                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-29-2008

Delaware County Safe v. Barbara Creighton
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-4757




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                                                     NOT PRECEDENTIAL

            UNITED STATES COURT OF APPEALS
                 FOR THE THIRD CIRCUIT




                           No. 07-4757


DELAWARE COUNTY SAFE DRINKING WATER COALITION, INC.,

                                                Appellant

                                v.

   JOHN HANGER*, THE PENNSYLVANIA DEPARTMENT OF
             ENVIRONMENTAL PROTECTION;
    STEPHEN JOHNSON, ADMINISTRATOR UNITED STATES
         ENVIRONMENTAL PROTECTION AGENCY;
       GARY D. CREIGHTON; BARBARA M. CREIGHTON

     *(Amended Pursuant to the Clerk’s Order of December 10, 2008)




          On Appeal from the United States District Court
             for the Eastern District of Pennsylvania
                    D.C. Civ. No. 07-cv-01782
             District Judge: Hon. Gene E. K. Pratter




            Submitted under Third Circuit LAR 34.1 (a)
                      on December 12, 2008


       Before: McKEE, SMITH and ROTH, Circuit Judges


                (Opinion filed: December 29, 2008)
                                       OPINION


ROTH, Circuit Judge:

       Delaware County Safe Drinking Water Coalition (Coalition) appeals from the

District Court’s dismissal of its claims for alleged violations of the Clean Water Act

(CWA), the Administrative Procedure Act (APA), and the Civil Rights Act (§ 1983). We

review Rule 12(b) dismissals de novo, accepting as true all of the allegations in the

complaint. Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997); Licata

v. U.S. Postal Serv., 33 F.3d 259, 260 (3d Cir. 1994). We will affirm.

       Because we write primarily for the parties, we only briefly recite the facts. The

Creightons sought a Clean Water Act (CWA) section 402 National Pollutant Discharge

Elimination System (NPDES) permit to cover runoff associated with proposed

construction on their property. In response, the Coalition filed suit alleging that the

Pennsylvania Department of Environmental Protection (PaDEP) and the Environmental

Protection Agency (EPA) have failed to enforce the Clean Water Act’s effluent limitation

standards. The Coalition seeks to prevent the PaDEP from issuing the Creightons’

permit, to suspend Pennsylvania’s entire NPDES permit program, and to compel the EPA

to issue performance standards for the construction industry. The Amended Complaint

asserts that the Creightons’ permit application is “pending.”




                                              2
       On July 27, 2007, the District Court dismissed the claims against the Creightons

and the PaDEP Secretary. As to the Creightons, the Court reasoned that, since the

Amended Complaint does not allege that the PaDEP has issued a permit to the

Creightons, the Coalition has not presented a ripe case or controversy against them. We

agree. See Ohio Forestry Ass’n, Inc. v. Sierra Club, 523 U.S. 726, 732–33 (1998) (case is

not ripe “until an administrative decision has been formalized”). On appeal, the Coalition

cites to Susquehanna Valley Alliance v. Three Mile Island, 619 F.2d 231 (3d Cir. 1980),

as authority for the proposition that a permit need not have issued for a challenge to be

ripe, but in that case, the complaint alleged that operators threatened construction without

a permit. See id. at 236. No such allegation has been made here.1

       As to the PaDEP Secretary, the District Court held that no private right of action

exists under the CWA, the APA, or § 1983 on the facts alleged. We agree. This Court

has held that “no federal right of action against [a state agency or its officials] was created

by the [CWA]” for failure to enforce an effluent limitation standard. Allegheny County

Sanitary Auth. v. EPA, 732 F.2d 1167, 1169–70, 1174–75 (3d Cir. 1984); see also

O’Leary v. Moyer’s Landfill, 523 F. Supp. 642, 648 (E.D. Pa. 1981) (“[T]he jurisdictional

grant does not in terms create responsibility on the part of a regulatory agency . . . even




   1
    On September 28, 2007, after notifying the District Court, the PaDEP issued the
permit to the Creightons. Though the District Court had dismissed without prejudice and
had not yet entered judgment, the Coalition did not seek to amend, and on appeal, we are
stuck with “the allegations on the face of the complaint,” see Licata, 33 F.3d 260.

                                              3
where the agency decides against enforcement.”). Further, the PaDEP is not an “agency”

as defined by the APA. See 5 U.S.C. § 701(b)(1) (defining “agency” as an “authority of

the Government of the United States”). Finally, the CWA’s express enforcement

provisions bar § 1983 relief for CWA violations. See Middlesex County Sewerage Auth.

v. Nat’l Sea Clammers Ass’n, 453 U.S. 1, 20 (1981).2

       On November 27, 2007, the District Court dismissed the claims against the EPA

Administrator. The Coalition has since abandoned its APA and § 1983 claims. With

respect to the CWA claims, we will affirm the dismissal. The Amended Complaint

alleges that the EPA violated the CWA in five ways: (1) by failing to initiate an

enforcement action against the PaDEP, (2) by failing to use its CWA section 404 powers

to suspend or veto the Creightons’ NPDES permit application, (3) by failing to withdraw

Pennsylvania’s NPDES program, (4) by failing to disapprove of Pennsylvania’s listing of

impaired waters, and (5) by failing to issue performance standards for the construction

industry. The Coalition did not provide the required statutory notice with respect to the

fourth and fifth claims, however, as its earlier letter to the EPA makes no mention of

Pennsylvania’s impaired waters listing or other decisions concerning the construction

industry. These two claims must therefore be dismissed for lack of notice. See Pub.




   2
    The Coalition argues that it has separate Fifth and Fourteenth Amendment takings
claims that the District Court failed to adjudicate. The Amended Complaint does not
obviously purport to state such a claim; in any event, the Takings Clause has never been
invoked to compel the government to enforce statutory environmental standards.

                                             4
Interest Research Group of N.J., Inc. v. Hercules, 50 F.3d 1239, 1248–49 (3d Cir. 1995).3

       None of the three remaining CWA claims involve a non-discretionary duty, and,

thus, they are not subject to suit under the CWA’s citizen-suit provision. See 33 U.S.C. §

1365(a)(2) (citizen-plaintiff must identify “a failure of the Administrator to perform any

act or duty under this chapter which is not discretionary”). First, the Supreme Court has

held that enforcement decisions are presumptively “committed to an agency’s absolute

discretion.” Heckler v. Chaney, 470 U.S. 821, 831 (1985); see also Dist. of Columbia v.

Schramm, 631 F.2d 854, 860 (D.C. Cir. 1980) (EPA’s decision not to review or veto

state’s action on NPDES permit application was discretionary). Second, CWA section

404 is inapplicable to the section 402 permit application mentioned in the Amended

Complaint. See 33 U.S.C. § 1344(a)–(d). Finally, most courts have held that the CWA

does not create a non-discretionary duty for the EPA to withdraw non-complying state

NPDES programs, and contrary decisions have been widely criticized. See, e.g., Amigos

Bravos v. EPA, 324 F.3d 1166, 1171 (10th Cir. 2003) (holding that CWA does not impose

mandatory duty on the Administrator and expressly rejecting caselaw to the contrary);

Sierra Club v. EPA, 377 F. Supp. 2d 1205, 1209 (N.D. Fla. 2005) (“[T]he better reasoned

district court decisions . . . have held that [the CWA] does not impose on EPA a



   3
    Without dealing with the lack of notice problem, the Coalition contends that NRDC v.
EPA, 542 F.3d 1235 (9th Cir. 2008), mandates that we grant summary judgment in its
favor and order the EPA to issue effluent limitation guidelines and new source
performance standards for the construction industry. As stated above, that claim is not
properly before this court.

                                             5
mandatory duty to withdraw a state’s NPDES authority.”).

      Accordingly, we will affirm the judgment of the District Court.




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