ELR Citation: ELR 20149
No(s). s. 86-4016 et al (9th Cir. Nov 3, 1987)

The court rules that the 60-day notice requirement in §7002(b) of the Resource Conservation and Recovery Act (RCRA) is jurisdictional. The plain language of §7002(b) demonstrates that 60 days' notice is required before commencement of a citizen suit. Strict application of the notice provision is supported by an exception in §7002 waiving the 60-day notice requirement if the alleged violation involves hazardous waste. Moreover, Congress intended that citizen enforcement be secondary to administrative enforcement by the Environmental Protection Agency (EPA) and that conflict resolution be pursued, if possible, at the administrative level rather than in the courts; anything other than a literal interpretation of the notice requirement would render the provision meaningless.

A dissent would hold that RCRA requires that 60 days elapse before the district court may act. The dissent concludes that the majority has elevated form over substance, since EPA and the state agency received notice of the suit more than two years before trial actually began and EPA was well aware of the conflict before receiving notice.

Counsel for Plaintiffs-Appellants/Cross-Appellees
Kim T. Buckley, John W. Stephens
Esler, Stephens & Buckley
Suite 1870, 101 SW Main St., Portland OR 97204
(503) 228-2141

Counsel for Defendant-Appellee/Cross-Appellant
I. Franklin Hunsaker, James G. Driscoll, Thomas D. Adams
Bullivant, Houser, Bailey, Hanna, Pendergrass, Hoffman, O'Connell & Goyak
1400 Pacwest Ctr., 1211 SW 5th Ave., Portland OR 97204-3797
(503) 228-6351

Before Wallace and Pregerson, JJ.