Baughman v. Bradford Coal Co., Inc., 592 F.2d 215 (3rd Cir. 1979). · Go Syfert
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Baughman v. Bradford Coal Co., Inc., 592 F.2d 215 (3rd Cir. 1979). Cases Citing This Book View Copy Cite
121 citation events (26 in the last 25 years) across 31 distinct courts.
Strongest positive: Conservation Law Foundation v. Massachusetts Water Resources Authority (mad, 2023-02-17)
Treatment trajectory · 1979 → 2026 · click a year to view as-of
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Top citers, strongest first. 33 distinct citers. How cited ↗
discussed Cited as authority (rule) Conservation Law Foundation v. Massachusetts Water Resources Authority
D. Mass. · 2023 · confidence medium
Def.’s Mem. at 5. inappropriate to expand this language to include administrative enforcement actions”), with Baughman v. Bradford Coal Co., 592 F.2d 215, 218 (3d Cir. 1979) (an agency action sufficiently similar to a court proceeding may suffice to preclude a citizen suit).
examined Cited as authority (rule) Baker v. Mortgage of America Lenders, LLC (3×)
S.D. Ga. · 2021 · confidence medium
As an initial matter, Baughman did not meaningfully analyze whether “court of the United States, or a State” is ambiguous; instead, the court assumed the language must have some room for interpretation. 592 F.2d at 217-18.
discussed Cited as authority (rule) United States of America v. Drummond Company Inc
N.D. Ala. · 2020 · confidence medium
Congress enacted the CAA citizen suit provision to allow citizens to “goad the responsible agencies to more vigorous enforcement of the anti-pollution standards . . . .” Baughman v. Bradford Coal Co., Inc., 592 F.2d 215, 218 (3d Cir. 1979) (citing S. Rep.
discussed Cited as authority (rule) Sierra Club v. Two Elk Generation Partners, Ltd. Partnership (2×)
10th Cir. · 2011 · confidence medium
The Third Circuit also suggested such a contrary approach, see Baughman v. Bradford Coal Co., Inc., 592 F.2d 215, 217-18 (3d Cir.1979), but has never adopted the minority rule. [11] The majority points to the procedural history of this case as supporting a finding of estoppel.
discussed Cited as authority (rule) Porter Trust v. Rural Water Sewer & Solid Waste Management District No. 1
10th Cir. · 2010 · confidence medium
Transp., Inc., 597 F.2d 1100, 1101-02 (7th Cir.1979); Baughman v. Bradford Coal Co., 592 F.2d 215, 217-19 (3d Cir.1979); Volkswagen de Puerto Rico, Inc. v. Puerto Rico Labor Relations Bd., 454 F.2d 38, 43-44 (1st Cir.1972); Corwin Jeep Sales & Service, Inc. v. Am.
discussed Cited as authority (rule) Clean Air Council v. Mallory
E.D. Pa. · 2002 · confidence medium
The citizen suit provision plays an integral role in the remedial scheme of the CAA; it serves “to both goad the responsible agencies to more vigorous enforcement of the anti-pollution standards and, if agencies remain inert, to provide an alternative enforcement mechanism.” Baughman v. Bradford Coal Co., Inc., 592 F.2d 215, 218 (3d Cir.1979).
cited Cited as authority (rule) Coalition for Health Concern v. LWD, Inc.
W.D. Ky. · 1993 · confidence medium
Baughman v. Bradford Coal Co., 592 F.2d 215, 219 (3d Cir.1979), cert. denied, 441 U.S. 961 , 99 S.Ct. 2406 , 60 L.Ed.2d 1066 (1979).
discussed Cited as authority (rule) Vernon Village, Inc. v. Gottier
D. Conn. · 1990 · confidence medium
In construing this language, the Court of Appeals explicitly rejected the view of the Court of Appeals for the Third Circuit, which had held that a citizen suit could be precluded by an action already commenced before an administrative tribunal if that tribunal had “the power to accord relief which is the substantial equivalent to that available to the EPA in federal courts under the Clean Air Act.” Baughman v. Bradford Coal Co., 592 F.2d 215, 219 (3d Cir.), cert. denied, 441 U.S. 961 , 99 S.Ct. 2406 , 60 L.Ed.2d 1066 (1979).
discussed Cited as authority (rule) Raymond Proffitt v. Rohm & Haas (2×)
3rd Cir. · 1988 · confidence medium
Proffitt’s action satisfies the two statutory prerequisites because he sent the requisite sixty-day notice and neither the EPA nor Pennsylvania are now “diligently prosecuting” an action in court against Rohm & Haas or ever did. 7 Citizen suits, which first appeared in the Clean Air Act on which the Clean Water Act was modeled, were intended by Congress “to both goad the responsible agencies to more vigorous enforcement of the anti-pollution standards and, if the agencies remained inert, to provide an alternative enforcement mechanism.” Baughman v. Bradford Coal Co., 592 F.2d 215, 21…
discussed Cited as authority (rule) Atlantic States Legal Foundation, Inc. v. Koch Refining Co.
D. Minnesota · 1988 · confidence medium
The citizen enforcement mechanism of the act was designed “first to act as a spark to ignite agency enforcement and second to act as an alternative enforcement mechanism absent agency enforcement.” Connecticut Fund for Environment, Inc. v. Upjohn Co., 660 F.Supp. 1397, 1403 (D.Conn.1987), citing Baughman v. Bradford Coal Co., Inc., 592 F.2d 215, 218 (3d Cir.), cert. denied, 441 U.S. 961 , 99 S.Ct. 2406 , 60 L.Ed.2d 1066 (1979).
cited Cited as authority (rule) Connecticut Fund for the Environment, Inc. v. Upjohn Co.
D. Conn. · 1987 · confidence medium
Baughman v. Bradford Coal Co., 592 F.2d 215, 218 (3d Cir.1978) cert. denied, 441 U.S. 961 , 99 S.Ct. 2406 , 60 L.Ed.2d 1066 (1979).
discussed Cited as authority (rule) Wiconisco Creek Watershed v. Kocher Coal Co. (2×) also: Cited "see"
M.D. Penn. · 1986 · confidence medium
Although § 1365(b)(1)(B) only refers to courts and not to administrative agencies, the Third Circuit Court, nevertheless, has held that an administrative agency “may be a ‘court’ if its powers and characteristics make such a classification necessary to achieve statutory goals.” Baughman v. Bradford Coal Co. Inc., 592 F.2d 215, 217 (3d Cir.) cert. denied, 441 U.S. 961 , 99 S.Ct. 2406 , 60 L.Ed.2d 1066 (1979); Student Public Interest Research Group of New Jersey, Inc. v. Fritzsche, Dodge & Olcott, Inc., 759 F.2d 1131, 1135 (3d Cir.1985).
discussed Cited as authority (rule) Connecticut Fund for Environment v. Job Plating Co.
D. Conn. · 1985 · confidence medium
See Hudson River Sloop Clearwater, Inc. v. Consolidated Rail Corporation, 591 F.Supp. 345 , 346-53 *216 (N.D.N.Y.1984), rev’d sub. nom, Friends of the Earth v. Consolidated Rail Corp., supra (state administrative action is not “diligent prosecution” under Section 1365(b)(1)(B)); Sierra Club v. SCM Corporation, 572 F.Supp. 828, 829-31 (W.D.N.Y.1983); Love v. New York State Department of Environmental Conservation, 529 F.Supp. 832, 843-44 (S.D.N.Y.1981); Gardeski v. Colonial Sand & Stone Company, Inc., 501 F.Supp. 1159, 1161-68 (S.D.N.Y.1980); NJSPIRG IV, supra, 759 F.2d at 1132-39 ; Baugh…
discussed Cited as authority (rule) Maryland Waste Coalition v. SCM Corp. (2×)
D. Maryland · 1985 · confidence medium
Baughman, 592 F.2d at 219.
cited Cited as authority (rule) Student Public Interest Research Group of New Jersey, Inc. v. Georgia-Pacific Corp.
D.N.J. · 1985 · confidence medium
Baughman v. Bradford Coal Co., Inc., 592 F.2d 215, 217-18 (3rd Cir.1979).
discussed Cited as authority (rule) Student Public Interest Research Group of New Jersey, Inc. v. Fritzsche, Dodge & Olcott, Inc.
3rd Cir. · 1985 · confidence medium
Indeed, this Court in Baughman v. Bradford, 592 F.2d 215 (3d Cir.), cert. denied, 441 U.S. 961 , 99 S.Ct. 2406 , 60 L.Ed.2d 1066 (1979) treated the two citizen suit provisions interchangeably, stating that it could "find no cases construing section 7604(b)(1)(B) of the Clean Air Act or its equivalent in [section 505(b)(1)(B) of] the Federal Water Pollution Control Act, 33 U.S.C. § 1365 (b)(1)(B).” 592 F.2d at 217 (emphasis added).
discussed Cited as authority (rule) Hudson River Sloop Clearwater, Inc. v. Consolidated Rail Corp. (2×) also: Cited "see"
N.D.N.Y. · 1984 · confidence medium
While neither party disputes that administrative action undertaken by DEC may be the equivalent of court action within the meaning of the statute, see, e.g., Baughman v. Bradford Coal Co., 592 F.2d 215, 219 (3d Cir.), cert. denied, 441 U.S. 961 , 99 S.Ct. 2406 , 60 L.Ed.2d 1066 (1979), since DEC has the power to impose similar penalties and award injunctive relief otherwise available under the FWPCA, see Gardeski v. Colonial Sand & Stone Co., 501 F.Supp. 1159, 1163 (S.D.N.Y.1980), plaintiff argues that because it did not have a right or opportunity to intervene in the DEC proceeding, see 33 U.…
discussed Cited as authority (rule) Gardeski v. Colonial Sand & Stone Co., Inc.
S.D.N.Y. · 1980 · confidence medium
But agencies have been deemed to be courts if “such a classification [is] necessary to achieve statutory goals.” Baughman v. Bradford Coal Co., 592 F.2d 215, 217 (3d Cir.), cert. denied, 441 U.S. 961 , 99 S.Ct. 2406 , 60 L.Ed.2d 1066 (1979).
discussed Cited "see" Transcontinental Gas Pipe Line Co LLC v. Pennsylvania Environmental Hearing Board
3rd Cir. · 2024 · signal: see · confidence high
See Baughman, 592 F.2d at 219 (holding that the EHB was not a court for purposes of the prior- enforcement limitation on the citizen-suit provision of the Clean Air Act, 42 U.S.C. § 7604 (b)(1)(B)); see also Sun Buick, 26 F.3d at 1267 (holding that the Pennsylvania Board of Vehicle Manufacturers, Dealers and Salespersons was not a state court for purposes of the federal removal statute).
discussed Cited "see" Transcontinental Gas Pipe Line Co LLC v. Pennsylvania Environmental Hearing Board
3rd Cir. · 2024 · signal: see · confidence high
See Baughman, 592 F.2d at 219 (holding that the EHB was not a court for purposes of the prior- enforcement limitation on the citizen-suit provision of the Clean Air Act, 42 U.S.C. § 7604 (b)(1)(B)); see also Sun Buick, 26 F.3d at 1267 (holding that the Pennsylvania Board of Vehicle Manufacturers, Dealers and Salespersons was not a state court for purposes of the federal removal statute).
discussed Cited "see" Abbott v. BP Exploration and Production Inc.
S.D. Tex. · 2011 · signal: see · confidence high
See Baughman v. Bradford Coal Co., 592 F.2d 215, 218 (3d Cir.1979), cert. denied, 441 U.S. 961 , 99 S.Ct. 2406 , 60 L.Ed.2d 1066 (1979) (“Congress intended citizen suits to both goad the responsible agencies to more vigorous enforcement of the antipollution standards and, if the agencies remained inert, to provide an alternate enforcement mechanism.” (internal citation omitted)).
discussed Cited "see" Bayview Hunters Point Community Advocates v. Metropolitan Transportation Commission
9th Cir. · 2004 · signal: see · confidence high
See Baughman v. Bradford Coal Co., 592 F.2d 215 , 217 n. 1 (3d Cir.1979); 42 U.S.C. § 7604 (a). 6 A state may elect to include emission reduction strategies called Transportation Control Measures (TCMs) as part of its SIP. 40 C.F.R. § 51.100 (n)(7).
cited Cited "see" Bayview Hunters Point Community Advocates v. Metropolitan Transportation Commission
9th Cir. · 2004 · signal: see · confidence high
See Baughman v. Bradford Coal Co., 592 F.2d 215 , 217 n. 1 (3d Cir.1979); 42 U.S.C. § 7604 (a).
discussed Cited "see" United States v. B & W Investment Properties and Louis Wolf
7th Cir. · 1994 · signal: see · confidence high
See Baughman v. Bradford Coal Co., Inc., 592 F.2d 215 (3rd Cir.1979), certiorari denied, 441 U.S. 961 , 99 *367 S.Ct. 2406, 60 L.Ed.2d 1066 (state implementation plans are enforceable by either the state or the EPA).
discussed Cited "see" Proffitt v. Commissioners, Township Of Bristol
3rd Cir. · 1985 · signal: see · confidence high
See Baughman v. Bradford Coal Co., 592 F.2d 215, 219 (3d Cir.), cert. denied, 441 U.S. 961 , 99 S.Ct. 2406 , 60 L.Ed.2d 1066 (1979). 7 Plainly, EPA's compliance order lacks the indicia of a "court action" enunciated in Baughman, particularly the right of citizens to intervene in federal court actions brought by agencies under these environmental statutes.
cited Cited "see" Proffitt v. Commissioners, Township of Bristol
3rd Cir. · 1985 · signal: see · confidence high
See Baughman v. Bradford Coal Co., 592 F.2d 215, 219 (3d Cir.), cert. denied, 441 U.S. 961 , 99 S.Ct. 2406 , 60 L.Ed.2d 1066 (1979).
cited Cited "see" Student Public Interest Research Group of New Jersey, Inc. v. Fritzsche, Dodge & Olcott, Inc.
D.N.J. · 1984 · signal: see · confidence high
See Baughman, 592 F.2d at 217 . 9 .
cited Cited "see" Brewer v. City of Bristol
E.D. Tenn. · 1983 · signal: see · confidence high
See Baughman v. Bradford Coal Co., 592 F.2d 215 (3d Cir.), cert. denied, 441 U.S. 961 , 99 S.Ct. 2406 , 60 L.Ed.2d 1066 (1979).
cited Cited "see" Sierra Club v. SCM Corp.
W.D.N.Y. · 1983 · signal: see · confidence high
See Baughman, supra at 219 ; Gardeski v. Colonial Sand Company, Inc., 501 F.Supp. 1159, 1163 (S.D.N.Y.1980). 3 .
discussed Cited "see" Duquesne Light Company v. Environmental Protection Agency
D.C. Cir. · 1983 · signal: see · confidence high
See Baughman v. Bradford Coal Co., 592 F.2d 215 (3d Cir.1979) (federal district court has jurisdiction of citizen suit to enforce emission limitation despite fact that action by Pennsylvania Department of Environmental Resources is pending before Pennsylvania Environmental Hearing Board, an entity lacking full enforcement powers of federal courts). 62 Suits brought by any of these plaintiffs--EPA, the individual states, or private citizens--may terminate with consent decrees.
discussed Cited "see" Duquesne Light Co. v. Environmental Protection Agency
D.C. Cir. · 1983 · signal: see · confidence high
See Baughman v. Bradford Coal Co., 592 F.2d 215 (3d Cir.1979) (federal district court has jurisdiction of citizen suit to enforce emission limitation despite fact that action by Pennsylvania Department of Environmental Resources is pending before Pennsylvania Environmental Hearing Board, an entity lacking full enforcement powers of federal courts).
discussed Cited "see, e.g." Group Against Smog & Pollution, Inc. v. Shenango Inc.
3rd Cir. · 2016 · signal: see also · confidence medium
Interest Research Grp. of New Jersey, Inc. v. Fritz-sche, Dodge & Olcott, Inc., 759 F.2d 1131, 1135 (3d Cir.1985) (“Because we find that the EPA’s action is not a ‘court’ proceeding (and fails the first prong of [the citizen suit bar]), we need not address the second issue of whether the consent order constitutes ‘diligent prosecution.’ ”); see also Baughman v. Bradford Coal Co., Inc., 592 F.2d 215, 219 (3d Cir.1979) (determining that the district court had subject matter jurisdiction because the administrative action in question was not taken by a “court” under the diligent …
discussed Cited "see, e.g." American Lung Ass'n of NJ v. Kean
D.N.J. · 1987 · signal: see also · confidence low
See Friends of the Earth v. Carey, 535 F.2d 165, 169 (2d Cir.1976), ce rt. denied 434 U.S. 902 , 98 S.Ct. 296 , 54 L.Ed.2d 188 (1977); see also Baughman v. Bradford Coal Co., Inc., 592 F.2d 215 , 216 n. 1 (3d Cir.1979).
Retrieving the full opinion text from the archive…
Lavere C. And Doris J. Baughman, Ernest and Jessie Billotte, Mabel E. Bock, Violet Dixon, Robert R. And Donna Ellinger, George and Ruth Elinsky, Hollis N. And Dorothy Jean Knepp, Harold O. And Lorraine Lansberry, James and Catherine Lombardo, Delbert and Janet H. Marsh, Lyle A. And Ruth S. Miller, Howard C. And Loraine G. Shaffer, Richard, Edmund and Emmabell Swanson, Edward L. And M. Joanne Welsh, Abram B. And Mabel L. Wisor, Abe B. And Leda Jane Wisor, and Thomas Irvin and Carol Shelia Wisor, and Carl and Jeannette Leidholm
v.
Bradford Coal Co., Inc.
78-1764.
Court of Appeals for the Third Circuit.
Feb 5, 1979.
592 F.2d 215
Cited by 18 opinions  |  Published

592 F.2d 215

12 ERC 1920, 9 Envtl. L. Rep. 20,147

Lavere C. and Doris J. BAUGHMAN, Ernest and Jessie Billotte,
Mabel E. Bock, Violet Dixon, Robert R. and Donna Ellinger,
George and Ruth Elinsky, Hollis N. and Dorothy Jean Knepp,
Harold O. and Lorraine Lansberry, James and Catherine
Lombardo, Delbert and Janet H. Marsh, Lyle A. and Ruth S.
Miller, Howard C. and Loraine G. Shaffer, Richard, Edmund
and Emmabell Swanson, Edward L. and M. Joanne Welsh, Abram
B. and Mabel L. Wisor, Abe B. and Leda Jane Wisor, and
Thomas Irvin and Carol Shelia Wisor, and Carl and Jeannette
Leidholm, Plaintiffs-Appellees,
v.
BRADFORD COAL CO., INC., Defendant-Appellant.

No. 78-1764.

United States Court of Appeals,
Third Circuit.

Submitted Under Third Circuit Rule 12(6) Dec. 14, 1978.
Decided Feb. 5, 1979.

[*~215]1

David S. Watson, Richard M. Zomnir, Thorp, Reed & Armstrong, Pittsburgh, Pa., William C. Kriner, Nevling, Davis, Kriner & Yeager, Clearfield, Pa., for defendant-appellant.

2

Marvin A. Fein, Pittsburgh, Pa., for plaintiffs-appellees.

3

Before ALDISERT, and ADAMS, Circuit Judges, and COOLAHAN, District Judge.[*]

OPINION OF THE COURT

4

COOLAHAN, Senior District Judge.

5

Several residents of Bigler, Pennsylvania filed this action under the Clear Air Act, 42 U.S.C. § 7401 Et seq., against the Bradford Coal Company ("Bradford") alleging that the Bradford coal processing plant located in Bigler violated the Pennsylvania Implementation Plan.[1] Bradford brought an interlocutory appeal, duly authorized under 28 U.S.C. § 1292(b), from the denial of its motion to dismiss the action for lack of subject matter jurisdiction. We affirm.

6

The complaint in the District Court was filed on December 27, 1976. Well before that date the Pennsylvania Department of Environmental Resources ("DER") began an action before the Pennsylvania Environmental Hearing Board ("Hearing Board") for civil penalties against Bradford, pursuant to 35 P.S. § 4009.1. This action alleged the same violations of the Plan which the Bigler Residents would later aver in their suit. While the DER did not request a direct prohibition of further plan violations by Bradford, it did pray that the assessed penalty be "sufficient to deter such unlawful conduct in the future."[2]

7

Pursuant to 42 U.S.C. § 7604(a)(1), formerly 42 U.S.C. § 1857h-2(a)(1), federal district courts have jurisdiction over suits by private citizens to enforce Clean Air Act implementation plans against violators. However, 42 U.S.C. § 7604(b)(1)(B) provides that no such action may be commenced

8

if the Administrator or State has commenced and is diligently prosecuting a civil action in a court of the United States or a State to require compliance with the standard . . . .

9

Bradford argues that the DER civil penalty action before the Hearing Board was a prior "civil action in a court of . . . a State to require compliance" with the Plan. Accordingly, Bradford asserts, there is no subject matter jurisdiction under § 7604 to entertain this suit. Finding that the Hearing Board is not a "court of . . . a State", we disagree.[3]

[*~216]10

This is an issue of first impression; we can find no cases construing § 7604(b)(1)(B) or its equivalent in the Federal Water Pollution Control Act, 33 U.S.C. § 1365(b)(1)(B). Generally, the word "court" in a statute is held to refer only to the tribunals of the judiciary and not to those of an executive agency with quasi-judicial powers. United States v. Frantz, 220 F.2d 123, 125 (3rd Cir.), Cert. den., 349 U.S. 954, 75 S.Ct. 883, 99 L.Ed. 1278 (1955); Nelson v. Real Estate Comm'n, 35 Md.App. 334, 370 A.2d 608, 614 (1977); Department of State v. Spano, 1 Pa.Cmwlth. 240, 274 A.2d 563 (1971). Nevertheless, an administrative board may be a "court" if its powers and characteristics make such a classification necessary to achieve statutory goals. Volkswagen de Puerto Rico, Inc. v. Puerto Rico Labor Relations Board, 454 F.2d 38 (1st Cir. 1972). Indeed, the Pennsylvania Environmental Hearing Board has been held to be a "State Court" for purposes of the Federal Removal Statute, 28 U.S.C. § 1442. United States v. Pennsylvania Environmental Hearing Board, 377 F.Supp. 545, 553 (M.D.Pa.1974).

11

There is little legislative history on the subsection at issue: 7604(b)(1) (B). That subsection, which did not appear in either the House or the Senate bills,[4] was added by the Committee on Conference. The Committee tersely stated of § 7604(b)(1)(B):

12

If an abatement action is pending and is being diligently pursued in a United States or State court, such action cannot be commenced but any party in interest may intervene as a matter of right.

13

H.R.Rep. No. 1783, 91st Cong., 2d Sess. (1970) at p. 55.

14

There is however an extensive legislative history to establish that Congress intended citizen suits to both goad the responsible agencies to more vigorous enforcement of the anti-pollution standards and, if the agencies remained inert, to provide an alternate enforcement mechanism. See, S.Rep. No. 1196, 91st Cong., 2d Sess. 2, 35-36 (1970) and the comments of Senator Muskie and Senator Boggs in 116 Cong.Rec. (1970) at pp. 32902, 32918, respectively. Accord: Friends of the Earth v. Carey, supra, 535 F.2d at 172; and Natural Resources Defense Council, Inc. v. Train, 166 U.S.App.D.C. 312, 320, 510 F.2d 692, 700 (1975). The same legislative history also indicates

15

that Congress intended to provide for citizens' suits in a manner that would be least likely to clog already burdened federal courts and most likely to trigger governmental action which would alleviate any need for judicial relief.

16

City of Highland Park v. Train, 519 F.2d 681, 690-91 (7th Cir. 1975). See, Remarks of Senator Muskie at 116 Cong.Rec. 32926 and 33102 (1970) and those of Senator Hart, Id. at 33183.

17

The preclusion of § 7604(b)(1)(B), and the constituent phrase "court of . . . a State", must be construed in light of those policies. Accordingly, for a State administrative board to be a "court" under that sub-section, that tribunal must be empowered to grant relief which will provide meaningful and effective enforcement of an implementation plan. Unless this were true, any action by a State before the board would neither alleviate the need for judicial relief nor supplant the enforcement function of citizen suits.

[*~217]18

The Clean Air Act does provide a benchmark for evaluating the sufficiency of State administrative remedies. Section 7604(b)(1)(B) also precludes citizen suits where the EPA has commenced a "civil action in a court of the United States." Thus, Congress believed that such proceedings would provide effective enforcement and obviate the need for citizen actions. Under 42 U.S.C. § 7413, the EPA may sue

19

for a permanent or temporary injunction, or to assess and recover a civil penalty of not more than $25,000 per day of violation, or both. . . .

20

Congress thus perceived that effective enforcement required, in addition to the sanction of penalties, the option of an injunction to mandate compliance. Some large dischargers of pollutants might believe it more economical to pay a fine than to incur the costs of compliance. Without injunctions, enforcers would be compelled, in effect, to sell a variance from an implementation plan to any wealthy pollutor.

21

It follows that to constitute a "court" in which proceedings by the State will preclude private enforcement actions under § 7604, a tribunal must have the power to accord relief which is the substantial equivalent to that available to the EPA in federal courts under the Clean Air Act. The Pennsylvania Environmental Hearing Board lacks this capacity. Pursuant to 35 P.S. § 4009.1, the Hearing Board is empowered only to assess a penalty which cannot exceed $10,000 plus $2,500 for each day of continuing violation of the Implementation Plan. Thus, the maximum potential financial deterrent available to the Hearing Board is merely one-tenth that wielded by federal courts. More significantly, the Hearing Board lacks the power to enjoin violations of the Plan. Cf. 71 P.S. § 510-21 and 35 P.S. § 4006. Compare, 35 P.S. § 4010.

22

The procedures of the Hearing Board are also deficient. Section 7604(b)(1)(B) provides that where an agency commences an action in federal court, citizens may intervene in those proceedings "as A matter of right." (emphasis added). Apparently Congress intended that, even where private enforcement actions were precluded, the salutary effects of citizen gadflies should be preserved by allowing their participation as intervenors in the government-initiated suit. The right of intervention is, of course, not applicable to proceedings "in a court of . . . a State." Nevertheless, we believe that the existence of such a right may be properly considered as one factor[5] in determining whether a particular state tribunal is a "court" for purposes of preclusion of citizen actions.

23

Under the Hearing Board's Rules of Practice and Procedure, citizen intervention is not of right, but rather is discretionary with the Board. 25 P.C. § 21.14(b). Thus, were the Board held to be a "court", citizens could be effectively frozen out of the enforcement process. Such a result would contravene the general Congressional intent of the Clean Air Act.

[*~218]24

Accordingly, we find that the Pennsylvania Environmental Hearing Board not to be a "court" under § 7604(b)(1)(B). The District Court's Order that it has jurisdiction under the Clean Air Act will be affirmed.[6]

*

Honorable James A. Coolahan, United States District Judge for the District of New Jersey, sitting by designation

1

Under the Clean Air Act, each State is required to promulgate a scheme to control the level of air pollution which complies with certain minimum national standards. Such schemes are called "implementation plans," and are subject to the approval of the Environmental Protection Agency ("EPA"). Once approved, a plan is enforcible by either the State or the EPA. Friends of the Earth v. Carey, 535 F.2d 165 (2nd Cir. 1976), Cert. den., 434 U.S. 902, 98 S.Ct. 4, 54 L.Ed.2d 23 (1977)

2

On October 15, 1977, after commencement of this action, the DER and Bradford entered into a Consent Order of Settlement for the civil penalties action. Bradford agreed to pay the State $10,000 for past violations and to construct a new plant by December 31, 1979 which would comply with the Plan. The DER agreed to allow Bradford to continue to operate its old Bigler plant until July 1, 1979, provided that Bradford "take all reasonable interim measures at the existing site to keep fugitive emissions to a minimum" (albeit, apparently, in excess of Plan levels). The DER also agreed not to institute any further enforcement actions against Bradford so long as Bradford complied with the agreement. The Order was not submitted to the EPA for approval. Variances from an implementation plan granted by a State are not effective until approved by the EPA. Friends of the Earth v. Carey, supra

3

Thus we need not, and do not, decide whether an action for civil penalties against a violator is an "action . . . to require compliance" with an implementation plan. We note that Congress recently enacted 42 U.S.C. § 7420(a) which empowers both the States and the EPA to administratively assess and collect civil penalties from violators. The purpose of the provision was, Inter alia "to encourage compliance as effectively as possible . . . ." H.R. Rep. No. 294 (Interstate and Foreign Commerce Committee), 95th Cong., 1st Sess. 5 (1977), U.S.Code Cong. & Admin.News 1977, pp. 1077, 1083. Nevertheless, Congress was careful to add subsection (f) which provides:

Any orders, payments, sanctions, or other requirements under this section shall be in addition to any other permits, orders, payments, sanctions, or other requirements established under this chapter, and shall in no way affect any civil or criminal Enforcement proceedings brought under any provision of this chapter Or State or local law. (emphasis added).

4

It may be argued that the Senate bill contained in its notice requirement an implied preclusion of private suits in the event of prior agency action. Section 304(a)(3) provided:

No such suit shall be filed unless such person or persons shall have afforded the Secretary, his representative, or such agency, at least thirty days from the receipt of such notice To institute enforcement proceedings under this title to abate such alleged violation;

(emphasis added). S.Rep. No. 1196 (Senate Comm. on Public Works) 91st Cong., 2nd Sess. 122 (1970). However, in its Statement of Intent, the Senate Committee on Public Works said:

It should be emphasized that if the agency had not initiated abatement proceedings following notice or if the citizen believed efforts initiated by the agency to be inadequate, the citizen might choose to file the action. In such case, the courts would be expected to consider the petition against the background of the agency action and could determine that such action would be adequate to justify suspension, dismissal, or consolidation of the citizen petition. On the other hand, if the court viewed the agency action as inadequate, it would have jurisdiction to consider the citizen action notwithstanding any pending agency action.

Id. p. 37.

5

Accordingly, we do not decide whether the lack of citizen intervention of right, alone, is a sufficient basis to find an otherwise competent tribunal not to be a "court" under § 7604(b)(1)(B)

6

Because of this conclusion, we do not address the alternative jurisdictional bases argued by the parties