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Allegheny County Sanitary Authority v. United States Environmental Protection Agency

April 20, 1984; As Amended May 2, 1984.

ALLEGHENY COUNTY SANITARY AUTHORITY BANGOR BOROUGH AUTHORITY, HAMPTON TOWNSHIP SANITARY AUTHORITY, TOWNSHIP OF HORSHAM SEWER AUTHORITY, MUNICIPALITY OF PENN HILLS, SOUTH STRABANE TOWNSHIP SANITARY AUTHORITY, YORK TOWNSHIP WATER AND SEWER AUTHORITY, WYOMING VALLEY SANITARY AUTHORITY, YORK CITY SEWER AUTHORITY, TOWNSHIP OF SOUTH FAYETTE, DOVER TOWNSHIP SEWER AUTHORITY, BOROUGH OF LITTLESTOWN, TOWNSHIP OF PETERS AND PETERS TOWNSHIP MUNICIPAL AUTHORITY, ST. THOMAS TOWNSHIP MUNICIPAL AUTHORITY, PLAINTIFF INTERVENORS
v.
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY (EPA), ANN GORSUCH, EPA ADMINISTRATOR, PETER BIBKO, REGIONAL ADMINISTRATOR FOR EPA REGION III, GREENE A. JONES, DIRECTOR, WATER DIVISION, EPA REGION III, JOSEPH GALDA, CHIEF OF THE PENNSYLVANIA-WEST VIRGINIA BRANCH, WATER PROGRAM DIVISION OF EPA REGION III, THE PENNSYLVANIA DEPARTMENT OF ENVIRONMENTAL RESOURCES, (DER), PETER DUNCAN, SECRETARY OF DER, RICHARD M. BOARDMAN, ASSOCIATE DEPUTY SECRETARY, OFFICE OF ENVIRONMENTAL MANAGEMENT, DER, DANIEL B. BRAWBAUGH, CHIEF, DIVISION OF MUNICIPAL FACILITIES AND GRANTS, BUREAU OF WATER QUALITY MANAGEMENT, DER, ANTHONY MAISANO, CHIEF, ADMINISTRATIVE SECTIONS BUREAU OF WATER QUALITY MANAGEMENT, DER, AND TIMOTHY V. DREIER, CHIEF, SOUTHWESTERN REGIONAL GRANTS SECTION, BUREAU OF WATER QUALITY MANAGEMENT, DER, COMMONWEALTH OF PENNSYLVANIA, LEGISLATIVE REFERENCE BUREAU, FRY COMMUNICATIONS, AND PENNSYLVANIA DEPARTMENT OF GENERAL SERVICES BOROUGH OF GALETON AND GALETON BOROUGH AUTHORITY, HARRISBURG SEWERAGE AUTHORITY, CITY OF LANCASTER SEWER AUTHORITY, CITY OF PHILADELPHIA, BOROUGH OF HANOVER, LIMERICH TOWNSHIP MUNICIPAL AUTHORITY, DEFENDANT INTERVENORS; ALLEGHENY COUNTY SANITARY AUTHORITY, APPELLANT IN NOS. 83-5338; 83-5345; TOWNSHIP OF SOUTH FAYETTE, APPELLANT IN NOS. 83-5429; 83-5430



Appeal from the United States District Court for the Western District of Pennsylvania.

Hunter and Weis, Circuit Judges, and Gerry, District Judge*fn*

Author: Weis

Opinion OF THE COURT

WEIS, Circuit Judge.

In this appeal we determine that a state agency and its officials may not be used in federal court on alleged violations of state law and that no federal right of action against those defendants was created by the Water Pollution Control Act. We also concluded that the Act preempts the claim made by the plaintiff against the federal Environmental Protection Agency under the Administrative Procedure Act. Consequently, we affirm the district court's dismissal of all counts against the state defendants and one count against the federal defendants.

The Allegheny County Sanitary Authority (ALCOSAN) brought suit contesting its failure to receive funding under the Federal Water Pollution Control Act, 33 U.S.C. §§ 1251-1376 (1976 & Supp. V 1981). ALCOSAN sought injunctive and declaratory relief against the state and federal environmental agencies as well as officials of each agency. The district court granted a temporary restraining order, and then considered motions by all defendants to dismiss the various counts against them. After other sewage authorities intervened, the court dismissed all claims against the state defendants and one of the counts asserted against the federal parties. The plaintiff's request for a preliminary injunction was denied. Plaintiff appeals the denial of the preliminary injunction, and, pursuant to a Rule 54(b) certification, bring the dismissals to this court as well.

Plaintiff ALCOSAN is a municipal sewage authority organized under Pennsylvania law, and provides wastewater treatment for approximately 1.2 million persons in western Pennsylvania. Defendant Department of Environmental Resources (DER) is a Pennsylvania agency that administers the state's participation in the federal grant program for the construction of sewage treatment facilities by public authorities. Funding for the program is authorized by Title II of the Federal Water Pollution Control Act, 33 U.S.C. §§ 1282-1299 (1976 & Supp. V 1981), and is allocated to the states for distribution according to their individual disbursement methods.

In Pennsylvania, several criteria have been used to determine eligibility for the funds. Among these is the "Priority Point Score", which is based on the effectiveness of the proposed facility, the importance of the stream affected, and the population served. 25 Pa. Code § 103.6. Also considered is the project's "Target Certification Date", which is determined on the basis of readiness to proceed with construction and availability of funds. A project with an earlier certification date is given priority over a facility having a higher point score. See 25 Pa. Code § 103.5(e). Projects are characterized on an annual list as "fundable," those expected to receive funding in a particular year, and "planning," those anticipated to receive funds in later years. 25 Pa. Code § 103.5(c).

Using these guidelines, the state DER drafts a "preliminary priority list," conducts a public hearing, and then prepares a "final project priority list," which is submitted to the federal Environmental Protection Agency (EPA) for approval.25 Pa. Code § 103.5(b).

ALCOSAN had proposed a treatment facility project that appeared on Pennsylvania's fiscal year 1981 final priority list. At the time that list was prepared, projects were being funded in three steps: 1) facilities planning study; 2) preparation of specifications and design drawings; and 3) actual construction. The 1981 list designated ALCOSAN's project as "fundable" for Step 2 and "planning" for Step 3.*fn1 It was anticipated that ALCOSAN would be ready to proceed with construction in 1982.

Congressional action on sewage project construction funds for fiscal 1982 was delayed, and not until July 19, 1982 were appropriations made.Consequently, EPA granted states permission to use their 1981 priority lists through October 1, 1982.

In mid-1982, the state DER transferred a number of projects from "planning" to "fundable" status, and submitted to EPA an "Expanded FY 1981 Project Priority List." DER determined that public hearings on the transfers were unnecessary because the projects that appeared on the "planning" portion of the 1981 list had been the subject of earlier hearings.

The construction phase of ALCOSAN's project was not promoted to "fundable" status because the target certification date was changed by DER from 1982 to 1985. Because the change was made without holding hearings or consulting ALCOSAN, DER did not realize that ALCOSAN was prepared to immediately proceed with construction.

The failure to include ALCOSAN as a fundable project in the expanded 1981 list also resulted in its exclusion from a "carryover" category on the 1983 list. ALCOSAN contends that these events caused it to be denied funding that it should have received.

In addition to the detriment it suffered, ALCOSAN protested the favored treatment DER allegedly extended Philadelphia by granting its projects "segmented status." This arrangement permits construction of a facility to be funded in stages over more than one fiscal year. See 25 Pa. Code § 103.13(d). According to ALCOSAN, however, Philadelphia has not provided the required assurances that the projects would be completed even in the absence of federal funds. See 40 C.F.R. § 35.2108(a)(1983). In this instance, also, no public hearings were held.

Moreover, ALCOSAN contends that the state DER failed to amend its priority list in light of the 1981 amendments to the Water Pollution Control Act. Although EPA's regulations originally required states to revise their priority systems to conform with the amendments, see 40 C.F.R. § 35,2015(e)(1), an internal memo later stated that revisions need be made only if necessary. DER concluded that no revisions to the Pennsylvania priority system were required, and EPA approved this determination. Again, ALCOSAN charges that DER came to its decision without holding a public hearing as specified in EPA regulations, see 40 C.F.R. § 35,2015(d)(1).

ALCOSAN contended that DER violated state law in determining priority ratings on the basis of unpublished regulations, and violated other state regulations by failing to make certain record determinations. In counts under 42 U.S.C. § 1983, plaintiff asserted that DER also violated federal law -- the Water Pollution Control Act -- in failing to hold public hearings, in not revising its priority system after the 1981 amendments, and in awarding "segmented status" to Philadelphia projects.

ALCOSAN has filed an appeal with the Pennsylvania Environmental Hearing Board as result of the denial of its funding status. No determination had been made in that forum at the time of the district court's decision in this case.

As to the federal defendants, plaintiffs contends that, by approving the Pennsylvania plan, EPA failed to perform its nondiscretionary duty to disapprove a non-complying priority list. EPA was also alleged to have acted arbitrarily and capriciously, and in violation of the due process and equal protection clauses.

In dismissing the claims against the state defendants, the district court reasoned that the Federal Water Pollution Control Act provided a remedy only against the administrator of the EPA. Because the provisions of the Act were comprehensive, any other remedy, including one under section 1983, was precluded. Therefore, the ...


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