National Environmental Foundation v. ABC Rail Corp.

• Decision Date: 19 March 1991
• Docket Number: No. 90-7214,90-7214
• Parties: , 59 USLW 2596, 21 Envtl. L. Rep. 20,800 NATIONAL ENVIRONMENTAL FOUNDATION, Plaintiff-Appellant, v. ABC RAIL CORPORATION, Defendant-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1096

926 F.2d 1096

32 ERC 1886, 59 USLW 2596, 21 Envtl.

L. Rep. 20,800

NATIONAL ENVIRONMENTAL FOUNDATION, Plaintiff-Appellant, v. ABC RAIL CORPORATION, Defendant-Appellee.

No. 90-7214.

United States Court of Appeals,

Eleventh Circuit.

March 19, 1991.

Edwin L. Yates, Robert D. Drummond, Jr., Montgomery, Ala., for plaintiff-appellant.

Helen Currie Foster, Cabaniss, Johnston, Gardner, Dumas & O'Neal, Birmingham, Ala., Carolyn J. Harvey, Julius C. McElveen, Jr., Jones, Day, Reavis & Pogue, Washington, D.C., for defendant-appellee.

Appeal from the United States District Court for the Northern District of Alabama.

Before POWELL ^*, Associate Justice (Retired), United States Supreme Court, TJOFLAT, Chief Judge, and ANDERSON, Circuit Judge.

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. Sec. 1317(a) (Sec. 307(a) of the Clean Water Act) for the purposes of waiving the 60-day notice requirement found in 33 U.S.C. Sec. 1365 (Sec. 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. Sec. 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 (ADEM) in accordance with and subject to the provisions of the Clean Water Act (Act), 33 U.S.C. Secs. 1251 et seq. and relevant state statutes. On January 22, 1989, appellant the National Environmental Foundation (NEF) sent notice to the appellee, 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. Secs. 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. Sec. 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. Sec. 1317(d). Since only suits respecting 33 U.S.C. Sec. 1317(a) (Sec. 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. Sec. 1365(b) (Sec. 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. Sec. 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. Sec. 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. Sec. 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. Sec. 1365 equally clear: like 42 U.S.C. Sec. 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. Sec. 1365(b) is a mandatory condition precedent to the filing of a citizen suit under the Clean Water Act. If a plaintiff fails to comply with this notice requirement where it is applicable, the district court is required to dismiss the action.

III

While the notice requirement contained in 33 U.S.C. Sec. 1365(b) is mandatory, there are two exemptions recognized in the statute: citizen suits brought "respecting a violation of Sec. 1316 or Sec. 1317(a)" of Title 33. 33 U.S.C. Sec. 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. Sec. 1317(a), and therefore it is not required to give 60 day's notice. ³ The district court rejected this argument. It held that Sec. 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. It held that appellant's suit had been brought under Sec. 1317(d)--the subsection directed at private parties and proscribing violations of standards created in the other portions of Sec. 1317. Appellant now argues that the district court erred in its construction of Sec. 1317(a) and (d). We agree with the district court.

The starting point in every case involving construction of a statute is the language of the statute itself. Consumer Product Safety Comm'n v. GTE Sylvania, Inc., 447 U.S. 102, 108, 100 S.Ct. 2051, 2056, 64 L.Ed.2d 766 (1980). The language of Section 1317(a) clearly addresses the Administrator only. It directs him or her to establish a list of toxic pollutants. ⁴ It also directs the Administrator to establish effluent limitations, and gives the Administrator the authority to create national effluent standards. ⁵ Since Sec. 1317(a) prescribes duties only upon the Administrator, it follows that only the Administrator can be sued for violating it.

Subsection 1317(d) is the first and only subsection of Sec. 1317 to impose duties upon or proscribe conduct by private parties. ⁶ It follows, therefore, from the plain language of the statute, that any suit against a private entity for a violation of a limitation set forth under any of the provisions of Sec. 1317(a) is an action for a violation of Sec. 1317(d). Appellant's suit is just such an action.

The appellant admits that at first glance the plain language of Sec. 1317(a) would indicate that it applies only to the Administrator. It argues, however, that if this literal reading of Sec. 1317(a) is applied to the statutory exemptions in Sec. 1365(b), it will produce a result demonstrably at odds with the intentions of Congress.

Appellant argues that the legislative history of Sec. 1365(b) shows that Congress intended to allow immediate citizen's suits for violations of toxic effluent limitations, citing Senate Report (Public Works Comm.) No. 92-414 Oct. 28, 1971, reprinted at 1972 U.S.Code Cong. and Admin.News, p. 3668. The portions of the report cited by appellant show that the committee emphasized that there should be no waiting period for citizen's suits where the alleged violation "is a failure to comply with an administrative enforcement order, a violation of a standard of performance, or a prohibition, or effluent standard or limitation in the act...." Senate Report, supra at 3746.

We do not find this portion of the legislative history to be illuminating. For, as appellant admits, the committee's language does not reflect the restrictive language ultimately adopted in the statute. We find no clearly expressed intent contrary to the plain language of the statute. Therefore the plain language of the statute controls. Product Safety Comm'n, 447 U.S. at 108, 100 S.Ct. at 2056.

Appellant finally argues that a strict reading of Sec. 1317(a) in conjunction with the requirements of Sec. 1365(b) would frustrate the primary objective in Sec. 1317 of preventing toxic effluants. We disagree. The Supreme Court has explained that the purpose of Sec. 1365(b) is to give the alleged violator an opportunity to bring itself into compliance with the Act, and thus make the citizen suit unnecessary. Gwaltney of Smithfield v. Chesapeake Bay Foundation, Inc. 484 U.S. 49, 60, 108 S.Ct. 376, 382, 98 L.Ed.2d 306 (1987); see also Atlantic States Legal Foundation v. Tyson Foods, 897 F.2d 1128, 1131 (11th Cir.1990). Section 1365(b)(1)(B) allows either federal or state authorities to bring an enforcement action within the 60 day period. A government enforcement action brought during the notice period bars the citizen suit. Gwaltney, 484 U.S. at 59, 108 S.Ct. at 382. We believe that another purpose behind the notice requirement of Sec. 1365 is to effectuate Congress's preference that the Act be enforced by governmental prosecution. See Gwaltney, 484...