ELR Citation: ELR 20193
No(s). 88-42 (U.S. Nov 7, 1989)

The Supreme Court rules that the 60-day notice requirement of Resource Conservation and Recovery Act (RCRA) §7002(b) is a mandatory condition precedent to filing a citizen suit, and failing to give the notice must result in dismissing the suit. The owners of a dairy farm located next to a county landfill notified the county government, but not the Environmental Protection Agency (EPA) or the state government, of their intent to bring suit. The Court first holds that §7002(b)'s language is clear. Merely staying an improperly filed suit for 60 days is not within the section's terms. Although the Court has allowed equitable modification of notice requirements under a civil rights statute, that requirement operated as a statute of limitations and was usually encountered by non-lawyers. Moreover, even though more environmental damage could occur during the 60-day waiting period, this is a result of the balance Congress struck in drafting the statute, and in some circumstances Congress has enacted exceptions. Similarly, even if the notified government agencies explicitly declined to act, requiring the citizens to wait the full 60 days would not be irrational, because it gives the agencies an opportunity to change their decision. The Court observes that EPA interprets RCRA §7002(b) as requiring dismissal if the required notice has not occurred. Finally, the Court declines to apply this decision for future cases only. Although this case has proceeded to a determination on the merits, the factors that lead to applying decisions non-retroactively are not present in this case.

A dissent filed by Justice Marshall and joined by Justice Brennan would have permitted the district court to stay proceedings for 60 days.

[Prior opinions in this case appear at 18 ELR 20149 and 20606.]

Counsel for Petitioners
Kim T. Buckley
Esler, Stephens & Buckley
101 SW Main St., Ste. 1870, Portland OR 97204
(503) 228-2141

Counsel for Respondent
I. Franklin Hunsaker
Bullivant, Houser, Bailey, Hanna, Pendergrass & Hoffman
1400 Pacwest Ctr., 1211 SW Fifth Ave., Portland OR 97204-3797
(503) 228-6351