Also named as Defendants are the Pennsylvania Department of Environmental Resources and its Secretary (hereinafter the State Defendants).
In an order dated March 26, 1984, this Court referred to United States Magistrate J. Andrew Smyser the motion of the State Defendants to dismiss this case and the motion of the Federal Defendants to dismiss or, alternatively, for summary judgment. On July 6, 1984, the Magistrate issued his report and recommendation on these motions. The Plaintiffs filed objections to the Magistrate's report on July 16, 1984. Other proceedings in this case are discussed in Magistrate Smyser's July 6, 1984 report and need not be repeated here. Because the Authority has filed lengthy and detailed objections to the Magistrate's report, we have reviewed this case and the issues raised by the Defendants' motions de novo. See 28 U.S.C. § 636(b)(1).
The Plaintiffs claim jurisdiction of their claims in this Court under the citizen's suit provision of the Clean Water Act, 33 U.S.C. § 1365, the Federal Mandamus Statute, 28 U.S.C. § 1361, and the Administrative Procedure Act, 5 U.S.C. §§ 701-706. The Magistrate concluded in his report that because the citizen's suit provision of the Clean Water Act, 33 U.S.C. § 1365, provides a remedy for the alleged failure of the federal defendants to perform a mandatory duty, jurisdiction under the mandamus statute and the Administrative Procedure Act is precluded. As will be discussed below, we question whether the citizen's suit statute provides the remedy which the Plaintiffs seek in this case. Nevertheless, we agree with Magistrate Smyser that to the extent that this Court has jurisdiction of the Plaintiffs' claims, our jurisdiction is based on the specific provision of the Clean Water Act and that basis of jurisdiction precludes jurisdiction under the more general provisions of the mandamus statute and the Administrative Procedure Act. See Magistrate's Report at 13; Allegheny County Sanitary Authority v. United States Environmental Protection Agency, 732 F.2d 1167, 1176-77 (3d Cir. 1984).
2. The Statutes.
As noted above, the exclusive jurisdictional basis for the Plaintiffs' claims in this case is the citizen's suit provision of the Federal Clean Water Act, 33 U.S.C. § 1365. Section 1365 provides, among other things, that ". . . any citizen may commence a civil action on his own behalf . . . against the Administrator [of the EPA] 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." 33 U.S.C. § 1365(a)(2). The Section goes on to provide for jurisdiction in the district courts "to order the Administrator to perform such act or duty, as the case may be. . . ." The Plaintiffs allege that the Administrator has failed to perform a mandatory duty established by the "state certification" provision of the Clean Water Act: 33 U.S.C. § 1299.
Section 1299 provides for state certification of applications for grant assistance under the Treatment Works Construction Grant Provisions of the Clean Water Act, 33 U.S.C. § 1281 et seq., and imposes on the Administrator a duty to act expeditiously with respect to certified applications. It also provides that "If the administrator does not approve or disapprove such application within 45 days of receipt, the application shall be deemed approved." The full text of § 1299 reads as follows:
Whenever the Governor of a State which has been delegated sufficient authority to administer the construction grant program under this subchapter in that State certifies to the Administrator that a grant application meets applicable requirements of Federal and State law for assistance under this subchapter, the Administrator shall approve or disapprove such application within 45 days of the date of receipt of such application. If the Administrator does not approve or disapprove such application within 45 days of receipt, the application shall be deemed approved. If the Administrator disapproves such application, the Administrator shall state in writing the reasons for such disapproval. Any grant approved or deemed approved under this section shall be subject to amounts provided in appropriation Acts.