ELR Citation: ELR 20539
No(s). 93-35857 (9th Cir. Jan 24, 1995)

The court affirms the dismissal for lack of subject matter jurisdiction of a Federal Water Pollution Control Act (FWPCA) citizen suit because the citizens groups'notice to the potato processing plant that was allegedly in violation of the Act did not provide theinformation required under applicable regulations. The court first declines to address whether by stating that the "pollution is substantial, longstanding, and continuing" the plaintiffs complied with the regulation's requirements of specifying the dates of the violation. The court holds that the notice the citizens groups served on the plant does not satisfy the 40 C.F.R. §135.3(a) notice requirement because it did not provide the names of two additional plaintiffs or the addresses and phone numbers of any of the plaintiffs. The purpose of giving 60-days' notice is to allow the parties to resolve their conflicts in a nonadversarial time period and to alert the appropriate federal or state agency so administrative action may initially provide the relief the parties seek before a court must become involved. Therefore, because neither the U.S. Environmental Protection Agency nor the plant knew other plaintiffs were involved, they were not in a position to negotiate with the citizens groups or to seek an administrative remedy, making any sort of resolution between the parties during the notice period impossible.

Counsel for Plaintiffs
William Kloos
Johnson & Kloos
767 Willamette St., Ste. 203, Eugene OR 97401
(503) 687-1004

Counsel for Defendant
Jerry Neal
Preston, Thorgrimson, Shidler, Gates & Ellis
1400 Seafirst Financial Ctr.
W. 601 Riverside Ave., Spokane WA 99201
(509) 624-2100

Before Wood,^* Hug, and Tang, JJ.