*1 FOUN- ENVIRONMENTAL NATIONAL
DATION, Plaintiff-Appellant, CORPORATION,
ABC RAIL
Defendant-Appellee. 90-7214. No. Drummond, Yates, D. Robert L. Edwin Appeals, Court States United Ala., plaintiff-appel- for Jr., Montgomery, Circuit. Eleventh lant. 19, 1991. March Johnston, Cabaniss, Foster, Helen Currie O’Neal, Birmingham,
Gardner, & Dumas McEl- Harvey, C. Julius Ala., Carolyn J. Pogue, Jones, Day, Reavis & veen, Jr., defendant-appellee. D.C., for Washington, POWELL*, Justice Associate Before Court, Supreme (Retired), United States TJOFLAT, Judge, and Chief ANDERSON, Judge. Circuit POWELL, Justice: Associate citizen is whether presented The issue pollu- industrial against an ter an Act) 1317(a)(§ of the Clean Water 60-day waiving the purposes of for found requirement must, act). how- (§ 505 of that 60-day notice ever, first decide whether mandatory. we Because appel- mandatory and that it is hold that respecting 33 lant’s suit 1317(a), district affirm the we dismissal court’s I (ABC)op- Corporation Appellee ABC Rail Calera, This Alabama. plant erates a discharges operation, part plant, as Creek into Buxahatchee chemicals Depart- Alabama the authorization Management Environmental ment Acker, Jr., * United Jr., M. Powell, William 1. The Honorable Justice Associate Lewis F. Honorable retired, District Court, Judge the Northern District Supreme United States of the sitting by designation. Alabama.
1097
(ADEM)
does,
in
with
subject
however,
accordance
and
to Act.
It
impose some re-
provisions of
the
the Clean
Act
Water
strictions on citizen
It provides:
suits.
seq.
1251 et
(Act),
33 U.S.C.
and rele-
§§
may
No action
be commenced—
January 22, 1989,
vant state statutes. On
(1)
(a)(1)
under subsection
of this sec-
appellant
the National Environmental
tion—
(NEF)
to
appel-
Foundation
sent notice
the
(A) prior
sixty
to
days after the plain-
lee, the Environmental Protection Adminis-
given
tiff has
alleged
notice of the
viola-
(EPA)
ADEM advising
tration
and
them
(i)
Administrator,
(ii)
tion
to the
the
to
against
it would file a citizens suit
in
alleged
State
which the
oc-
violation
ABC. NEF
in
complaint
filed
the federal
curs,
(iii)
any alleged
and
violator
district
for the
court
Northern District of
standard,
limitation,
order,
the
or
...
the
day.
complaint
Alabama
next
al-
except that such
may
leged
plant
that ABC’s Calera
was dis-
immediately after such
notification
the
charging pollutants,
including the toxic
case
an action under this section re-
lead,
zinc,
copper,
chemicals of
in viola-
specting a violation of sections 1316 and
alleged
tion of the
It specifically
Act.
vio-
1317(a) of this title....
33
lations of
U.S.C.
and 1317
§§
1365(b).
33 U.S.C. §
plant’s
and the
National
Dis-
Pollution
Hallstrom v.
charge
In
County,
Tillamook
Systems
Elimination
Permit
issued
493
the
U.S.
the Act.
II
1365(b)
states that
in certain
argu
Before we address
may
enumerated instances
“[n]o
ment,
prior
days
we must first establish whether the
commenced ...
to 60
after the
60-day
requirement
plaintiff
given
notice
Consequently,
notice.”
1365(b) is mandatory.
60-day
This section al we
hold that
bring
EPA,
1365(b)
lows citizens to
suits
mandatory
is a
con-
alleged
agencies,
precedent
state environmental
filing
dition
to the
of a citizen
polluters for
the Clean
violations of
Water
suit under the
a plain-
Clean Water Act.
If
1317(a).
2. The court also stated that under 33 U.S.C.
Since the district court’s statement
only
§ 1365 immediate actions are allowed
on all immediate actions is not essential to the
brought against
holding
regard
when the action is
the Adminis-
or to
outcome of the case we
EPA,
rely upon
Consequently,
trator of
plain
but chose
and ex-
it as dicta.
we do not address
holding
interpretation
opinion.
based on the
that issue in this
portions of
in the other
comply
require-
with this notice
created
tiff fails to
argues
applicable,
1317.
now
district
ment where
district court erred
its construction
required to dismiss the action.
court
(d).
agree with the dis
*3
trict court.
Ill
involving
in
starting point
every
The
case
con
While the
language of
of a statute is the
construction
1365(b) mandatory,
is
tained
Product
Consumer
statute
itself.
the
exemptions recognized in the
are two
there
Inc.,
Sylvania,
v. GTE
Safety Comm’n
brought “respecting a
statute:
citizen suits
2051, 2056,
102, 108,
64
100
447 U.S.
S.Ct.
1317(a)”
or
Title
of
1316
of
violation
§
§
(1980).
language
The
of Sec-
L.Ed.2d
argues
Appellant
33. 33 U.S.C. §
1317(a) clearly addresses
the Adminis-
complaint alleging
ABC’s violations
that
only.
directs him or her to estab-
trator
It
complaint
is a
of toxic effluent
limitations
pollutants.4
It
di-
a list of toxic
also
lish
1317(a),
of 33 U.S.C.
alleging violations
§
ef-
the Administrator
to establish
rects
required
not
to
therefore it is
and
limitations,
gives
and
the Adminis-
fluent
rejected
notice.3 The district court
day’s
authority
the
ef-
trator
create national
1317(a)
held that
argument.
It
this
1317(a) pre-
fluent
standards.5
Since §
solely at
the Administrator
of
directed
Administrator,
only upon the
scribes duties
Therefore, any
brought
suit
for vio
EPA.
only
that
the Administrator
can
it follows
lations of this subsection would have
violating
sued for
it.
brought against
the Administrator.
It held
1317(d)
only
un
first
that
suit had been
the
and
Subsection
upon
1317(d)—the
impose
directed at
of
1317 to
duties
der
subsection
subsection
by
parties.6 It
private parties
proscribing
proscribe
violations of
or
conduct
and
private
technology economically
achiev-
concedes that
this suit is not
best available
3.
category
point
respecting
applicable
or
a
of
able for the
class of
violation
in
with sections
1316.
sources established
accordance
1311(b)(2)(A)
1314(b)(2)
this
and
of
title.
1317(a)(1) provides:
“On and after
Section
4.
discretion,
Administrator,
may publish
his
in
27, 1977,
pollutants
the
toxic
or
December
list of
Register
proposed
the Federal
a
effluent stan-
subject
chap-
pollutants
combination of
this
(which may
prohibition)
a
estab-
dard
include
pollutants
those
ter shall consist of
toxic
listed
requirements
lishing
pollutant
for a toxic
of
Numbered
in table 1 Committee Print
95-30
which,
applicable
a
if an
effluent limitation
Works and Trans-
of the Committee on Public
sources,
category
point
appli-
class or
of
shall be
Representatives,
portation of
House of
the
category
only
cable to such
or class
if such
publish,
shall
than
the Administrator
later
stringent requirements
imposes more
standard
27, 1977,
day
that
the thirtieth
after December
language setting
procedure
out
for
...
[further
thereafter, the
From time to time
Adminis-
list.
proposing
Effluent
limitations
standards]
...
may
such list and the
trator
revise
Administra-
shall be established in accordance with sections
add to
remove
such
tor is authorized to
or
from
1311(b)(2)(A)
1314(b)(2)
of this title for
any pollutant.
pub-
The
list,
list
Administrator in
every
pollutant
toxic
to in
1 of
referred
table
any
including
lishing
the
revised
addition
of
Committee Print Numbered 95-30
the Com-
list,
any pollutant
such
shall
or removal of
from
Transportation
on
Works and
mittee
Public
toxicity
pollutant, its
take into account
of the
Representatives
practi-
as soon
the House of
as
persistence, degradability,
potential
the usual or
27, 1977,
no
after December
but
later than
cable
organisms
any
presence of
affected
wa-
1,
July
Such effluent limitations or ef-
1980.
ters,
importance
organisms,
the affected
(or prohibitions) shall be estab-
fluent standards
and the nature and extent of
effect of
every
pollutant
other
listed un-
lished
toxic
pollutant
organisms.
such
A determi-
toxic
on
(1)
paragraph
of this subsection as soon as
der
para-
of the Administrator under this
nation
practical after
it
is so listed."
33 U.S.C.
if,
judicial
graph
shall
final
on
1317(a)(2).
remaining
subsections
review, such
was based
arbi-
determination
that the Administra-
establish criteria
trary
tor,
capricious
action of the Administra-
promulgating the
tor must follow in
a
the Administrator shall make
redetermi-
1317(a)(2).
may
be established under
1317(a)(1).
nation."
1317(a)(2)
1317(d) provides:
provides:
pol-
5.
toxic
6.Section
the effective
"[e]ach
"[a]fter
Section
(1)
any
paragraph
prohibition
listed
accordance with
date of
effluent standard or
or
lutant
promulgated
subject
pretreatment
this
this
shall be
to the effluent
under
section,
any
resulting
application
or
from the
it shall be unlawful for
owner
limitations
follows, therefore,
plain
from the
citizen suit unnecessary. Gwaltney of
that any
suit
pri-
v. Chesapeake Bay Founda-
Smithfield
vate entity for a violation of a limitation set
tion,
Inc. 49,
U.S.
forth
any
provisions
382, 98 L.Ed.2d
(1987);
see also Atlan-
1317(a) is an
action for a violation of
tic
Legal
Foundation
Tyson
1317(d). Appellant’s
just
suit is
such an Foods, F.2d
(11th
Cir.1990).
action.
1365(b)(1)(B)
allows either federal
The appellant admits that at first glance
or state authorities
to bring an enforce-
of §
would indi- ment action within the
day
period. A
cate that
applies
only to the Administra-
government
enforcement
action brought
tor.
argues,
It
however, that if this literal
*4
during the notice period bars the citizen
reading
1317(a)
of
applied
§
to the statu-
suit. Gwaltney, 59,
U.S. at
tory exemptions
1365(b),
pro-
§
will
at 382. We believe that
purpose
another
a
duce
result demonstrably at odds with
behind the notice requirement of
1365 is
§
the intentions
Congress.
of
to effectuate Congress’s preference that
Appellant argues
legislative
that the
his-
the Act be
by governmental
enforced
pros-
tory of
1365(b)
that Congress
shows
in-
ecution. See Gwaltney,
60,
484 U.S. at
tended to allow immediate citizen’s suits
382;
S.Ct. at
Atlantic,
violation of prohi- standard or 1317(d). concurring
ANDERSON, Judge, Circuit
specially: is based concur, my concurrence but I opinion rational.
upon a different action under that an assumes court “re- 1317(d) an action cannot 1317(a).” section ... specting a violation me that there it seems to
Respectfully, proposition doubt about
may be some easily resolved case is and since rationale, prefer not I of another
basis that issue.
decide the mandato- provides for “respect- actions
ry day 1316 and sections
ing a violation ar- a colorable
1317(a).” is at There least private that an action
gument *5 1317(d)is an to subsection
party pursuant of subsec- “respecting” a violation seeks en- when which was standard
force an 1317(a). subsection under promulgated instant case to necessary in not
It is ambiguity potential foregoing
resolve the suit does the instant because an effluent to enforce
not seek 1317(a). subsection promulgated pollu-
Rather, relates to instant suit the Administra- respect to which
tants with no effluent promulgated
tor 1317(a). For that to subsection
reason, instant action is clear that the it is a violation of “respecting” 1317(a). STROZIER, James
Eddie
Petitioner-Appellant, Warden, Georgia NEWSOME,
Lanson Prison, Respondent-Appellee.
State
No. 90-8313. Appeals, States Court
United
Eleventh Circuit. 19, 1991.
March