Fairview Township v. United States Environmental Protection Agency

No. 83-1665 (M.D. Pa. June 9, 1987)

The court holds that the Environmental Protection Agency was entitled to insist on a current application when considering whether to award a grant under the Federal Water Pollution Control Act for construction of a local sewage treatment system.

[Previous decisions in this litigation are published at 15 ELR 20028 and 20951.]

Counsel for Plaintiffs
John E. Childe
200 Beacon Dr., Harrisburg PA 17112
(717) 657-0421

Counsel for Defendants
A. James Barnes, Stephen G. Pressman
Office of General Counsel
Environmental Protection Agency
401 M St. SW, Washington DC 20024
(202) 475-8040

Bruce Brandlaer, Ass't Attorney General
Strawberry Square, 16th Fl., Harrisburg PA 17120
(717) 787-3391

[18 ELR 20007]

Kosik, J.:

Opinion

This civil action was commenced on November 18, 1983. It arises from the denial of plaintiffs' application to construct a local sewage treatment system under the Federal Clean Water Act, 33 U.S.C. §§ 1251, et seq. On July 14, 1986 this court remanded this case to the Environmental Protection Agency [EPA] pursuant to a decision of the Third Circuit Court of Appeals.¹ On January 13, 1987 the EPA filed its notice of agency action. The EPA neither reviewed nor approved the plaintiffs' application because it was not current. Both parties then filed cross motions for summary judgment. Since these motions have been briefed by the parties, they are ripe for disposition.

Currently pending before this court is the report and recommendation of United States Magistrate J. Andrew Smyser which was filed on May 14, 1987. In his report, Magistrate Smyser recommends that the defendants' motion for summary judgment be granted and that the plaintiffs' summary judgment motion be denied.² The time period for filing objections to the Magistrate's report has lapsed. However, no objections to the report have been submitted by either party. The law is clear that when a Magistrate makes a finding or ruling on a motion or issue, his determination should become that of the court unless objections are filed. Thomas v. Arn, U.S. , , 106 S. Ct. 466, 472-73 (1985).

Moreover, we have reviewed the Magistrate's report and agree with it. The Magistrate states that the plaintiffs' Clean Water Act grant application was not approved by the defendants because it was not a current application.³ The Magistrate also states that the defendants' action in the instant case should be upheld in light of a recent decision of the United States Court of Appeals for the Third Circuit. Specifically, in Atlantic City Municipal Utilities Authority v. Regional Administrator, Region II, United States Environmental Protection Agency, 803 F.2d 96, 100 [17 ELR 20106] (3d Cir. 1986), the court held that when the EPA is considering a Clean Water Act grant application, it is entitled to insist upon a current application. It is clear that the Atlantic City decision is controlling in the case sub judice. Therefore, we concur with the Magistrate's conclusion that the defendants' refusal to approve the plaintiffs' 1982 grant application is proper because "the state has not certified that the application is entitled to funding priority in the current fiscal year."⁴

We also concur with the Magistrate's conclusion that this case should not be remanded to the EPA once again so that another affordability factfinding process can be conducted. As mentioned, there is no current state certification in this case. Therefore, we do not believe it necessary to remand this case to the EPA so that it can consider the affordability of a project that is not in reality going to commence. Moreover, it would be futile to remand this case to the EPA since the 1982 facts have substantially changed.⁵

Accordingly, in reliance upon the Atlantic City decision, we shall adopt the Magistrate's report and grant the defendants' motion for summary judgment.

An appropriate Order will issue.

[18 ELR 20008]

Order and Judgment

NOW, this 9th day of June, 1987, IT IS HEREBY ORDERED THAT:

[1] the defendants' motion for summary judgment is granted;

[2] the plaintiffs' motion for summary judgment is denied;

[3] judgment is entered in favor of the defendants and against the plaintiffs; and

[4] the Clerk of Court is directed to close this case and to send a copy of this Memorandum and Order to United States Magistrate Smyser.

1. See Fairview Township v. EPA, 773 F.2d 517 [15 ELR 20951] (3d Cir. 1985).

2. See page 6 of the Magistrate's report, Doc. 107.

3. Id. at pages 1-2.

4. Id. at page 3.

5. The plaintiffs admit that the circumstances have significantly changed since their 1982 application. See pages 7-8 of Doc. 96.