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Pymatuning Water Shed Citizens for a Hygienic Env't v. Eaton

ELR Citation: 11 ELR 20790
Nos. No. 80-2433, 644 F.2d 995/15 ERC 1937/(3d Cir., 03/20/1981) Aff'd

In an action brought under the citizen suit provision of the Federal Water Pollution Control Act (FWPCA), the court affirms a district court order, 11 ELR 20498, requiring a municipal sewage disposal authority to propose a timetable for abating the discharge of untreated sewage into the Shenango River. At trial, appellants had argued that appellee had failed to give 60-days' notice pursuant to §505(b) of the FWPCA prior to commencing the lawsuit. The district court denied appellants' motion for dismissal, but stayed the proceedings until appellee gave the required notice. On appeal, the circuit court holds that the statutory notice requirement is procedural, not jurisdictional, and that appellee's failure to abide by its literal terms does not void the judgment of the district court. That court's stay allowed the proper persons and entities the time contemplated by the statute for taking appropriate action. To require dismissal and refiling of the suit would be excessively formalistic and wasteful of judicial resources and would frustrate citizen enforcement of the Act against violations that have continued unabated for nearly two years.

Counsel are listed at 11 ELR 20498.

Before Aldisert, Higginbotham, and Markey,* JJ.