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Pennsylvania Dep't of Envtl. Resources v. EPA

ELR Citation: 10 ELR 20152
Nos. Nos. 79-1057, -1466, 618 F.2d 991/14 ERC 1449/(3d Cir., 02/12/1980)

The Third Circuit Court of Appeals dismisses for lack of jurisdiction consolidated petitions for review of Environmental Protection Agency (EPA) regulations, promulgated under §306 of the Federal Water Pollution Control Act, that deferred establishment of performance standards for closed or abandoned coal mines as new point sources. Although petitioners and respondent both contend that the court has jurisdiction to consider the merits of the petitions, the court of appeals, agreeing with an industrial intervenor, rules that the case instead belongs in the district court. The court concludes that petitioners are in essence seeking to compel the EPA Administrator to perform a non-discretionary duty and therefore should have brought suit in the district court under §505 of the Act. Noting that there is some divergence in the case law on this point, the court nonetheless asserts that this challenge to the Agency's deferral of rule making on abandoned mines concerns an alleged failure to act rather than the validity of the regulations actually promulgated and thus cannot be reviewed directly by the court of appeals under §509. Finally, the court points out that pragmatic considerations support its view of the dividing line between §§505 and 509.

Counsel for Petitioner Pennsylvania Department of Environmental Resources
K.W. James Rochow, Gary Waxman, Ass't Attorneys General
1315 Walnut St., Suite 1200
Philadelphia, PA 19107
(215) 238-6661

Counsel for Petitioner Pennsylvania Citizens Coalition
Patrick Charles McGinley
West Virginia University College of Law
Morgantown, WV 26505
(304) 293-0111

Counsel for Intervenor-Respondent National Coal Ass'n
George C. Freeman Jr., Michael B. Barr, Scott Slaughter
Hunton & Williams
1919 Pennsylvania Ave. NW, Washington DC 20036
(202) 393-7400

Counsel for Respondent
Sanford Sagalkin, Angus Macbeth, Bingham Kennedy
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2708

Steven Schatzow, Deputy Assoc. General Counsel; Barry S. Neuman
Environmental Protection Agency, Washington DC 20460
(202) 426-4497

Joined by Higginbotham and Sloviter, JJ.