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Hallstrom v. Tillamook County

ELR Citation: 18 ELR 20606
Nos. Nos. 86-4016 et al., 844 F.2d 598/(9th Cir., 04/07/1988) Amended, petition for reh'g & suggestion for reh'g en banc denied

The court affirms its earlier decision ruling that the 60-day notice requirement in §7002(b) of the Resource Conservation and Recovery Act (RCRA) is jurisdictional, denying a petition for rehearing and a suggestion for rehearing en banc. 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. The court also holds that the district court lacked pendent jurisdiction over plaintiffs' state-law claim, since it had no jurisdiction over the federal claim, and reverses the district court's award of fees to the county.

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.

[The court's earlier superseded opinion is published at 18 ELR 20149.]

Counsel for Plaintiffs-Appellants
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
I. Franklin Hunsaker, James G. Driscoll, Thomas D. Adams
Bullivant, Houser, Bailey, Hanna, Pendergrass, Hoffman, et al.
1400 Pawcrest Ctr., 1211 SW 5th Ave., Portland OR 97204-3797
(503) 228-6851

Before Wallace and Pregerson, JJ.