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.
*602The 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 6972 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 jurisdiction over an action filed in the court before 60 days have elapsed.
The majority of the circuits that have addressed this issue have held that the 60-day notice requirement is procedural, not jurisdictional. See, e.g., Hempstead County & Nevada County Project v. EPA, 700 F.2d 459, 463 (8th Cir.1983); Susquehanna Valley Alliance v. Three Mile Island Nuclear Reactor, 619 F.2d 231, 243 (3d Cir.1980) (construing an identical provision of the Federal Water Pollution Control Act), cert. denied, 449 U.S. 1096, 101 S.Ct. 893, 66 L.Ed.2d 824 (1981); Natural Resources Defense Council v. Callaway, 524 F.2d 79, 83-84 (2d Cir.1975) (construing the Federal Water Pollution Control Act); Natural Resources Defense Council v. Train, 510 F.2d 692, 699-700 (D.C.Cir.1974) (construing amendments to the Clean Air Act). I agree.
One of the purposes of the 60-day notice requirement is to allow the EPA to enforce the statute. The majority, while recognizing this purpose, contends that “the jurisdictional interpretation of § 6972(b) serves better the underlying policy aims of encouraging non-judicial resolution of environmental conflicts.” At 601. This case illustrates the weakness of that view. At oral argument, counsel for the Hallstroms stated that the EPA was well aware of the conflict between the Hallstroms and Tilla-mook County. In fact, EPA personnel had called him at various stages of the district court action to ask how it was proceeding. At no time did the EPA indicate any interest in enforcing the statute; it was content to let the Hallstroms proceed with their citizens’ suit.
I would interpret the statute to require that 60 days elapse before the district court may act. This approach furthers the goal of agency enforcement: it allows the agency to consider the alleged violation for 60 days. If the agency has taken no action after 60 days, the district court may proceed. It would be “excessively formalistic” to require the district court to dismiss the action and the parties to refile. Susquehanna Valley Alliance, 619 F.2d at 243.