ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA (Civil No. 76-1609)
Before Aldisert, and Adams, Circuit Judges, and Coolahan, District Judge.*fn*
Several residents of Bigler, Pennsylvania filed this action under the Clear Air Act, 42 U.S.C. § 7401 Et seq., against the Bradford Coal Company ("Bradford") alleging that the Bradford coal processing plant located in Bigler violated the Pennsylvania Implementation Plan.*fn1 Bradford brought an interlocutory appeal, duly authorized under 28 U.S.C. § 1292(b), from the denial of its motion to dismiss the action for lack of subject matter jurisdiction. We affirm.
The complaint in the District Court was filed on December 27, 1976. Well before that date the Pennsylvania Department of Environmental Resources ("DER") began an action before the Pennsylvania Environmental Hearing Board ("Hearing Board") for civil penalties against Bradford, pursuant to 35 P.S. § 4009.1. This action alleged the same violations of the Plan which the Bigler Residents would later aver in their suit. While the DER did not request a direct prohibition of further plan violations by Bradford, it did pray that the assessed penalty be "sufficient to deter such unlawful conduct in the future."*fn2
Pursuant to 42 U.S.C. § 7604(a)(1), formerly 42 U.S.C. § 1857h-2(a)(1), federal district courts have jurisdiction over suits by private citizens to enforce Clean Air Act implementation plans against violators. However, 42 U.S.C. § 7604(b)(1)(B) provides that no such action may be commenced
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 . . . .
Bradford argues that the DER civil penalty action before the Hearing Board was a prior "civil action in a court of . . . a State to require compliance" with the Plan. Accordingly, Bradford asserts, there is no subject matter jurisdiction under § 7604 to entertain this suit. Finding that the Hearing Board is not a "court of . . . a State", we disagree.*fn3
This is an issue of first impression; we can find no cases construing § 7604(b)(1)(B) or its equivalent in the Federal Water Pollution Control Act, 33 U.S.C. § 1365(b)(1)(B). Generally, the word "court" in a statute is held to refer only to the tribunals of the judiciary and not to those of an executive agency with quasi-judicial powers. United States v. Frantz, 220 F.2d 123, 125 (3rd Cir.), Cert. den., 349 U.S. 954, 75 S. Ct. 883, 99 L. Ed. 1278 (1955); Nelson v. Real Estate Comm'n, 35 Md.App. 334, 370 A.2d 608, 614 (1977); Department of State v. Spano, 1 Pa.Cmwlth. 240, 274 A.2d 563 (1971). Nevertheless, an administrative board may be a "court" if its powers and characteristics make such a classification necessary to achieve statutory goals. Volkswagen de Puerto Rico, Inc. v. Puerto Rico Labor Relations Board, 454 F.2d 38 (1st Cir. 1972). Indeed, the Pennsylvania Environmental Hearing Board has been held to be a "State Court" for purposes of the Federal Removal Statute, 28 U.S.C. § 1442. United States v. Pennsylvania Environmental Hearing Board, 377 F. Supp. 545, 553 (M.D.Pa.1974).
There is little legislative history on the subsection at issue: 7604(b)(1) (B). That subsection, which did not appear in either the House or the Senate bills,*fn4 was added by the Committee on Conference. The Committee tersely stated of § 7604(b)(1)(B):
If an abatement action is pending and is being diligently pursued in a United States or State court, such action cannot be commenced but any party in interest may intervene as a matter of right.
H.R.Rep. No. 1783, 91st Cong., 2d Sess. (1970) at p. 55.
There is however an extensive legislative history to establish that Congress intended citizen suits to both goad the responsible agencies to more vigorous enforcement of the anti-pollution standards and, if the agencies remained inert, to provide an alternate enforcement mechanism. See, S.Rep. No. 1196, 91st Cong., 2d Sess. 2, 35-36 (1970) and the comments of Senator Muskie and Senator Boggs in 116 Cong.Rec. (1970) at pp. 32902, 32918, respectively. Accord: Friends of the Earth v. Carey, supra, 535 F.2d at 172; and Natural Resources Defense Council, Inc. v. Train, 166 U.S.App.D.C. 312, 320, 510 F.2d 692, 700 (1975). The same legislative history also indicates
that Congress intended to provide for citizens' suits in a manner that would be least likely to clog already burdened federal courts and most likely to trigger governmental action ...