SCHATZ, District Judge.
Certain residents, three municipalities,
RCRA requires that each person owning or operating a hazardous waste facility obtain a permit. 42 U.S.C. § 6925(a). On August 18, 1980, Delta filed with the EPA a "Notification of Hazardous Waste Activity." On November 18, 1980, Delta filed with the EPA Region VI in Dallas, Texas, Part A of a two-part application for a RCRA permit for a facility in Arkansas. Delta also sought special status known as "interim status." In most circumstances a facility with "interim status" may operate until a final administrative disposition of the permit application is made by the EPA. Under Section 3005(e) of RCRA, 42 U.S.C. § 6925(e), as amended, the owner-operator of the facility which is "in existence on November 19, 1980," is deemed to have "interim status" and as such is treated as having been issued a permit to operate.
The petitioners seek direct appellate review of this EPA action granting "interim status" to Delta and urge this Court to find that the EPA decision was arbitrary, capricious and an abuse of discretion. Before we can consider the merits of the Regional Administrator's action, we must first determine if we have proper jurisdiction to directly review this matter. The EPA maintains that this Court lacks jurisdiction, while the petitioner and the intervenor, Delta, contend that it is proper for this Court to reach the merits of this petition.
This Court has only the jurisdiction that Congress has conferred upon it by statute. City of Baton Rouge v. United States Environmental Protection Agency, 620 F.2d 478, 480 (5th Cir.1980); Noland v. United States Civil Service Commission, 544 F.2d 333, 334 (8th Cir.1976); 15 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure, § 3901 (1976). The only possible statutory basis for our direct review of the EPA action in this case is Section 7006(b)(1) of RCRA, 42 U.S.C. § 6976(b). That subsection provides in relevant part:
Petitioners maintain that the EPA grant of "interim status" to Delta is an action in issuing a permit under Section 6925 and therefore properly reviewable by this Court. They contend that "interim status" is an EPA "conditional" permit. Because "interim status" enables Delta to construct the facility without being subject to prosecution for not having a permit, the petitioners conclude that Congress intended "interim status" to be a "permit."
The EPA's position in this matter is that "interim status" is not an EPA "permit" and that for the Regional Administrator to express an opinion that a facility has met the requirements for "interim status" does not constitute an action in issuing a permit under Section 6925 of RCRA. The EPA maintains that the administrator "issues" a permit and that in this case "interim status" was not "issued" by the administrator, but rather was a statutorily conferred grandfathering provision which allows a facility to continue until a permit is issued. The subsection in question provides that a facility with "interim status" "shall be treated as having been issued such permit until such time as final administrative disposition of such application is made. . . ." 42 U.S.C. § 6925(e).
We are persuaded that the position taken by the EPA is correct. The review provision
Based upon our review of the statutory provision that provides for direct appeal to the Court of Appeals in some RCRA matters, this Court holds that Section 6976(b) does not confer upon this Court jurisdiction for direct review of an "interim status" determination made by the EPA pursuant to Section 6925(e). An additional factor that has influenced this Court is the absence of a record. In most instances, a determination as to the propriety of an agency permit decision requires a record. The district court has both the procedures and facilities at its disposal for that task. See Susquehanna Valley Alliance v. The Three-Mile Island Nuclear Reactor, 619 F.2d 231, 241 (3d Cir.1980), cert. denied, 449 U.S. 1096, 101 S.Ct. 893, 66 L.Ed.2d 824 (1981).
Mindful of the serious public policy considerations involving hazardous waste disposal facilities, the Court considers this matter an appropriate one to transfer to a United States District Court for review. Congress has recently conferred upon federal courts general transfer power to cure a want of jurisdiction. 28 U.S.C. § 1631. Section 1631 provides that:
Our research has produced no record as of this date of any court effecting a transfer pursuant to § 1631, but our review of the legislative history prompts us to conclude that this matter is precisely the situation Congress contemplated when it enacted § 1631.
The language of the statute itself provides us with the analysis to utilize when applying the transfer provision. 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.
We now apply this analysis to the facts of this matter.
Lastly, we must examine the issue of which court has proper jurisdiction over this matter. The statutory provision enables this Court to transfer this matter to "any such court in which the action could have been brought at the time it was filed. . . ." 28 U.S.C. § 1631.
Section 7002(a)(1) of RCRA, 42 U.S.C. § 6972(a)(1), provides for citizens' suits in certain situations in the district court for the district in which the alleged violation occurred. We are aware that such a citizens' suit requires a notice to the Administrator of EPA, the state, and the alleged violator sixty (60) days prior to the filing of the suit, 42 U.S.C. § 6972(b)(1), but note that the purpose of such notice has long since been satisfied in the instant action.
For the above reasons, this Court holds that it lacks jurisdiction to review an "interim status" determination, and because it is in the interest of justice, hereby directs the Clerk of the Court to transfer this petition for review to the United States District Court for the Western District of Arkansas, pursuant to 28 U.S.C. § 1631.