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West Penn Power Co. v. Train

Citation: 5 ELR 20557
No. No. 74-2050, 522 F.2d 302/7 ERC 2178/(3d Cir., 07/16/1975) Aff'd

The federal district court correctly dismissed for lack of jurisdiction a power company suit seeking declaratory relief against a Pennsylvania Department of Environmental Resources (DER) order that the company install stack gas scrubbers to meet the state's implementation plan's sulfur oxide standards. The complaint also sought to enjoin EPA from enforcing a 1973 Notice finding one of the company's power stations in violation of the applicable emission standards. The plaintiff was not barred from raising these issues in the district court by § 307(b)(2) of the Clean Air Act, since they could not have been raised in a § 307(b)(1) challenge to EPA's approval of the plan in the court of appeals; the dismissal was nevertheless proper because there is no affirmative grant of jurisdiction to the district court to hear these claims. The Administrative Proceudre Act (APA) does not afford a basis for jurisdiction, since it applies neither to state agencies nor to federal action committed by law to agency discretion, a category into which EPA's enforcement of a Notice of Violation falls. The district court's dismissal did not deprive the plaintiff of due process, as the power company can challenge the state DER scrubber order in the Pennsylvania courts, and can also raise its objections to EPA's Notice of Violation in any enforcement proceedings which may be instituted by the agency in federal district court.

A dissent argues that the EPA Notice of Violation is, under the specific facts of this case, judicially reviewable under the APA because it represents final agency action for which no other effective judicial review is available.

Counsel for Plaintiff-Appellant
Harold R. Schmidt
Lawrence A. Demase
Edwin J. Strassburger
Rose, Schmidt & Dixon
9th Floor Oliver Building
Pittsburgh, Pa. 15222

Thomas K. Henderson
West Penn Power Company
Greensburg, Pa. 15601

Counsel for Defendants-Appellees
Wallace H. Johnson Asst. Attorney General
Edmund B. Clark
Martin Green
John E. Varnum
Department of Justice
Washington, D.C. 20530

Barbara H. Brandon Asst. Attorney General
Commonwealth of Pennsylvania
Harrisburg, Pa. 17120