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Lloyd A. Fry Roofing Co. v. EPA

Citation: 6 ELR 20718
No. No. 76 CV 230 W-4, 415 F. Supp. 799/9 ERC 1265/(W.D. Mo., 06/25/1976)

In a case of first impression, the court, citing lack of congressional intent, dismisses a suit against the Environmental Protection Agency (EPA) seeking pre-enforcement review of a compliance order under the Clean Air Act. Six months prior to filing this action, the plaintiff, a producer of asphalt roofing materials, was notified by EPA that its "plume" stack emissions were in violation of the Kansas City Regulations under the Clean Air Act. In granting defendants' Motion to Dismiss plaintiff's suit to enjoin EPA's enforcement action, the court declares this a matter of first impression. Notwithstanding a "strong" presumption for judicial review in civil or criminal proceedings, the court nonetheless finds that Congress intended to preclude pre-enforcement review at the district court level. The Clean Air Act's over-riding concern for public health necessitates speedy enforcement, and such a review provision was specifically deleted during congressional consideration of the bill. Since plaintiff failed to challenge the regulations within the statutory time period, it is limited to asserting its claim that EPA's regulations are unconstitutionally vague as a defense to the enforcement action.

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

Counsel for Defendants
Albert D. Hoppe, Asst. U.S. Attorney
549 United States Court House
811 Grand Ave.
Kansas City MO 64106
(816) 374-3122

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

Bruce J. Chasan
Land and Natural Resources Division
Department of Justice
Washington DC 20530
(202) 739-2793