Allegheny County Sanitary Auth. v. USEPA, Civ. A. No. 82-2534.

• Decision Date: 17 February 1983
• Docket Number: Civ. A. No. 82-2534.
• Citation: 557 F. Supp. 419
• Parties: ALLEGHENY COUNTY SANITARY AUTHORITY, et al., Plaintiffs, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY (EPA), et al., Defendants.
• Court: U.S. District Court — Eastern District of Pennsylvania

557 F. Supp. 419

ALLEGHENY COUNTY SANITARY AUTHORITY, et al., Plaintiffs, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY (EPA), et al., Defendants.

Civ. A. No. 82-2534.

United States District Court, W.D. Pennsylvania.

February 17, 1983.

Robert P. Casey, Dilworth, Paxson, Kalish & Kauffman, Scranton, Pa., David Cashman, Cauley, Birsic & Conflenti, Pittsburgh, Pa., for ALCOSAN.

Dean Dunsmore, Atty., Environmental Defense Section, Land & Natural Resources Div., Washington, D.C., Robert Perry, Gen. Counsel, Sylvia Horwitz, United States E.P.A., Washington, D.C., John D. Cooper, U.S.E.P.A., Region III, Philadelphia, Pa., for United States Environmental Protection Agency (EPA).

Ward T. Kelsey, Pa. Dept. of Environmental Resources, Pittsburgh, Pa., Robert W. Adler, Asst. Counsel, Harrisburg, Pa., for Pennsylvania Dept. of Environmental Resources (DER).

Allen Warshaw, James J. Kutz, Alton P. Arnold, Jr., Deputy Attys. Gen., Harrisburg, Pa., for Com. of Pa.

Gary Hoffman, Chief Counsel, Thomas Rutter, Jr., Associate Counsel, Goehring, Rutter & Boehm, Pittsburgh, Pa., for Legislative Reference Bureau.

John Molnar, Cassebaum, McFall & Molnar, Bangor, Pa., for Bangor Borough Authority.

Alvin E. Dillman, Jr., Dillman & Schuchert, Pittsburgh, Pa., for Hampton Tp. Sanitary Authority.

J. Scott Maxwell, Hamburg, Rubin, Mullin & Maxwell, Lansdale, Pa., for Horsham Sewer Authority.

August C. Damian, Damian & DeLuca, Pittsburgh, Pa., for Municipality of Penn Hills.

Timothy P. O'Reilly, McArdle, Caroselli, Spagnolli & Beachler, Pittsburgh, Pa., for Tp. of South Fayette.

Sherman H. Siegel, Washington, Pa., Victor K. Lynch, Lynch & Lynch, Pittsburgh, Pa., for South Strabane Tp. Sanitary Authority.

David Wm. Bupp, Blakey, Yost, Bupp & Kilgore, York, Pa., for York City Sewer Authority.

Raymond L. Hovis, Stock & Leader, York, Pa., for York Tp. Water and Sewer Authority.

Raymond J. Sobota, Cardoni, Maguire & Sobota Associates, Wilkes-Barre, Pa., for Wyoming Valley Sanitary Authority.

John R. White, Campbell & White, Gettysburg, Pa., for Borough of Littlestown.

James A. Holtzer, York, Pa., for Dover Tp. Sewer Authority.

Paul A. Lundeen, Rhoads, Sinon & Hendershot, Harrisburg, Pa., D. Bruce Cahilly, Coudersport, Pa., for Borough of Galeton and Galeton Borough Authority.

John C. Sullivan, Nauman, Smith, Shissler & Hall, Harrisburg, Pa., for Harrisburg Sewerage Authority.

Robert H. Long, Jr., Paul A. Lundeen, John B. Munson, Harrisburg, Pa., Louis J. Farina, Blakinger, Grove & Chillas, Lancaster, Pa., for City of Lancaster Sewer Authority.

Mark A. Aronchick, Marguerite R. Goodman, Philadelphia, Pa., for City of Philadelphia.

Robert H. Long, Jr., Paul A. Lundeen, John B. Munson, Harrisburg, Pa., Donald E. Albright, Hanover, Pa., for Borough of Hanover.

MEMORANDUM OPINION

TEITELBAUM, Chief Judge.

Introduction

Allegheny County Sanitary Authority (ALCOSAN) brought this action against the United States Environmental Protection Agency (EPA) and certain officials of that agency (collectively referred to as the federal defendants) and the Pennsylvania Department of Environmental Resources (DER) and certain officials of that agency¹ (collectively referred to as the state defendants) challenging the administration of the program under which federal construction grants are awarded to publicly owned sewage treatment works.

Title II of the Federal Water Pollution Control Act (FWPCA), 33 U.S.C. § 1281 et seq., establishes a program of federal grant assistance to publicly owned sewage treatment works for the construction of sewage treatment plants and related facilities. Federal funds are allotted to each state and each state then determines how its allotment is to be distributed by establishing a system for ranking, in order of priority, the need for construction of treatment works. The method by which each state establishes this ranking is called the "priority system" and the list of ranked projects is called the "priority list". It appears that placement on Pennsylvania's priority list is determined by such factors as priority points, segmented status, anticipated date of certification to EPA, and anticipated funding. ALCOSAN has 70 priority points and was not included on Pennsylvania's Fiscal Year (FY) 1983 project priority list.

ALCOSAN alleges the administration of the construction grants program has been improper in three respects: 1) Pennsylvania's priority system was not revised to conform to the 1981 amendments to the FWPCA and no public hearing was held on the decision not to revise the system; 2) ALCOSAN was not ranked as a "fundable" project on Pennsylvania's expanded FY 1981 project priority list and no public hearing was held on the decision to rank certain projects as "fundable"; 3) Philadelphia is accorded preferred status under Pennsylvania's "segmenting" regulation. ALCOSAN contends that had Pennsylvania's system been revised to take into account reduced Congressional appropriations and had ALCOSAN been ranked as "fundable" and had Philadelphia not been accorded preferred status, ALCOSAN would have received a grant. ALCOSAN seeks declaratory and injunctive relief, including an injunction pendente lite. The defendants have responded with motions to dismiss. For the reasons set forth below, the claims against the state defendants will be dismissed, Count 11 against the federal defendants will be dismissed, but Counts 1, 2 and 10 against the federal defendants will not be dismissed.

The motions to dismiss

The complaint is 12 counts. Count 1 alleges a denial of equal protection by the state and federal defendants. Count 2 alleges a denial of due process by the state and federal defendants. Count 3 alleges a deprivation of rights secured by the Constitution and the FWPCA in violation of 42 U.S.C. § 1983 by the state defendants.² Counts 4 and 6-9 allege violations of the FWPCA and its implementing regulations by the state defendants. Count 5 alleges the misapplication of a state regulation by the state defendants. Count 10 alleges violations of the FWPCA by the federal defendants. Count 11 alleges violations of the Administrative Procedure Act by the federal defendants. Count 12 alleges a denial of due process by the state defendants.

Jurisdiction is alleged under the "citizen suit" provision of the FWPCA, 33 U.S.C. § 1365; the federal question statute, 28 U.S.C. § 1331; the jurisdictional grant for "civil actions arising under any Act of Congress regulating commerce," 28 U.S.C. § 1337; the jurisdictional grant for civil rights actions, 28 U.S.C. § 1343(3); the federal mandamus statute, 28 U.S.C. § 1361; and the doctrine of pendent jurisdiction.

The defendants urge that abstention is appropriate because ALCOSAN has raised the same issues in a pending state administrative proceeding. After learning that it was not included on Pennsylvania's FY 1983 project priority list, ALCOSAN filed an appeal with the Pennsylvania Environmental Hearing Board. ALCOSAN has informed the Court that it is requesting a stay of the Board proceedings pending the outcome of this action. ALCOSAN contends abstention is inappropriate because the federal defendants and other publicly owned treatment works which may be affected by the outcome are not parties to the Board proceeding. Because the Court has concluded that the only claims properly before it relate to the duties of the federal defendants under federal law, considerations of federalism underlying the doctrine of abstention are not present. Accordingly the Court will not abstain.

The state defendants

The federal claims against the state defendants fall into two groups: Constitutional violations and FWPCA violations. The state defendants move to dismiss the Constitutional claims contending a municipality may not assert a violation of its Constitutional rights by its parent state. The state defendants move to dismiss the FWPCA claims contending there is no express or implied cause of action against them under the FWPCA.

ALCOSAN is a municipal authority organized under the Pennsylvania Municipal Authorities Act, 53 P.S. § 301 et seq. As such, ALCOSAN has no rights under the Constitution which it may invoke in opposition to the will of its creator. Williams v. Mayor and City Council of Baltimore, 289 U.S. 36, 40, 53 S.Ct. 431, 432, 77 L.Ed. 1015 (1933). This principle applies to claims against state officials as well. Northwestern School District v. Pittenger, 397 F.Supp. 975, 977-978, 979 (W.D.Pa.1975). Accordingly those portions of Counts 1 and 2 which allege that the state defendants have violated ALCOSAN's Constitutional rights will be dismissed, that portion of Count 3 which alleges that the state defendants have deprived ALCOSAN of rights secured by the Constitution in violation of 42 U.S.C. § 1983 will be dismissed, and Count 12 will be dismissed in its entirety.

The FWPCA authorizes citizens to bring two types of suits. Under section 505(a)(1) a citizen may sue any person who is discharging pollutants in violation of an applicable effluent limitation. 33 U.S.C. § 1365(a)(1). Under section 505(a)(2) a citizen may sue the Administrator of the EPA for failure to perform a non-discretionary duty. 33 U.S.C. § 1365(a)(2). The FWPCA contains no provision expressly authorizing a citizen to sue any person for improper administration of the FWPCA construction grant program. Lacking express statutory authorization to assert claims of improper administration of the FWPCA construction grant program against the state defendants, ALCOSAN contends such claims arise under the laws of the United States and are cognizable under 28 U.S.C. § 1331.

The state defendants oppose ALCOSAN's attempt to imply a cause of action under the FWPCA and rely on Middlesex County Sewerage Authority v. National Sea Clammers Association, 453 U.S. 1, 101 S.Ct. 2615, 69 L.Ed.2d 435 (1981). Predictably, ALCOSAN contends Sea Clammers is distinguishable.

Sea Clammers concerned claims by commercial fishermen...