# Hallstrom v. Tillamook County

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## Dissenting Opinion

    Marshall
United States Supreme Court
493 U.S. 20
Hallstrom v. Tillamook County
No. 88-42 Argued: Oct. 4, 1989. --- Decided: Nov 7, 1989
See 493 U.S. 1037, 110 S.Ct. 761.
Syllabus
Subsection (a)(1) of the citizen suit provision of the Resource Conservation and Recovery Act of 1976 (RCRA), 42 U.S.C. § 6972, permits any person to commence a civil action against an alleged violator of waste disposal regulations promulgated under the Act, "[except] as provided in subsection (b)." Subsection (b), entitled "[a]ctions prohibited," provides that no such suit may be commenced prior to 60 days after a plaintiff has given notice of the violation to the Environmental Protection Agency (EPA), the federal body charged with enforcing RCRA, to the State in which the alleged violation occurred, and to the alleged violator. Believing that respondent's sanitary landfill violated RCRA standards, petitioners, the owners of a farm next to the landfill, sent respondent written notice of their intent to sue and, one year later, commenced this action. Respondent moved for summary judgment on the ground that the District Court lacked jurisdiction because petitioners had failed to notify the State of Oregon and the EPA as required by § 6972(b). Petitioners then notified the state and federal agencies of the suit. The District Court denied respondent's motion on the ground that petitioners satisfied RCRA's notice requirement by notifying these agencies and, after trial, held that respondent had violated RCRA. The Court of Appeals remanded the action with instructions to dismiss, concluding that petitioners' failure to comply with the 60-day notice requirement deprived the District Court of subject matter jurisdiction.
Held: Where a party suing under RCRA's citizen suit provision fails to meet the notice and 60-day delay requirements of § 6972(b), the action must be dismissed as barred by the terms of the statute. Pp. 25-33.
(a) The plain language of the statute establishes that compliance with the 60-day notice provision is a mandatory, not optional, condition precedent for suit and may not be disregarded at a court's discretion. Actions commenced prior to 60 days after notice are "prohibited" under § 6972(b), and, because this language is expressly incorporated by reference into § 6972(a), it acts as a specific limitation on a citizen's right to bring suit. P. 25-26.
(b) None of petitioners' arguments for giving the statute a flexible or pragmatic construction require this Court to disregard the statute's plain language. The argument that the notice requirement should be deemed satisfied if a suit commenced without proper notice is stayed until 60 days after notice has been given is rejected. Whether or not a stay is in fact the functional equivalent of precommencement delay, staying judicial action once the suit has been filed does not honor § 6972(b)'s prohibition on the filing of a complaint before the 60-day notice requirement is fulfilled. Although Congress excepted parties from complying with a delay requirement elsewhere in RCRA, it did not do so in petitioners' situation, and this Court may not create such an exception where Congress has declined to do so. The contention that the 60-day notice provision is subject to equitable modification and cure is also unavailing. The equities do not weigh in favor of modifying statutory requirements when the procedural default is caused by petitioners' failure to take the minimal steps necessary to preserve their claims. Nor can petitioners' failure be excused on the ground that it would be unfair to hold them, as laypersons, to strict compliance with the statute, since this suit, like RCRA citizen suits generally, was filed by a trained lawyer. Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 102 S.Ct. 1127, 71 L.Ed.2d 234, distinguished. Petitioners' reliance on the legislative history of citizen suit provisions is also misplaced, since nothing in that history militates against honoring the plain language of the notice requirement. In fact, requiring citizens to comply with the notice and delay requirements furthers Congress' goal of striking a balance between encouraging citizen suits and avoiding burdening the federal courts with excessive numbers of such suits, since notice allows government agencies and alleged violators to achieve compliance without the need for suit. Petitioners' assertion that giving effect to the literal meaning of the notice provisions would allow violations to go unchecked during the 60-day waiting period is not persuasive, since this problem results from the balance knowingly struck by Congress in developing the citizen suit provisions, and since it is likely that compliance with the notice requirement will trigger appropriate federal or state enforcement actions to prevent serious damage. Moreover, it is not irrational to require a citizen to wait 60 days to commence suit after agencies and alleged violators have specifically declined to act in response to notice by the citizen, since a violator or agency may change its mind as the threat of suit becomes imminent. Pp. 26-31.
(c) In light of this Court's literal interpretation of the statutory requirement, the question whether § 6972(b) is jurisdictional in the strict sense of that term or is merely procedural need not be determined. Requiring dismissal for noncompliance with the notice provision is supported by the EPA and will further judicial efficiency by relieving courts of the need to make case-by-case determinations of when or whether failure to comply is fatal. Pp. 31-32.
(d) Although there is some merit to petitioners' contention that requiring dismissal of this action wastes judicial resources, the factors that have led this Court to apply decisions nonretroactively are not present here: this decision does not establish a new rule of law or overrule clear past precedent on which litigants may have relied, and the statute itself put petitioners on notice of the requirements for bringing suit. Retroactive operation of this decision will further Congress' purpose of giving agencies and alleged violators a 60-day nonadversarial period to achieve compliance with RCRA regulations. Moreover, dismissal will not deprive petitioners of their "right to a day in court," since they remain free to give the statutorily required notice and file their suit. P. 32-33.
844 F.2d 598 (CA9 1987), affirmed.
O'CONNOR, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and WHITE, BLACKMUN, STEVENS, SCALIA, and KENNEDY, JJ., joined. MARSHALL, J., filed a dissenting opinion, in which BRENNAN, J., joined, post, p. 33.
Kim T. Buckley, Portland, Or., for petitioners.
I. Franklin Hunsaker, Portland, Or., for respondent.
Brian J. Martin, for U.S., as amicus curiae by special leave of Court.
Justice O'CONNOR delivered the opinion of the Court.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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