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Laguna Gatuna, Inc. v. Browner

ELR Citation: 25 ELR 21192
Nos. No. 94-2142, 58 F.3d 564/40 ERC 2054/(10th Cir., 06/20/1995)

The court holds unreviewable a compliance order the U.S. Environmental Protection Agency (EPA) issued under the Federal Water Pollution Control Act (FWPCA) directing an industrial wastewater disposal company to cease dumping wastes into a company-owned sinkhole. In 1987, the sinkhole's predecessor-in-interest asked EPA whether the sinkhole was subject to the Agency's jurisdiction as "waters of the United States" under 40 C.F.R. §122.2. EPA responded that the sinkhole was not subject to its jurisdiction, based on the representation that the sinkhole was "not hydrologically connected" to other waters and that there were "no recreational, industrial, or other uses that could affect interstate commerce." EPA discovered dead migratory birds near the sinkhole in 1991, and in 1992, issued the company the compliance order. The company complied with the order but claims that EPA had no jurisdiction to regulate the sinkhole because it was not "waters of the United States." Following the authority of other federal circuits that Congress intended to preclude judicial review of FWPCA compliance orders, the court affirms the district court's dismissal for lack of jurisdiction. The court notes that the company's argument that it should not be necessary to violate an EPA order and risk civil and criminal penalties to obtain judicial review is well taken, but rejects the company's conclusion that such a situation is "constitutionally intolerable." Judicial review of every unenforced compliance order would undermine EPA's regulatory authority.

[Briefs in this litigation are digested at ELR PEND. LIT. 66371.]

Counsel for Plaintiff
Todd S. Welch
Mountain States Legal Foundation
1660 Lincoln St., Ste. 2300, Denver CO 80264
(303) 861-0244

Counsel for Defendants
John A. Bryson
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before Seymour and Ebel, JJ.