ELR Citation: ELR 20938
No(s). 82-2534 (W.D. Pa. Feb 17, 1983)

In a suit by a municipal authority claiming improper state administration of the Federal Water Pollution Control Act (FWPCA) construction grant program, the court dismisses all claims against the state defendants and dismisses one claim against the federal defendants. The court first rules that, although similar issues are being raised in a concurrent state administrative proceeding, the court need not stay the case before it, as only the state defendants are party to the state proceeding, and the court is dismissing those defendants from the instant case. The court then strikes all constitutional claims against the state defendants because plaintiff, as a municipal authority, has no constitutional rights that it may invoke against its creator. Next, the court notes that the FWPCA gives no express authority to anyone to sue the state for improper administration of the construction grant program, and the court rules that no implied cause of action for such a suit exists. Further, the court may not render a declaratory judgment on the state's future administration of the program, because there is no underlying cause of action the would support a suit for present mismanagement. Having dismissed all federal claims against the state defendants, the court also dismisses the pendent state claims.

Turning to the federal defendants, the court first rules that the case is not within the exclusive jurisdiction of the Court of Claims since it involves claims of misgovernment, which are beyond the Court of Claims' jurisdiction. Although the court holds that the constitutional claims against the federal defendants merely echo the FWPCA claims, the court declines to dismiss them. Regarding the FWPCA §505 citizen suit claims, the court holds that plaintiff's failure to give formal notice 60 days before bringing suit did not require dismissal, since defendants, as a practical matter, have had more than 60 days to reassess their position in light of plaintiff's claims. The court rules that plaintiff's allegation that the federal defendants failed in their duty to disapprove Pennsylvania's grant priority system constitutes a claim upon which relief may be granted. However, the court rules that the FWPCA forecloses plaintiff from pursuing FWPCA-related claims against defendants under the Administrative Procedure Act.

Counsel for Plaintiff
Robert P. Casey
Dilworth, Paxson, Kalish & Kauffman
600 Penn Security Bank Bldg., Scranton PA 18503
(717) 346-7569

David Cashman
Cauley, Birsic & Conflenti
1212 Manor Bldg., 564 Forbes Ave., Pittsburgh PA 15219
(412) 471-6900

Counsel for Defendants
Dean K. Dunsmore
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2216

Ward T. Kelsey
Pennsylvania Department of Environmental Resources
100 Forbes Ave., Pittsburgh PA 15222
(412) 565-5363

Allen Warshaw, James J. Kutz, Alton P. Arnold Jr., Deputy Attorneys General
Strawberry Sq., 16th Floor, Harrisburg PA 17120
(717) 787-3391