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16 ELR 20535 | Environmental Law Reporter | copyright © 1986 | All rights reserved Western Nebraska Resources Council v. Wyoming Fuel Co.No. CV85-L-159 (D. Neb. April 2, 1986)In an action challenging Nebraska's underground injection control (UIC) program promulgated under § 1421(a)(1) of the Safe Drinking Water Act (SDWA), the court rules that the court of appeals has exclusive jurisdiction. The court first holds that the Administrator of the Environmental Protection Agency (EPA) did not fail to perform a nondiscretionary duty and thus the § 1449 citizen suit provisions are not triggered. The court holds that EPA held the necessary public hearings and comment period prior to the approval of the Nebraska UIC program that replaced the one EPA administered, which was implemented after Nebraska submitted its plan but prior to its approval by EPA. The court finds that plaintiff's challenge is, in fact, to the adequacy of EPA action, not to dereliction of statutory duty, which is properly addressed by the court of appeals. Next the court holds that the procedures followed by EPA in approving a revision to the UIC program that exempted portions of the Chadron aquifer were proper. The court finds that the challenges to the inclusion of an aquifer exemption within the Nebraska program and the nondesignation of the Chadron aquifer as an underground source of drinking waterin the program approval are essentially challenges to the Nebraska program and are thus properly reviewed in the court of appeals. Further, the court holds that EPA did not violate its duty to notify a state of noncompliance; EPA made no finding of a violation nor was it compelled to do so. The court also holds that the Eleventh Amendment does not preclude plaintiff's action seeking prospective relief against the Director of the Nebraska Department of Environmental Control (NDEC) for violation of federal law. The court, however, holds that the citizen suit provisions are not triggered. The NDEC properly provided notice and a comment period before submission of the UIC program; NDEC failure to reduce the exempted area from 3000 acres to 6.7 acres to match with the EPA determination, pending further study, was proper; the SDWA does not require a valid exemption prior to approval of a permit; and the SDWA does not require a permit issued by a state to correspond to the area exempted by EPA. The court then holds that neither the National Environmental Policy Act (NEPA), the Administrative Procedure Act, the Declaratory Judgment Act, the Due Process Clauses of the Fifth and Fourteenth Amendments, nor pendent state claims provide the court with jurisdiction. Finally, the court finds that the majority of claims brought by the plaintiff were not filed within the 45-day period prescribed by § 1338 and thus are untimely. However, the NEPA claim is subject to transfer to the court of appeals. Counsel for Plaintiff Counsel for Defendants Erik Olson Barry Neuman, Ann Hurley Ruth Anne Galter, Ass't Attorney General Urbom, J.: The plaintiff, Western Nebraska Resources Council (WNRC), brings this action pursuant to numerous of statutory and constitutional provisions which variously allege violations of the Safe Drinking Water Act. The defendants move to dismiss for lack of subject matter jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1). Upon a jurisdiction challenge, the plaintiff has the burden of establishing jurisdictional facts. McNutt v. General Motor Acceptance Corp., 298 U.S. 178, 189 (1936). Where a motion to dismiss for lack of subject matter jurisdiction is supported by affidavits, the plaintiff cannot rest upon the mere allegations of the complaint; rather, the response, by affidavit or otherwise, must set forth specific facts showing the court has jurisdiction. Weller v. Cromwell Oil Co., 504 F.2d 927, 929-930 (C.A. 6th Cir. 1974). The plaintiff contends that the district court may exercise jurisdiction pursuant to (1) section 1449 of the Safe Drinking Water Act (SDWA), 42 U.S.C. § 300j-8; (2) the Administrative Procedure Act (APA), 5 U.S.C. § 701 et seq.; (3) general federal-question jurisdiction, 28 U.S.C. § 1331; (4) the Declaratory Judgment Act, 28 U.S.C. § 2201 and § 2202; (5) mandamus jurisdiction, 28 U.S.C. § 1361; and (6) the Fifth and Fourteenth Amendments to the United States Constitution. Based upon a review of all the statutory and constitutional provisions raised by the plaintiff, I conclude that none confers upon this court jurisdiction for review. I. Background: Statutory Requirements of SDWA, 42 U.S.C. § 300f et seq. The SDWA was enacted to prevent endangerment of drinking water sources. Tit. 42 U.S.C. § 300f et seq. authorizes the states to take primary responsibility for the management and protection of underground sources of drinking water. Section 300h(a)(1) directs the Administrator of the EPA to promulgate regulations for state underground injection control (UIC) programs. The states are empowered to establish "implementation plans" to achieve the promulgated standards; however, the plans are subject to review by the Administrator. Accordingly, § 300h-1(a) mandates that the Administrator list in the Federal Register each state requiring a UIC program. Pursuant to § 300h-1(b), each listed state, within 270 days of a promulgation of any regulation under § 300h or, if later, within 270 days of its listing, must submit to the Administrator an application for primary enforcement responsibility. The state must show, after reasonable notice and public hearings, that it adopted a UIC program which meets the regulations promulgated by the Administrator. Within 90 days after the state's submission of its application, the Administrator is required, after reasonable opportunity for presentation of views, to approve or disapprove by rule, in whole or in part, the state's UIC program. Section 300h-1(c) authorizes the Administrator to prescribe a UIC program, within 90 days of the due date, for a state which fails to submit a timely application or which has had its program disapproved. A state with primary enforcement responsibility may propose to the Administrator that an identified aquifer be exempted from regulation. A request for an aquifer exemption is submitted to the Administrator in the form of a UIC program revision. The state [16 ELR 20536] designation of an aquifer exemption is subject to the approval of the Administrator after notice and an opportunity for public comment. Likewise, the designation of an exemption included within a submitted UIC application is not final until approved by the Administrator. 42 U.S.C. § 300g-5; 40 C.F.R. § 144.7. This court has only the jurisdiction that Congress has conferred upon it by statute. Hempstead County & Nevada County Project v. U.S.E.P.A., 700 F.2d 459, 461 [13 ELR 20385] (C.A. 8th Cir. 1983). The SDWA, 42 U.S.C. § 300j-7 and § 300j-8, divides review jurisdiction between the court of appeals and the district court. The forum designated by Congress is exclusive. Natural Resources Defense Council, Inc. v. EPA, 512 F.2d 1351, 1355 [5 ELR 20323] (C.A.D.C. 1975). Section 300j-7 provides in pertinent part that, action of the Administrator in promulgating . . . any regulation for State underground injection control programs . . . [or] any other regulation . . ., issuing any order . . ., or making any determination under this subchapter may be filed only in the United States court of appeals for the appropriate circuit. The petition for review must be filed within 45 days of the issuance of the promulgation, order, or determination. Review after the expiration of the 45-day period is permitted, provided the "petition is based solely on grounds arising after the expiration of such period." Significantly, § 300j-7 states that an "[a]ction of the Administrator with respect to which review could have been obtained under this subsection shall not be subject to judicial review in any civil or criminal proceeding for enforcement or in any civil action to enjoin enforcement." Thus, review cognizable in the court of appeals under § 300j-7 precludes jurisdiction in district court. See Chrysler Corp. v. E.P.A., 600 F.2d 904, 912 [9 ELR 20612] (C.A.D.C. 1979). Section 300j-8, the "citizen suit" provision, states in relevant part that ". . . any person may commence a civil action . . ." against (1) any person allegedly in violation of any requirement prescribed by or under the subchapter or (2) the Administrator for failure to perform "any act or duty under this subchapter which is not discretionary with the Administrator." No petition for review may be commenced prior to sixty days after the plaintiff has given notice of the violation to the alleged violator. Additionally, the "savings clause" provides that, "[n]othing in this section shall restrict any right which any person . . . may have under any statute or common law to seek enforcement of any requirement prescribed by or under this subchapter or to seek any other relief." II. Claims Posited Against the Administrator of the Environmental Protection Agency I am not convinced that the numerous allegations within the plaintiff's complaint constitute a failure to perform a nondiscretionary duty by the Administrator. The plaintiff articulates essentially two claims evincing unlawful inaction on the part of the Administrator necessitating the enforcement procedures of the citizen suit. The Administrator allegedly failed to (1) provide public notice and a comment period in advance of the approval of the state UIC program and (2) protect the Chadron formation's underground sources of drinking water from endangerment. 1. The uncontroverted evidence presented by the defendants establishes that the State of Nebraska was listed as requiring a UIC program on June 19, 1979. On March 4, 1982, an application for a Nebraska UIC program was submitted to the Administrator for the regulation of Classes I, III, IV, and V wells. The proposed program was to be administered by the Nebraska Department of Environmental Control (NDEC). On March 26, 1982, the Administrator published notice of the receipt of the Nebraska application, requested public comments, and scheduled a public hearing on the submitted Nebraska UIC program. A public hearing occurred on April 29, 1982, in Sidney, Nebraska. The administrator approved the Nebraska UIC program on June 12, 1984, effective June 26, 1984, after "a careful review of the application" and upon ensuring that the injection wells met the requirements of § 1422 of the SDWA, codified as 42 U.S.C. § 300h-1. Additionally, the Administrator stated that the newly approved state program replaced the existing EPA-administered UIC program which was promulgated May 11, 1984, to comply with the SDWA requirement that a federally administered program be promulgated in the event a state administered program is not approved "within a certain time." The Administrator further noted that the approval, in large part, simply approved as a federal UIC program the state regulations and requirements presently in effect under Nebraska state law. Defendant's Exhibit #2, filing #4. The EPA approval was codified in 40 C.F.R. § 147.1401. The plaintiff contends that the Nebraska UIC program that was submitted to the Administrator on March 4, 1982, was "expressly denied" upon the EPA's implementing of a federally administered UIC program on May 11, 1984. Thus, the plaintiff argues that the application ultimately approved by the Administrator on June 12, 1984, was promulgated without a hearing or comment period as no additional application was submitted. Brief in Consolidated Response to Defendants' Motion to Dismiss at 4. The plaintiff misapprehends the action of the Administrator in this regard. According to the uncontested evidence presented by the defendants, the institution of the federally administered program merely fulfilled the Administrator's statutory obligation to promulgate a program where a state administered program is not approved "within a certain time." Defendants' Exhibit #2. The Administrator did not disapprove the UIC program; rather, the Administrator expressly left that determination in abeyance. The plaintiff's claim that the Administrator in violation of § 300h-1(b), approved the Nebraska UIC program without "any public notice, without any opportunity to comment, and without any public hearing, or even personal notice to WNRC of the action," Brief at 21, and consequently that this court processes the jurisdiction to "order the mandatory notice and public hearing on agency regulations where none were originally had," Id. at 19, is off the mark. The plaintiff advances no statutory or regulatory authority which indicates that the promulgation of a federally administered UIC program vitiates the previous submission of a state UIC program. Moreover, whether the Administrator's explicit reservation of judgment on the state application was an inappropriate determination is a matter to be addressed to the court of appeals. Since the evidence before me indicates that a commentary period and a hearing were conducted prior to the promulgation of the Nebraska UIC program, I conclude that the plaintiff is essentially challenging the overall adequacy of the Administrator's action in the pre-promulgation notice and hearing period. This finding is supported by the following allegations of the plaintiff: First, the plaintiff essentially challenges the timeliness of the procedure followed in the claim that the Administrator "failed to approve the Nebraska UIC program application within 90 days of the submission of the application." Complaint P29. However, the program was ultimately approved and the delay in promulgating the Nebraska regulation is an "action" of the Administrator. It appears that the plaintiff is also implicitly arguing that the Administrator was under a duty to provide an additional opportunity for public presentation of views after the 90-day period prescribed by § 300h-1 elapsed. Complaint, P49-P51. However, the plaintiff failed to offer a statute or regulation under the SDWA which requiresmore than one opportunity for presentation of views. Thus, the plaintiff is required to petition for review in the court of appeals. Second, the plaintiff contends, without offering affirmative evidence, that "[b]etween April 29, 1982, and June 12, 1984, the Nebraska ECC amended and otherwise changaed [sic] several substantive provisions of the Nebraska UIC program so that the UIC program ultimately approved by the Administrator was substantively different from that submitted in the application or subject to presentation of views and to the public hearing on April 29, 1982 . . . [thus,] [t]he Administrator failed to provide notice and an opportunity for a reasonable presentation of views or for a public hearing. . . ." Complaint P30. This claim necessarily involves a review of the content of the Nebraska UIC program and the sufficiency of the notice. Both issues are properly addressed by the court of appeals. Third, the plaintiff argues that "[t]he holding of the only public hearing on the Nebraska UIC program application in Sidney, Nebraska, over 100 miles from the area of primary citizen concern and impact, was an effective denial of a public hearing." Complaint, P28. Again, the issue is the adequacy of the hearing and not whether the Administrator failed to act. The citizen suit provision requires a failure on the part of the [16 ELR 20537] Administrator to perform a mandatory act. Thus far the plaintiff has challenged the adequacy or manner in which the Administrator performed his duties. Such claims are not amenable to suit under 42 U.S.C. § 300j-8. See Sun Enterprises, LTD. v. Train, 532 F.2d 280, 288 [6 ELR 20331] (C.A.2d Cir. 1976). The proper judicial forum for review of the foregoing allegations is the court of appeals. Section 300j-7 provides the court of appeals with the exclusive jurisdictin to review the "action of the Administrator." Each claim contested a determination of the Administratar in promulgating the Nebraska UIC program. The Eighth Circuit Court of Appeals concluded in Union Electric Co. v. EPA, 515 F.2d 206, 214 [6 ELR 20259] (1975), aff'd, 427 U.S. 246 that review of the Administrator's "action" in approving a state implementation program under the Clean Air Act, which has a provision sufficiently similar to § 300j-7, is (1) limited to the court of appeals and (2) limited in scope. The relevant concerns of the Court are: . . . "whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment" . . . [and] whether the Administrator's decision was arbitary, capricious, an abuse of discretion, or otherwise not in accordance with law. It is not within the jurisdiction of this court to determine whether the Administrator's approval of the Nebraska UIC program, given the procedure followed in the prepromulgation comment and hearing period, is an abuse of discretion. The Administrator found that the "state administered program meets all applicable federal requirements" and the Administrator expressly found that § 1422 of the SDWA was satisfied. Defendant's Exhibit #2, filing #4. I am persuaded that review of the Administrator's express determination that the promulgation of the Nebraska UIC program satisfied the requirements of § 1422 of the SDWA, 42 U.S.C. § 300h-1 et seq., is exclusively within the purview of the court of appeals. It would be an unsatisfactory result if the otherwise exclusive mode of review under 42 U.S.C. § 300j-7 could be circumvented by an action in district court. 2. The plaintiff's second contention concerns whether the "Administrator failed to prevent the endangerment of Chadron formation aquifer by WFC." Complaint, P46. The court gleans three specific objections advanced by the plaintiff in support of this general allegation. The uncontested evidence presented by the defendant establishes that on March 28, 1984, the NDEC submitted a program review to the Administrator which included an exemption for a portion of the Chadron aquifer. On May 21, 1984, the Administrator published notice of the submitted program revision and announced a public hearing in the Federal Register. In addition, notice of the hearing was published in newspapers in Crawford, Chadron, and Alliance, Nebraska and was mailed to all known interested parties. On June 21, 1984, the EPA held a hearing in Crawford, Nebraska. The Administrator approved the revision of the state program "[a]fter carefully reviewing and considering the record of "[the] hearing, the public comments . . . [and] all evidence and written arguments submitted to the State. . . ." Defendant's Exhibit #5, filing #4. First, the plaintiff argues that the approved Nebraska UIC program was in violation of the SDWA because the "program provided for the exemption of all or parts of aquifer classified under the Act as underground sources of drinking water." Complaint P37, P53. The plaintiff is essentially challenging the inclusion of an aquifer exemption provision within the approved Nebraska UIC program. Such a challenge ultimately requires a review of 42 U.S.C. § 300g-5 and the regulations established by the Administrator, 40 C.F.R. § 144-§ 146, which authorize exemptions in state UIC programs. The court of appeals has exclusive review jurisdiction of a challenge to regulations promulgated by the Administrator. Second, the plaintiff alleges that the Administrator failed to designate the Chadron formation aquifer as an underground source of drinking water in the approved Nebraska UIC program. Complaint P36, P54, P59. Since the Administrator has no mandatory duty to do so under 40 C.F.R. § 144.7 or any other SDWA provision and the challenge necessarily involves a review of the actions of the Administrator in promulgating the Nebraska UIC program, this court lacks subject matter jurisdiction over the claim. The foregoing allegations intrinsically challenge the promulgation of the Nebraska UIC program rather than the Administrator's approval of the Nebraska UIC program revision which included a partial exemption for the Chadron aquifer. A review of the latter approval is, in effect, a review of the grant of an exemption as the grant is conditioned upon the final approval of the Administrator. The court is mindful of the broad jurisdictional basis provided to the district courts under 42 U.S.C. § 300j-7(6). "to review . . . the granting of, or the refusing to grant, a[n] . . . exemption under section . . . 300g-5." Nevertheless, the plaintiff has advanced no claim cognizable under this provision and has not asserted it as a basis for jurisdiction. Third, the plaintiff alleges a duty on the part of the Administratorto notify a state of noncompliance with the SDWA. Such a duty arises, assuming the language "shall notify" mandates that the Administrator give notice, where the Administrator "finds" a person in violation of an underground injection control requirement. Upon such a finding, the Administrator "may" compel enforcement in a civil action. A "finding" of noncompliance, as well as the decision to bring suit, is within the discretion of the Administrator. The plaintiff does not contend that the Administrator made a finding that a person was in violation of the SDWA nor that a statutory provision imposes a nondiscretionary duty to make a finding whenever a violation is alleged. Thus, section 300j-8 confers no jurisdiction over this claim. City of Seabrook v. Costle, 659 F.2d 1371, 1374 [11 ELR 21068] (C.A. 5th Cir. 1981). III. Claims Against the Director of the Nebraska Department of Environmental Control The plaintiff alleges that the Director of the Nebraska Department of Environmental Control is in violation of the SDWA. The Director argues that this suit, as it applies to him, is barred by the Eleventh Amendment to the United States Constitution. However, the Eleventh Amendment does not preclude an action seeking prospective injunctive relief against state officials for violations of federal law. See Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 102-105 (1984). Since the Eleventh Amendment does not bar the claim for injunctive relief against the Director, the court must next determine whether subject matter jurisdiction exists. First, the plaintiff alleges, without support of affidavits, that the state of Nebraska failed to provide notice and a public hearing prior to submission of the UIC program application. I assume the plaintiff advances this claim because of its presumption that an additional state UIC application with its attendant comment and hearing perid was required subsequent to the Administrator's promulgation of a federally administered program. The merits of that contention have previously been disposed of. The undisputed evidence offered by the defendants reveals that the Administrator found that notice and a hearing took place. Defendant's Exhibit #2, filing #4. Second, the plaintiff contends that the Director of the NDEC violated the SDWA by his failure "to act in a manner to prevent the endangerment of the Chadron Formation aquifer by WFC." Complaint, P47, P58. Specifically, the plaintiff argues that the NDEC was required to reduce its preliminary approval of 3,000 acre area exemption to 6.7 acre area to conform with the Administrator's ultimate determination. Complaint, P41, P61. The plaintiff provides no statutory authority requiring such an action by the Administrator and upon a careful review of the applicable SDWA legislation, statutes, and regulations, I find no such duty. The NDEC is provided with the permissive authority to identify an aquifer for exemption.40 C.F.R. § 144.7. However, the state designation is a proposal which, by its very nature, does not require a revocation to render it ineffective. Moreover, contrary to the plaintiff's allegation that "[t]he EPA denied approval of the exemption of the remainder of the 3,000 acres designateds [sic] by tahe [sic] DEC Director," Complaint, P40, the Administrator actually concluded that "[a]ction on the remaining portion is placed in abeyance until more data is available. . . ." Defendant's Exhibit #5. The plaintiff contends that the "approval of the DEC Director of the WFC permit for the WFC in situ uranium pilot plant was without proper authority in that no properly EPA-approved state UIC program existed and, in the alternative, no proper exemption of the Chadron Formation aquifer had been designated and approved. . . ." (emphasis added). Complaint, P65. This court finds the former allegation without merit. An approved Nebraska UIC [16 ELR 20538] program was in existence at the time the NDEC approved and issued a UIC permit to WFC on February 21, 1985. The latter assertion contends that the NDEC authority to approve a permit is conditioned upon a valid exemption. Neither 28 U.S.C. § 300h, 40 C.F.R. Parts 144 and 145, nor any other provision of the SDWA prescribes such a requirement. Thus, the claim is not cognizable under the citizens suit provision. Lastly, the plaintiff alleges that the SDWA was violated by the "failure and refusal of the State defendants to revoke or otherwise limit the DEC Director's approval [sic] of the 80 acre WFC in situ uranium pilot plant in view of the 6.7 acre exemption limit of the EPA. . . ." Complaint, P66, P43. Again, the plaintiff fails to advance a statutory provision under the SDWA which requires a permit issued by the state or correspond to the area exempted by the Administrator. Therefore, the claim is not amenable to suit under § 300j-8. IV. Applicability of NEPA as a Basis for Jurisdiction The plaintiff maintains that the National Environmental Policy Act (NEPA) provides this court with an independent basis of jurisdiction. Assuming arguendo that the EPA is subject to the NEPA requirements, the failure of the Administrator to perform an environmental impact statement or environmental assessment prior to approving the Nebraska UIC program application and subsequent revision, Complaint, P63, is an issue properly addressed to the court of appeals. Getty Oil Co. v. Ruckelshaus, 467 F.2d 349, 359 [2 ELR 20683] (C.A.3d Cir. 1972), cert. denied, 409 U.S. 1125. See State of Wyoming v. Hathaway, 525 F.2d 66, 71-72 [6 ELR 20169] (C.A. 10th Cir. 1975), cert. denied, 426 U.S. 906. V. The Effect of the "Savings Clause" of 42 U.S.C. § 300j-8. The plaintiff argues that the savings clause of the citizen suit provision authorizes the district court to enforce remedies available independent of the SDWA. However, the requirements for § 300j-8 must be satisfied to provide the district court with review jurisdiction where the statutes advanced to not grant an independent basis for subject matter jurisdiction. The APA does not constitute an independent basis for jurisdiction. See Califano v. Sanders, 430 U.S. 99, 107 (1977). The applicability of the Act is expressly qualified by the following relevant conditions. Pursuant to 5 U.S.C. § 704 there may be no other "adequate remedy in a court. . ." and under 5 U.S.C. § 701 there may not exist any "statutes [which] preclude judicial review." The SDWA establishes an adequate procedure for judicial review and the prescribed statutory procedure controls. Likewise, the Declaratory Judgment Act, 28 U.S.C. § 2201 and § 2202, does not confer jurisdiction on the court. Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 671 (1950). Federal question jurisdiction does not extend the subject matter jurisdiction of the federal court. Caldwell v. Gurley Refining Co., 533 F. Supp. 252, 257 [12 ELR 20759] (E.D. Ark. 1982), aff'd, 755 F.2d 645 [15 ELR 20316] (C.A. 8th Cir. 1985). A writ of mandamus is issued to compel a federal officer, employee, or agency to perform a nondiscretionary duty owed the plaintiff. The plaintiff failed to establish a duty owed; thus, this court lacks jurisdiction under 28 U.S.C. § 1361. VI. Whether Due Process of the Fifth and Fourteenth Amendment was Offended The plaintiff's claim that the "due process clauses of the Fifth and Fourteenth Amendments to the United States Constitution," Complaint, P49-P51, were violated by the manner in which the notice and hearing were conducted is not compelling. The plaintiff is apparently arguing that the exclusive jurisdiction of the court of appeals is inapplicable where the constitutionality of the procedure is challenged. However, the adequacy of the procedure followed in the promulgation of the UIC program was preclusively designated for review by the court of appeals and the constitutionality of the procedure is necessarily a component of that purview. See Lloyd A. Fry Roofing Co. v. United States EPA, 554 F.2d 885, 892 [7 ELR 20415] (C.A. 8th Cir. 1977). Since the allowance of pendent claims is discretionary and the federal claims against the state defendant have been disposed of the pendent state law claims raised by the plaintiff against the state defendant, Brief at 4, 30, do not survive. The United States Supreme Court concluded in United Mine Workers v. Gibbs, 383 U.S. 715, 726 (1966), that "[c]ertainly, if the federal claims are dismissed before trial, even though not insubstantial in a jurisdictional sense, the state claims should be dismissed as well." VIII. Complaint Against Western Fuel Company The plaintiff failed to advance any prescribed statutory or regulatory provisions under the SDWA which WFC violated. Thus, the defendant is not amenable to suit under the citizen suit provision. IX. Transferability of the Suit to the Eighth Circuit Court of Appeals The plaintiff petitions this court to transfer the case to the court of appeals pursuant to 28 U.S.C. § 1631. Brief at 23 n.8, 30. The Eighth Circuit previously determined in Hempstead County & Nevada County Project v. U.S.E.P.A., supra, at 462, that § 1631 grants federal courts general transfer power to cure a want of jurisdiction. The Court applied the following analysis: First, the court where the action is originally filed must find that there is a want of jurisdiction; second, the court must determine if it is in the interest of justice; and third, that court shall then transfer the action to any such court in which the action could have been brought at the time it was filed. The factor of concern to this court is whether the petition could have been brought in the court of appeals at the time it was filed with the district court. Section 300j-7 authorizes review by the court of appeals provided the petition is filed within 45 days of the contested action. Most of the plaintiff's claims which are cognizable in the court of appeals stem from the promulgation of the Nebraska UIC program, which was ultimately approved on June 12, 1984. In regard to these claims the plaintiff's complaint was filed out of time for review by the court of appeals. However, the plaintiff's claim that an environmental impact statement or environmental assessment was required prior to the Administrator's approval of the Nebraska UIC program revision is subject to transfer. The Administrator's approval was promulgated for judicial review purposes on February 21, 1985. Defendant's Exhibit #5, filing #1. IT THEREFORE IS ORDERED that the defendants' motions to dismiss, filing #4, filing #12, and filing #18, are granted in all respects. Order of Dismissal and Transfer In accordance with the memorandum of today, 1. that the action is dismissed, 2. that the Clerk of the Court transfer the action to the Eighth Circuit Court of Appeals. 16 ELR 20535 | Environmental Law Reporter | copyright © 1986 | All rights reserved |