Garcia v. Cecos Intern., Inc., No. 84-1364

CourtU.S. Court of Appeals — First Circuit
Writing for the CourtBefore COFFIN; WISDOM
Parties, 15 Envtl. L. Rep. 20,528 Vincente Serrano GARCIA, et al., Plaintiffs, Appellants, v. CECOS INTERNATIONAL, INC., et al., Defendants, Appellees.
Docket NumberNo. 84-1364
Decision Date15 May 1985

Page 76

761 F.2d 76
22 ERC 2018, 15 Envtl. L. Rep. 20,528
Vincente Serrano GARCIA, et al., Plaintiffs, Appellants,
v.
CECOS INTERNATIONAL, INC., et al., Defendants, Appellees.
No. 84-1364.
United States Court of Appeals,
First Circuit.
Argued Feb. 5, 1985.
Decided May 15, 1985.

Page 77

Pedro J. Saade Llorens, Hato Rey, P.R., with whom Josefina Pantoja Oquendo, Armando Cardona Acaba, Bayamon, P.R., Luis Amauri Suarez Zayas, Hato Rey, P.R., Maria D. Olores Fernos, Jose E. Colon Santana, and Emmalind Garcia Garcia, Rio Piedras, P.R., were on brief for plaintiffs, appellants.

Leonardo Andrade Lugo, Hato Rey, P.R., with whom Goldman & Antonetti, Santurce, P.R., was on brief for Cecos International, Inc.

Jesus R. Rabell-Mendez, San Juan, P.R., with whom Marta Quinones, Hato Rey, P.R., Arturo Diaz, Rio Piedras, P.R., and Cancio, Nadal & Rivera, Hato Rey, P.R., were on brief for Municipality of Ponce.

Before COFFIN, Circuit Judge, WISDOM, * Senior Circuit Judge, and BOWNES, Circuit Judge.

WISDOM, Senior Circuit Judge.

This case involves federal jurisdictional requirements for certain private citizens' suits in environmental litigation. We hold that the Resource Conservation and Recovery Act of 1976 (RCRA), 42 U.S.C.

Page 78

Secs. 6901-6987 (1982), requires a citizen to give the Administrator actual notice of intent to sue at least sixty days before the filing of the complaint if the citizen wishes to bring action under section 6972(a)-(b) of the statute. We further find that the comprehensive remedial devices in the RCRA foreclose a claim under 42 U.S.C. Sec. 1983 (1982). Because all parties concede that there was no actual notice in accordance with section 6972, we vacate the judgment of the district court and remand the case to the district court with instructions to remand to the Superior Court of Puerto Rico.

I. FACTS AND PROCEEDINGS BELOW

For decades the City of Ponce, Puerto Rico, operated a facility in the western part of the city for the disposal of solid wastes, some of which are now classified as hazardous. Those who deposited this waste never filed an Environmental Impact Statement, nor did the local Environmental Quality Board require them to do so. The plaintiffs, residents of the City of Ponce, allege that dumping at the site was confused, undocumented, and unregulated.

In the summer of 1982, EPA filed suit against Ponce for alleged violations of 40 C.F.R. Sec. 265 (1982) (interim status standards for owners and operators of hazardous waste facilities). That fall, the government of Puerto Rico and the EPA executed a "Memorandum of Agreement" to establish policies, responsibilities, and procedures under id. Sec. 123.126 for a waste management program. Meanwhile, Ponce had retained Cecos International, Inc., to manage the facility. Cecos submitted, in stages, its plans to bring the facility into full compliance with federal law. (This process was ninety percent complete at the time of the citizens' suit.) EPA's civil action was settled by a Consent Order in May 1983.

In December 1983, a group of citizens of Ponce filed a civil action in the Superior Court of Puerto Rico against Cecos and Ponce and its mayor seeking injunctive relief against the construction and imminent operation of a waste disposal facility at the site "until all applicable laws and regulations were complied with". In January 1984, the defendants successfully petitioned for removal to federal district court, alleging deprivations of their civil rights under 42 U.S.C. Sec. 1983 (1982). After removal, the plaintiffs amended their complaint to add alleged violations of RCRA, id. Secs. 6901-6987. The plaintiffs appealed from the district court's denial of the injunction. On appeal, we find on our own motion that there is no federal jurisdiction and accordingly dismiss the appeal for want of jurisdiction.

II. DISCUSSION

A. Alleged Jurisdiction Under the Resource Conservation and Recovery Act

After removal to district court, the plaintiffs amended their complaint to allege violations of RCRA. We find that there is no federal jurisdiction here because the plaintiffs failed to follow the procedures required for suits by private citizens under the statute. See 42 U.S.C. Sec. 6972(b) (1982).

RCRA's notice provision provides in pertinent part:

"(b) Actions prohibited. No action may be commenced under paragraph (a)(1) of this section--

"(1) prior to sixty days after the plaintiff has given notice of the violation (A) to the Administrator; (B) to the State in which the alleged violation occurs; and (C) to any alleged violator of such permit, standard, regulation, condition, requirement, or order;"

Id. The plain language of section 6972(b) commands sixty days' notice before the commencement of the suit. To accept anything less "constitutes, in effect, judicial amendment in abrogation of explicit, unconditional statutory language". City of Highland Park v. Train, N.D.Ill.1974, 374 F.Supp. 758, 766, aff'd, 7 Cir.1975, 519 F.2d 681, cert. denied, 1976, 424 U.S. 927, 96 S.Ct. 1141, 47 L.Ed.2d 337.

Page 79

Cecos argues that we should take jurisdiction on the ground that the notice provision is not a "jurisdictional prerequisite". Cecos relies on Roosevelt Campobello International Park Commission v. EPA, 1 Cir.1983, 711 F.2d 431, where this Court stated with regard to the Federal Water Pollution Control Act (FWPCA):

"Without deciding the extent to which notice must be given for jurisdictional purposes as a prerequisite to the maintenance of a citizen suit under section 1365, we note that courts have taken a generally functional approach to notice, holding the requirement satisfied despite technical deficiencies where the agency had time to investigate and act on the matter in issue, free of judicial compulsion."

Id. at 434 n. 7 (emphasis in original).

Cecos urges us to adopt a similar, "functional" approach concerning the commencement of an action under RCRA. We decline to do so, noting that our dictum in Roosevelt Campobello was ill-advised and against our holding in Commonwealth of Massachusetts v. United States Veterans Administration, 1 Cir.1976, 541 F.2d 119, where we upheld strict application of the notice requirement. Moreover, Roosevelt Campobello concerned the plaintiffs' application for attorney's fees, not an adjudication of environmental issues. There was no contention that jurisdiction was improper in the original action. Id. at 432-33. The question before the Court was whether FWPCA's attorneys' fees provision, 33 U.S.C. 1365(d) (1982), which on its face applied only to the Act's citizen suit provision, id. Sec. 1365(a), would also apply to a suit brought under id. Sec. 1369, which governs petitions for judicial review of the EPA's actions. Campobello, 711 F.2d at 433. In the instant case, by contrast, we are attempting not to fill statutory interstices regarding the award of attorney's fees but to construe statutory prerequisites for the maintenance of the initial action.

In Commonwealth of Massachusetts v. United States Veterans Administration, 1 Cir.1976, 541 F.2d 119, we squarely faced the issue of whether the plaintiffs' failure to comply with the notice provision of FWPCA precluded reliance on the citizen suits provision as a jurisdictional basis for the suit. The plaintiff argued that since no amount of administrative action could cure the violation, the suit could be maintained with only forty days' notice. We rejected that argument, noting that administrative attention could still expedite matters, and that a citizen suit could do no more. Id. at 121.

The identical langauge of the notice provision in both Veterans Administration and the present case is unambiguous: "No action may be commenced" by private plaintiffs without sixty days' notice. 33 U.S.C. Sec. 1365(b)(1) (1982) (FWPCA); 42 U.S.C. Sec. 6972(b)(1) (1982) (RCRA). The notice requirement is not a technical wrinkle or superfluous formality that federal courts may waive at will. We believe that it is part of the jurisdictional conferral from Congress that cannot be altered by the courts.

We recognize that some other courts have applied a "pragmatic" approach to the sixty-day notice provision in environmental statutes. In Pymatuning Water Shed Citizens v. Eaton, 3 Cir.1981, 644 F.2d 995, the Third Circuit upheld an action under section 1365 of FWPCA despite the plaintiffs' failure to give sixty days' notice. It was enough that the district court stayed the proceedings after the filing of the complaint. The Court held: "[It is not the case] that failure to abide by the Sec. 505(b) notice provision [33 U.S.C. Sec. 1365 (1982) ] is fatal to the suit and can be cured only by dismissal and refiling after proper notice. We agree with appellee that the notice provision is procedural and that failure to abide by its terms does not void the judgment of the district court." Id. at 996. Similarly, in Natural Resources Defense Council, Inc. v. Callaway, 2 Cir.1975, 524 F.2d 79, the Second Circuit waived strict compliance with the FWPCA's sixty-day notice requirement after the defendant asserted that it would take no action. Id. at 84 n. 4. See also Natural Resources Defense

Page 80

Council, Inc. v. Train, D.C.Cir.1974, 510 F.2d 692, 703 (notice provision of FWPCA held not jurisdictional prerequisite); Conservation Society of Southern Vermont, Inc. v. Secretary of Transportation, 2...

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  • Public Interest Research Group v. Hercules, Inc., Civ. A. No. 89-2291(JBS).
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey
    • March 31, 1993
    ...that a violator or agency may change its mind as the threat of suit becomes more imminent.'" Id. (quoting Garcia v. Cecos Int'l, Inc., 761 F.2d 76, 82 (1st In sum, there has never been a statutory notice letter in this case that alleged a specific monitoring, reporting, or recordkeeping vio......
  • Miller v. D.C. Water & Sewer Auth., No. 17-cv-0840 (KBJ)
    • United States
    • United States District Courts. United States District Court (Columbia)
    • October 2, 2018
    ...authorities with the opportunity to address and rectify possible violations affecting public safety. See Garcia v. Cecos Int'l, Inc., 761 F.2d 76, 82 (1st Cir. 1985) ("Notice from potential private plaintiffs gives the EPA and the state an opportunity to investigate the alleged violation.")......
  • McClellan Ecological Seepage v. Weinberger, No. CIV S-86-475-RAR.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • June 20, 1988
    ...the failure to provide adequate notice deprives district courts of subject matter jurisdiction. See Garcia v. Cecos International, Inc., 761 F.2d 76, 79 (1st Cir.1985); Walls v. Waste Resource Corp., 761 F.2d 311, 316 (6th Cir.1985); City of Highland Park v. Train, 519 F.2d 681, 691 (7th Ci......
  • Ass'n CONCERNED OVER Res. v. Tenn. ALUMINUM PROCESSORS INC., No. 1:10-00084
    • United States
    • United States District Courts. United States District Court (Columbia)
    • April 11, 2011
    ...'is a mandatory, not optional, condition precedent for suit.'") (quoting Hallstrom, 493 U.S. at 26); Garcia v. Cecos Intern., Inc., 761 F.2d 76,79-80 (1st Cir. 1985); Washington Trout v. McCain Foods, Inc., 45 F.3d 1351, 1354 (9th Cir. 1995) ("The [Hallstrom] Court held the notice requireme......
  • Request a trial to view additional results
60 cases
  • Public Interest Research Group v. Hercules, Inc., Civ. A. No. 89-2291(JBS).
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. District of New Jersey
    • March 31, 1993
    ...that a violator or agency may change its mind as the threat of suit becomes more imminent.'" Id. (quoting Garcia v. Cecos Int'l, Inc., 761 F.2d 76, 82 (1st In sum, there has never been a statutory notice letter in this case that alleged a specific monitoring, reporting, or recordkeeping vio......
  • Miller v. D.C. Water & Sewer Auth., No. 17-cv-0840 (KBJ)
    • United States
    • United States District Courts. United States District Court (Columbia)
    • October 2, 2018
    ...authorities with the opportunity to address and rectify possible violations affecting public safety. See Garcia v. Cecos Int'l, Inc., 761 F.2d 76, 82 (1st Cir. 1985) ("Notice from potential private plaintiffs gives the EPA and the state an opportunity to investigate the alleged violation.")......
  • McClellan Ecological Seepage v. Weinberger, No. CIV S-86-475-RAR.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • June 20, 1988
    ...the failure to provide adequate notice deprives district courts of subject matter jurisdiction. See Garcia v. Cecos International, Inc., 761 F.2d 76, 79 (1st Cir.1985); Walls v. Waste Resource Corp., 761 F.2d 311, 316 (6th Cir.1985); City of Highland Park v. Train, 519 F.2d 681, 691 (7th Ci......
  • Ass'n CONCERNED OVER Res. v. Tenn. ALUMINUM PROCESSORS INC., No. 1:10-00084
    • United States
    • United States District Courts. United States District Court (Columbia)
    • April 11, 2011
    ...'is a mandatory, not optional, condition precedent for suit.'") (quoting Hallstrom, 493 U.S. at 26); Garcia v. Cecos Intern., Inc., 761 F.2d 76,79-80 (1st Cir. 1985); Washington Trout v. McCain Foods, Inc., 45 F.3d 1351, 1354 (9th Cir. 1995) ("The [Hallstrom] Court held the notice requireme......
  • Request a trial to view additional results

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