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NATIONAL ENVIRONMENTAL FOUNDATION v. ABC RAIL CORP.

No. 90-7214.

926 F.2d 1096 (1991)

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

United States Court of Appeals, Eleventh Circuit.

March 19, 1991.

Attorney(s) appearing for the Case

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.

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. § 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...

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