

Congress has also demonstrated its ability to .imit the

jurisdiction of federal courts by enacting express limita-

tions in the very statutes that concern the jurisdiction and

power of the federal courts, such as in the Tax Injunction

Act, 28 U.S.C.A. § 1341 (West 1976) (“The district court

shall not . . . .”); the Johnson Act, 28 U.S.C.A. § 1342

(West 1976) ("the district court shall not. . . .“); and the

Anti-Injunction Act, 28 U.S.C.A. § 2283 (West 1978) ("a

court of the United States may not... . .“). See, e.g.,

California v. Grace Brethren Church, 457 U.S. 393, 407,

411 (1982) (Tax Injunction Act); Atlantic Coast Line Rail-

road Co. v. Brotherhood of Locomotive E:.zineers, 398

U.S. 281, 294-95 (1970) (Anti-Injunction Act).

24

By contrast, RCRA’s notice provision contains no

jurisdictional language. It does not seek in jurisdictional

terms to limit the power of the federal courts. In the

absence of express language, this Court should not cor-

strue the notice provision to impose a jurisdictional bar-

rier, particularly when to do so would advance no statutory

purpose and create the possibility of absurd results. See

Avery v. Secretary of Health and Human Service, 762 F.2d

158, 163 (1st Cir. 1985) (“[A]bsent a clear statement to the

contrary, legislation should not ordinarily be interpreted to

oust a federal court’s equitable power, or its jurisdiction

over a pending case.” (Citing Califano v. Yamasaki, 442

U.S. 682, 705-06 (1979)]).

F. The Sixty-Day Notice Provision Should Not Be Con-

strued to Allow Polluter Defendants Standing to

Raise Technical Objections Applicable Not to Them-

selves But to Third Parties.

“{A] litigant must normally assert his own legal inter-

ests rather than those of third parties.” Phillips Petroleum

Co. v. Shutts, 472 U.S. 797, 804 (1985). See Warth v.

Seldin, 422 U.S. 490, 499 (1975) (“[T]he plaintiff generally

must assert his own legal rights and interests, and cannot

rest his claim to relief on the legal rights of third parties. ’).

This rule prevents unnecessary and premature decisions

and assures the court that the issues before it will be

concrete and sharply presented. Secretary of State of

Maryland v. ].H. Munson Co., 467 U.S. 947, 955 (1984).

This limitation can be relaxed, for example, “[wjhere

practical obstacles prevent a party from asserting rights on

behalf of itself. . . .” Id. at 956.

By contrast, in this case the Respondent County of

Tillamook, found by the district court below to be operat-

ing a landfill in violation of RCRA, is asserting the inade-

quacy of the notice not to itself but rather to the Admin-

istrator of the EPA and the Oregon Department of

Environmental Quality. The Petitioners delivered compiy -

ing notice to the County twelve months prior to the

25

commencement of the action. Petition For Writ of Certio-

rari to the United States Court of Appeals for The Ninth

Circuit, at 4. Under the jus tertii rules of Phillips and

Munson, the County has no standing to assert such an

objection unless the objection is so fundamental

jurisdictional, which is not this case. Seesenianm

Indeed, it is inconceivable that Congress intended

allow polluter defendants to raise Gants applicable de

to themselves but to federal and state enforcement agen-

cies. Upholding the County’s objection in this case thus

would contradict well-established standing limitations and

advance no statutory purpose. 3

IV.

AN INFLEXIBLE JURISDICTIONAL RULE WILL

LEAD TO THE DISRUPTION OF CONGRESS’

PURPOSE OF FOSTERING CITIZEN ENFORCE-

MENT UNDER AT LEAST EIGHTEEN OTHER

MAJOR STATUTES

Unless the Court expressly limits its holding in this

case to RCRA, its ruling is likely to be applied under at

least eighteen other major regulatory statutes, including

substantially all significant environmental statutes enacted

since 1970,'4 as well as statutes regulating such diverse

areas as energy (the Energy Policy and Conservation Act,

13. Significantly, Congress included in the citizen suit section of

RCRA and other environmental statutes a provision allowing private

citizens to “intervene as a matter of right” in any enforcement action

commenced by the government without any requirement of prior

notice to the violator. See, ¢.g., 42 U.S.C.A. § 6972(b)(2) (West Supp.

1989). It seems fundamentally inconsistent for the County to raise the

failure of the Petitioner to give notice to the Administrator of the EPA

and to the Oregon Department of Environmental Quality as a barrier

to jurisdiction when if either had actually commenced enforcement

proceedings against the County, the Petitioners could have intervened

without giving any notice whatsoever to the County.

14. See discussion supra at 5.

the Natural Gas Pipeline Safety Act and the Ocean Ther-

mal Energy Conservation Act), consumer safety (the Con-

sumer Product Safety Act) and civil defense (the Emer-

tive enforcement of these statutes. '®

Amici respectfully request further that this Court be

cognizant of the potential impact its ruling likely will have

on the future viability of citizen suits to prevent environ-

mental harms.

A. The Endangered Species Act Affords a Striking Ex-

ample of the Absurd and Harsh Results of a Formal-

istic Jurisdictional Rule.

Of all the notice of the environmental

statutes that could be affected by a ruling in this case, the

Endangered Species Act presents perhaps the most com-

pelling argument against a jurisdictional reading of

citizen suit notice provision. A formalistic jurisdictional

rule would not only defeat Congress’ express findings and

declarations of purposes and policy, it could allow an

endangered species to become extinct during the time that

the federal courts were deprived of subject matter juris-

15. The citations to, and relevant portions of the citizen suit and

notice provisions of, these statutes are reprinted alphabetically for the

dent. Private citizens, whose aid Congress sought to enlist to protect

the environment, should not be burdened with the task of persuading

Congress to remove a jurisdictional barrier that the statutory language

and purpose do not require and that will frustrate Congress effort to

obtain effective enforcement.

ow -- =

~— ae

ee

27

1. The Statutory Framework of the Endangered

Species Act.

In Tennessee Vi

alley Authority v. Hill, 437 U.S. 153,

In order to accomplish the stated objectives of the

Endangered Species Act, Congress set forth various pro-

cedures for the listing of threatened and endangered

species, the designation of critical habitat, and the devel-

opment of recovery plans. 16 U.S.C.A. § 1533 (West 1985

& Supp. 1989). Once a species is listed by the Secretary of

the Interior or the Secretary of Commerce, the species is

expressly protected by the provisions of the Act or regula-

tions promulgated thereunder. Section 9, 16 U.S.C.A.

§ 1538 (West 1985 & Supp. 1989), contains a list of acts

prohibited by Congress in order to preserve and protect

endangered species. Section 9 makes it unlawful for anv

person to “take” an endangered species of fish or wildlife. '*

The prohibitions against taking apply to “any person

subject to the jurisdiction of the United States,” 16

U.S.C.A. § 1538(a)(1) (West 1985), which includes virtually

17. Congress defined “conserve” for the purposes of the Endan-

gered Species Act to mean the “use of all methods and procedures

which are necessary to bring any endangered species or threatened

species to the point at which the measures. . . . [of the Endangered

oo 16 U.S.C.A. § 1532/3) (West

18. Congress defined “take” broadly, 16 U.S.C.A. § 1532/19)

(West 1985), to include “harm,” which the Secretary of the Interior has

defined as “an act which actually kills or injures wildlife... [including]

significant habitat modification or degradation where it actually kills or

including breeding, feeding or sheltering.” 50 C.F. R. § 17.3.

7“

28

any private individual or association, state or local govern-

mental agency and any federal government officer, depart-

ment or agency. 16 U.S.C.A. § 1532(13) (West 1985).

Congress also required that each federal agency en-

sure that any action authorized, funded, or carried out by

such agency is not likely to jeopardize the continued

existence of any federally listed species or adversely affect

critical habitat for any listed species. 16 U.S.C.A.

§ 1536(a\2) (West 1985). It established a consultation

consult with the Secretary of the Interior or the Secretary

of Commerce concerning the effect of that action. 16

U.S.C.A. §$§ 1536(a), 1536(b) (West 1985). Given the con-

sultation process, the United States Fish and Wildlife

Service plays a key enforcement role. It frequently renders

a biological opinion concerning the impacts of a proposed

project on a federally listed species. Because of the close

working relationship between the United States Fish and

Wildlife Service and other federal land management agen-

cies such as the United States Forest Service and the

Bureau of Land Management, the Secretary of the Interior

rarely sues a sister agency to enforce the statute. Accord-

ingly, when a federal agency is the potential defendant, the

burden of enforcement falls primarily on concemed and

willing citizens and their organizations.

2. The Citizen Suit Provision of the Endangered

Species Act.

Three types of citizen suits may be brought to enforce

the Endangered Species Act: (a) actions to enjoin any

person, including the United States, who is alleged to be in

violation of the Act or its implementing regulations, 16

U.S.C.A. § 1540(g)(1)(A) (West 1985), (b) actions to compel

the Secretary of the Interior or the Secretary of Commerce

to apply the prohibitions of the Act during the transition

period immediately following the passage of the Act, 16

U.S.C.A. § 1540(g)(1)(B) (West 1985), and (c) actions to

i ee

compel tae Secretary of the Interior or the Secretary of

Commerce to perform a non-discretionary duty listed in

section 4 of the Act (relating to the listing of threatened and

endangered species, designation of critical habitat, devel-

opment of recovery plans, and promulgation of implement-

ing regulations), 16 U.S.C.A. § 1540(g\1\(C) (West 19835).

The overwhelming majority of citizen actions are injunc-

tion actions of the first type. '*

Bae © Eeseatiel Under the Radangeed Species

Froehike, 534 F.2d 1289, 1303 (8th Cir. 1976): Sierra

614 F Supp. 488, 492 (D. D.C. 1985) (Fish and Wildlife Service and

400 F.Supp. 705, 710 (S.D. Miss. 1975), rev'd on other grounds, 529

F.2d 359, reh'g denied, 532 F.2d 1375, cert. denied, 429 U.S. ro

(1976). Contra Save the Yaak Comm. v. Block, 840 F 2d 714, 721 (9th

Cir. 1988); Maine Audubon Society v. Purslow, 672 F. Sunn. 328. 331

(D. Maine 1987).

Tn

30

Often, when a federal agency is the recipient of an

Endangered Species Act notice, the Secretary and the

action agency will indicate that they have no intention of

modifying their conduct. See, e.g., Sierra Club v. Block,

614 F.Supp. 488, 492 (D. D.C. 1985). In these circum-

stances, a formalistic jurisdictional rule would deprive the

from the requisite form of notice is acceptable. ‘For exam-

ple, in a recent Ninth Circuit opinion, the court held that

purported sixty-day notice letters “were not sent to the

correct person, the secretary,” Save the Yaak Comm. v.

Block, 840 F.2d 714, 721 (9th Cir. 1988), despite the fact

that the letters were sent to the representatives of the

Secretary of the Interior most involved in the contested

decision, the Regional Director of the United States Fish

and Wildlife Service and the Supervisor of the National

Forest. This jurisdictional approach elevates form over

substance and vitiates the clear directives of Congress

reflected in the Endangered Species Act.

CONCLUSION

Congress encourages and empowers citizens to aug-

ment government enforcement of environmental statutes.

Its nocice requirement should be construed pragmatically

and in harmony with this purpose, not as a formalistic

jurisdictional barrier. For the reasons set forth in this brief

on behalf of amici curiae, the judgment of the court of

appeals should be reversed with directions to allow the

appeal to proceed on the merits.

Respectfully submitted,

MICHAEL TRAYNOR* DOUGLAS L. HONNOLD

PETER H. CARSON SIERRA CLUB LEGAL

| MICHAEL S. SHACHAT DEFENSE FUND

COOLEY GODWARD CASTRO _ 1600 Broadway, Suite 1600

| HUDDLESON & TATUM Denver, Colorado 80202

One Maritime Plaza, 20th Floor = Telephone: (303) 863-9878

San Francisco, California 94111

Telephone: (415) 981-5252

Attorneys for Sierra Club,

A

!

i

|

natural resources. In furtherance of these purposes, and of

pr relentise s-opne pee tlhe Bae Smmeoemand

a Se

— —-_ —-— - —>

1989)

(“ESA”), the Clean Air Act Amendments of 1970, 42

iiscgatlesee tet

53

ederal

1-1375

,. 488 (D.D.

orp., 636

1289 (9th

v. Volpe, 40

S. 7

the F

$§ 125

Act”)

Supp.

urnace C

F.2d

actively

litigation,

Overton Park

P

(1971), and Sierra Club v. Morton, 405 U.S. 7

to

16 U.S.C.A. §$§ 1531-1543 (West 1985 & Supp.

itizens

Tetisdal

App-l

App-2

2. Defenders of Wildlife is a not-for-profit organiza-

tion of over 65,000 members across the nation and overseas

with its principal offices in Washington, D.C. where it was

as Defenders of Furbearers in 1947. Its board

is elected by the membership. It is dedicated to preserving

wildlife and promoting humane treatment of wild animals,

emphasizing appreciation and protection for all species in

their ecological role within the natural environment. It

pursues this purpose through research, education, litiga-

tion and legislation, within the limits of 501(c\(3) of the

Internal Revenue Code. One its major program areas is the

effort to reduce environmental hazards to wildlife includ-

ing pesticides, oil and hazardous substances. On April 15.

for example, Defenders, along with several other organi-

zations, notified the Exxon Shipping Company of its intent

to sue under RCRA in order to require expeditious action

to protect wildlife from the spill from the Exxon Valdez.

This situation may well require litigation in less than sixty

days from the date of the accident in order to fulfill the

purposes of that Act.

3. The National Audubon Society (Audubon) is a

non-profit, national membership organization dedicated to

the protection of the environment and wildlife, and to the

conservation of natural resources. Incorporated under the

laws of New York State, Audubon maintains its principal

place of business at 950 Third Avenue, New York, New

York 10022 and has offices in various other cities nation-

wide. Audubon has more than 550,000 members affiliated

with over 500 chapters located throughout the United

States and in several foreign countries. Audubon members

and staff engage in a broad range of scientific studies,

research projects and conservation education programs

aimed at improving the understanding and appreciation of

trol, and other environmental concerns. Audubon has

administrative acticrs to ensure effective implementation

of the laws designed to protect human health and the

_ 7 eee ee ee

environment, including RCRA, ESA, the Clean Air Act

Amendments and the Clean Water Act.

4. The Natural Resources Defense Council, Inc.

(NRDC) is a non-profit environmental membership orga-

nization incorporated under the laws of the State of New

York. NRDC’s principal office is located at 40 West 20th

Street, New York, New York 10011, and also has offices in

Washington, D.C. and San Francisco, California. NRDC

has over 91,000 members nationwide and is dedicated to

the defense and preservation of the human environment

and the natural resources of the United States. NRDC’s

purposes include the monitoring and participating in fed-

eral agency decisionmaking to ensure that federal statutes

enacted to protect the environment are fully implemented.

Since its inception in 1970, NRDC has instituted or

participated in numerous citizen suits to enforce compli-

ance with the provisions of RCRA, ESA, The Clean Air Act

Amendments, the Clean Water Act and other significant

environmental statutes, including, for example, Natural

Resources Defense Council v. Callaway, 524 F.2d 79 (2d

Cir. 1975) and Natural Resources Defense Council v.

Train, 510 F.2d 692 (D.C. Cir. 1975). NRDC has played a

leading role in insuring that state and federal governments

apply federal laws governing the management of toxic

wastes. See, e.g., Hazardous Waste Treatment Council et

al. v. United States Environmenta! Protection Agency, Civ.

No. 86-1658 (D.C. Cir. Oct. 7, 1988).

5. The Wilderness Society (TWS) is a national non-

profit citizens organization with more than 225,000 mem-

bers nationwide. Headquartered in Washington D.C.,

TWS is dedicated to the preservation of wilderness and to

the proper management of publicly-owned lands. TWS has

participated extensively in administrative and judicial ac-

tions, including citizen suits, to enforce compliance with

the provisions of ESA, the Clean Air Act, the Clean Water

Act and other major environmental statutes.

App-+

APPENDIX B

STATUTES INVOLVED

I. Act to Prevent Pollution From Ships, 33 U.S.C.A.

§§ 1901-1912 (West 1986 & Supp. 1989).

33 U.S.C.A. § 1910 Legal Actions

(a) Persons with adversely affected interests as plain-

tiffs; defendants

Except as provided in subsection (b) of this section,

any person having an interest which is, or can be, ad-

versely affected, may bring an action on his own behalf—

(1) against any person alleged to be in violation of

the provisions of this chapter, or regulations issued

hereunder;

(2) against the Secretary where there is alleged a

failure of the Secretary to perform any act or duty

under this chapter which is not discretionary with the

Secretary;

(3) against the Secretary of the Treasury where

there is alleged a failure of the Secretary of the

Treasury to take action under section 1908(3) of this

title.

(b) Commencement conditions

No action may be commenced under subsection (a) of

this section—

(1) prior to 60 days after the plaintiff has given

notice, in writing and under oath, to the alleged

violator, the Secretary concerned, and the Attornev

General; or

(2) if the Secretary has commenced enforcement

or penalty action with respect to the alleged violation

and is conducting such procedures diligently.

(Pub. L. 96-478, § 11, Oct. 21, 1980, 94 Stat. 2302)

App-5

Il. Clean Air Act Amendments of 1970, 42 U.S.C.A.

$$ 7401-7642 (West 1983 & Supp. 1989)

42 U.S.C.§§ 7401 Congressional Findings and Declara-

tion of Purpose

(a) The Congress finds

(1) that the predominant part of the Nation's

population is located in its rapidly expanding metro-

politan and other urban areas, which generally cross

the boundary lines of local jurisdictions and often

extend into two or more States;

(2) that the growth in the amount and complexity

of air pollution brought about by urbanization, indus-

trial development, and the increasing use of motor

vehicles, has resulted in mounting dangers to the

public health and welfare, including injury to agricul-

tural crops and livestock, damage to and the deterio-

ration of property, and hazards to air and ground

transportation;

(3) that the prevention and control of air pollution

at its source is the primary responsibility of States and

local governments; and

(4) that Federal financial assistance and leader-

ship is essential for the development of cooperative

Federal, State, regional, and local programs to prevent

and control air pollution.

(b) The purposes of this subchapter are—

(1) to protect and enhance the quelity of the

Nation's air resources so as to promote the public

health and welfare and the productive capacity of its

population;

(2) to initiate and accelerate a national research

and development program to achieve the prevention

and control of air pollution;

———

App-6

(3) to provide technical and financial assistance to

State and local governments in connection with the

development and execution of their air pollution pre-

vention and control programs; and

(4) to encourage and assist the “=velopment and

operation of regional air pollution control programs.

(July 4, 1955, c. 360, Title I, § 101, formerly § 1, as

added Dec. 17, 1963, Pub. L. 88-206, § 1, 77 Stat. 392,

and renumbered and amended Oct. 20, 1965, Pub. L.

89-272, Title I, § 101(2), (3), 79 Stat. 992; Nov. 21,

1967, Pub. L. 90-148, § 2, 81 Stat. 485)

42 U.S.C.A. § 7604 Citizen Suits

(a) Authority to bring civil action; jurisdiction

Except as provided in subsection (b) of this section,

any person may commence a civil action on his own

behalf—

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

States, and (ii) any other governmental instrumentality

or agency to the extent permitted by the Eleventh

Amendment to the Constitution) who is alleged to be

in violation of (A) an emission standard or limitation

under this chapter or (B) an order issued by the

Administrator or a State with respect to such a stan-

dard or limitation,

(2) against the Administrator where there is al-

leged a failure of the Administrator to perform any act

or duty under this chapter which is not discretionary

with the Administrator, or

(3) against any person who proposes to construct

or constructs any new or modified major emitting

facility without a permit required under part C of

subchapter I of this chapter (relating to significant

deterioration of air quality) or part D of subchapter I of

App-7

this chapter (relating to nonattainment) or who is

alleged to be in violation of any condition of such

permit.

The district courts sha!! have jurisdiction, without

regard to the amount in controversy or the citizenship of

the parties, to enforce such an emission standard or

limitation, or such an order, or to order the Administrator

to perform such act or duty, as the case may be.

(b) Notice

No action may be commenced

(1) under subsection (a)(1) of this section—

(A) prior to 60 days after the plaintiff has

given notice of the violation (i) to the Administra-

tor, (ii) to the State in which the violation occurs,

and (iii) to any alleged violator of the standard,

limitation, or order, or

(B) if the Administrator or State has com-

menced and is diligently prosecuting a civil action

in a court of the United States or a State tu require

compliance with the standard, limitation, or or-

der, but in any such action in a court of the United

States any person may intervene as a matter of

right. .

(2) under subsection (a)(2) of this section prior to

60 days after the plaintiff has given notice of such

action to the Administrator,

except that such action may be brought immediately after

such notification in the case of an action under this section

respecting a violation of section 7412(c)(1)(B) of this title or

an order issued by the Administrator pursuant to section

7413(a) of this title. Notice under this subsection shall be

given in such manner as the Administrator shall prescribe

by regulation.

App-5

(c) Venue; Interveation by Administrator

(1) Any action respecting a violation by a station-

ary source of an emission standard or limitation or an

order respecting such standard or limitation may be

brought only in the judicial district in which such

source is ’

(2) In such action under this section, the Admin-

istrator, if not a party, may intervene as a matter of

witness fees) to any party, whenever the court

determines such award is appropriate. The court may, if a

temporary restraining order or preliminary injunction is

sought, require the filing of a bond or equivalent security

in accordance with the Federal Rules of Civil Procedure.

-(e) Nonrestriction of other rights

Nothing in this section shall restrict any right which

any person (or class of persons) may have under any statute

or common law to seek enforcement of any emission

standard or limitation or to seek any other relief (including

relief against the Administrator or a State agency). Nothing

in this section or in any other law of the United States shall

be construed to prohibit, exclude, or restrict any State,

local, or interstate authority from—

(1) bringing any enforcement action or obtaining

any judicial remedy or sanction in any State or local

court, or

(2) bringing any administrative enforcement ac-

tion or obtaining any administrative remedy or sanc-

tion in any State or local administrative agency, de-

partment or instrumentality,

against the United States, any department, agency, or

instrumentality thereof, or any officer, agent, or emplovee

App-9

(1) a schedule or timetable of compliance is-

ston Menfiction, standard of performance or emission

(2) a control or prohibition respectin motor

vehicle fuel or fuel additive, or as

(3) any condition or requirement of a permit

under part C of subchapter I of this chapter (relating to

nonattainment), any condition or requirement of sec-

tion 7413(d) of this title (relating to primary nonferrous

smelter orders), any condition or requirement under

an applicable implementation plan relating to trans-

portation control measures, air quality maintenance

programs or vapor recovery requirements, section

75453) and (f) of this title (relating to fuels and fuel

additives), section 7491 of this title (relating to visibil-

ity protection), any condition or requirement under

part B of subchapter I of this chapter (relating to ozone

protection), or any requirement under section 7411 or

7412 of this title (without regard to whether such

requirement is expressed as an emission standard or

otherwise).

which is in effect under this chapter (including a uire-

mont cggthalite ty conten of section 7008 of this wie) ox

under an applicable implementation plan.

(July 14, 1955, c. 360, Title III, § 304, as added Dec.

31, 1970, Pub.L. 91-604, § 12(a), 84 Stat. 1706, and

amended Aug. 7, 1977, Pub.L. 95-95, Title III, § 303

App-10

(a)-(c), 91 Stat. 771-772; Nov. 16, 1977, Pub. L. 95-190,

§ 14(aX(77), (78), 91 Stat. 1404)

Ill. Comprehensive Environmental Response, Compen-

sation and Liability Act, 42 U.S.C.A. §§ 9601-9675

(West 1983 & Supp. 1989).

42 U.S.C.A. § 9659 Citizen Suits

(a) Authority to bring civil actions

Except as provided in subsections (d) and (e) of this

section and in section 9613(h) of this title (relating to timing

of judicial review), any person may commence a civil action

agency, to the extent permitted by the eleventh

amendment to the Constitution) who is alleged to be in

violation of any standard, regulation, condition, re-

quirement, or order which has become effective pur-

suant to this chapter (including any provision of an

agreement under section 9620 of this title, relating to

Federal facilities); or

(2) against the President or any other officer of the

United States (including the Administrator of the

Environmental Protection 4gency and the Administra-

tor of the ATSDR) where there is alleged a failure of

the President or of such other officer to perform any

act or duty under this chapter, including an act or duty

under section 9620 of this title (relating to Federal

facilities), which is not discretionary with the Presi-

dent or such other officer.

Paragraph (2) shall not apply to any act or duty under the

provisions of section 9660 of this title (relating to research.

development and demonstration).

App-11

(b) Venue

(1) Actions under subsection (a)(1)

Any action under subsection (a)(1) of this section —

shall be brought in the district court for the district in

which the alleged violation occurred.

(2) Actions under subsection (a)(2)

Any action brought under subsection (a)(2) of this

section may be brought in the United States District

Court for the District of Columbia.

(d) Rules applicable to subsection (a)(1) actions

(1) Notice

No action may be commenced under subsection

(aX1) of this section before 60 days after the plaintiff

en EE SEs eee aah Pe Eee

(A) The President.

(B) The State in which the alleged violation

occurs

(C) Any alleged violator of the standard, reg-

ulation, condition, requirement, or order con-

cerned (including any provision of an agreement

under section 9620 of this title).

No action may be commenced under paragraph (1)

< epee 02 SS exten Ce President has

commenced is diligently prosecuting an action

perry ya Pepin, trmnenbegercetatn

S.C.A. § 6901 et seq .| to require compliance

with the standard, regulation, condition, requirement,

or order concerned (including any provision of an

agreement under section 9620 of this title).

App-12

(e) Rules applicable to subsection (a)(2) actions

No action may be commenced under paragraph (2)

of subsection (a) of this section before the 60th day

following the date on which the plaintiff gives notice to

the Administrator or other department, agency, or

instrumentality that the plaintiff will commence such

action. Notice under this subsection shall be given in

such manner as the President shall prescribe by

regulation.

(Pub.L. 96-510, Title III, § 310, as added Pub.L.

99-499, Title II, § 206, Oct. 17, 1986, 100 Stat. 1703)

Consumer Product Safety Act, 15 U.S.C.A. §§ 2051-

2083 (West 1982 & Supp. 1989).

15 U.S.C.A. § 2073 Private Enforcement

Any interested person (including any individual or

2

by the United States under this chapter. In any action

under this section the court may in the interest of justice

award the costs of suit, including reasonable attorneys fees

(determined in accordance with section 2060(f) of this title)

and reasonable expert witnesses fees.

Ll LL La. aaa a SS =

App-13

L. 92-573, § 24, Oct. 27, 1972, 86 Stat. 1226,

Pub.L. 94-284, § 10(d), May 11, 1976, 90 Stat. 507;

Pub.L. 97-35, Title XII, § 1211(a), (hYX(3X(C), Aug. 13,

1981, 95 Stat. 721, 723)

V. Deepwater Port Act, 33 U.S.C.A. §§ 1501-1524 (West

1986 & Supp. 1989).

33 U.S.C.A. § 1501 Congressional Declaration of Policy

(a) It is declared to be the purposes of the Congress in

this chapter to—

(1) authorize and regulate the location, owner-

ship, construction, and operation of deepwater ports in

waters beyond the territorial limits of the United

States;

(2) provide for the protection of the marine and

coastal environment to prevent or minimize any ad-

verse impact which might occur as a consequence of

the development of such ports;

(3) protect the interests of the United States and

those of adjacent coastal States in the location, con-

struction, and operation of deepwater ports; and

(4) protect the rights and responsibilities of States

and communities to regulate growth, determine land

use, and otherwise protect the environment in accor-

dance with law.

(b) The Congress declares that nothing in this chapter

shall be construed to affect the legal status of the high seas,

the superjacent airspace, or the seabed and subsoil, includ-

ing the Continental Shelf.

(Pub. L. 93-627, § 2, Jan. 3, 1975, 88 Stat. 2126)

App-l4

33 U.S.C.A. § 1515 Citizen Civil Action >

(a) Equitable relief, case or controversy; district court

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

any person may commence a civil action for equitable relief

on his own behalf, whenever such action constitutes a case

or controversy—

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

States, and (B) any other governmental instrumental-

ity or agency to the extent permitted by the eleventh

amendment to the Constitution) who is alleged to be in

violation of any provision of this chapter or any condi-

tion of a license issued pursuant to this chapter, or

(2) against the Secretary where there is alleged a

failure of the Secretary to perform any act or duty

under this chapter which is not discretionary with the

Secretary. Any action brought against the Secretary

under this paragraph shall be brought in the district

court for the District of Columbia or the district of the

In suits brought under this chapter, the district court

shall have jurisdiction, eo

troversy or the citizenship parties, to enforce any

pe of this chapter or any condition of a license issued

pursuant to this chapter, or to order the Secretary to

perform such act or duty, as the case may be.

(b) Notice; Intervention of right by person

No civil action may be commenced—

(1) under subsection (a1) of this section—

(A) prior to 60 days after the plaintiff has

given notice of the violation (i) to the Secretary

and (ii) to any alleged violator; or

(B) if the Secretary or the Attorney General

has commenced and is diligently prosecuting a

App-15

civil or criminal action with respect to such mat-

ters in a court of the United States, but in any such

action any person may intervene as a matter of

right; or

(2) under subsection (a)(2) of this section prior to

60 days after the plaintiff has given notice of such

action to the Secretary.

Notice under this subsection shall be given in such a

manner as the Secretary shall prescribe by regulation.

(Pub. L. 93-627, § 16, Jan 3, 1975, 88 Stat. 2140)

VI. Deep Seabed Hard Mineral Resources Act, 30

U.S.C.A. §§ 1401-1473 (West 1986 & Supp. 1989).

30 U.S.C.A. § 1427 Civil Actions

(a) Equitable relief

Except as provided in subsection (b) of this section,

any person may commence a civil action for equitable relief

on that person's behalf in the United States District Court

for the District of Columbia—

(1) against any person who is alleged to be in

violation of any provision of this chapter or any condi-

tion of a license or permit issued under this sub-

chapter; or

(2) against the Administrator when there is al-

leged a failure of the Administrator to perform any act

or duty under this chapter which is not discretionary,

if the person bringing the action has a valid legal interest

which is or may be adversely affected by such alleged

violation or failure to perform. In suits brought under this

subsection, the district court shall have jurisdiction, with-

out regard to the amount in controversy or the citizenship

of the parties, to enforce the provisions of the chapter. or

any term. condition, or restriction of a license or permit

issued under this subchapter. or to order the Administrator

(A) prior to 60 days after the plaintiff has

given notice of the alleged violation to the Admin-

istrator and to any alleged violator; or

(B) if the Administrator or the Attorney Gen-

Notice under this subsection shall be given in such a

(Pub. L. 96-283, Title I, $117, June 28, 1960, 94 Stat.

573)

Know Act, 42 U.S.C.A. §§ 11001-11050 (West Supp.

1989).

42 U.S.C.A. § 11046 Civil Actions

(a) Authority to bring civil actions

(1) Citizen suits—Except as provided in subsec-

tion (e) of this section, any person may commence a

civil action on his own behalf against the following.

(A) An owner or operator of « facility for

failure to do any of the following:

App-17

(i) Submit a followup emergency notice

under section 11004(c) of this title.

(ii) Submit a material safety data sheet or a

list under section ] 1021(a) of this title.

(iii) Complete and submit an inventory

form under section 11022(a) of this title con-

taining tier I information as described in sec-

tion 11022(d)(1) of this title unless such re-

quirement does not apply by reason of the

Sree © antes 11022(a)(2) of this

(iv) Complete and submit a toxic chemical

release form under section 11023(a) of this title.

(B) The Administrator for failure to do any of

the following:

(i) Publish inventory forms under section

11022(g) of this title.

(ii) Respond to a petition to add or delete a

chemical under section 11023(e)(1) of this title

within 180 days after receipt of the petition.

(iii) Publish a toxic chemical release form

under section 11023(g) of this title.

(iv) Establish a computer database in ac-

cordance with section 11023(j) of this title.

(v) Promulgate trade secret regulations un-

der section 11042(c) of this title.

(vi) Render a decision in response to a

petition under section 11042‘d) of this title

within 9 months after receipt of the petition.

(d) Notice

(1) No action may be commenced under subsec-

tion (a)(1)(A) of this section prior to 60 days after the

plaintiff has given notice of the alleged violation to the

(2) No action may be commenced under subsec-

tion (a)(1)(B) of this section or (a)(1)(C) of this section

prior to 60 days after the date on which the plaintiff

gives notice to the Administrator, State Governor, or

State emergency response commission (as the case

may be) that the plaintiff will commence the action.

Notice under this paragraph shall be given in such

manner as the Administrator shall prescribe by regu-

lation.

(Pub.L. 99-499, Title III, § 326, Oct. 17, 1986, 100

Stat. 1755)

VIII. Endangered Species Act, 16 U.S.C.A. §§ 1532-1543

(West 1985 & Supp. 1989).

16 U.S.C.A. § 1531 Congressional Findings and Decla-

rations of Purposes and Policy

(a) Findings

That Congress finds and declares that—

(1) various species of fish, wildlife, and plants in

the United States have been rendered extinct as a

consequence of economic growth and development

untempered by adequate concern and conservation;

(2) other species of fish, wildlife, and plants have

been so depleted in numbers that they are in danger of

or threatened with extinction;

(3) these species of fish, wildlife, and plants are of

esthetic, ecological, educational, historical, recre-

ational, and scientific value to the Nation and its

people;

App-19

(4) the United States has pledged itself as a sov-

ereign state in the international community to con-

serve to the extent practicable the various species of

Se ey Sas Geaen, pursuant

(A) migratory bird treaties with Canada and

Mexico;

(B) the Migratory and Endangered Bird

Treaty with Japan;

(C) the Convention on Nature Protection and

Wildlife Preservation in the Western Hemi-

sphere;

(D) the International Convention for the

Northwest Atlantic Fisheries;

(E) the International Convention for the

High Seas Fisheries of the North Pacific Ocean;

(F) the Convention on International Trade in

Endangered Species of Wild Fauna and Flora; and

(G) other international agreements; and

(5) encouraging the States and other interested

parties, through Federal financial assistance and a

system of incentives, to develop and maintain conser-

vation programs which meet national and international

standards is a key to meeting the Nation's international

commitments and to better safeguarding, for the ben-

efit of all citizens, the Nation's heritage in fish, wild-

life, and plants.

(b) Purposes

The purposes of this chapter are to provide a means

whereby the ecosystems upon which endangered species

and threatened species depend may be conserved, to

provide a program for the conservation of such endangered

species and threatened species, and to take such steps as

may be appropriate to achieve the purposes of the treaties

and conventions set forth in subsection (a) of this section.

ie ea “ ia

ee latina a i a i a i =

App-20

(c) Policy

(1) It is further declared to be the policy of

Congress that all Federal departments and agencies

shall seek to conserve endangered species and threat-

ened species and shall utilize their authorities in

furtherance of the purposes of this chapter.

(2) It is further declared to be the policy of

Congress that Federal agencies shall cooperate with

State and local agencies to resolve water resource

issues in ccncert with conservation of endangered

species. .

(Pub.L. 93-205, § 2, Dec. 28, 1973, 87 Stat. 884;

Pub.L. 96-159, § 1, Dec. 28, 1979, 93 Stat. 1225;

Pub. L. 97-304, § 9(a), Oct. 13, 1982, 96 Stat. 1426; as

amended Pub.L. 100-478, Title II, § 1013(a), Oct. 7,

1988, 102 Stat. 2315.)

16 U.S.C.A. § 1540 Penalties and Enforcement

(g) Citizen suits

(1) Except as provided in paragraph (2) of this

subsection any person may commence a civil suit on

his own behalf—

(A) to enjoin any person, including the

United States and any other governmental instru-

mentality or agency (to the extent permitted by

the eleventh amendment to the Constitution),

who is alleged to be in violation of any provision of

this chapter or regulation issued under the author-

ity thereof; or

(B) to compel the Secretary to apply, pursu-

ant to section 1535(g)(2)(B)(ii) of this title, the

prohibitions set forth in or authorized pursuant to

section 1533(d) or 1538(a)(1)(B) of this title with

respect to the taking of any resident endangered

species or threatened species within any State; or

App-21

(C) against the Secretary where there is al-

leged a failure of the Secretary to perform any act

or duty under section 1533 of this title which is not

discretionary with the Secretary.

The district courts shall have jurisdiction, without

regard to the amount in controversy or the citizenship

of the parties, to enforce any such provision or regu-

lation, or to order the Secretary to perform such act or

duty, as the case may be. In any civil suit commenced

under subparagraph (B) the district court shall compel

the Secretary to apply the prohibition sought if the

court finds that the allegation that an emergency exists

is supported by substantial evidence.

(2) (A) No action may be commenced under sub-

paragraph (1)(A) of this section—

(i) prior to sixty days after written notice of

the violation has been given to the Secretary, and

to any alleged violator of any such provision or

regulation;

(ii) if the Secretary has commenced action to

impose a penalty pursuant to subsection (a) of this

section; or

(iii) if the United States has commenced and

is diligently prosecuting a criminal action in a

court of the United States or a State to redress a

violation of any such provision or regulation.

(B) No action may be commenced under sub-

paragraph (1)(B) of this section—

(i) prior to sixty days after written notice

has been given to the Secretary setting forth

the reasons why an emergency is thought to

exist with respect to an endangered species or

a threatened species in the State concerned; or

(ii) if the Secretary has commenced and is

diligently prosecuting action under section

=

App-22 App-23

as amended Pub.L. 100-478, Title I, § 1007, Oct. 7

we eee this <4 to eee 1988, 102 Stat. 2309.) 7,

(C) No action may be commenced under sub- IX. Energy Policy and Conservation Act, 42 U.S.C.A.

renin dy eure! ap ay Amal _ §§ 6201-6422 (West 1983 & Supp. 1989).

written notice been given to Secre- 42 U.S.C.A. ongressional Statement

tary; except that such action may be brought The eos. ¢ of Purpose

immediately after such notification in the case of purposes of this chapter are—

an action under this section respecting an emer- (1) to grant specific authority to the President,

gency posing a significant risk to the well-being of subject to congressional review, to impose rationing,

(3) (A) Any suit under this subsection may be

brought in the judicial district in which the violation obligations of the United States under the interna-

occurs. tional energy progre.m;

: eae (2) to provide for the creation of

(B) In any such suit under this subsection in a Strategic Pe-

which the United States is not a party, the Attor- troleum Reserve capable of reducing the impact of

ney General, at the request of the Secretary, may severe energy supply interruptions;

intervene on behalf of the United States as a (3) to increase the supply of fossil fuels in the

matter of right. United States, through price incentives and produc-

tion requirements;

(4) The court, in issuing any final order in any suit

brought pursuant to paragraph (1) of this subsection.

may award costs of litigation (including reasonable conservation programs, and, where necessary, the

attorney and expert witness fees) to any party, when- regulation of certain energy uses;

ever the court determines such award is appropriate. (5) to provide for improved energy efficiency of

(5) The injunctive relief provided by this subsec- motor vehicles, major appliances, and certain other

tion shall not restrict any right which any person (or consumer products,

class of persons) may have under any statute or (6) to reduce the demand for petroleum products

common law to seek enforcement of any standard or and natural gas through programs designed to provide

limitation or to seek any other relief (including reliet greater availability and use of this Nation's abundant

against the Secretary or a State agency). coal resources; and

Sh aie (7) to provide a means for verification of energy

(Pub.L. 93-205, § 11, Dec. 28, 1973, 87 Stat. 897; data to assure the reliability of energy data.

Pub. L. 94-359, § 4, July 12, 1976, 90 Stat. 913; Pub. L. (Pub. L. 94-163, § 2. Dec. 22. 1975, 89 Stat. 874.)

95-632, §§ 6-8, Nov. 10, 1978, 92 Stat. 3761, 3762;

Pub. L. 97-79, § Se), Nov. 16, 1981, 95 Stat. 1079;

Pub. L. 97-304, §§ 7, Sc), Oct. 13, 1982, 96 Stat. 1425,

1427; Pub. L. 98-327, § 4, June 25, 1984, 95 Stat. 271

App-24

42 U.S.C.A. § 6305 Citizen Suits

(a) Civil actions; jurisdiction

Except as otherwise provided in subsection (b) of this

section, any person may coummence a civil action against—

(1) amy manafacturer or private labeler who is

alleged to be in violation of any provision of this part or

any rule under this part;

(2) any Federal agency which has a responsibility

under this part where there is an alleged failure of such

(3) the Secretary in any case in which there is an

alleged failure of the Secretary to comply with a

nondiscretionary duty to issue a proposed or final rule

according to the schedules set forth in section 6295 of

this title; and

The United States district courts shall have jurisdiction,

without regard to the amount in controversy or the citi-

zenship of the parties, to enforce such provision or rule, or

(1) under subsection (a1) of this section—

(A) prior to 60 days after the date on which

the plaintiff has given notice of the violation (i) to

the Secretary, (ii) to the Commiesion, and (iii) to

any alleged violator of such provision or rule; or

App-25

(B) if the Commission has commenced and is

(2) under subsection (a)(2) of this section prior to

60 days after the date on which the plaintiff has given

notice of such action to the Secretary and Commission.

Notice under this subsection shall be given in such

manner as the Commission shall prescribe by rule.

(Pub.L. 94-163, Title Ill, § 335, Dec. 22,

Stat. 930; Pub.L. 95-619, Title IV, § 425(f), Title VI.

§ 691(b\(2), Nov. 9, 1978, 92 Stat. 3266, 3288, Pub. L.

100 12, $§ 8, 11(b), Mar. 17, 1987, 101 Stat. 122, 126)

X. Federal Water Pollution Control Act, 33 U.S.C.A.

§§ 1251-1387 (West 1986 & Supp. 1989)

33 U.S.C.A. § 1251 Congressional Declaration of Goals

and Purpose

(a) Restoration and maintenance of chemical, physical

and biological integrity of Nation's waters; national goals

for achievement of objective

The objective of this chapter is to restore and maintain

the chemical, physical, and biological integrity of the

Nation's waters. In order to achieve this objective it is

hereby declared that, consistent with the provisions of this

chapter

(1) it is the national goal that the discharge of

pollutants into the navigable waters be eliminated by

1985;

(2) it is the national goal that wherever attainable.

an interim goal of water quality which provides for the

App-26

protection and propagation of fish, shellfish, and wild-

life and provides for recreation in and on the water be

achieved by July 1, 1983;

(3) it is the national policy that the discharge

toxic pollutants in toxic amounts be prohibited,

(4) it is the national policy that Federal financial

assistance be provided to construct publicly owned

waste treatment works,

(5) it is the national policy that areawide waste

treatment management planning processes be devel-

oped and implemented to assure adequate control of

sources of pollutants in each State,

(6) it is the national policy that a major research

and demonstration effort be made to develop technol-

ogy necessary to eliminate the discharge of pollutants

into the navigable waters, waters of the contiguous

zone, and the oceans, and

(7) it is the national policy that programs for the

control of nonpoint sources of pollution be developed

and implemented in an expeditious manner so as to

enable the goals of this chapter to be met through the

control of both point and nonpoint sources of pollu-

tion

(b) Congressional recognition, preservation, and pro-

tection of primary responsibilities and rights of States

It is the policy of the Congress to recognize, preserve,

and protect the primary responsibilities and rights of States

to prevent, reduce, and elimiaate pollution, to plan the

consult with the Administrator in the exercise of his

authority under this chapter. It is the policy of Congress

that the States manage the construction grant program

under this chapter and implement the permit programs

under sections 1342 and £344 of this title. It is further the

|

E

F

4

the fullest extent

meaningful action

ination of pollution in their waters and in international

waters and for the achievement of goals regarding the

elimination of discharge of pollutants and the improvement

of water quality to at least the same extent as the United

States does under its laws

Administrator of Environmental Protection

i

i

(f) Procedures utilized for implementing chapter

Hh ee 1 442d

ih i ja in i i

s2 Escai 4 af Littl a i:

iW aee) |e UtRe

23 a i ik Hit \ i

ML ET eT

Heal: a a

REE ARH HEN

i: ith i TEBE

. 6, it gust iiss iP

it ) ne i i

at Burt ia A i He

(June 30, 1948, c. 758, Title V, § 505, as added Oct. 15,

1972, Pub.L. 92-500, § 2. 86 Stat. 888; as amended

Feb. 4, 1987, Pub.L. 100-4, Title V, §§ 502/a), 50S,

101 Stat. 75)

Xl. Marine Protection, Research and Sanctuaries Act, 35

U.S.C.A. $$ 1401-1445 (West 1986 & Supp. 1989).

33 U.S.C.A. § 1401 Congressional Finding, Policy. and

by any person from a location outside the United States. uf

the dumping occurs in the terntorial sea or the contiguous

zone of the United States.

(Pub.L. 92-532. § 2. Oct. 23, 1972, “A Stat. 1052,

Pub. L. 93-254, § 1(1), Mar. 22. 1974, 55 Stat. 50.)

App-31

33 U.S.C.A. $1415 Penalties

(g) Civil Suits by private persons

(1) Except as provided in paragraph (2) of this

oe, en Gelato, a goon, as the ee may

(2) No action may be commenced

(A) prior to sixty days after notice of the

violation has been given to the Administrator or to

the Secretary, and to any alleged violator of the

prohibition, limitation, criterion, or permit; or

(B) if the Attorney General has commenced

and is diligently prosecuting a civil action in a

court of the United States to require compliance

with the prohibition, limitation, criterion, or per-

mit; or

(C) if the Administrator has commenced ac-

tion to impose a penalty pursuant to subsection (a)

of this section, or if the Administrator, or the

Secretary, has initiated permit revocation or sus-

pension proceedings under subsection (f) of this

section; or

(D) if the United States has commenced and

is diligently prosecuting a criminal action in a

seat ae Mall ~ 4 Py Pre a

¥

-

App-32

court of the United States or a State to redress a

violation of this subchapter.

(3) (A) Any suit uuder this subsection may be

brought in the judicial district in which the violation

occurs.

(B) In any such suit under this subsection in

which the United States is not a party, the Attor-

ney General, at the request of the Administrator

or Secretary, may intervene on behalf of the

United States as a matter of right.

(4) The court, in issuing any final order/n any suit

brought pursuant to paragraph (1) of this subsection

may award costs of litigation (including reasonable

attorney and expert witness fees) to any party, when-

ever the court determines such award is appropriate.

(5) The injunctive relief provided by this subsec-

tion shall not restrict any right which any person (or

class of persons) may have under any statute or

common law to seek enforcement of any standard or

limitation or to seek any other relief (including relief

against the Administrator, the Secretary, or a State

agency).

(Pub. L. 92-532, Title I, [0015] 105, Oct. 23, 1972, 86

Stat. 1057)

XII. National Environmental Policy Act, 42 U.S.C.A.

$§ 4321-4370a (West 1977 & Supp. 1989).

42 U.S.C.A. § 4321 Congressional declaration of pur-

pose

The purposes of this chapter are: To declare a national

policy which will encourage productive and enjoyable

harmony between man and his environment, to promote

efforts which will prevent or eliminate damage to the

environment and biosphere and stimulate the health and

App-33

welfare of man; to enrich the understanding of the ecolog-

ical systems and natural resources important to the Nation:

and to establish a Council on Environmental Quality.

Pub. L. 91-190, § 2, Jan. 1, 1970, 83 Stat. 852.

42 U.S.C.A. § 4331 Congressional Declaration of Na-

tional Environmental Policy

(a) The Congress, recognizing the profound impact of

man’s activity on the interrelations of all components of the

natural environment, particularly the profound influences

en ne Sipe Seaeiy eomaadtion, tatactl

expansion, resource exploitation, new and expandin

technological advances and recognizing further the critical

importance of restoring and maintaining environmental

quality to the overall welfare and development of man,

declares that is it in the continuing policy of the Federal

Government, in cooperation with State and local govern-

ments, and other concerned public and private organiza-

tions, to use all practicable means and measures, including

financial and technical assistance, in a manner calculated to

foster and promote the general welfare, to create and

maintain conditions under which man and nature can exist

in productive harmony, and fulfill the social, economic,

and other requirements of present and future generations

of Americans.

(b) In order to carry out the policy set forth in this

chapter, it is the continuing responsibility of the Federal

Government to use all practicable means, consistent with

other essential considerations of national policy, to im-

prove and coordinate Federal plans, functions, programs,

and resources to the end that the Nation may—

(1) fulfill the responsibilities of each generation as

trustee of the environment for succeeding generations:

(2) assure for all Americans safe, healthful, pro-

ductive, and esthetically and culturally pleasing sur-

roundings:

= sr - EO a ae ee ee ee a eee ie ae

* SS SS Se Sasa

App-34

(3) attain the widest range of ‘»eneficial uses of the

environment without degradation, risk to health or

safety, or other undesirable and unintended conse-

quences:

(4) preserve important historic, cultural, and nat-

ural aspects of our national heritage, and maintain,

wherever possible, an environment which supports

diversity and variety of individual choice;

. (5) achieve a balance between population and

resource use which will permit high standards of living

and a wide sharing of life’s amenities; and

(6) enhance the quality of renewable resources

and approach the maximum attainable recycling of

depletable resources.

(c) The Congress recognizes that each person should

enjoy a healthful environment and that each person has a

responsibility to contribute to the preservation and en-

hancement of the environment.

Pub.L. 91-190, Title I, § 101, Jan. 1, 1970, 83 Stat.

852.

XIII. Natural Gas Pipeline Safety Act, 49 U.S.C.A.

$§ 1671-1687 (West 1976 & Supp. 1989).

49 U.S.C.A. § 1686 Civil Actions by Citizens

(a) Mandatory or prohibitive injunctive relief against

persons in violation of this chapter

Except as provided in subsection (b) of this section,

any person may commence a civil action for mandatory or

prohibitive injunctive relief, including interim equitable

relief, against any other person (including any State,

municipality, or other governmental entity to the extent

permitted by the eleventh amendment to the Constitution,

and the United States) who is alleged to be in violation of

this chapter or of any order or regulation issued under this

chapter. The district courts of the United States shall have

App-35

jurisdiction over actions brought under this section

with-

out .

ont regard to the amount in controversy or the citizenship

(b) Restrictions

No civil action may be commenced under subsection

(a) of this section with respect to any alleged vio ~

this chapter or any order or regulation issued under this

(2) if the Secretary (or such State agency) has

commenced and is diligently pursuing administrative

proceedings or the Attorney General of the United

Notice under this subsection shall be in |

ont t shall a given neon

(Pub. L. 90-481, § 19, formerly § 17, as added Pub

, , . se

mee Ue Oct. 11, 1976, 90 Stat. 2075, and renum-

.L. 96-129, Title 1, § 1 ‘ '

Sean on 04(b), Nov. 30, 1979,

XIV. Noise Control Act 42 U.S.C.A. §§ 4901

S.C.A. -4918 (W

1983 & Supp. 1989). ag

42 U.S.C. § 4901 Congressional Findings and Statement

of Policy

(a) The Congress finds—

(1) that inadequately controlled noise presents a

growing danger to the health and welfare of the

Nation's population, particularly in urban areas;

(2) that the major sources of noise include trans-

vehicles and equipment, machinery, appli-

ances, and other products in commerce; and

(3) that, while primary responsibility for control of

noise rests with State and local governments, Federal

action is essential to deal with major noise sources in

commerce control of which require national uniformity

of treatment.

(b) The Congress declares that it is the policy of the

United States to promote an environment for all Americans

free from noise that jeopardizes their health or welfare. To

that end, it is the purpose of this chapter to establish a

means for effective coordination of Federal research and

activities »n noise control, to authorize the establishment of

Federal noise emission standards for products distributed

in commerce, and to provide information to the public

respecting the noise emission and noise reduction charac

teristics of such products. -

(Pub. L. 92-574, § 2, Oct. 27, 1972, 86 Stat. 1234)

42 U.S.C.A. § 4911 Citizens Suits

(a) Authority to commence suits

Except as provided in subsection (b) of this section,

any person (other than the United States) may commence

a civil action on his own behalf—

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

States, and (B) any other governmental instrumental-

ity or agency to the extent pe-mitted by the eleventh

amendment to the Constitutien) who is alleged to be in

violation of any noise control requirement (as defined

in subsection (e) of this section) or

(2) against—

compliance with the noise control requirement.

but in any such action im a court of the United

States any person may intervene as a matter of

(2) under subsection (a\(2) of this section prior to

sixty days after the plaintiff has given notice to the

defendant that he will commence su~ action.

Notice under this subsection shall be given in such manner

App-38

as the Administrator of the Environmental Protection

Agency shall prescribe by regulation.

(Pub.L. 92-574, [0015] 12, Oct. 27, 1972, 86 Stat.

1243)

XV. Ocean Thermal Energy Conservation Act, 42

U.S.C.A. §§ 9101-9168 (West 1983 & Supp. 1989).

42 U.S.C.A. § 9101 Congressional Declaration of Policy

(a) It is declared to be the purposes of the Congress in

this chapter to—

(1) authorize and regulate the construction, loca-

tion, ownership, and operation of ocean thermal en-

ergy conversion facilities connected to the United

States by pipeline or cable, or located in the territorial

sea of the United States consistent with the Conven-

tion on the High Seas, and general principles of

international law;

(2) authorize and regulate the construction, loca-

tion, ownership, and operation of ocean thermal en-

ergy conversion plantships documented under the

laws of the United States, consistent with the Conven-

tion on the High Seas and general principles of

international law;

(3) authorize and regulate the construction, loca-

tion, ownership, and operation of ocean thermal en-

ergy conversion plantships by United States citizens,

consistent with the Convention on the High Seas and

general principles of international law;

(4) establish a legal regime which will permit and

encourage the development of ocean thermal energy

conversion as a commercial energy technology;

(5) provide for the protection of the marine and

coastal environment, and consideration of the interests

of ocean users, to prevent or minimize any adverse

App-39

impact which might occur as a consequence of the

development of such ocean thermal energy conversion

facilities or plantships; -

(6) make applicable certain provisions of the Mer-

chant Marine Act, 1936 (46 U.S.C. 1177 et seq.) [46

U.S.C.A. § 1101 et seq.] to assist in financing of ocean

thermal energy conversion facilities and plantships;

(7) protect the interests of the United States in

the location, construction, and operation of ocean

thermal energy conversion facilities and plantships;

and

(8) protect the rights and responsibilities of adja-

cent coastal States in ensuring that Federal actions are

consistent with approved State coastal zone manage-

— programs and other applicable State and local

ws. “

(b) The Congress declares that nothing in this chapter

shall be construed to affect the legal status of the high seas,

the superjacent airspace, or the seabed and subsoil, includ-

ing the Continental Shelf.

(Pub. L. 96-320, § 2» Aug. 3, 1980, 94 Stat. 974.)

42 U.S.C.A. § 9124 Civil Actions

(a) Jurisdiction

Except as provided in subsection (b) of this section,

any person having a valid legal interest which is or may be

adversely affected may commence a civil action for equita-

ble relief on his own behalf in the United States District

Court for the District of Columbia whenever such action

constitutes a case or corntroversy—

(1) against any person who is alleged to be in

violation of any provision of this chapter or any regu-

lation or condition of a license issued pursuant to this

chapter; or

App-40

(2) against the Administrator where there is al-

leged a failure of the Administrator to perform any act

or duty under this chapter which is not discretionary.

In suits brought under this chapter, the district courts of

the United States shall have jurisdiction, without regard to

the amount in controversy or the citizenship of the parties,

to enforce any provision of this chapter or any regulation or

term or condition of a license issued pursuant to this

chapter, or to order the Administrator to perform such act

or duty, as the case may be.

(b) Notice

No civil action may be commenced—

(1) under subsection (a)(1) of this section—

(A) prior to 60 days after the plaintiff has

given notice of the violation to the Administrator

and to any alleged violator; or

(B) if the Administrator or the Attorney Gen-

eral has commenced and is diligently prosecuting

a civil or criminal action with respect to such

matters in a court of the United States, but in any

such action any person may intervene as a matter

of right; or

(2) under subsection (a)(2) of this section prior to

60 days after the plaintiff has given notice of such

action to the Administrator.

Notice under this subsection shall be given in such a

manner as the Administrator shall prescribe by regulation.

(Pub. L. 96-320, Title I, § 114, Aug. 3, 1980, 94 Stat.

990)

XVI. Outer Continental Shelf Lands Act, 43 U.S.C.A.

§§ 1301-1356 (West 1983 & Supp. 1989).

43 U.S.C.A. § 1349 Citizen Suits, Jurisdiction and Ju-

dicial Review

App-41

(a) Persons who may bring actions; persons against

whom action may be brought; time of action; intervention

by Attorney General; costs and fees; security

(1) Except as provided in this section, any person

having a valid legal interest which is or may be

adversely affected may commence a civil action on his

own behalf to compel compliance with this subchapter

against any person, including the United States, and

any other governmental instrumentality or agency (to

the extent permitted by the eleventh amendment to

the Constitution) for any alleged violation of any

provision of this subchapter, or any regulation promul-

gated under this subchapter, or of the terms of any

permit or lease issued by the Secretary under this

subchapter.

2) Except as provided in paragraph (3) of this

subsection, no action may be commenced under sub-

section (a)(1) of this section—

(A) prior to sixty days after the plaintiff has

given notice of the alleged violation, in writing

under oath, to the Secretary and any other appro-

priate Federal official, to the State in which the

violation allegedly occurred or is occurring, and to

any alleged violator; or

(B) if the Attorney General has commenced

and is diligently prosecuting a civil action in a

court of the United States or a State with respect

to such matter, but in any such action in a court of

the United States any person having a legal inter-

est which is or may be adversely affected may

intervene as a matter of right.

(3) An action may be brought under this subsec-

tion immediately after notification of the alleged vio-

lation in any case in which the alleged violation

App-42

constitutes an imminent threat to the public health or

safety or would immediately affect a legal interest of

the plaintiff.

(4) In any action commenced pursuant to this section,

the Attorney General, upon the request of the Secretary or

any other appropriate Federal official, may intervene as a

matter of right.

(5) A court, in issuing any final order in any action

brought pursuant to subsection (a)(1) or subsection (c) of

this section, may award costs of litigation, including rea-

sonable attorney and expert witness fees, to any party,

whenever such court determines such award is appropri-

ate. The court may, if a temporary restraining order or

preliminary injunction is sought, require the filing of a

bond or equivalent security in a sufficient amount to

compensate for any loss or damage suffered, in accordance

with the Federal Rules of Civil Procedure.

(6) Except as provided in subsection (c) of this section,

all suits challenging actions or decisions allegedly in viola-

tion of, or seeking enforcement of, the provisions of this

subchapter, or any regulation promulgated under this

subchapter, or the terms of any permit or lease issued by

the Secretary under this subchapter, shall be undertaken

in accordance with the procedures described in this sub-

section. Nothing in this section shall restrict any right

which any person or class of persons may have under any

other Act or common law to seek appropriate relief.

(Aug. 7, 1953, C. 345, § 23, added Sept. 18, 1975,

Pub.L. 95-372, Title II, § 208; 92 Stat. 657, and

amended Nov. 8, 1984, Pub.L. 98-620, Title IV,

§ 402(44), 98 Stat. 3360)

App-43

XVII. Resource Conservation and Recovery Act, 42

U.S.C.A. §§ 6901-6987 (West 1983 & Supp. 1989).

42 U.S.C.A. § 6902 Objectives

The objectives of this chapter are to

promote th

protection of health and the environment and to caaieve

valuable material and energy resources by:

(1) providing technical and financial assistance to

State and local governments and interstate agencies for

the development of solid waste management plans

(including resource recovery and resource conserva-

tion systems) which will promote improved solid waste

management techniques (including more effective or-

ganizational arrangements), new and improved meth-

ods of collection, separation, and recovery of solid

waste, and the environmentally safe disposal of non-

recoverable residues;

(2) providing training grants in occupations in-

volving the design, operation, and maintenance of

solid waste disposal systems;

(3) prohibiting future open dumping on the land

and requiring the conversion of existing open dumps

to facilities which do not pose a danger to the environ-

ment or to health;

(4) regulating the treatment, storage, transporta-

tion, and disposal of hazardous wastes which have

adverse effects on health and the environment:

(5) providing for the promulgation of guidelines

for solid waste collection, transport, separation, recov-

ery, and disposal practices and systems;

(6) promoting a national research and develop-

ment program for improved solid waste management

and resource conservation techniques, more effective

organizational arrangements, and new and improved

methods of collection, separation, and recovery, and

recycling of soiud wastes and environmentally safe

disposal of nonrecoverable residues;

App-44

(7) promoting the demonstration, construction

and application of solid waste management, resource

recovery, and resource conservation systems which

preserve and enhance the quality of air, water, and

land resources; and

(8) establishing a cooperative effort among the

Federal, State, and local governments and private

enterprise in order to recover valuable materials and

energy from solid waste.

(Pub.L. 89-272, Title II, § 1003, as added Pub.L.

94-580, § 2. Oct. 21, 1976, 90 Stat. 2798)

42 U.S.C.A. § 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) (A) against any person (including (a) the United

States and (b) any other governmental instrumentality

or agency, to the extent permitted by the eleventh

amendment to the Constitution) who is alleged to be in

violation of any permit, standard, regulation, condi-

tion, requirement, prohibition, or order which has

become effective pursuant to this chapter; or

(B) against any person, including the United

States and any other governmental instrumental-

ity or agency, to the extent permitted by the

eleventh amendment to the Constitution, and

including any past or present generator, past or

present transporter, or past or present owner or

operator of a treatment, storage, or disposal facil-

ity, who has contributed or who is contributing to

the past or present handling, storage, treatment,

transportation, or disposal of any solid or hazard-

ous waste which may present an imminent and

substantial endangerment to health or the envi-

ronment; or

App-45

(2) against the Administrator where there is al-

leged a failure of the Administrator to perform 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

which the alleged violation occurred or the alleged

endangerment may occur. Any action brought under

paragraph (a)(2) of this subsection may be brought in

the district court for the district in which the alleged

violation occurred or in the District Court of the

District of Columbia. The district court shall have

jurisdiction, without regard to the amount in contro-

versy or the citizenship of the parties, to enforce the

permit, standard, regulation, condition, requirement,

prohibition, or order, referred to in paragraph (1)(A),

to restrain any person who has contributed or who is

contributing to the past or present handling, storage,

treatment, transportation, or disposal of any solid or

hazardous waste referred to in paragraph (1)(B), to

order such person to take such other action as may be

necessary, or both, or to order the Administrator to

perform the act or duty referred to in paragraph (2), as

the case may be, and to apply any appropriate civil

penalties under section 6928(a) and (g) of this title.

(b) Actions prohibited

(1) No action may be commenced under subsec-

tion (a)(1)A) of this section—

(A) prior to 60 days after the plaintiff has

given notice of the violation to—

(i) the Administrator;

(ii) the State in which the alleged violation

occurs; and

(iii) to any alleged violator of such permit,

standard, regulation, condition, requiremeni,

prohibition, or order,

App-4+6

except that such action may be brought immediately

after such notification in the case of an action under

this section respecting a violation of subchapter III of

this chapter; or

(B) if the Administrator or State has com-

menced and is diligently prosecuting a civil or

criminal action in a court of the United States or a

State to require compliance with such permit,

standard, regulation, condition, requirement,

prohibition, or order.

In any action under subsection (a)(1)(A) of this section

in a court of the United States, any person may

intervene as a matter of right.

(2) (A) No action may be commenced under sub-

section (a)(1)(B) of this section prior to ninety days after

the plaintiff has given notice of the endangerment to—

(i) the Administrator;

(ii) the State in which the alleged endan-

germent may occur;

(iii) any person alleged to have contributed

or to be contributing to the past or present

handling, storage, treatment, transportation,

or disposal of any solid or hazardous waste

referred to in subsection (a)(1)(B) of this sec-

tion,

except that such action may be brought immedi-

ately after such notification in the case of an action

under this section respecting a violation of sub-

chapter III of this chapter.

(B) No action may be commenced under sub-

section (a)(1)(B) of this section if the Administra-

tor, in order to restrain or abate acts or conditions

which may have contributed or are contributing to

wanes tM be ail

Se ee ee eee

App-47

the activities which may present the alleged en-

dangerment—

(i) has commenced and is diligently prose-

cuting an action under section 6973 of this title

or under section 106 of the Comprehensive

Environmental Response, Compensation, and

Liability Act of 1980 [42 U.S.C.A. § 9606];

(ii) is actually engaging in a removal action

under section 104 of the Comprehensive En-

vironmental Response, Compensation and Li-

avility Act of 1980 [42 U.S.C.A. § 9604];

(iii) has incurred costs to initiate a Reme-

dial Investigation and Feasibility Study under

section 104 of the Comprehensive Environ-

mental Response, Compensation and Liability

Act of 1980 [42 U.S.C.A. § 9604] and is dili-

gently proceeding with a remedial action under

that Act [42 U.S.C.A. § 9601 et seq.]}; or

(iv) has obtained a court order (including a

consent decree) or issued an administrative

order under section 106 of the Comprehensive

Environmental Response, Compensation and

Liability Act of 980 [42 U.S.C.A. § 9606] or

section 6973 of this title pursuant to which a

responsible party is diligently conducting a

removal action, Remedial Investigation and

Feasibility Study (RIFS), or proceeding with a

remedial action.

In the case of an administrative order referred

to in clause (iv), actions under subsection (a)(1)(B)

of this section are prohibited only as to the scope

and duration of the administrative order referred

to in clause (iv).

(C) No action may be commenced under sub-

section (a)(1)(B) of this section if the State, in order

to restrain or abate acts or conditions which may

App-48

have contributed or are contributing to the activ-

ities which may present the alleged endanger-

ment—

(i) has commenced and is diligently prose-

cuting an action under subsection (a)(1)(B) of

«this section;

(ii) is actually engaging in a removal action

under section 104 of the Comprehensive En-

vironmental Response, Compensation and Li-

ability Act of 1980 [42 U.S.C.A. § 9604]; or

(iii) has incurred costs to initiate a Reme-

dial Investigation and Feasibility Study under

section 104 of the Comprehensive Environ-

mental Response, Compensation and Liability

Act of 1980 [42 U.S.C.A. § 9604] and is dili-

gently proceeding with a remedial action under

that Act [42 U.S.C.A. § 9601 et seq.j.

(D) No action may be commenced under

subsection (a)(1)(B) of this section by any person

(other than a State or local government) with

respect to the siting of a hazardous waste treat-

ment, storage, or a disposal facility, nor to restrain

or enjoin the issuance of a permit for such facility.

(E) In any action under subsection (a)(1)(B) of

this section in a court of the United States, any

person may intervene as a matter of right when

the applicant claims an interest relating to the

subject of the action and he is so situated that the

disposition of the action may, as a practical matter,

impair or impede his ability to protect that inter-

est, unless the Administrator or the State shows

that the applicant’s interest is adequately repre-

sented by existing parties.

(F) Whenever any action is brought under

subsection (a)(1)(B) of this section in a court of the

United States, the plaintiff shall serve a copy of

App-49

the complaint on the Attorney General of the

United States and with the Administrator.

(Pub.L. 89-272, Title II, § 7003, as added Pub.L.

94-580, § 2, Oct. 21, 1976, 90 Stat. 2826, and

amended Pub. L. 95-609, § 7(q), Nov. 8, 1978, 92 Stat.

3083; Pub.L. 96-482, § 25, Oct. 21, 1980, 94 Stat.

2348, and Pub.L. 98-616, Title IV, § 401, Nov. 8,

1984, 98 Stat. 3268)

XVIII. Safe Drinking Water Act, 42 U.S.C.A. §§ 300f-

300j-10 (West 1982 & Supp. 1989).

42 U.S.C.A. § 300j-8 Citizens Civil Action

Persons subject to civil action; jurisdiction of enforce-

ment proceedings

» (a) Except us provided in subsection (b) of this section,

any person raay commence a civil action on his own

behalf—

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

States, and (B) any other governmental instrumental-

ity or agency to the extent permitted by the eleventh

amendment to the Constitution) who is alleged to be in

violation of any requirement prescribed by or under

this subchapter, or

(2) against the Administrator where there is al-

leged a failure of the Administrator to perform any act

or duty under this subchapter which is not discretion-

ary with the Administrator.

No action may be brought under paragraph (1) against

a public water system for a violation of a requirement

prescribed by or under this subchapter which occurred

within the 27-month period beginning on the first day of

the month in which this subchapter is enacted. The United

States district courts sliai! have jurisdiction, without regard

to the amount in controversy or the citizenship of the

App-50

parties, to enforce in an action brought under this subsec-

tion any requirement prescribed by or under this sub-

chapter or to order the Administrator to perform an act or

duty described in paragraph (2), as the case may be.

Conditions for commencement of civil action; notice

(b) No civil action may be commenced—

(1) under subsection (a)(1) of this section respect-

ing violation of a requirement prescribed by or under

this subchapter—

(A) prior to sixty days after the plaintiff has

given notice of such violation (i) to the Adminis-

trator, (ii) to any alleged violator of such require-

ment and (iii) to the State in which the violation

occurs, or

(B) if the Administrator, the Attorney Gen-

eral, or the State has commenced and is diligently

prosecuting a civil action in a court of the United

States to require compliance with such require-

ment, but in any such action in a court of the

United States any person may intervene as a

matter of right; or

(2) under subsection (a)(2) of this section prior to

sixty days after the plaintiff has given notice of such

action to the Administrator.

Notice required by this subsection shall be given in

such manner as the Administrator shall prescribe by

regulation. No person may commence a civil action under

subsection (a) of this section to require a State to prescribe

a schedule under section 300g-4 or 300g-5 of this title for a

variance or exemption, unless such person shows to the

satisfaction of the court that the State has in a substantial

number of cases failed to prescribe such schedules.

(July 1, 1944, c. 373, Title XIV, § 1443, as added Dec.

16, 1974, Pub.L. 93-523, § 2(a), 88 Sat. 1690, and

“it

App-51

amended Nov. 16, 1977, Pub.L. 95-190, § 8(c), 91

Stat. 1397; Nov. 8, 1984, Pub.L. 98-620, Title IV,

§ 402(38), 98 Stat. 3360. )

XIX. Surface Mining Control and. Reclamation Act, 33

U.S.C.A. §§ 1201-1328 (West’ 1986 & Supp. 1989).

30 U.S.C.A. § 1202 Statement of Purpose

It is the purpose of this chapter to—

(a) establish a nationwide program to protect society

and the environment from the adverse effects of surface

coal mining operations;

(b) assure that the rights of surface landowners and

other persons with a legal interest in the land or appurte-

nances thereto are fully protected from such operations;

(c) assure that surface mining operations are not con-

ducted where reclamation as required by this chapter is

not feasible;

(d) assure that surface coal mining operations are so

conducted as to protect the environment:

(e) assure that adequate procedures are undertaken to

reclaim surface areas as contemporaneously as possible

with the surface coal mining operations;

(f) assure that the coal supply essential to the Nation's

energy requirements, and to its economic and social

well-being is provided and strike a balance between pro-

tection of the environment and agricultural productivity

and the Nation’s need for coal as an essential source of

energy;

(g) assist the States in developing and implementing a

program to achieve the purposes of this chapter;

(h) promote the reclamation of mined areas left with-

out adequate reclamation prior to August 3, 1977, and

which continue, in their unreclaimed condition, to sub-

stantially degrade the quality of the environment, prevent

App-52

or damage the beneficial use of land or water resources, or

endanger the health or safety of the public;

(i) assure that appropriate procedures are provided for

the public participation in the development, revision, and

enforcement of regulations, standards, reclamation plans,

or programs established by the Secretary or any State

under this chapter;

(j) provide a means for development of the data and

analyses necessary to establish effective and reasonable

regulation of surface mining operations for other minerals;

(k) encourage the full utilization of coal resources

through the development and application of underground

extraction technologies;

(l) stimulate, sponsor, provide for and/or supplement

present programs for the corduct of research investiga-

tions, experiments, and demonstrations, in the explora-

tion, extraction, processing, development, and production

of minerals and the training of mineral engineers and

scientists in the field of mining, minerals resources, and

technology, and the establishment of an appropriate re-

search and training center in various States; and

(m) wherever necessary, exercise the full reach of

Federal constitutional powers to insure the protection of

the public interest through effective control of surface coal

mining operations.

(Pub.L. 95-87, Title 1, § 102, Aug. 3, 1977, 91 Stat.

448.)

30 U.S.C.A. § 1270 Citizens Suits

(a) Civil action to compel compliance with this chapter

Except as provided in subsection (b) of this section,

any person having an interest which is or may be adversely

affected may commence a civil action on his own behalf to

compel compliance with this ch>pter—

App-53

(1) against the United States or any other govern-

mental instrumentality or agency to the extent permit-

ted by the eleventh amendment to the Constitution

which is alleged to be in violation of the provisions of

this chapter or of any rule, regulation, order or permit

issued pursuant thereto, or against any other person

who is alleged to be in violation of any rule, regulation,

order or permit issued pursuant to this subchapter, or

(2) against the Secretary or the appropriate State

regulatory authority to the extent permitted by the

eleventh amendment to the Constitution where there

is alleged a failure of the Secretary or the appropriate

State regulatory authority to perform any act or duty

under this chapter which is not discretionary with the

Secretary or with the ropriate Stat

pe nd appropriate e regulatory

The district courts shall have jurisdiction, without

regard to the amount in controversy or the citizenship of

the parties.

(b) Limitation on bringing of action

No action may be commenced—

(1) under subsection (a)(1) of this section—

(A) prior to sixty days after the plaintiff has

given notice in writing of the violation (i) to the

Secretary, (ii) to the State in which the violation

occurs, and (iii) to any alleged violator, or

(B) if the Secretary or the State has com-

menced and is diligently prosecuting a civil action

in a court of the United States or a State to require

compliance with the provisions cf this chapter, or

any rule, regulation, order, or permit issued pur-

suant to this chapter, but in any such action in a

court of the United States any person may inter-

vene as a matter of right; or

App-54

(2) under subsection (a)(2) of this section prior to

sixty days after the plaintiff has given notice in writing

of such action to the Secretary, in such manner as the

Secretary shall by regulation prescribe, or to the

appropriate State regulatory authority, except that

such action may be brought immediately after such

notification in the case where the violation or order

complained of constitutes an imminent threat to the

health or safety of the plaintiff or would immediately

affect a legal interest of the plaintiff.

(Pub. L. 95-87, Title I, [0015] 520, Aug. 3, 1977, 91

Stat. 447)

XX. Toxic Substance Control Act 15 U.S.C.A. §$§ 2601-

2671 (West 1982 & Supp. 1989).

15 U.S.C.A. § 2601 Findings, Policy and Intent

(a) Findings—The Congress finds that—

(1) human beings and the environment are being

exposed each year to a large number of chemical

substances and mixtures;

2) among the many chemical substances and mix-

tures which are constantly being developed and pro-

duced, there are some whose manufacture, process-

ing, distribution in commerce, use, or disposal may

present an unreasonable risk of injury to health or the

environment; and

(3) the effective regulation of interstate commerce

in such chemical substances and mixtures also neces-

sitates the regulation of intrastate commerce in such

chemical substances and mixtures.

(b) Policy—It is the policy of the United States that—

(1) adequate data should be developed with re-

spect to the effect of chemical substances and mixtures

on health and the environment and that the develop-

ment of such data should be the responsibility of those

who manufacture and those who process such chemical

substances and mixtures;

App-55

(2) adequate authority should exist to re

gulate

chemical substances and mixtures which present an

unreasonable risk of injury to health or the environ-

ment, and to take action with respect to chemical

—— and mixtures which are imminent hazards:

an

(3) authority over chemical substances and mix-

tures should be exercised in such a manner as not to

impede unduly or create unnecessary economic barri-

ers to technological innovation while fulfilling the

primary purpose of this chapter to assure that such

innovation and commerce in such chemical substances

and mixtures do not present an unreasonable risk of

injury to health or the environment.

(c) Intent of Congress—It is the intent of Con

of gress

that the Administrator shall carry out this chapter in a

reasonable and prudent manner, and that the Administra-

tor shall consider the environmental, economic, and social

impact of any action the Administrator takes or proposes to

take under this chapter.

(Pub.L. 94-469, § 2, Oct. 11, 1976, 90 Stat. 2003.)

15 U.S.C.A. $ 2619 Citizens Civil Actions

(a) In general—Except as provided in subsection (b) of

this section, any person may commence a civil action—

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

States, and (B) any other governmental instrumental-

ity or agency to the extent permitted by the eleventh

amendment to the Constitution) who is alleged to be in

violation of this chapter or any rule promulgated under

section 2603, 2604, or 2605 of this title or order issued

ere section 2604 of this title to restrain such viola-

on, or }

) (2) against the Administrator to compel the Ad-

minisirator to perform any act or duty under this

chapter which is not discretionary.

App-56

Any civil action under paragraph (1) shall be brought in

the United States district court for the district in which the

alleged violation occurred or in which the defendant

resides or in which the defendant's principal place of

business is located. Any action brought under paragraph (2)

shall be brought in the United States District Court for the

District of Columbia or the United States district court for

the judicial district in which the plaintiff is domiciled. The

district courts of the United States shall have jurisdiction

over suits brought under this section, without regard to the

amount in controversy or the citizenship of the parties. In

any civil action under the subsection process may be

served on a defendant in any judicial district or which the

defendant resides or may be found and subpoenas for

witnesses may be served in any judicial district.

(b) Limitation—No civil action may be commenced

(1) under subsection (a)(1) of this section to re-

strain a violation of this chapter or rule or order under

this chapter—

(A) before the expiration of 60 days after the

plaintiff has given notice of such violation (i) to the

Administrator, and (ii) to the person who is alleged

to have committed such violation, or

(B) if the Administrator has commenced and

is diligently prosecuting a proceeding for the

issuance of an order under section 2635(a)(2) of

this title to require compliance with this chapter

or with such rule or order or if the Attorney

General has commenced and is diligently prose-

cuting a civil action in a court of the United States

to require compliance with this chapter or with

such rule or order, but if such proceeding or civil

action is commenced after the giving of notice, any

person giving such notice may intervene as a

matter of right in such proceeding or action; or

App-57

(2) Under subsection (a)(2) of this section before

the expiration of 60 days after the plaintiff has given

notice to the Administrator or the alleged failure of the

Administrator to perform an act or duty which is the

basis for such action or, in the case of an action under

such subsection for the failure of the Administrator to

file an action under section 2606 of this title, before the

expiration of ten days after such notification.

Notice under this subsection shall be given in such

manner as the Administrator shall prescribe by rule.

~~

(Pub.L. 94-469, Title I, § 20, Oct. 11, 1976, 90 Stat.

2041, redesignated and amended Pub.L. 99-519.

§ 3(b)(3),(c)(1), Oct. 22, 1986, 100 Stat. 2989)