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J. E. BRENNEMAN CO. v. SCHRAMM

August 6, 1979

J. E. BRENNEMAN COMPANY, A Pennsylvania Corporation, Plaintiff,
v.
Jack J. SCHRAMM, Regional Administrator, Environmental Protection Agency, Region III, Defendant



The opinion of the court was delivered by: BRODERICK

MEMORANDUM

Plaintiff, J. E. Brenneman Company, a construction company, entered into a contract in 1973 with the Derry Township Municipal Authority (DTMA) to build a waste water treatment plant (Derry Plant), which plant has been in operation since March, 1977. In its amended complaint, which contains two counts, the plaintiff seeks mandamus against Jack J. Schramm, the Regional Administrator (Administrator) of the Environmental Protection Agency, Region III (EPA). In Count I of its amended complaint, the plaintiff, basing jurisdiction on 33 U.S.C. § 1365(a)(2), *fn1" alleges that the Administrator failed to perform a nondiscretionary duty in that he failed to require DTMA to submit an industrial cost recovery system pursuant to 40 C.F.R. § 35.835-5 and requests the Court to order the Administrator to withhold final payment until an industrial cost recovery system is received from DTMA. In Count II of its amended complaint, the plaintiff, basing jurisdiction on 33 U.S.C. § 1365(a)(2) and 28 U.S.C. § 1361, alleges that the Administrator failed to make a determination that the specifications for the Derry Plant precluded any proprietary, exclusionary or discriminatory requirements pursuant to 33 U.S.C. § 1284(a)(6) and requests the Court to order the Administrator to withhold payment until an accounting is submitted by DTMA covering such things as superfluous equipment in the Derry Plant, the excess costs resulting therefrom, and the cost of equipment in the Derry Plant installed for the sole purpose of handling Hershey Foods Corporation's industrial waste, and including therein an industrial cost recovery system.

 Presently before the Court is the defendant's motion to dismiss the amended complaint for lack of subject matter jurisdiction. *fn2" For the reasons hereinafter set forth, the Court will grant the defendant's motion to dismiss.

 The plaintiff has labeled its complaint "First Amended Complaint in Mandamus" and in Count I bases jurisdiction on 33 U.S.C. § 1365(a)(2) and in Count II bases jurisdiction on both 33 U.S.C. § 1365(a)(2) and 28 U.S.C. § 1361. Section 1365(a)(2) of Title 33 is section 505(a)(2) of the Federal Water Pollution Control Act (FWPCA), which provides:

 
(a) Except as provided in subsection (b) of this section, any citizen may commence a civil action on his own behalf
 
(2) against the Administrator where there is alleged a failure of the Administrator to perform any act or duty under this chapter which is not discretionary with the Administrator.

 This section specifically limits jurisdiction in such mandamus actions to those alleging a failure of the Administrator to perform an act or duty required in the FWPCA which is "not discretionary." See Sierra Club v. Train, 557 F.2d 485 (5th Cir. 1977); Sun Enterprises, Ltd. v. Train, 532 F.2d 280 (2d Cir. 1976). Section 1361 of Title 28 provides:

 
The district courts shall have original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff.

 It is well settled that a requisite for jurisdiction in the United States District Court on the basis of § 1361 is an allegation that the defendant officer or employee of the United States owes the plaintiff a legal duty which is a specific, plain, ministerial act "devoid of the exercise of judgment or discretion." Commonwealth of Pennsylvania v. National Association of Flood Insurers, 520 F.2d 11, 25-26 (3d Cir. 1975); Spock v. David, 469 F.2d 1047, 1050 (3d Cir. 1972); Richardson v. United States, 465 F.2d 844, 849 (3d Cir. 1972), Reversed on other grounds, 418 U.S. 166, 94 S. Ct. 2940, 41 L. Ed. 2d 678 (1974); Carter v. Seamans, 411 F.2d 767, 773 (5th Cir. 1969), Cert. denied, 397 U.S. 941, 90 S. Ct. 953, 25 L. Ed. 2d 121 (1970). An act is ministerial only when its performance is positively commanded and so plainly prescribed as to be free from doubt.

 The amended complaint in Count I specifically alleges that the Administrator failed to require DTMA to submit an industrial cost recovery system pursuant to 40 C.F.R. § 35.835-5, which regulation provides:

 
(c) Where industrial wastes are to be treated by the proposed project, no grant may be awarded unless the applicant provides assurance satisfactory to the Regional Administrator that the applicant has, or will have in effect when the project will be operated, an equitable system of cost recovery. Such system of cost recovery may include user charges, connection fees, or such other techniques as may be available under State and local law. Such system shall provide for an equitable assessment of costs whereby such assessments upon dischargers of industrial wastes correspond to the cost of the waste treatment, taking into account the volume and strength of the industrial, domestic, commercial wastes, and all other waste discharges treated, and techniques of treatment required. Such cost recovery system shall produce revenues, in proportion to the percentage of industrial wastes, proportionately, relative to the total waste load to be treated by the project, for the operation and maintenance of the treatment works, for the amortization of the applicant's indebtedness for the cost of such treatment works, and for such additional costs as may be necessary to assure adequate waste treatment on a continuing basis.

 Pursuant to this regulation, it appears that no grant may be awarded unless the applicant provides assurance satisfactory to the Administrator that the applicant has or will have in effect when the project is in operation an equitable system of cost recovery from dischargers of industrial waste. The complaint, however, specifically alleges that DTMA, in accepting the grant, contracted to submit to the Administrator an industrial cost recovery system in conformance with 40 C.F.R. § 35.835-5. This allegation in the complaint clearly indicates that the Administrator obtained from the grantee the "assurance" required by the regulation. It appears, therefore, that the plaintiff seeks to have this Court mandamus the Administrator to enforce the contract with the grantee an action not mandated by the statute or the regulations.

 Furthermore, it appears that the plaintiff does not have standing in connection with its request for mandamus in Count I. In connection with the plaintiff's assertion of jurisdiction under 33 U.S.C. § 1365(a)(2), the Court notes that this provision must be read in conjunction with 33 U.S.C. § 1365(g), the "standing" provision of that section of the FWPCA, which provides:

 
For the purposes of this section the term "citizen" means a person or persons having an interest which is ...

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