the restriction by the "basic rule of sovereign immunity, in conjunction with the requirement of an agreement to pay interest." 478 U.S. at 315. That rationale applies with equal force here. Moreover, EPA's interpretation of its own implementing regulations, and its assessment of the application of OMB circular A-87 to the Clean Water Act, are entitled to substantial deference under Chevron, supra. Rochester contends that the phrase "construction costs" in the regulations should be interpreted broadly to include such construction-related costs as the litigation expenses and settlement amounts at issue here. However, Rochester offers no basis for concluding that EPA's literal interpretation of the phrase is arbitrary and capricious. EPA's interpretations of its regulations and of the OMB circular's application to the 206(a) program are reasonable and well within its discretion. EPA is therefore entitled to summary judgment on the issue of prejudgment interest.
5. The claim for delay damages paid in the Vanderlinde settlement. Rochester concedes that EPA has not taken final agency action on Rochester's claim for Vanderlinde delay damages. The state agency has disallowed delay damages at its final level of review for the reason that EPA's rejection of the Monsanto delay damages also governs the Vanderlinde claim. Rochester is now in the process of appealing the state agency's determination to EPA. In the instant Complaint, Rochester requests an expedited administrative appeal or, in the alternative, immediate judicial review of the state agency's final order on the ground that further exhaustion of administrative remedies would be futile.
A letter dated February 23, 1994 from EPA Assistant Regional Counsel Helen Ferrara to plaintiff's counsel addressed this aspect of the Complaint. Defendant instructed plaintiff to present EPA with any evidence "that the Vanderlinde [delay costs] are distinguishable from the Monsanto [delay costs]" within thirty days. The letter also stated, at p. 2, that "we intend to issue a Regional Administrator's decision in this matter no later than April 30, 1994." This representation by EPA eliminates any need that might have existed for the Court to order the agency to conduct an expedited review. Rochester has not demonstrated that its recourse to EPA's review of the state agency's decision, now imminent, is so futile as to compel judicial bypass of the agency's procedures. The proper time for judicial review, if Rochester still desires it, will be after EPA has ruled. Accordingly, Rochester's claim for Vanderlinde delay damages will be dismissed without prejudice for lack of ripeness.
6. The claim for legal defense expenses from the Vanderlinde litigation. The February 4 decision of the Regional Administrator and the February 14 letter from EPA's Assistant Regional counsel to plaintiff's counsel apply to this claim as well as Rochester's claim for legal defense expenses from the Monsanto litigation. Accordingly, for the reasons stated above in the discussion of that claim, the federal portion of the claim for Vanderlinde legal defense expenses will be dismissed as moot, and the portion seeking action to compel EPA to take action against New York with respect to the state matching share will be dismissed for failure to state a claim.
Rochester raises several objections to EPA's current administrative review procedures, claiming, inter alia, that those procedures deny it due process and equal protection of the laws. In 1984, before Rochester sought EPA review of any of the claims at issue in this action, EPA altered its administrative review procedures, replacing the "subpart J" procedure, which involved an adversarial proceeding with cross-examination of witnesses, with the "subpart L" procedure, which involves only an informal hearing. Rochester argues that this change denies Rochester its right to cross-examine witnesses. The Supreme Court, however, has held that litigants in agency proceedings possess no right to cross-examine agency officials in administrative proceedings. See United States v. Morgan, 313 U.S. 409, 422, 85 L. Ed. 1429, 61 S. Ct. 999 (1941). An administrative claimant enjoys the right to place evidence in the record, and Rochester does not contest that the subpart L procedure affords it somewhat more than that. See Mathews v. Eldridge, 424 U.S. 319, 343-44, 348, 47 L. Ed. 2d 18, 96 S. Ct. 893 (1976). Moreover, to the extent Rochester challenges EPA's procedural adherence to its own regulations, EPA is entitled to Chevron deference, which Rochester's contentions fail to overcome. Rochester also claims that the contractual terms of its grant agreement entitle it to the subpart J procedure. But Rochester provided no consideration for the funding EPA has provided it. The federal government simply gave it grants. Therefore, Rochester can have no special contractual rights to particular procedures.
Rochester raises a number of other procedural claims. It objects to EPA's failure to produce a full administrative record of its decisions on Rochester's various substantive claims. EPA replies that no administrative record is necessary because Rochester's claims either have been won by Rochester, are proceeding through the administrative process, or involve legal determinations that do not require an administrative record. Rochester also contends that it will be injured if EPA closes its administrative file on Rochester's claims. EPA denies that Rochester has any cognizable legal interest in EPA's internal management of its files; EPA further represents that it has indicated no intention to close the files. Finally, Rochester seeks to compel EPA to report to Congress on its progress in pursuing Rochester's claims. EPA claims that nothing requires it to make such a report and that such a report at this time would not benefit Rochester. Rochester has made no showing that any of these procedural actions of EPA has denied Rochester any legal entitlement. Accordingly, EPA's motion for summary judgment will be granted as to all of the procedural claims in the Complaint.
Date: March 18, 1994
Louis F. Oberdorfer
UNITED STATES DISTRICT JUDGE
ORDER - March 22, 1994, Filed
For the reasons stated in the accompanying Memorandum, it is this 18th day of March, 1994, hereby
ORDERED: that Defendants' Motion to Dismiss should be, and is hereby, GRANTED in part; and it is further
ORDERED: that Defendants' Motion for Summary Judgment should be, and is hereby, GRANTED in part; and it is further
ORDERED: that Plaintiffs' Motion for Partial Summary Judgment should be, and is hereby, DENIED; and it is further
ORDERED: that plaintiffs' claim seeking a declaratory judgment regarding the State of New York's obligation to pay a state matching share of plaintiffs' grants is hereby DISMISSED pursuant to Fed. R. Civ. P. 12(b)(6); and it is further
ORDERED: that plaintiffs' claims seeking to compel defendants to attempt to compel the state of New York to pay state matching shares of plaintiffs' claims are hereby DISMISSED pursuant to Fed. R. Civ. P. 12(b)(6); and it is further
ORDERED: that plaintiffs' claims for delay damages and prejudgment interest from the Monsanto settlement, and their claims regarding defendants' review procedures, are hereby DISMISSED pursuant to Fed. R. Civ. P. 56(c); and it is further
ORDERED: that plaintiffs' claims regarding the federal shares of its legal defense expenses in the Monsanto and Vanderlinde litigation are hereby DISMISSED as moot; and it is further
ORDERED: that plaintiffs' claim for delay damages from the Vanderlinde settlement is hereby DISMISSED without prejudice for lack of ripeness.
Louis F. Oberdorfer
UNITED STATES DISTRICT JUDGE