Title 40—Protection of Environment--Volume 1
PART 374—PRIOR NOTICE OF CITIZEN SUITS
§ 374.1   Purpose.
Section 310 of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), as amended by the Superfund Amendments and Reauthorization Act of 1986 (SARA), authorizes civil actions by any person to enforce the Act. These civil actions may be brought against any person (including the United States, and any other governmental instrumentality or agency, to the extent permitted by the Eleventh Amendment to the Constitution), that is alleged to become effective pursuant to the Act (including any provision of an agreement under section 120 of the Act, relating to Federal facilities); and against the President or any other officer of the United States (including the Administrator of the Environmental Protection Agency and the Administrator of the Agency for Toxic Substances and Disease Registry) where there is alleged a failure to perform any act or duty under this Act, which is not discretionary with the President or such other officer, including an act or duty under section 120 of the Act (relating to Federal facilities), but not including any act or duty under section 311 of the Act (relating to research, development, and demonstration). These civil actions under section 310 of the Act are to be filed in accordance with the rules of the district court in which the action is instituted. The purpose of this part is to prescribe procedures governing the notice requirements of subsections (d) and (e) of section 310 of the Act as a prerequisite to the commencement of such actions.
§ 374.2   Service of notice.
(a) Violation of standard, regulation, condition, requirement, or order. Notice of intent to file suit under subsection 310(a)(1) of the Act shall be served by personal service upon, or by certified mail, return receipt requested, addressed to the alleged violator of any standard, regulation, condition, requirement, or order which has become effective pursuant to this Act in the following manner:
(1) If the alleged violator is a private individual or corporation, notice shall be served by personal service upon, or by certified mail, return receipt requested, addressed to the person alleged to be in violation. If the alleged violator is a corporation, a copy of the notice shall also be served by personal service upon or by certified mail, return receipt requested, addressed to the registered agent, if any, of that corporation in the State in which the violation is alleged to have occurred. A copy of the notice shall be served by personal service upon or by certified mail, return receipt requested, addressed to the United States Attorney General; to the Attorney General of the State in which the violation is alleged to have occurred; and to the head of the Federal agency with delegated responsibility for the CERCLA provision allegedly violated, pursuant to Executive Order 12580, 3 CFR, 1987 Comp., p. 193, as amended by Executive Order 12777, 3 CFR, 1991 Comp., p. 351. If the Environmental Protection Agency has responsibility for the CERCLA provision allegedly violated, then a copy of the notice shall be served by personal service upon or by certified mail, return receipt requested, addressed to the Administrator of the Environmental Protection Agency, and to the Regional Administrator of the Environmental Protection Agency for the Region in which the violation is alleged to have occurred. A list of addresses that may be useful in providing notice of citizen suits is provided at § 374.6. Note that these addresses are subject to change and must be verified prior to use.
(2) If the alleged violator is a State or local agency, notice shall be served by personal service upon or by certified mail, return receipt requested, addressed to the head of that agency. A copy of the notice shall be served by personal service upon or by certified mail, return receipt requested, addressed to the United States Attorney General; to the Attorney General of the State in which the violation is alleged to have occurred; and to the head of the Federal agency with delegated responsibility, pursuant to Executive Order 12580, for the CERCLA provision allegedly violated. If the Environmental Protection Agency has the delegated responsibility for the CERCLA provision allegedly violated, then a copy of the notice shall be served by personal service upon or by certified mail, return receipt requested, addressed to the Administrator of the Environmental Protection Agency, and to the Regional Administrator of the Environmental Protection Agency for the Region in which the violation is alleged to have occurred. A list of addresses that may be useful in providing notice of citizen suits is provided at § 374.6. Note that these addresses are subject to change and must be verified prior to use.
(3) If the alleged violator is a Federal agency, notice shall be served by personal service upon or by certified mail, return receipt requested, addressed to the head of the agency. A copy of the notice shall be served by personal service upon or by certified mail, return receipt requested, addressed to the United States Attorney General; to the Attorney General of the State in which the violation is alleged to have occurred; and to the head of the Federal agency with delegated responsibility, pursuant to Executive Order 12580, for the CERCLA provision allegedly violated. If the Environmental Protection Agency has the delegated responsibility for the CERCLA provision allegedly violated, then a copy of the notice shall be served by personal service upon or by certified mail, return receipt requested, addressed to the Administrator of the Environmental Protection Agency, and to the Regional Administrator of the Environmental Protection Agency for the Region in which the violation is alleged to have occurred. A list of addresses that may be useful in providing notice of citizen suits is provided at § 374.6. These addresses are subject to change and must be verified prior to use.
(b) Failure to act. Service of notice of intent to file suit under subsection 310(a)(2) of the Act shall be accomplished by personal service upon or by certified mail, return receipt requested, addressed to the United States Attorney General and to the head of the agency of the United States (including the Administrator of the Environmental Protection Agency or the Administrator of the Agency for Toxic Substances and Disease Registry), who is alleged to have failed to perform an act or duty which is not discretionary.
(c) Date of service. Notice given in accordance with the provisions of this part shall be considered to have been served on the date of receipt. If notice or copy of notice is required to be served on more than one entity, notice shall be considered to have been served on the date of receipt by the last entity served. If service was accomplished by mail, the date of receipt will be considered to be the date noted on the return receipt card.
§ 374.3   Contents of notice.
(a) Violation of standard, regulation, condition, requirement, or order. Notice regarding an alleged violation of a standard, regulation, condition, requirement, or order (including any provision of an agreement under section 120 of the Act, relating to Federal facilities) which has become effective under this Act shall include sufficient information to allow the recipient to identify the specific standard, regulation, condition, requirement, or order (including any provision of an agreement under section 120 of the Act, relating to Federal facilities) which has allegedly been violated; the activity or failure to act alleged to constitute a violation; the name and address of the site and facility alleged to be in violation, if known; the person or persons responsible for the alleged violation; the date or dates of the violation; and the full name, address, and telephone number of the person giving notice.
(b) Failure to act. Notice regarding an alleged failure of the President or other officer of the United States to perform an act or duty which is not discretionary under the Act shall identify the provisions of the Act which require such act or create such duty; shall describe with reasonable specificity the action taken or not taken by the President or other officer that is claimed to constitute a failure to perform the act or duty; shall identify the Agency and name and title of the officers allegedly failing to perform the act or duty; and shall state the full name, address, and telephone number of the person giving the notice.
(c) Identification of counsel. All notices shall state the name, address, and telephone number of the legal counsel, if any, representing the person giving the notice.
§ 374.4   Timing of notice.
(a) Violation of standard, regulation, condition, requirement, or order. No action may be commenced under subsection 310(a)(1) of the Act before sixty (60) days after the plaintiff has served notice of the violation as specified in § 374.2(c). No action may be commenced under subsection 310(a)(1) of the Act if the President or his or her delegatee has commenced and is diligently prosecuting an action under the Act or under the Resource Conservation and Recovery Act (RCRA), 42 U.S.C. 6901 et seq. , to require compliance with the CERCLA standard, regulation, condition, requirement, or order concerned (including any provision of an agreement under section 120 of the Act).
(b) Failure to act. No action may be commenced under subsection 310(a)(2) of the Act before sixty (60) days after the plaintiff has given notice of the failure to act as specified in this part.
§ 374.5   Copy of complaint.
At the time of filing an action under this Act, the plaintiff must provide a copy of the complaint to the Attorney General of the United States and to the Administrator of the Environmental Protection Agency.
§ 374.6   Addresses.
Table 1 to § 374.6