The opinion of the court was delivered by: MARSH
The plaintiffs reside in Bigler, Pennsylvania, in close proximity to the defendant's coal processing plant. In this action, plaintiffs allege that voluminous amounts of coal dust escape from the defendant's facilities and cause damage and deterioration to plaintiffs' health and property. Plaintiffs are seeking to enjoin the defendant from operating the processing plant (1) until defendant receives a permit from the Pennsylvania Department of Environmental Resources, and (2) unless the plant is operated in compliance with the applicable emission limitations promulgated under the Pennsylvania Air Pollution Control Act. Plaintiffs also seek compensatory and punitive damages.
Defendant has filed a motion to dismiss alleging: that Section 304 of the Clean Air Act (42 U.S.C. § 1857h-2) does not grant a private cause of action to recover damages; that the plaintiffs lack standing and this court lacks jurisdiction because the Commonwealth of Pennsylvania has commenced and is prosecuting a civil enforcement action against the defendant before the Pennsylvania Environmental Hearing Board (76-096-CP-W); and, that several plaintiffs failed to give notice as required by Section 304(b)(1)(A) of the Clean Air Act. After due consideration of the written and oral arguments of counsel,
defendant's motion will be denied.
"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, limitation or order, . . . ."
42 U.S.C. § 1857h-2(b)(1)(B).
Defendant has alleged that the action now before the Pennsylvania Environmental Hearing Board satisfies this exception and thus bars the plaintiffs' action. However, according to the affidavit of Larry W. Wonders, regional air pollution control engineer for the Pennsylvania Department of Environmental Resources and the state official with enforcement responsibility for the Bigler area, the Commonwealth
"has not prosecuted a civil action in a court of the United States or in the courts of Pennsylvania to require compliance with the Pennsylvania state implementation plan or any portion thereof, . . . ."
Documents accompanying this affidavit demonstrate that the complaint filed before the Pennsylvania Environmental Hearing Board seeks the assessment of civil penalties for past damages to the Commonwealth's air resources, but that the complaint does not seek to require compliance with air quality standards. Defendant has submitted no affidavit to the contrary. We cannot conclude that the complaint before the state board bars the plaintiffs' action in this court.
With respect to the issue of notice, plaintiffs contend that the statutory requirements were satisfied by a letter dated October 26, 1976, from plaintiffs' counsel to the Administrator of the Environmental Protection Agency. A copy of this letter attached to plaintiffs' brief indicates that copies were sent to Alan Walker, president of the defendant corporation, and to various state and federal officials. The letter stated that 16 named families in Bigler
and various other citizens of Bigler intended to file an action in federal court against Bradford Coal Company pursuant to the Clean Air Act. Plaintiffs' complaint was filed December 27, 1976. Defendant responded to the complaint by filing the motion to dismiss on February 28, 1977. Thus, even if the October 26th letter is not considered satisfactory notice, the defendant had the benefit of more than 60 days notice before responding to the complaint. The purposes of the notice provision have been fulfilled, Metropolitan Washington Coalition for Clean Air v. District of Columbia, 167 U.S.App.D.C. 243, 248, 511 F.2d 809, 814 (1975), and the action will not be dismissed for lack of notice.
The section of the Clean Air Act authorizing citizen suits § 1857h-2(e) entitled "Non-restriction of other rights" provides:
"Nothing in this section shall restrict any right which any person (or class of persons) may have under any statute or common law to seek enforcement of any emission standard or limitation or seek any other relief . . . ."
An appropriate order will be ...