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NORTH CAMBRIA FUEL CO. v. UNITED STATES DOI

August 7, 1990

NORTH CAMBRIA FUEL CO., Plaintiff,
v.
UNITED STATES DEPARTMENT OF THE INTERIOR, Defendant



The opinion of the court was delivered by: HARRIS

 STANLEY S. HARRIS, UNITED STATES DISTRICT JUDGE

 This matter is before the Court on defendant's motion to dismiss. Upon consideration of the motion, plaintiff's opposition thereto, and the entire record herein, the Court grants defendant's motion.

 Background

 Plaintiff North Cambria Fuel Company conducts surface mining operations in southwestern Pennsylvania and maintains a place of business in Pennsylvania. Between 1974 and 1983, plaintiff mined bituminous coal at the Hall and Talent Mine in southwestern Pennsylvania, a site which had previously been deep mined and surface mined by other companies. As a result of the mining activities conducted before plaintiff began its operations at this site, acid discharges existed as of 1974. Plaintiff completed its mining operations at this site by 1983.

 In 1986, the Commonwealth of Pennsylvania Department of Environmental Resources ("Pa. DER") investigated the mine and issued Compliance Orders to plaintiff for treatment of the pre-existing acid discharges. During the pendency of plaintiff's appeal of those orders, plaintiff and Pa. DER reached an agreement for the treatment of the discharges. However, while this treatment system improved the quality of the discharges, it did not bring all of the water discharged into compliance with the applicable effluent standards. As of the date on which plaintiff filed this action, plaintiff and Pa. DER remained in negotiations as to an additional and a secondary treatment system.

 Pursuant to the Surface Mining Control and Reclamation Act of 1977 ("SMCRA"), 30 U.S.C. § 1201 et seq., a state may obtain exclusive jurisdiction over surface coal mining operations conducted within its borders upon submission to and approval by the United States Department of the Interior ("DOI") of a proposal indicating its capability to implement and administer the SMCRA provisions within the state. 30 U.S.C. § 1253. The SMCRA provides for federal intervention into a state's program in order to effect compliance with the SMCRA, should a state fail to enforce part or the whole of its program. 30 U.S.C. §§ 1254, 1271.

 During the Pa. DER's ongoing efforts to bring the quality of the Hall and Talent Mine's discharges up to compliance with the applicable effluent standards, the DOI's Office of Surface Mining Reclamation and Enforcement ("OSMRE") issued to plaintiff a Notice of Violation ("NOV") on May 2, 1989, and a Cessation Order ("CO") on June 8, 1989, requiring plaintiff to begin immediate rectification of its effluent discharge violations. Plaintiff applied to the DOI for review of the OSMRE's issuances. Plaintiff contends that the OSMRE did not have jurisdiction to issue the NOV and the CO, and that there is a substantial likelihood that plaintiff would prevail on the merits at a hearing on the NOV and the CO. The DOI's Administrative Law Judge ("ALJ") held that the OSMRE had jurisdiction to issue the NOV and the CO pursuant to regulations promulgated by the DOI at 30 C.F.R. §§ 842 and 843.

 Plaintiff has filed a Petition for Review in the United States District Court for the Western District of Pennsylvania pursuant to 30 U.S.C. § 1276(a)(1) and (2) seeking judicial review of the DOI's ruling. Plaintiff also has filed a Petition for Review with this Court pursuant to 30 U.S.C. § 1276(a)(1) seeking the invalidation of 30 C.F.R. §§ 842 and 843 on the grounds that they confer jurisdiction not vested in defendant by the SMCRA. In a nutshell, plaintiff challenges the application to its operations of 30 C.F.R. §§ 842 and 843 in the District Court for the Western District of Pennsylvania, and challenges the validity of these regulations in this Court. Because plaintiff has not met the requirements necessary to sustain a challenge to the defendant's regulations pursuant to 30 U.S.C. § 1276(a)(1), and because plaintiff asserts no other basis for the Court's jurisdiction, the Court must dismiss plaintiff's action for lack of subject matter jurisdiction. Fed. R. Civ. P. 12(b)(1).

 Discussion

 The SMCRA provides for judicial review of the DOI's promulgation of national rules and regulations in the United States District Court for the District of Columbia. 30 U.S.C. § 1276(a)(1). The statute also provides that "[a] petition for review of any action subject to judicial review under this subsection shall be filed in the appropriate Court within sixty days from the date of such action, or after such date if the petition is based solely on grounds arising after the sixtieth day." Id.

 The sixty-day limitation is jurisdictional, and a petition's untimely filing precludes the Court's exercise of jurisdiction over the petition for review. Montana v. Clark, 242 U.S. App. D.C. 62, 749 F.2d 740, 743 (D.C.Cir. 1984); In re Surface Mining Regulation Litigation, 456 F. Supp. 1301, 1307 (D.D.C. 1978); see also Coal Corp. Operating Co. v. Hodel, 876 F.2d 860, 861 (10th Cir. 1989); Utah Int'l, Inc. v. D.O.I., 553 F. Supp. 872, 878 (D. Utah 1982). Furthermore, there is no indication that Congress intended the exception clause to permit late applications for judicial review of agency actions in circumstances other than those unforeseen at the time it enacted this statute. Such exceptional circumstances, which might allow judicial review of the disputed regulations, do not exist in this case.

 Congress most recently amended the SMCRA in October 1988, and the DOI most recently amended 30 C.F.R. § 843 on April 28, 1989. Plaintiff filed this action on July 13, 1989, fifteen days after the end of the sixty-day limitation period following the regulation's amendment. However, plaintiff argues that its Petition for Review is timely even though it was filed after the sixty-day review period's expiration because it "is based solely on grounds arising after the sixtieth day." 30 U.S.C. § 1276(a)(1).


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