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Amoco Oil Co. v. EPA

ELR Citation: 27 ELR 21309
Nos. 96 N 1037, 959 F. Supp. 1318/(D. Colo., 03/28/1997)

The court holds that it lacks jurisdiction over an oil refinery's challenge to a corrective action order issued by the U.S. Environmental Protection Agency (EPA) under the Resource Conservation and Recovery Act (RCRA). The court first notes that the legislative history alone does not reveal a discernible intent to preclude preenforcement judicial review of corrective action orders. Congress created corrective orders and civil action under RCRA as an alternative to the slowness of the permit process, and did not distinguish between corrective action orders and civil suits in terms of their speed. The court next holds that a congressional intent to preclude preenforcement judicial review of corrective action orders is discernible in the statutory scheme of RCRA. The court compares the statutory enforcement scheme of RCRA with the enforcement schemes of the Clean Air Act (CAA), the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), and the Federal Water Pollution Control Act (FWPCA). The enforcement scheme of the CAA is not helpful because it expressly explains what CAA actions may be judicially reviewed. The 1986 amendments to CERCLA also expressly preclude preenforcement judicial review of administrative orders. Before 1986, preenforcement judicial review of CERCLA was not available in various courts because of the delay that would accompany preenforcement review. The court holds that the same considerations apply to RCRA, and allowing preenforcement judicial review would interfere with the regulatory scheme of RCRA. The court next notes that the FWPCA has an enforcement mechanism similar to RCRA's. Like RCRA, if a violation of the FWPCA occurs, EPA can issue an order requiring compliance or institute a civil action. Under the FWPCA, several courts have rejected the availability of preenforcement judicial review of administrative orders.

The court next holds that lack of preenforcement judicial review does not violate plaintiff's due process rights. The court completes its analysis by holding that plaintiff's final challenge to the statute is a challenge to the regulations on their face and can only be filed in the U.S. Court of Appeals for the District of Columbia.

Counsel for Plaintiff
John Fognani
Gibson, Dunn & Crutcher
1801 California St., Ste. 4200, Denver CO 80202
(303) 298-5700

Counsel for Defendant
Linda A. Surbaugh, Ass't U.S. Attorney
U.S. Attorney's Office
1961 Stout St., Rm. 1200, Denver CO 80294
(303) 844-2081