Amicus Curiae Brief — Hallstrom v. Tillamook County

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» No. 88-42

3n the Supreme Court of the t

OcToBER TERM, 1988

O.aF A. HALLSTROM AND Mary E. HALLSTROM,

PETITIONERS

TILLAMOOK COUNTY, A MUNICIPAL CORPORATION

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES AS

AMICUS CURIAE SUPPORTING RESPONDENT

KENNETH W. STARR

Solicitor General

DONALD A. CARR

Acting Assistant Attorney General

LAWRENCE G. WALLACE

Deputy Solicitor General

BRIAN J. MARTIN

Assistant to the Solicitor General

ANNE S. ALMY

JOHN T. STAHR

Attorneys

of Justice

Washington, D.C. 20530

(202) 633-2217

QUESTION PRESENTED

Whether petitioners’ action to enforce standards created

under the Resource Conservation and Recovery Act of

1976 must be dismissed because petitioners did not give the

Administrator of the Environmental Protection Agency

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

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

(I)

TABLE OF CONTENTS

Page

ASP C eT POT PPE Te Torr. 1

I ee be pe te et es oh ee ees ae 2

Rs. co cncvenneseac$neceseneiueenens 4

Argument:

This action must be dismissed because petitioners did not

give the government prior notice as required by Section

POR Bvncsba cde abascbidciecdesataatbrtseies 5

A. The court of appeals’ decision follows from the

plain language of the statute ................. 5

B. The decision below is consistent with the history

and purpose of the notice requirement ........ 10

0 Pe eer ee es ae eee 15

TABLE OF AUTHORITIES

Cases:

Burlington Northern R.R. v. Oklahoma Tax Comm'n,

ES OO re ee PP r rr rs 10

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

1975), cert. denied, 424 U.S. 927(1976)............... 6

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

CF We EE ecb was dan susedecacdeasss. 5

Friends of the Earth v. Carey, 535 F.2d 165 (2d Cir. 1976),

cert. denied, 434 U.S. 902 (1977) ...............24.5. 8

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

SE nick iin edidhobimamiiawesanenasedacs ee 3, 6, 7, 8, 11

Gwaltney of Smithfield v. Chesapeake Bay Foundation,

Bee, Te EE nite babdcdcccecesce neces 1-2, 5, 13

Hempstead County & Nevada County Project v. EPA,

700 F.2d 459 (Sth Cir. 1963) .......... cece eceeees 8

Lorance v. AT&T Technologies, Inc., No. 87-1428 (June

CR.. SEE sc td adobe bebibbaibeareléystisesece + ccees 10

North Dakota v. United States, 460 U.S. 300 (1983) ..... 5,6

NRDC v. Callaway, 524 F.2d 79 (2d Cir. 1975) ......... 8

NRDC v. Train, 510 F.2d 692 (D.C. Cir. 1974) ......... 8

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

Say Pe ccddewin ctawds ebeaibabevetes dn ee 7

Cases — Continued: Page

Public Citizen v. Department of Justice, No. 88-429 (June

i ke ce wivesneac 10

Pymatuning Water Shed Citizens for a Hygienic Environ-

ment v. Eaton, 644 F.2d 995 (3d Cir. 1981) ........... 7

Save the Yaak Committee v. Block, 840 F.2d 714 (9th

Ga dite pabidinien todd uines ei d0edcce sbneee. 8

Sierra Club v. Froehike, 534 F.2d 1289 (8th Cir. 1976) ... 8

United States v. Ron Pair Enterprises, Inc., 109 S. Ct.

te Si ad ee inns cece s 10

Teague v. Regional Comm'’r of Customs, Region II, 394

de ke eho dpeees 9

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

Sn nates led dewess obeeu la erenaeceias és 6, 14

Zipes v. Trans World Airlines, Inc., 455 U.S. 385 (1982). . 10

Statutes and rules:

Civil Rights Act of 1964, § 706(e), 42 U.S.C. 2000e-S(e) . . 10

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

A ta G ce os oe baie dh kbeeubscees 11

Clean Air Amendments of 1970, Tit. III, 42 U.S.C.

7601 et seq.:

§ 304(a), 42 U.S.C. 7604(a) ...............00005.5. 11, 12

ED Ms PUI coccccccccvccccccccce 7

§ 304(b)(1)(A), 42 U.S.C. 7604(b)(1 MA) ........... 12

Endangered Species Act of 1973, 16 U.S.C. 1540(g)

tee set oth ehdepesebeere cévecesacees 7

Federal Water Pollution Control Act, Tit. III, 33 U.S.C.

1311 ef seq.:

ee ee eee theese 7

EE a 7

Outer Continental Shelf Lands Act, 43 U.S.C. 1349

ee edb eee one’s 7

Resource Conservation and Recovery Act, 42 U.S.C.

ks Sete cit varecceccees l

§§ 1002-1003, 42 U.S.C. 6901-6902 ............... l

BME Ps ID oo5 Sic bcc ccccccccccces 7

§ 3008(a), 42 U.S.C. 6928(a) (1982 & Supp. IV

tt tii cheh eee ee Ruths oh caeeeedenwessoes l

Statute and Rule — Continued: Page

§ 3008(d), 42 U.S.C. 6928(d) (1982 & Supp. IV

aL aaV ee dhnee ted Kcvhevicetevns l

EE ne nhcth nn pies tiled peyene Hcents Ghipees 8

§ 7002(a), 42 U.S.C. 6972(a) (1¥82 & Supp. IV

CIR ss dsiede CA eh hase peSeeaecéee ee 9

§ 7002(aX(1), 42 U.S.C. 6972(ap(1) ... 2... ee eee 2,7

§ 7002(aX1)(A), 42 U.S.C. 6972(a)(1)(A) (Supp. IV

Leah rec etacthtndeeuesnvsodaveeceees l

fe 8 ed errs 4, 5, 12

§ 7002(b)(1), 42 U.S.C. 6972(b)(1) (1982 & Supp. IV

DCist ac cps hbdeepepenaccesr eee masn 2, 4, 8,9

§ 7002(b)(1)(A), 42 U.S.C. 6972(b)(1MA) (1982 &

EE on ino vebpennsscessnbeeus 3, 4, 6, 10, 11

§ 7002(b)(2), 42 U.S.C. 6792(b)(2) (1982 & Supp. IV

EE Ee eid ys sp teetbeded saeeeseseeees 13

Fed. R. Civ. P. ccbtd pieseehGnwecadendtsrebes4 6

Miscellaneous:

116 Cong. Rec. 33,103 (Sept. 22, 1970) ................ 12

Hearings on S. 3229, S. 3466 and S. 3546 Before the Sub-

comm. on Air and Water Pollution of the Senate

Comm. on Public Works, 91st Cong., 2d Sess. (1970) .. 14

H.R. Rep. No. 1491, 94th Cong., 2d Sess. (1976) ........ 12

S. Rep. No. 1196, 9ist Cong., 2d Sess. (1970) ........... 11, 13

S. Rep. No. 414, 92d Cong., Ist Sess. (1971) ............ 13

Staff of Senate Comm. on Public Works, 93d Cong., 2d

Sess., A Legislative History of the Clean Air Amend-

ments of 1970 (Comm. Print 1974) ................4.. 11,12

In the Supreme Court of the Gnited States

OCTOBER TERM, 1988

No. 88-42

OLAF A. HALLSTROM AND MAry E. HALLSTROM,

PETITIONERS

Vv.

TILLAMOOK COUNTY, A MUNICIPAL CORPORATION

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES AS

AMICUS CURIAE SUPPORTING RESPONDENT

INTEREST OF THE UNITED STATES

This case arises under the Resource Conservation and

Recovery Act of 1976 (RCRA), 42 U.S.C. 6901-6987 (1982

& Supp. IV 1986), which was enacted to regulate the

disposal of solid wastes and to promote the protection of

health and the environment. See 42 U.S.C. 6901-6902

(1982 & Supp. IV 1986). Petitioners filed this action under

Section 7002(a)(1)(A) of RCRA, 42 U.S.C. 6972(a)(1)(A)

(Supp. IV 1986), which allows private persons to bring ac-

tions to enforce the standards and requirements of the

Act. Congress has authorized such private actions to sup-

plement the federal government’s enforcement of the

statute.' See Gwaltney of Smithfield v. Chesapeake Bay

' RCRA, for example, authorizes the Administrator of the En-

vironmental Protection Agency to issue administrative orders assess-

ing civil penalties and requiring compliance with the Act. The United

States may commence civil actions for injunctive relief and civil

penalties of up to $25,000 per day. 42 U.S.C. 6928(a) (1982 & Supp.

IV 1986). And criminal sanctions may be imposed for certain viola-

tions. 42 U.S.C. 6928(d) (1982 & Supp. IV 1986).

(1)

Foundation, Inc., 108 S. Ct. 376, 383 (1987). RCRA’s

citizen-suit provision states that no such action “may be

commenced * * * prior to sixty days after the plaintiff has

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

the Environmental Protection Agency]; the State in which

the alleged violation occurs; and to any alleged violator

***” 42 U.S.C. 6972(b)(1) (1982 & Supp. IV 1986).

Similar notice requirements are found in the citizen-suit

provisions of at least 18 other federal statutes.? The

United States’ interest in this case is to maintain the

balance created by Congress —as defined by the notice re-

quirement — between government enforcement and private

court actions.

STATEMENT

1. Petitioners own a dairy farm located next to the

Tillamook County landfill in Tillamook County, Oregon

(Pet. App. 2a). On April 20, 1981, petitioners mailed for-

mal notice to the County of their intent to bring an action

to compel the County’s compliance with landfill require-

ments of RCRA (Pet. 4). Petitioners, however, did not

notify the Administrator of the Environmental Protection

Agency, nor the Oregon Department of Environmental

Quality (DEQ), of their intent to sue (Pet. App. 2a).

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

County under the citizen-suit provision of RCRA, 42

U.S.C. 6972(a)(1). Petitioners alleged that leachate dis-

charged from the landfill caused bacterial and chemical

pollution of the surface and ground water within their

property (Pet. App. 2a). Petitioners also set forth state-

law claims for inverse condemnation, trespass, and nui-

sance (ibid.).

? The relevant portions of the citizen-suit provisions of those

Statutes are reprinted in Appendix B to the amicus curiae brief filed by

five environmental groups in support of petitioners.

On March 1, 1983, Tillamook County moved for sum-

mary judgment on the ground that petitioners had failed

to comply with the notice requirement of Section 7002(b)

(1)(A). On March 2, 1983, petitioners sent a copy of their

original notice of intent to sue to the Administrator of

EPA and the DEQ. Petitioners informed those govern-

mental agencies that they intended fo refile their action if

the court dismissed their case (Pet. App. 19a).

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

County’s motion for summary judgment. It ruled that

petitioners had cured any defect in notice by notifying the

Administrator and the DEQ on March 2, 1983 (Pet. App.

19a). The court stated that the purpose of the notice provi-

sion in Section 7002(b){1)(A) was to give the administra-

tive agencies the chance to bring their own enforcement

actions (Pet. App. 19a). Here, the court observed, EPA

and the DEQ had expressed no interest in bringing an ac-

tion. The district court concluded, therefore, that “([t]o

grant defendant’s motion based on the notice provision

would be a waste of judicial resources” (ibid.).

Following a trial in July 1985, the district court held that

the County’s landfill violated RCRA requirements. The

court ordered the County to remedy the violation within

two years (Pet. App. 2a). A jury, however, found in favor

of the County on all three state-law claims (ibid.). The

district court later denied petitioners’ request for an award

of attorneys’ fees and expert fees.

3. On November 3, 1987, a divided panel of the court

of appeals vacated the judgment and remanded the case to

the district court to be dismissed. The court ruled that the

60-day notice requirement in Section 7002(b)(1)(A) is a

jurisdictional prerequisite to bringing a private suit under

RCRA (Pet. App. 6a). The court explicitly 2greed with the

First Circuit in Garcia v. Cecos International, Inc., 761

F.2d 76, 79 (1985), that “the plain language of [§ 7002(b)

(1A) commands sixty days’ notice before commencement

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

judicial amendment in abrogation of explicit, uncondi-

tional statutory language’ ” (Pet. App. 4a). The court of

appeals found the plain language to be supported by the

provision’s purpose “of encouraging non-judicial resolu-

tion of environmental conflicts” (id. at 4a-Sa).*

SUMMARY OF ARGUMENT

1. Section 7002(b)(1)(A) of RCRA states that “[n]Jo ac-

tion may be commenced under” the citizen-suit provision

of RCRA until “60 days after the plaintiff has given

notice” to EPA, the State, and the alleged violator. Under

the Federal Rules of Civil Procedure, an action is com-

menced by filing a complaint with the court. Hence, the

meaning of Section 7002(b)(1)(A) is clear: a private plain-

tiff may not file a complaint alleging a RCRA violation

until 60 days after he gives the required notice. Here, peti-

tioners did not give the required prior notice; thus, the

court of appeals correctly held that this action must be dis-

missed for lack of jurisdiction.

Petitioners argue that a private action may be com-

menced without notice so long as the court does not act

until 60 days after the government has been notified. That

suggested procedure is inconsistent with the plain terms of

the statute. An action that is stayed pending proper notice

was nevertheless commenced prior to the notice period

and is thus prohibited by Section 7002(b)(1).

2. The legislative history of Section 7002(b) confirms

that Congress intended for prior notice to be a prerequisite

> The court of appeals amended its opinion on April 7, 1988, to

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

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

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

to 3 plaintiff's commencing a suit. There is much evidence

that Congress was well aware of the mandatory nature of

prior notice. And there is no hint that Congress wished to

give a court the discretion to disregard that clear require-

ment in a particular case.

The 60-day notice period gives enforcement agencies an

opportunity to act on the alleged violation and it gives the

alleged violator a chance to bring itself into compliance

with the law. Those dual purposes could be frustrated by

petitioners’ suggestion that a plaintiff may file a complaint

so long as the district court takes no action until the

government has been on notice for 60 days. Once a suit is

filed, positions become hardened and cooperation is less

likely. Accordingly, this Court should follow the plain

terms of Sectiqn 7002(b) and hold that petitioners’ action

is barred because it was commenced without prior notice

to the government.

THIS ACTION MUST BE BECAUSE PETI-

TIONERS DID NOT GIVE THE GOVERNMENT PRIOR

NOTICE AS REQUIRED BY SECTION 7002(b)\(1)(A)

A. The Court of Appeals’ Decision Follows From The Plain

Language of the Statute

1. It is well settled that “the starting point for inter-

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

sumer Product Safety Comm’n v. GTE Sylvania, Inc., 447

U.S. 102, 108 (1980); Gwaltney of Smithfield v. Chesa-

peake Bay Foundation, Inc., 108 S. Ct. at 381; North

Dakota v. United States, 460 U.S. 300, 312 (1983). “Ab-

sent a clearly expressed legislative intention to the con-

trary, that language must ordinarily be regarded as con-

clusive.” Consumer Product Safety Comm’n v. GTE

Sylvania, Inc., 447 U.S. at 108.

Here, Section 7002(b)(1)(A) of RCRA states that “[njo

action may be commenced under” Section 7002(a)(1)(A)

until “60 days after the plaintiff has given notice” to EPA,

the State, and the alleged violator.‘ Rule 3 of the Federal

Rules of Civil Procedure, in turn, defines when an action

is “commenced”; it provides that “ja] civil action is com-

menced by filing a complaint with the court.” Section

7002(b)(1)A) of RCRA is thus “uncomplicated.” North

Dakota v. United States, 460 U.S. at 312. It creates a clear

and easy-to-follow rule. A private plaintiff may not file a

complaint alleging a RCRA violation until 60 days after he

gives the required notice. See Garcia v. Cecos Interna-

tional, Inc., 761 F.2d at 79-82 (RCRA’s notice require-

ment is “unambiguous”); Walls v. Waste Resource Corp.,

761 F.2d 311, 316-317 (6th Cir. 1985) (same); see also City

of Highland Park v. Train, 519 F.2d 681, 691 (7th Cir.

1975) (“language chosen by Congress makes it clear that

the Administraior is to be given notice in addition to that

required by Rule 12(a), Fed. R. Civ. P., which allows him

sixty days to answer or move against a complaint by which

an action is commenced”), cert. denied, 424 U.S. 927

(1976).

Congress allows certain private actions to be com-

menced under federal environmental laws without prior

notice to the government. For example, a private action

under RCRA may be brought “immediately” to remedy al-

leged violations concerning the treatment, storage, or dis-

posal of hazardous wastes. See 42 U.S.C. 6972(b)(1)(A)

(1982 & Supp. IV 1986).° Similarly, Congress allows pri-

* This case does not present a question concerning the adequacy of

such notice. All the parties agree that the Administrator of EPA was

not notified until after this case was commenced. See Pet. App. 19a.

* RCRA defines “hazardous waste” as “solid waste” which may

“cause, or significantly contribute to an increase in mortality or an in-

crease in serious irreversible, or incapacitating reversible, illness,” or

which may “pose a substantial present or potential hazard to human

®y

vate actions under the Federal Water Pollution Control

Act (Clean Water Act) to be brought immediately in cases

involving violaticus of “toxic pollutant * * * effluent

limitation{s}.” See 33 U.S.C. 1365(b) and 1317(a).* Thus

Congress has carefully chosen which type of actions

may —and which type may not —be commenced without

prior notice to the government. This demonstrates that

“(t]he notice requirement is not a technical wrinkle or

superfluous formality.” Garcia v. Cecos International,

Inc., 761 F.2d at 79.

Petitioners argue (Br. 26-30, 38-39) that a private action

under Section 7002(a)(1) may be commenced without prior

notice so long as the court does not act until 60 days after

the government has been notified. Although one court of

appeals adopted that approach (erroneously in our view)

in applying a similar provision in the Clean Water Act,’

health or the environment when improperly treated, stored, trans-

ported, or disposed of, or otherwise managed.” 42 U.S.C. 6903(5).

Petitioners have made no allegations concerning hazardous waste in

this case.

* There are other examples. The Clean Air Amendments of 1970,

42 U.S.C. 7604(b), authorizes immediate citizen suits involving

stationary-source emission standards and certain compliance orders.

The Endangered Species Act of 1973, 16 U.S.C. 1540(g)2)(C), allows

immediate private actions relating to the listing of threatened and en-

dangered species where there is “an emergency posing a significant risk

to the well-being of any species of fish or wildlife or plants.” The

Outer Continental Shelf Lands Act, 43 U.S.C. 1349(a)(3), authorizes

an immediate suit where the alleged violation “constitutes an immi-

nent threat to the public health or safety or would immediately affect

a legal interest of the plaintiff.”

’ See Pymatuning Water Shed Citizens for a Hygienic Environment

v. Eaton, 644 F.2d 995, 996 (3d Cir. 1981); accord Proffitt v. Com-

missioners, Township of Bristol, 754 F.2d 504 (3d Cir. 1985). Con-

trary to the briefs of petitioners and amici (Pet. Br. 24; Amici Br. 11),

the Second, Eighth, and District of Columbia Circuits have not

that suggested procedure is flatly inconsistent with Section

7002(b)(1). An action that is stayed pending proper notifi-

cation was nevertheless “commenced” “prior to 60 days

after the plaintiff [gave] notice of the violation” to the re-

quired persons. § 7002(b)(1), 42 U.S.C. 6972(b)(1) (1982 &

Supp. IV 1986). And such an action, by the plain terms of

Section 7002(b)(1), is “prohibited.” 42 U.S.C. 6972(b)(1)

(1982 & Supp. IV 1986). The only remedy that is consistent

with the language of the statute is to bring the improperly

commenced action to an end —i.e., to dismiss it for lack of

jurisdiction. An order of dismissal cleans the slate and the

plaintiff may commence a new action if and when he com-

plies with the notice provision. “To accept anything less

‘constitutes, in effect, judicial amendment in abrogation

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

4a, quoting Garcia v. Cecos International, Inc., 761 F.2d

at 78. Accord Save the Yaak Committee v. Block, 840

F.2d 714, 721 (9th Cir. 1988).

adopted the so-called “pragmatic” approach followed by the Third

Circuit. The courts in NRDC v. Callaway, 524 F.2d 79, 83 (2d Cir.

1975), and NRDC v. Train, 510 F.2d 692, 703 (D.C. Cir. 1974), per-

mitted those suits to proceed in the absence of prior notice because the

plaintiffs stated claims under the Administrative Procedure Act,

which does not require prior notice. In Friends of the Earth v. Carey,

$35 F.2d 165, 175 (2d Cir. 1976), cert. denied, 434 U.S. 902 (1977), the

Second Circuit addressed only whether notice to one agency consti-

tuted notice to a sister agency, not whether the 60-day notice require-

ment must be met. In Hempstead County & Nevada County Project v.

EPA, 700 F.2d 459, 463 (1983), the Eighth Circuit transferred an ac-

tion brought under RCRA to the district court after it held that it

lacked jurisdiction over the plaintiffs’ claim. The court stated that the

notice provision in Section 7002 had been satisfied (700 F.2d at 463) so

that the plaintiffs’ action could properly be commenced in the district

court. Finally, the Eighth Circuit in Sierra Club v. Froehike, 534 F .2d

1289, 1303 (1976), without analysis, permitted that action to proceed

without notice because of a “unique evidentiary situation” but stated

that its decision could “not be cited as authority for future disregard

of the notice requirement.”

2. Petitioners state (Br. 13) that Section 7002(b)(!)

“does not speak in jurisdictional terms or refer to the juris-

diction of the court.” That is not correct if petitioners are

suggesting that the district court had jurisdicion to adjudi-

cate the claim in this case. Section 7002(b)(1) defines in

precise terms when a private person may commence an ac-

tion under RCRA —i.e., only after he has given the proper

notice and waited 60 days. That language may not be dis-

regarded at the discretion of a district court simply be-

cause Congress did not use the word “jurisdiction” in the

Section. See, e.g., Teague v. Regional Comm’r of

Customs, Region II, 394 U.S. 977 (1969) (time limits in 28

U.S.C. 2101 for taking cases to the Supreme Court are

jurisdictional even though the statute does not use the

word “jurisdiction”).

Indeed, Cortgress’s use of the word “jurisdiction” in Sec-

tion 7002(b)(1) would have been inconsistent with the

structure of the statute. Congress used the word “juris-

diction” in Section 7002(a) to designate the courts that are

competent to hear citizen claims under RCRA. That Sec-

tion provides that an action “shall be brought in the

district court for the district in which the alleged violation

occurred [and] the district court shall have jurisdiction,

without regard to the amount in controversy or the citizen-

ship of the parties.” 42 U.S.C. 6972(a) (1982 & Supp. IV

1986). There is no doubt that the district court in this case

was competent to hear petitioners’ claim—i.e., that it

would have had jurisdiction over a valid cause of action

commenced after proper notice. The question is whether

the district court was required to dismiss petitioners’ action

when the County raised the issue of lack of notice. Section

7002(b)( 1) answers that question by stating that an action is

“prohibited” if it is “commenced” “prior to sixty days after

the plaintiff has given notice of the violation” to the Ad-

ministrator of EPA. Accordingly, the district court was

without jurisdiction to proceed further when it learned that

petitioners failed to give the required notice before they

commenced this action.

Petitioners’ reliance (Br. 22, 34) on Zipes v. Trans

World Airlines, Inc., 455 U.S. 385 (1982), is also mis-

placed. In that case, this Court considered Section 706(e)

of the Civil Rights Act of 1964, 42 U.S.C. 2000e-S(e),

which requires that a claimant file with the Equal Oppor-

tunity Employment Commission (EEOC) a claim within

180 days after the alleged unlawful employment practice

occurred. The Court ruled that the filing deadline is in the

nature of a statute of limitations and is subject to “waiver

as well as tolling when equity so requires.” 455 U.S. at 398.

Contrary to petitioners’ suggestion, however, this Court

did not hold that the filing requirement in Section 706(e)

may be disregarded at the discretion of a court. Indeed,

the Court recently affirmed a judgment dismissing a Title

VII action where the plaintiffs failed to make a timely fil-

ing with the EEOC. Lorance v. AT&T Technologies, Inc.,

No. 87-1428 (June 12, 1989). Thus, Zipes provides no

authority for the proposition that a court may ignore the

plain meaning of Section 7002(b)(1)(A) of RCRA.

B. The Decision Below Is Consistent With The History And

Purpose Of The Notice Requirement

As the language of the statute is clear, there is no need

to repair to secondary materials for evidence of Congress’s

intent. See, e.g., United States v. Ron Pair Enterprises,

Inc., 109 S. Ct. 1026, 1030 (1989); Burlington Northern

R.R. v. Oklahoma Tax Comm'n, 481 U.S. 454, 461

(1987). Nevertheless, to the extent that such materials may

be relevant when the statute itself speaks with such clarity,

see Burlington Northern Railroad, 481 U.S. at 461-464,

the legislative history demonstrates that the provision at

issue is no drafting error, that “the result it apparently

decrees is [not] difficult to fathom or * * * inconsistent

with Congress’ intention” (Public Citizen v. Department

of Justice, No. 88-429 (June 21, 1989), slip op. 13), and

that the statute, indeed, means what it says.

Until 1970, federal environmental statutes were enforce-

able only by the government. See, e.g., Clean Air Act of

1963, Pub. L. No. 88-206, § 5, 77 Stat. 396. Congress first

gave private parties the right to bring enforcement actions

in Section 304(a) of the Clean Air Amendments of 1970,

which allowed private suits to enforce emission standards

established under that Act. See 42 U.S.C. 7604(a). The

Clean Air Act’s notice requirement has been the model for

the citizen-suit notice provisions in RCRA and other

statutes. See Garcia v. Cecos International, Inc., 761 F.2d

at 81. Its history is therefore helpful in understanding the

intent of Congress in this case.

The legislative history of Section 304(a) confirms that

Congress intended for notice to be a prerequisite to a

plaintiff's commencing a suit. The Senate Committee

Report explaining Section 304(a) stated that the “Commit-

tee has provided a period of time after notice before a

citizen may file an action * * * [to] give the administrative

enforcement office an opportunity to act on the alleged

violation.” S. Rep. No. 1196, 9lst Cong., 2d Sess. 37

(1970) (emphasis added). The Senate Report continued:

“{T)o further encourage and provide for agency enforce-

ment, the Committee has added a requirement that prior

to filing a petition with the court, a citizen or group of

citizens would first have to serve notice of intent fo file

such action * * *.” Ibid. (emphasis added).*

* The Senate Committee on Public Works initially drafted the

Clean Air Act’s citizen-suit provision, which required a 30-day notice

period. The companion bill that passed the House did not authorize

citizen suits. The conference committee adopted the Senate version,

but extended the notice period to 60 days. See Staff of Senate Comm.

on Public Works, 93d Cong., 2d Sess., A Legislative History of the

Clean Air Amendments of 1970, at 205-206 (Comm. Print 1974). The

full Congress then adopted the conference provision and required, in

language identical to Section 7002(b)(1)A) of RCRA, that “[n]o ac

tion may be commenced * * * prior to 60 days after the plaintiff has

Senator Muskie, the sponsor of the citizen-suit provi-

sion, stated on the floor that “before 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.” 116 Cong. Rec. 33,103

(1970) (emphasis added), reprinted in Staff of Senate

Comm. on Public Works, 93d Cong., 2d Sess., A

Legislative History of the Clean Air Amendments of 1970,

at 353 (Comm. Print 1974). Likewise, the conference

report stated that “/pjrior to commencing any action in the

district courts, the plaintiff must have provided the

violator, the Administrator and the State with sixty days

notice.” Jd. at 206 (emphasis added). Accordingly, the in-

tent of the Congress that passed Section 304(a) of the

Clean Air Amendments of 1970 could not have been

clearer: a plaintiff must provide the required notice before

he files his court action.

The legislative history of RCRA’s identical notice provi-

sion displays the same unambiguous intent. The House

Report accompanying Section 7002(b) when it was

adopted in 1976 stated that the notice requirement “pro-

hibits any person from commencing any action under this

section unless * * * 60 days have elapsed after the plaintiff

has given notice of the violation * * *.” H.R. Rep. No.

1491, 94th Cong., 2d Sess. 69 (1976) (emphasis added).

Thus, Congress plainly intended that notice be given 60

days prior to filing a complaint. There is no hint that Con-

gress wished to allow a court to disregard that clear re-

quirement whenever a court believes, as the district court

did here, that to insist on prior notice “would be a waste of

judicial resources” (Pet. App. 19a).

Petitioners correctly note (Br. 16-17) that Congress has

passed citizen-suit provisions to authorize and encourage

given notice of the violation” to EPA, the relevant State, and the

violator. 42 U.S.C. 7604(b)(1)(A) (1982 & Supp. IV 1986).

private participation in the enforcement of federal en-

vironmental statutes. See S. Rep. No. 1196, 91st Cong., 2d

Sess. 36-37 (1970) (report of Public Works Committee on

the Clean Air Amendments of 1970). Private citizens can

perform a “public service” by uncovering violations and by

“motivat(ing] governmental agencies charged with the

responsibility to bring enforcement and abatement pro-

ceedings.” Jd. at 37, 38. A citizen suit, however, “is meant

to supplement rather than to supplant governmental ac-

tion.” Gwaltney of Smithfield v. Chesapeake Bay Founda-

tion, 108 S. Ct. at 383. Congress intended that “ ‘the great

volume of enforcement actions [] be brought by [the

government)’, and that citizen suits are proper only ‘if the

Federal, State, and local agencies fail to exercise their en-

forcement respgnsibility.’” Jbid., quoting S. Rep. No.

414, 92d Cong., Ist Sess. 64 (1971) (discussing citizen-suit

provision of Clean Water Act). See also § 7002(b)(2) of

RCRA, 42 U.S.C. 6972(b)(2) (1982 & Supp. IV 1986) (pro-

hibiting private enforcement actions if the government is

already prosecuting such an action).

Accordingly, the 60-day notice period has two recog-

nized purposes. First, it gives enforcement agencies “an

opportunity to act on the alleged violation.” S. Rep. No.

1196, supra, at 37. Second, as this Court observed in

Gwaltney of Smithfield v. Chesapeake Bay Foundation,

Inc., supra, prior notice gives the alleged violator “an op-

portunity to bring itself into complete compliance with the

Act and thus likewise render unnecessary a citizen suit.”

108 S. Ct. at 382-383. Both of those purposes would be

frustrated by petitioners’ suggested rule—i.e., a plaintiff

may file a complaint so long as the district court takes no

action until the government has been on notice for 60

days. The court of appeals below aptly recognized that

“once a suit is filed, positions become hardened, parties in-

cur legal fees, and relations become adversarial so that co-

operation and compromise [are] less likely” (Pet. App.

5a). See also Hearings on S. 3229, S. 3466 and S. 3546

Before the Subcomm. on Air and Water Pollution of the

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

1570 (1970). Moreover, while a suit is pending a defendant

is very unlikely to admit liability and agree to remedy a

violation. To do so would be to subject the defendant to

the possibility of attorney’s fees and civil fines. See 42 —

U.S.C. 6928. Thus, “far from being a mere formality,

prior notice was viewed by Congress as crucial in defining

the proper role of the citizen suit.” Walls v. Waste

Resource Corp., 761 F.2d at 317. |

Petitioners’ amici contend that the court of appeals’

decision will “hinder” and “create a rigid barrier to” citizen

suits (Amicus Br. 12, 9). That contention is unpersuasive.

Section 7002(b)(1) sets forth a simple rule; it requires prior

notice to three specified persons. If the plaintiff fails to

give prior notice, his action must be dismissed until he

complies with the notice requirement. After proper notice

i: given and 60 days elapse, the plaintiff may file a new ac-

tion. The clarity and predictability of applying the statute

in accordance with its plain terms stand in sharp contrast

to amici’s litigation-generating proposal for case-by-case

determinations of whether the plaintiffs have provided

“sufficient notice” to allow enforcement agencies “ade-

quate opportunity” to investigate and to act (Amicus Br.

19). For an overburdened judicial system, amici’s ap-

proach, apart from being inconsistent with the statute, has

little to commend it.

Finally, petitioners’ amici argue (Amicus Br. 3) that the

court of appeals’ decision will prevent federal courts “from

providing essential temporary injunctive relief in cases

when notice would otherwise be waived or excused.”

Amici’s argument, of course, assumes that public agencies

directed to enforce the environmental statutes will fail to

meet their responsibilities during the notice period. There

is no basis for that assumption. In any event, the argument

is misdirected; it is the responsibility of Congress to amend

the relevant statutes if it believes that the environment

faces irreversible harm during the notice period. Congress

is richly experienced in drafting statutes that authorize

citizen suits without prior notice. See pp. 6-7, supra. Con-

gress has decided that petitioners’ type of action is not

such a suit. That determination warrants the judiciary’s

respect.

CONCLUSION

The judgment of the court of appeals should be af-

firmed.

Respectfully ‘submitted.