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Lloyd A. Fry Roofing Co. v. EPA

ELR Citation: 7 ELR 20415
Nos. 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 preenforcement 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 preenforcement 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.