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Bethlehem Steel Corp. v. EPA

Citation: 12 ELR 20298
No. No. 81-1489, 669 F.2d 903/17 ERC 1442/(3d Cir., 02/04/1982)

The court rejects petitioner's challenge to the Environmental Protection Agency's (EPA's) Clean Air Act §120 notice of noncompliance, because petitioner failed to exhaust its administrative remedies. The court notes that the doctrine of exhaustion serves the dual purpose of preserving administrative autonomy and promoting judicial efficiency. Exceptions to the rule include cases where further administrative proceedings would not improve the posture of the case for litigation or would cause petitioner to suffer irreparable injury. The court finds that the petition presents factual issues concerning petitioner's compliance and the availability of a statutory exemption and would therefore benefit from additional administrative proceedings. The court declines to review petitioner's challenge to the issuance of the notice of noncompliance after the 30-day period specified in §120(b)(3), holding that it is in effect a challenge to EPA regulations authorizing later notice, and thus under §307(b)(1) may be brought only in the Court of Appeals for the District of Columbia Circuit. It also rules that the potential hardship to petitioner in being forced to spend money on disputed controls or face daily mounting civil penalties does not merit an exemption from the exhaustion doctrine, considering the nonpunitive nature of the penalties and the existence of administrative avenues for challenging their application. In addition, granting the hardship exemption in this case would open the door for court challenges of every §120 notice of noncompliance, thereby frustrating the basic purposes of the §120 scheme.

Counsel for Petitioner
Blair S. McMillin, Harley N. Trice II, Thomas L. Allen
Reed, Smith, Shaw & McClay
P.O. Box 2009, Pittsburgh PA 15230
(412) 288-3131

Curtis H. Barnette, General Counsel; Brent W. Robbins
Bethlehem Steel Corp.
Martin Tower, Bethlehem PA 18016
(215) 694-2424

Counsel for Respondent
Nancy L. Long, Jose R. Allen; Carol E. Dinkins, Ass't Attorney General
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-5260

Christopher Herman; Robert M. Perry, General Counsel
Environmental Protection Agency, Washington DC 20460
(202) 382-4134

Weis, J. joined by Aldisert and Rosenn, JJ.