J.E. Brenneman Co. v. Schramm

No. 78-2028 (473 F. Supp. 1316, 12 ERC 1055) (E.D. Pa. August 6, 1979)

ELR Digest

The court holds that a contractor lacked standing to bring a mandamus action against the Environmental Protection Agency (EPA) Regional Administrator regarding federal funding of construction of a municipal waste water treatment plant. The contractor built the plant for the Derry Township Municipal Authority (DTMA), and it has been in operation since 1977. Count I, based on the citizen suit provision of the Federal Water Pollution Control Act, 33 U.S.C. § 1365(a)(1), ELR STAT. & REG. 42147, alleged that the Administrator failed to require DTMA to submit an industrial cost recovery system. Count II, based on both the citizen suit provision and 28 U.S.C. § 1361, alleged that the Administrator failed to make a determination that the specifications for the treatment plant precluded any proprietary, exclusionary, or discriminatory requirements pursuant to 33 U.S.C. § 1284(a)(6), ELR STAT. & REG. 42115. Under both counts, the contractor sought to order the Administrator to withhold final payment on the grant. On Count I, the court, noting that mandamus will lie only for a ministerial action, finds that the Administrator received the required assurance that DTMA would submit the necessary cost recovery system. Plaintiff, therefore, actually sought to mandamus the Administrator to enforce EPA's contract with DTMA, an action not mandated by the statute or regulations. Furthermore, plaintiff lacks standing because it has no direct interest in DTMA's preparation of a cost recovery system and has alleged no injury in fact regarding DTMA's failure to prepare the system. Plaintiff's interest is generalized and as such is not sufficient to confer standing. Sierra Club v. Morton, 405 U.S. 727, 2 ELR 20192 (1972). The court finds that Count II is not a mandamus action but in effect requests an accounting by DTMA. Furthermore, plaintiff lacks standing to bring this action in mandamus because plaintiff's concern is not within the zone of interests protected by 33 U.S.C. § 1284(a)(6). Assuming plaintiff could establish a cause of action, recovery would be by money damages, but money damages are not available in a mandamus action. Finally, plaintiff is not an unsuccessful bidder within the meaning of the cases which have conferred standing on that ground. Thus, the court grants defendant's motion to dismiss for lack of subject matter jurisdiction.

The full text of this opinion is available from ELR (6 pp. $0.75, ELR Order No. C-1194).

Counsel for Plaintiff
John T. Clary, Andrew F. Minmaugh
Clary, Minmaugh & McGonigle, P.C.
Suite 805, Continental Bldg., 400 Market St., Philadelphia PA 19106
(215) 925-9005

Counsel for Defendant
Peter F. Vaira, U.S. Attorney; Robert S. Forster, Ass't U.S. Attorney
3310 U.S. Courthouse, Independence Mall West, 601 Market St., Philadelphia PA 19106
(215) 597-2556

Broderick, J.

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]