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Lloyd A. Fry Roofing Co. v. EPA

Citation: 7 ELR 20415
No. No. 76-1731, 554 F.2d 885/10 ERC 1082/(8th Cir., 05/11/1977) Aff'd

The court affirms a lower court's dismissal, 6 ELR 20718, for lack of subject matter jurisdiction of a suit seeking declaratory and injunctive relief against an air pollution abatement order. An examination of the statutory language and legislative history of § 113 of the Clean Air Act indicates that Congress intended to foreclose pre-enforcement judicial review of an Environmental Protection Agency (EPA) compliance order in an action instituted by the alleged violator. A provision expressly preserving the right of pre-enforcement review was deleted in the bill as finally passed, and such review is wholly inconsistent with the enforcement mechanism established in § 113. Where such an intent is discernible, the Administrative Procedure Act does not provide a separate jurisdictional basis for such review. Plaintiff must instead assert its claims as defenses or counterclaims in any judicial enforcement action brought by EPA under § 113. The lower court also correctly determined that it was without jurisdiction to review whether the constitutionality of the regulation falls within the purview of § 307(b)(1), which provides that such challenges may be raised in the appropriate court of appeals within 30 days of the plan's approval. This time limitation is not a denial of due process, and, having failed to raise this claim within the prescribed period, plaintiff is now barred from doing so.

Counsel for Plaintiff-Appellant
Thomas J. Leittem, John H. Altergott, Jr.
Shuggart, Thomson & Kilroy
914 Commerce Bank Bldg., Kansas City MO 64106
(816) 421-3355

Counsel for Defendants-Appellees
Albert D. Hoppe, Ass't U.S. Attorney
549 U.S. Courthouse, 811 Grand Ave., Kansas City MO 64106
(816) 374-3122

Henry F. Rompage
EPA Region VII
1735 Baltimore Ave., Kansas City MO 64108
(816) 374-5493

Bruce J. Chasan
Department of Justice
Washington DC 20530
(202) 739-2793

Matthes, J. joined by Webster & Henley, JJ.