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Atlantic City Mun. Utils. Auth. v. Regional Adm'r

Citation: 17 ELR 20106
No. No. 85-5683, 803 F.2d 96/25 ERC 1361/(3d Cir., 10/14/1986) Rev'd for lack of jurisdiction

The court holds that the district court did not have subject matter jurisdiction under Federal Water Pollution Control Act (FWPCA) § 505(a)(2) over a challenge to the Environmental Protection Agency's (EPA's) refusal in 1985 to grant funds for sewage treatment to a municipal utilities authority which had 1981 state priority certification. Plaintiff's proposed project had been certified and ranked in 1981 by the New Jersey Department of Environmental Protection (NJDEP) pursuant to FWPCA § 303(e)(3)(H). However, when in 1984 the Regional Administrator prepared new grant plans, the NJDEP declined to recertify plaintiff's project and the EPA Regional Administrator concluded that without current certification the project was not eligible for federal funds.

The court first holds that FWPCA § 505(a)(2), the citizen suit provision, does not provide subject matter jurisdiction over plaintiff's challenge to EPA's refusal to release the funds. The court initially holds that the fact that the relief requested may result in EPA disbursing funds to plaintiff does not make this a request for compensatory damages and thus outside the scope of FWPCA § 505(a)(2). The court then holds that the Regional Administrator did not have a nondiscretionary duty to accept the NJDEP's 1981 priority certification of plaintiff's project in lieu of a current 1985 certification, even if the Regional Administrator erred in 1981 and the grant should have been made at that time. Funding priorities change over time, and to require that a grant be made now based on an earlier year's priorities would subvert the FWPCA's funding scheme. Moreover, in 1984 EPA issued regulations interpreting FWPCA § 303(e)(3)(H) as requiring projects to be listed among current priorities, and these regulations are entitled to deference.

The court next holds that the Administrative Procedure Act and the federal question statute do not provide bases for jurisdiction. Plaintiff's pleadings are for monetary relief in excess of $10,000 over which the Claims Court has exclusive jurisdiction. The court declines to transfer the case to the Claims Court, however, finding that its resolution of the subject matter jurisdiction of the case has also resolved the merits of the case.

A dissent would hold that the district court has jurisdiction under FWPCA § 505(a)(2) where a nonfrivolous claim has been made concerning the existence of a nondiscretionary duty.

[The district court opinion is published at 16 ELR 20152.]

Counsel for Appellant
Albert J. Slap
Slap, Williams & Cuker
960 One Franklin Plaza, Philadelphia PA 19102
(215) 557-0099

Counsel for Appellees
F. Henry Habicht II, Ass't Attorney General; Ann C.Hurley, Robert L. Klarquist
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2731

Before Stoviter and Mencer,* JJ.