The opinion of the court was delivered by: CALDWELL
William W. Caldwell, U.S.D.J.
Plaintiff, Wiconisco Creek Watershed Association, initiated this "citizens suit" pursuant to § 1365(a) of the Clean Water Act, 33 U.S.C. § 1251 et seq., seeking injunctive relief and the imposition of civil penalties. Plaintiff alleges that defendant, Kocher Coal Company, discharged polluted water into the Wiconisco Creek without obtaining a National Pollution Discharge Elimination System ("NPDES") permit or a State Pollution Discharge Elimination System ("SPDES") permit and in violation of the effluent limitations contained in 33 U.S.C. § 1311(a). Defendant has moved to dismiss the complaint (1) for lack of subject matter jurisdiction and (2) for failure to join an indispensable party. Defendant also moves in the alternative for an order staying this proceeding on the grounds of abstention.
Plaintiff is an association of 200 members formed for the salutary purpose of conserving and protecting the Wiconisco Creek and its adjoining watershed. Defendant is a corporation organized under the laws of the State of Pennsylvania. Since 1969, defendant has been mining anthracite coal from a site along the banks of Wiconisco Creek known as Porter Tunnel. Years of mining by defendant and other mining companies at this site have resulted in the uncontrolled discharge of polluted water into the Wiconisco Creek from Porter Tunnel. For the past several years, plaintiff has worked to eliminate these discharges.
On September 5, 1984 the Pennsylvania Department of Environmental Resources ("PaDER"), after conducting an on site inspection of the Porter Tunnel site, issued an administrative compliance order directing defendant to begin construction of treatment facilities and treatment of the discharge within fifteen days. A superseding order was issued by the PaDER on September 14, 1984 extending the date of compliance. Defendant appealed the compliance orders to the Pennsylvania Environmental Hearing Board on October 4, 1984. The basis for the appeal was that the PaDER has assumed responsibility for constructing the treatment facilities and treating the Porter Tunnel discharge and thereby relieved defendant of any obligation concerning discharge. In support of its position, defendant relies upon the Pennsylvania Land and Water Conservation and Reclamation Act, ("LWCRA") 32 Pa.C.S. § 5101 et seq. (Purdon Supp. 1986) which grants the PaDER authority to construct and operate water treatment plants. Defendant has also commenced an action in the Commonwealth Court of Pennsylvania seeking to have the PaDER's obligations under the LWCRA enforced.
On April 30, 1986 plaintiff initiated the instant action under the Clean Water Act after providing the PaDER and the Environmental Protection Agency with proper notice. In response defendant filed the motion to dismiss plaintiff's complaint which is now before us.
A. Section 1365(b)(1)(B) Preclusion
Defendant argues that plaintiff's action is barred by § 1365(b)(1)(B) of the Clean Water Act which provides that no citizen suit may be commenced:
if the Administrator or State has commenced and is diligently prosecuting a civil or criminal action in a court of the United States, or a State to require compliance with the standard, limitation, or order, but in any such action in a court of the United States any citizen may intervene as a matter of right.
33 U.S.C. § 1365(b)(1)(B). Relying on this section, defendant asserts that the enforcement actions undertaken by the PaDER are the functional equivalent to an action brought in a court of the United States or a State and hence operate as a bar to plaintiff's action. Thus, the issue before us is whether the administrative action before the PaDER may be characterized as a "court" within the meaning of the Clean Water Act.
Although § 1365(b)(1)(B) only refers to courts and not to administrative agencies, the Third Circuit Court, nevertheless, has held that an administrative agency "may be a 'court' if its powers and characteristics make such a classification necessary to achieve statutory goals." Baughman v. Bradford Coal Co. Inc., 592 F.2d 215, 217 (3d Cir.) cert. denied, 441 U.S. 961, 60 L. Ed. 2d 1066, 99 S. Ct. 2406 (1979); Student Public Interest Research Group of New Jersey, Inc. v. Fritzsche, Dodge & Olcott, Inc., 759 F.2d 1131, 1135 ...