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Baughman v. Bradford Coal Co.

Citation: 9 ELR 20147
No. No. 78-1764, 592 F.2d 215/12 ERC 1920/(3d Cir., 02/05/1979)

The Third Circuit affirms a lower court's denial of defendant's motion to dismiss for lack of jurisdiction a citizen suit under the Clean Air Act alleging violations of the Pennsylvania air quality implementation plan. The court rejects defendant's contention that the suit is barred by the Act's prohibition against the commencement of a citizen enforcement suit where the state is prosecuting a civil enforcement action in a federal or state court. Although an action for civil penalties against defendant was pending before the Environmental Hearing Board, the Board is not a "court" of the state within the meaning of the Clean Air Act. The court concludes that to constitute a court in which proceedings by the state will preclude private enforcement suits under §304 of the Act, a tribunal must have the power to grant relief substantially equivalent to that available to the Environmental Protection Agency (EPA) in federal court under the statute, i.e., temporary or permanent injunctive relief and civil penalties of up to $25,000 per day. The Board, however, lacks the power to enjoin violations and cannot assess a penalty greater than $10,000 plus $2,500 per day of continuing violations. Moreover, while citizens may intervene as a matter of right in EPA enforcement actions in federal court, intervention in proceedings before the Board is a discretionary matter.

Counsel for Plaintiffs-Appellees
Marvin A. Fein
Law & Finance Bldg., Pittsburgh PA 15219
(412) 391-7707

Counsel for Defendant-Appellant
David S. Watson, Richard M. Zomnir
Thorp, Reed & Armstrong
2900 Grant Bldg., Pittsburgh PA 15219
(412) 288-7711

William C. Kriner
Nevling, Davis, Kriner & Yeager
110 N. Second St., Clearfield PA 16830
(814) 765-9611

Aldisert and Adams, JJ. concurring.