National Environmental Foundation v. Abc Rail Corporation

926 F.2d 1096, 21 Envtl. L. Rep. (Envtl. Law Inst.) 20800, 32 ERC (BNA) 1886, 1991 U.S. App. LEXIS 4300, 1991 WL 25779
CourtCourt of Appeals for the Eleventh Circuit
DecidedMarch 19, 1991
Docket90-7214
StatusPublished
Cited by29 cases

This text of 926 F.2d 1096 (National Environmental Foundation v. Abc Rail Corporation) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
National Environmental Foundation v. Abc Rail Corporation, 926 F.2d 1096, 21 Envtl. L. Rep. (Envtl. Law Inst.) 20800, 32 ERC (BNA) 1886, 1991 U.S. App. LEXIS 4300, 1991 WL 25779 (11th Cir. 1991).

Opinions

POWELL, Associate Justice:

The issue presented is whether a citizen action brought against an industrial polluter is an action pursuant to 33 U.S.C. § 1317(a) (§ 307(a) of the Clean Water Act) for the purposes of waiving the 60-day notice requirement found in 33 U.S.C. § 1365 (§ 505 of that act). We must, however, first decide whether the 60-day notice requirement is mandatory. Because we hold that it is mandatory and that appellant’s suit is not an action respecting 33 U.S.C. § 1317(a), we affirm the district court’s 1 dismissal of appellant’s complaint.

I

Appellee ABC Rail Corporation (ABC) operates a plant in Calera, Alabama. This plant, as part of its operation, discharges chemicals into Buxahatchee Creek under the authorization of the Alabama Department of Environmental Management [1097]*1097(ADEM) in accordance with and subject to the provisions of the Clean Water Act (Act), 33 U.S.C. §§ 1251 et seq. and relevant state statutes. On January 22, 1989, appellant the National Environmental Foundation (NEF) sent notice to the appel-lee, the Environmental Protection Administration (EPA) and ADEM advising them that it would file a citizens suit against ABC. NEF filed a complaint in the federal district court for the Northern District of Alabama the next day. The complaint alleged that ABC’s Calera plant was discharging pollutants, including the toxic chemicals of copper, lead, and zinc, in violation of the Act. It specifically alleged violations of 33 U.S.C. §§ 1311(a) and 1317 and the plant’s National Pollution Discharge Elimination Systems Permit issued pursuant the the Act.

ABC moved to dismiss the complaint on the grounds that NEC had failed to give 60 day’s notice as required by 33 U.S.C. § 1365(b). The district court granted ABC’s motion. It held that appellant’s action against ABC for violations of toxic effluent limitations is an action respecting 33 U.S.C. § 1317(d). Since only suits respecting 33 U.S.C. § 1317(a) (§ 1317(a)) were exempt from the notice requirement, the appellant was required to give 60 days notice before filing its complaint under 33 U.S.C. § 1365(b) (§ 1365(b)).2 Appellant, however, had given only one day’s notice. The district court dismissed appellant’s complaint without prejudice, noting that it could refile after complying with the Act’s notice provision. NEF now appeals the dismissal of its complaint.

II

Before we address appellant’s argument, we must first establish whether the 60-day notice requirement in 33 U.S.C. § 1365(b) is mandatory. This section allows citizens to bring suits against EPA, state environmental agencies, and alleged polluters for violations of the Clean Water Act. It does, however, impose some restrictions on citizen suits. It provides:

No action may be commenced—
(1) under subsection (a)(1) of this section—
(A) prior to sixty days after the plaintiff has given notice of the alleged violation (i) to the Administrator, (ii) to the State in which the alleged violation occurs, and (iii) to any alleged violator of the standard, limitation, or order, ... except that such action may be brought immediately after such notification in the case of an action under this section respecting a violation of sections 1316 and 1317(a) of this title....

33 U.S.C. § 1365(b).

In Hallstrom v. Tillamook County, 493 U.S. 20, 110 S.Ct. 304, 107 L.Ed.2d 237 (1989), the United States Supreme Court held that the 60-day notice requirement of the Resource Conservation and Recovery Act (RCRA) found in 42 U.S.C.’ § 6972 was mandatory: when a plaintiff does not comply with its provisions, the complaint must be dismissed. Section 6972 of Title 42 states that “[n]o action may be commenced ... prior to sixty days after the plaintiff has given notice of the violation.” The Court, looking at the plain language of the statute, concluded “compliance with the 60-day notice provision is a mandatory, not optional, condition precedent for suit.” Id. 110 S.Ct. at 309.

Section 1365(b) of Title 33 is a direct analogue of the RCRA 60-day notice provision examined in Hallstrom. Id., at 307 n. 1. We also find the language of 33 U.S.C. § 1365 equally clear: like 42 U.S.C. § 6972, Section 1365(b) states that except in certain enumerated instances “[n]o action may be commenced ... prior to 60 days after the plaintiff has given notice.” Consequently, we hold that the 60-day notice requirement of 33 U.S.C. § 1365(b) is a mandatory condition precedent to the filing of a citizen suit under the Clean Water Act. If a plain[1098]*1098tiff fails to comply with this notice requirement where it is applicable, the district court is required to dismiss the action.

Ill

While the notice requirement contained in 33 U.S.C. § 1365(b) is mandatory, there are two exemptions recognized in the statute: citizen suits brought “respecting a violation of § 1316 or § 1317(a)” of Title 33. 33 U.S.C. § 1365(b). Appellant argues that its complaint alleging ABC’s violations of toxic effluent limitations is a complaint alleging violations of 33 U.S.C. § 1317(a), and therefore it is not required to give 60 day’s notice.3 The district court rejected this argument. It held that § 1317(a) is directed solely at the Administrator of EPA. Therefore, any suit brought for violations of this subsection would have to brought against the Administrator.

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926 F.2d 1096, 21 Envtl. L. Rep. (Envtl. Law Inst.) 20800, 32 ERC (BNA) 1886, 1991 U.S. App. LEXIS 4300, 1991 WL 25779, Counsel Stack Legal Research, https://law.counselstack.com/opinion/national-environmental-foundation-v-abc-rail-corporation-ca11-1991.