# Amicus Curiae Brief — Hallstrom v. Tillamook County

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0227%3A11

## Record

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

## Text

» No. 88-42

3n the Supreme Court of the t

OcToBER TERM, 1988

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

v.

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

IV

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
© FRBR, SE UBS. GOGB,.. ccc cccciscccccccsccese 14
§ 3008(a), 42 U.S.C. 6928(a) (1982 & Supp. IV
tt tii cheh eee ee Ruths oh caeeeedenwessoes l

Vv
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)

2

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.

3

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)

4

(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).

5

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.

6

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

7

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.”

9

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

10

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

12

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).

13

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-

14

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

15

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.

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

JUNE 1989

US GOVERNMENT PRINTING OFFICE 1989—241.699/00317

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0227%3A11. Public record. Not legal advice.