Fairview Tp., York County, Com. of Pa. v. U.S. E.P.A.

• Citation: 773 F.2d 517
• Decision Date: 23 September 1985
• Docket Number: No. 84-5688,84-5688
• Parties: , 15 Envtl. L. Rep. 20,951 FAIRVIEW TOWNSHIP, COUNTY OF YORK, COMMONWEALTH OF PENNSYLVANIA and Northern York County Regional Joint Sewer Authority, County of York, Commonwealth of Pennsylvania v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY; and William Ruckelshaus, Administrator, U.S. Environmental Protection Agency; Thomas P. Eichler, Administrator, U.S. Environmental Protection Agency, Region III, and Greene A. Jones, Director, U.S. Environmental Protection Agency, Region III, Water Management Division; Pennsylvania Department of Environmental Resources, Agent For the U.S. Environmental Protection Agency; and Nicholas Debenedictis, Secretary, Pennsylvania Department of Environmental Resources. Appeal of NORTHERN YORK JOINT SEWER AUTHORITY and Fairview Township, County of York, Commonwealth of Pennsylvania.
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)

Page 517

773 F.2d 517

23 ERC 1460, 15 Envtl. L. Rep. 20,951

FAIRVIEW TOWNSHIP, COUNTY OF YORK, COMMONWEALTH OF

PENNSYLVANIA and Northern York County Regional

Joint Sewer Authority, County of York, Commonwealth of Pennsylvania v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY; and William

Ruckelshaus, Administrator, U.S. Environmental Protection

Agency; Thomas P. Eichler, Administrator, U.S.

Environmental Protection Agency, Region III, and Greene A.

Jones, Director, U.S. Environmental Protection Agency,

Region III, Water Management Division; Pennsylvania

Department of Environmental Resources, Agent For the U.S.

Environmental Protection Agency; and Nicholas Debenedictis,

Secretary, Pennsylvania Department of Environmental Resources.

Appeal of NORTHERN YORK JOINT SEWER AUTHORITY and Fairview

Township, County of York, Commonwealth of Pennsylvania.

No. 84-5688.

United States Court of Appeals, Third Circuit.

Argued June 11, 1985.

Decided Sept. 23, 1985.

John E. Childe, Jr. (argued), Dice & Childe, Harrisburg, Pa., for appellants.

David Dart Queen, U.S. Atty., Harry A. Nagle, Asst. U.S. Atty., Lewisburg, Pa., F. Henry Habicht, II, Asst. Atty. Gen., Washington, D.C., Dirk D. Snell, Carl Strass, John T. Stahr (argued), Attys. Dept. of Justice, Washington, D.C. (Gerald H. Yamada, Acting Gen. Counsel, Stephen G. Pressman, Office of Gen. Counsel, U.S.E.P.A., Washington, D.C., of counsel), for appellees.

Before HIGGINBOTHAM, BECKER, Circuit Judges, and COHILL, District Judge. ^*

OPINION OF THE COURT

BECKER, Circuit Judge.

This is an appeal from an order of the United States District Court for the Middle District of Pennsylvania, dismissing, for want of subject matter jurisdiction, an action brought by Fairview Township, Pennsylvania, and Northern York Joint Sewer Authority ("Northern York") against the United States Environmental Protection Agency ("EPA"). The case presents a number of difficult questions concerning the jurisdiction of the district courts to review agency action, where that action results in the refusal to provide federal grant funds that were allegedly promised by law but wrongfully withheld. In particular, we must consider whether the district court had jurisdiction over this action, which appellants brought to compel the Administrator of the EPA to approve Northern York's application for federal financial assistance for the construction of a sewage treatment plant, as against EPA's contention that victory for appellants in this litigation would be tantamount to a money judgment of $14,000,000 against the sovereign, in light of EPA's argument that district courts have no jurisdiction over money claims against the sovereign in excess of $10,000.

Appellants alleged several possible grounds of district court jurisdiction over the suit. First, they brought it as a "citizens' suit," pursuant to 33 U.S.C. Sec. 1365, which authorizes private citizens to sue the Administrator to compel performance of his nondiscretionary duties prescribed by the Clean Water Act. We therefore must determine whether the Administrator was actually under the nondiscretionary duty appellants allege, namely the duty prescribed by 33 U.S.C. Sec. 1299 to approve or disapprove grant applications within forty-five days of receipt from a state agency that has reviewed the applications for their conformability to federal and state law. Appellants also invoke district court jurisdiction under the Federal Mandamus and Venue Act, codified in relevant part at 28 U.S.C. Sec. 1361, and pursuant to the Administrative Procedure Act (APA), 5 U.S.C. Secs. 701-06, and the federal question statute, 28 U.S.C. Sec. 1331. We must decide not only whether this invocation is proper but also whether district court jurisdiction over appellants' mandamus and APA claims is precluded by the Tucker Act, codified in relevant part at 28 U.S.C. Sec. 1491, which vests exclusive jurisdiction for non-tort money claims against the United States in excess of $10,000 in the United States Claims Court.

The district court interpreted appellants' action as, essentially, an attempt to get money from the government and therefore construed the prayer for relief as a request for money damages. ¹ The court then dismissed the action on the ground that money damages are not available as a form of relief under the citizens' suit provision. Fairview Township v. United States Environmental Protection Agency, 593 F.Supp. 1311, 1315 (M.D.Pa.1984). The district court therefore did not decide the case on the basis of the principal issues raised by the parties, such as the existence vel non of a nondiscretionary duty or the allegedly preclusive effect of the Tucker Act.

We hold that the district court erred in characterizing the citizens' suit as an action for money damages and in dismissing it on that ground. However, we also hold that the Administrator was not under a nondiscretionary duty to review Northern York's grant application within forty-five days and that appellants' citizens' suit must therefore be dismissed since they have alleged no nondiscretionary duty as its basis. Reaching appellants' other jurisdictional claims, we hold that mandamus is, at all events, an inappropriate remedy for this action, but that the district court does have jurisdiction over this action, brought as a suit to review agency action under the APA. In particular, we believe that, if appellants prevail in this suit, they will not, for several reasons, be entitled automatically to the funds that they seek but will be entitled only to a reconsideration of Northern York's application by EPA. We therefore believe that appellants' APA action is not a money claim against the United States, and also that the Tucker Act does not operate to preclude district court jurisdiction. We will therefore remand the case to the district court, so that it may reach appellants' claim that EPA acted in an arbitrary and capricious manner in applying new "affordability guidelines" to Northern York's application. If the district court so determines and no other impediments appear, it will instruct EPA to reconsider Northern York's application along the guidelines that it should have used in 1982.

As the parties' contentions in this case turn on the manner in which EPA reviewed Northern York's grant application and on the applicability of certain statutes and regulations as limitations on the Administrator's discretion, we must first describe the procedure by which municipalities and sewer authorities apply for federal funding of sewage treatment plants.

I. STATUTORY FRAMEWORK: THE FEDERAL WATER POLLUTION CONTROL ACT GRANT PROVISIONS

The Federal Water Pollution Control Act Amendments of 1972 (Amendments or FWPCA) (codified as amended at 33 U.S.C. Secs. 1251 et seq. ) were enacted by the 92d Congress as a comprehensive revision of the nation's clean water laws, which had proven inadequate in the fight against water pollution. ² The FWPCA states as the national goal "that the discharge of pollutants into the navigable waters be eliminated by 1985." 33 U.S.C. Sec. 1251(a)(1). The heart of the Amendments gives to the Administrator of the EPA the authority to promulgate limits, known as "effluent standards," on the discharge of pollutants into the nation's navigable waters. 33 U.S.C. Sec. 1251(a)(1). To assist states and municipalities in their task of eliminating the discharge of sewage, Congress authorized federal assistance for the design, planning, and building of sewage treatment plants, providing up to 75 percent of the cost of construction. ³

Distribution of the funds for sewage treatment plants proceeds by means of a system intended to encourage the states to take responsibility for managing the disposal of sewage. Funds are allocated to the states by a statutory formula estimated to represent the ratio of the costs of construction in each state to that in all the states combined. In 1981, Congress set the total for all the states and territories approximately at 1 and awarded Pennsylvania an allocation of 0.040377.33 U.S.C. Sec. 1285. Each state is responsible for making an inventory of its sewage treatment needs and for ranking its needs in order of priority; both the system by which the state determines priority and the "priority list" itself are subject to review by EPA. 33 U.S.C. Secs. 1288, 1296, 1313; 40 C.F.R. Sec. 35.915 (1981); id. Sec. 35.2015 (1982).

Under the Amendments, applicants for sewage treatment funds were required to submit proposals for three separate grants in sequence. The first grant, Step I, was for "planning," the detailed study of local sewerage needs and consideration of various alternatives. The Step II grant was for "design," the preparation of blueprints and construction specifications. Step III funds were for actual construction. See 40 C.F.R. Sec. 35.903 (1975). ⁴ The three-step process was further complicated by the fact that funds were often not distributed in lump sums but were disbursed in "segments" or "phases." A step grant might be "phased" over a number of years. A local government or authority might therefore be planning one part of its plan under the Step I grant at the same time that it was designing another part under Step II.

EPA regulations provide that a state can take over much of EPA's task of evaluating grant applications if EPA determines that the state agency is capable of managing the program. Moreover, federal funding is available to assist state agencies in administrative matters. "Delegation agreements" signed by EPA and the state specify which of EPA's duties the state will undertake. To the extent that it is authorized under its delegation agreement, if a state, upon review of a grant application, finds that the applicant meets the relevant requirements of federal and state law, then it "certifies" the grant application to EPA, which then completes the review. See 40 C.F.R. Secs. 35.1000, 35.1005, 35.1030-2 (1981). The tasks that are delegated to ...