Olaf A. Hallstrom and Mary E. Hallstrom, Husband and Wife, and Cross-Appellees v. Tillamook County, a Municipal Corporation, and Cross-Appellant

This case requires us to determine whether failure to comply with the 60 day notice requirement of the Resource Conservation and Recovery Act of 1976 (RCRA) *890 deprived the district court of subject matter jurisdiction to hear this case. Of the seven circuits that have considered this issue, three have found that notice is a jurisdictional prerequisite and four have held that notice is merely procedural.

We hold that proper notice is a precondition of the district court’s jurisdiction. Because the Hallstroms failed to notify the Environmental Protection Agency (EPA) and the Oregon Department of Environmental Quality (DEQ) before filing suit, the district court lacked subject matter jurisdiction to hear the case. We remand for dismissal.

BACKGROUND

The Hallstroms own property near the Tillamook County landfill. They allege that leachate (contaminated liquid) discharged from the landfill caused or contributed to bacterial and chemical pollution of their surface and ground water. In April 1982, they filed suit against the county under 42 U.S.C. § 6972 , claiming that the county was violating RCRA, 42 U.S.C. § 6901 , et seq. Nine months later they notified in writing the EPA and…

dissenting:

The majority holds that the 60-day notice requirement of 42 U.S.C. § 6972 (b) is jurisdictional. It therefore holds that the district court lacked jurisdiction over this action, even though the EPA and the Oregon Department of Environmental Quality received written notice of the action more than two years before trial began. By requiring dismissal, the majority exalts form over substance. I therefore dissent.

The Hallstroms filed their complaint on April 9, 1982. They gave written notice to the EPA and the Oregon Department of Environmental Quality (DEQ) on March 2, 1983. The EPA had actual notice in December 1982; the DEQ in January 1983. The trial began on July 22, 1985.

Section 7002 of the Resource Conservation Recovery Act (RCRA), 42 U.S.C. § 6972 allows for citizen enforcement of certain statutory provisions. Section 6972(b)(1) provides that “[n]o action may be commenced under ... this section ... prior to 60 days after the plaintiff has given notice of the violation to — (1) the Administrator; (ii) the State in which the alleged violation occurs; and (iii) to any alleged violator____” We must decide whether this requirement acts to deprive a district court of…

831 F.2d 889 26 ERC 1809 , 18 Envtl. L. Rep. 20 ,149 Olaf A. HALLSTROM and Mary E. Hallstrom, husband and wife, Plaintiff-Appellants, and Cross-Appellees, v. TILLAMOOK COUNTY, a municipal corporation, Defendant-Appellee, and Cross-Appellant. Nos. 86-4016, 86-4100 and 86-4257. United States Court of Appeals, Ninth Circuit. Argued and Submitted Sept. 10, 1987. Decided Nov. 3, 1987. Kim T. Buckley and John W. Stephens, Portland, Or., for plaintiffs-appellants and cross-appellees. I. Franklin Hunsaker, James G. Driscoll and Thomas D. Adams, Portland, Or., for defendant-appellee and cross-appellant. Appeal from the United States District Court for the District of Oregon. Before WRIGHT, WALLACE and PREGERSON, Circuit Judges. EUGENE A. WRIGHT, Circuit Judge: 1 This case requires us to determine whether failure to comply with the 60 day notice requirement of the Resource Conservation and Recovery Act of 1976 (RCRA) deprived the district court of subject matter jurisdiction to hear this case. Of the seven circuits that have considered this issue, three have found that notice is a jurisdictional prerequisite and four have held that notice is merely procedural. 2 We hold that proper notice…