ELR Citation: ELR 20069
No(s). CS-92-236-FVS (E.D. Wash. Feb 22, 1993)

The court holds that plaintiffs failed to comply with the notice requirements of the citizen suit provision of the Federal Water Pollution Control Act (FWPCA) by sending defendant a letter informing him that a named individual "and others," none of whom is a plaintiff in this litigation, intended to file suit against him for the discharge of pollutants from his feedlot. The court first holds that the notice requirements are mandatory conditions precedent for suits under the FWPCA's citizen suit provision. The U.S. Supreme Court has held that the notice requirements in the citizen suit provision of the Resource Conservation and Recovery Act (RCRA) are mandatory conditions precedent and RCRA and FWPCA were both patterned after the notice provisions of the Clean Air Act Amendments of 1970. The court notes that in instances where the notice requirements were satisfied, although some plaintiffs were not discussed in the notice, at least one party giving notice was a plaintiff in the litigation. In this case the only individual named in the letter is not a party to the suit. The court also holds that the feedlot owner is not entitled to attorney fees because he failed to show that the individuals acted in bad faith or recklessness in filing suit.

Counsel for Plaintiffs
Michael E. Withey
Schroeter, Goldmark & Bender
500 Central Bldg.
810 Third Ave., Seattle WA 98104
(206) 622-8000

Counsel for Defendant
Gregory S. McElroy
Cable, Haagensen, Benedict, Lybeck & McElroy
3080 Washington Mutual Tower
1201 Third Ave., Seattle WA 98101
(206) 654-4160