Sinclair Oil Company v. Scherer

No. C88-0190-8 (D. Wyo. June 30, 1989)

The court holds that judicial review of an Environmental Protection Agency (EPA) emergency order under the Resource Conservation and Recovery Act (RCRA) § 7003(a) to monitor and correct emissions of hydrocarbon vapors at a hazardous waste site is available before EPA acts to enforce penalties, and administrative remedies need not be exhausted before judicial review of an EPA comprehensive corrective action order under RCRA § 3008(h).

The court first dismisses without prejudice and as moot plaintiff's claims challenging EPA's approval of a closure plan. The court next holds that dismissal or summary judgment of § 7003(a) and § 3008(h) orders is not appropriate because RCRA is silent regarding judicial review of these orders. First, Congress' objective in passing § 7003(a) was to provide EPA with emergency powers to respond to emergency situations. Although precluding judicial review may ensure a prompt response to emergency conditions, preenforcement review is not precluded in this case because, as EPA admits, the facility continued to abate the emergency after seeking judicial review and has substantially complied with the emergency order. The emergency response objective of § 7003(a) is thus largely satisfied. Preenforcement judicial review of a § 7003(a) order would not allow future recipients of such orders arbitrarily to delay compliance with and obtain de novo review of emergency orders. Nor would allowing preenfocement judicial review of a § 7003(a) order undermine EPA's ability to respond swiftly to future emergency conditions, or establish a precedent allowing the recipient of such an order to evade or delay compliance by seeking preenforcement review. EPA cannot rely on the Administrative Procedure Act or the Declaratory Judgment Act to provide an independent basis of jurisdiction for judicial review of the RCRA § 7003 order because Congress did not preclude preenforcement review of § 7003 orders in nonemergency situations. Additionally, summary judgment on ripeness grounds is not appropriate because issues of fact exist regarding whether plaintiff has felt the concrete effects of the § 7003 order in attempting to achieve compliance and avoid potential enforcement action through substantial expenditures.

Second, the court holds that summary judgment is inappropriate because RCRA does not mandate exhaustion of administrative remedies prior to judicial review of § 3008(h) orders. RCRA's lack of an exhaustion requirement places application of the exhaustion doctrine within the discretion of the courts. Requiring exhaustion would foreclose the opportunity for prompt redress of plaintiff's grievances. EPA would not have occasion to apply its expertise, further develop the record, or correct any errors it may have made. Exhaustion is not required where resort to further administrative proceedings would be futile. That plaintiff missed by one day the appeal deadline for an administrative hearing on the § 3008(h) order does not amount to a failure to exhaust administrative remedies precluding judicial review. Plaintiff's counsel admits miscounting the appeal deadline by one day and appears not to have deliberately flouted EPA's administrative process. Nor does EPA appear to have been prejudiced by the delay. Requiring plaintiff to exhaust its administrative remedies does not serve the interests of justice and is tantamount to dismissal because EPA has already rejected plaintiff's appeal as untimely.

Counsel for Plaintiff
Henry W. Ipsen
Holme, Roberts & Owen
Ste. 4100, 1700 Lincoln, Denver CO 80203
(303) 861-7000

Counsel for Defendant
David Kubickek, Ass't U.S. Attorney
111 S. Wolcott, Casper WY 82601
(307) 261-5434

Thomas R. Bartman
U.S. Department of Justice, P.O. Box 23986, Washington DC 20026-3986
(202) 633-3747

[20 ELR 20010]

Brimmer, J.:

Order on Motions to Dismiss

This matter comes before the Court on plaintiff's motion to dismiss four claims from its original complaint, and on defendants' motion to dismiss, or for summary judgment on, all ten claims in plaintiff's amended complaint. A hearing on the motions was duly held before the Court on February 9, 1989. The Court, having considered the pleadings, motions, and supporting and opposing memoranda and attachments, having considered the arguments of counsel, and being fully advised in the premises, now FINDS and ORDERS as follows:

This case involves Sinclair's appeal of two United States Environmental Protection Agency ("EPA") orders involving the management of hazardous waste at Sinclair's Little America Refining Company ("LARCO") facility, in Evansvill, Wyoming. Defendants are the EPA and two of its administrators. In 1986 EPA suspected hazardous chemicals from the LARCO refinery were contaminating groundwater supplies at the refinery. In April of 1987, EPA and Sinclair entered into negotiations on a comprehensive corrective action order, pursuant to § 3008(h) of the Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C.A. § 6928(h) (1983 & Supp. 1988), to remedy these concerns. According to § 3008(h), "[w]henever on the basis of any information" EPA determines that "there is or has been a release of hazardous waste" at a facility such as LARCO, the EPA Administrator may file a civil action or may issue an order "requiring corrective action or such other response measure as he deems necessary" to protect human health or the environment.

Negotiations on the § 3008(h) order concluded without agreement in mid-November of 1988. EPA unilaterally issued the § 3008(h) order on December 1, 1988. The order directs Sinclair to determine the magnitude and movement of hazardous wastes released into the soils and groundwater by the LARCO facility, and to develop and implement a comprehensive corrective action plan.

In early 1988, during the negotiations on the § 3008(h) order, EPA determined that groundwater allegedly contaminated by LARCO had migrated beneath the Brookhurst subdivision, a residential area adjacent to the refinery. EPA determined that hydrocarbon vapors from contaminated groundwater presented an imminent danger to Brookhurst residents, and on April 19, 1988 the agency issued an emergency order pursuant to § 7003 of RCRA requiring Sinclair to monitor the emissions and take certain corrective actions. Section 7003(a) authorizes EPA to issue orders to abate an "imminent and substantial endangerment to health or the environment" caused by the management of hazardous waste. 42 U.S.C.A. § 6973(a) (1983 & Supp. 1988). EPA contends Sinclair allegedly failed to comply with the requirements of the § 7003(a) order in a timely fashion.

Sinclair originally filed the above-entitled action in July of 1988, challenging both the § 7003(a) order and a closure plan approval order. Defendants filed a motion to dismiss that complaint. Plaintiff then amended its complaint in January of 1989, dropping the challenge to the closure plan approval order, but adding challenges to the December-issued § 3008(h) order. Along with its amended complaint, plaintiff filed a motion to dismiss claims one through four of the original complaint which concerned the closure plan approval order. Defendants in turn filed an amended motion to dismiss, or alternatively, for summary judgment.

Plaintiff's Motion to Dismiss

Plaintiff moves under Fed. R. Civ. P. 41(a)(2) to voluntarily dismiss without prejudice the first four claims of its original complaint, all of which concern the closure plan approval order. Sinclair made its motion on the understanding that EPA would not seek civil penalties against Sinclair for alleged violations of the order. EPA, however, contends the claims should be dismissed with prejudice on mootness and ripeness grounds, and further contends it did not bind itself to waive the penalties at issue, although it has not sought them to date. At oral argument, defendants indicated they were not presently seeking, nor currently planned to seek, penalties for violation of the order. Because the matter appears moot, and there being no good reason to keep the issue open, the Court, as stated at the hearing, dismisses the claims on the understanding that EPA will not seek penalties for violation of the closure plan approval order.

Defendants' Motion to Dismiss, or for Summary Judgment

Defendants generally move to dismiss plaintiff's § 7003(a) and § 3008(h) claims for lack of ripeness. Defendants contend that plaintiff is not entitled to judicial review of the § 7003(a) order until EPA acts to enforce penalties for its violation. Sinclair, however, contends it has complied with the § 7003(a) order, and claims it is entitled to have the order reviewed prior to incurring penalties for its alleged violation. Defendants also contend Sinclair has failed to exhaust its administrative remedies concerning the § 3008(h) order, and that no exception justifies waiving the exhaustion requirement.

Defendants' motion to dismiss for lack of ripeness was brought under Fed. R. Civ. P. 12(b)(1). The issue of ripeness, which concerns whether a case or controversy is presented under article III of the United States Constitution, is properly raised by a motion to dismiss under Rule article III of the United States Constitution, is properly raised by a motion to dismiss under Rule 12(b)(1). Lane v. Reid, 559 F. Supp. 1047, 1049 (D.N.Y. 1983). In general, a federal claim should be dismissed for lack of subject matter jurisdiction only if it clearly appears to be immaterial and made solely for the purpose of obtaining jurisdiction, or is clearly frivolous or wholly insubstantial. Bell v. Hood, 327 U.S. 678, 682 (1946). However, where a defendant's challenge to the court's jurisdiction is also a challenge to the existence of a federal cause of action, the proper course of action, assuming the challenge is not immaterial, frivolous or insubstantial under Bell, is to find that jurisdiction exists and deal with the objection as a direct attack on the merits of the plaintiff's case. Williamson v. Tucker, 645 F.2d 404, 415-16 (5th Cir. 1981). "No purpose is served by indirectly arguing the merits in the context of federal jurisdiction. Judicial economy is best promoted when the existence of a federal right is directly reached. . . ." Id. Treating indirect attacks on the merits as a Rule 12(b)(6) rather than a Rule 12(b)(1) motion provides greater protection to the plaintiff who in truth faces a challenge to the validity of his claim. Id.

Plaintiff's claims arise under RCRA, and do not clearly appear to be immaterial or made solely for the purpose of obtaining jurisdiction. Nor do the claims appear to be clearly frivolous or wholly insubstantial. The claims call into question the validity of orders issued under RCRA, and the constitutionality of certain RCRA provisions. Because defendants' motion indirectly attacks the merits of plaintiff's case, in fairness to plaintiff and in the interests of judicial economy, the Court will treat the motion as one under Rule 12(b)(6). Both sides to the controversy have submitted, and the Court has received and reviewed, affidavits and other matters outside the pleadings. This converts the 12(b)(6) motion into one for summary judgment under Rule 56(b). See Fed. R. Civ.P. 12(b).

Summary judgment should be granted if "there is no genuine issue as to any material fact. . . ." Fed. R. Civ. P. 56(c). The Tenth Circuit set out the summary judgment standard in Dreiling v. Peugeot Motors of America, Inc., 850 F.2d 1373, 1377 (10th Cir. 1988).

The Supreme Court, in [Anderson v. Liberty Lobby Inc., 477 U.S. 242, 106 S. Ct. 2505 (1986)] held that a dispute about a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." 477 U.S. at 248, 106 S. Ct. at 2510. The trial judge is not to weigh the evidence to determine the truth of the matter, but instead must ask "whether a fair-minded jury could return a verdict for the [nonmoving party] on the evidence presented." Id. at 252, 105 S. Ct. at 2512. In making the decision, the trial judge must consider all the evidence in the light most favorable to the nonmoving party. Redhouse v. Quality Ford Sales, Inc., 511 F.2d 230, 234 (10th Cir. 1975). Thus the trial judge must deny motions for summary judgment when reasonable jurors might disagree, even though the judge as a trier of fact would find for the party.

Section 7003(a) Order

Defendants contend that judicial review of a § 7003(a) RCRA order is not available until EPA commences enforcement proceedings. Plaintiff counters that it has complied with the § 7003(a) order, and desires the Court's certification of compliance to forestall anticipated enforcement action. The issue is not whether review is ultimately available to Sinclair — both sides agree it is — but at what point such review is available.

[20 ELR 20011]

Plaintiff contends there is a general presumption favoring judicial review of agency actions. While this may be true, as both parties readily agree review is ultimately available, the presumption does not significantly advance the analysis of the case. Whether and to what extent a particular statute precludes judicial review, is determined by the statute's express language, the structure of the statutory scheme, its objectives, its legislative history and nature of the administrative action involved. Block v. Community Nutrition Inst., 467 U.S. 340, 345-46 (1984).

Section 7003 itself does not expressly provide for judicial review of administrative orders. Section 7003(a) does give the EPA authority to issue orders to protect the public health and safety:

Notwithstanding any other provision of this chapter, upon receipt of evidence that the past or present [management] . . . of any solid waste or hazardous waste may present an imminent and substantial endangerment to health or the environment, the Administrator may bring suit on behalf of the United States in the appropriate district court . . . to restrain [those involved from engaging in those activities] . . . or to order such person to take such other action as may be necessary, or both . . . The Administrator may also . . . take other action under this section including, but not limited to, issuing such orders as may be necessary to protect public health and the environment.

Section 7003(a), 42 U.S.C.A. § 6973(a) (1983 & Supp. 1988). Section 7003(b) authorizes EPA to enforce § 7003(a) orders in district court:

Any person who willfully violates, or fails or refuses to comply with [a § 7003(a) order] may, in an action brought in the appropriate United States district court to enforce such order, be fined not more than $ 5,000 for each day in which such violation occurs or such failure to comply continues.

Section 7003(b), 42 U.S.C.A. § 6973(b) (1983 & Supp. 1988). Judicial review may be had of a § 7003 order issued by a court, and is also available if and when a district court enforcement action is brought. Also, section 7003(d) prohibits judicial review of consent decrees. But the statute is silent on the question whether an agency-issued § 7003(a) order is subject to review prior to initiation of enforcement proceedings.

Defendants argue that the first line of § 7003(a) — "[n]otwithstanding any other provision of this chapter" — explicitly exempts administrative orders from all other RCRA review procedures. As plaintiff correctly notes, however, this language refers to judicial rather than administrative orders, and simply provides that EPA is not limited in its authority to bring such suits by other RCRA provisions. This provision does not prohibit judicial review.

To resolve the issue of review it is necessary, as Block indicates, to examine the structure of the statutory scheme, its objectives, its legislative history and the nature of the action involved. And an examination of these factors leads the Court to conclude pre-enforcement judicial review is appropriate in this particular case.

Defendants contend the statute's silence is an indication of Congress' intent to preclude pre-enforcement review. Defendants point to other RCRA sections that expressly provide for judicial review of certain agency actions, and claim § 7003's silence is, in contrast, a tacit prohibition on the form of review sought. Defendants' argument is not compelling. The other RCRA sections defendants cite, §§ 7006(a) and (b), provide for review of EPA regulations and permits. 42 U.S.C.A. § 6976(a), (b) (1983 & Supp. 1988). These sections do not contain language similar to § 7003, or contemplate similar forms of agency action, and they are not persuasive as to Congress' intent in a wholly different area of activity.

On the other hand, plaintiff's contention that RCRA § 3013 indicates by analogy that pre-enforcement review is available, is equally unpersuasive. Section 3013 empowers the EPA administrator to order monitoring at a hazardous waste site. 42 U.S.C.A. § 6934(a). Like § 7003(b), § 3013(e) authorizes the Administrator to enforce such orders in federal district court, and is silent as to judicial review. Nevertheless, courts have reviewed § 3013 orders before any enforcement action had been taken. See Wyckoff Co. v. EPA, 796 F.2d 1197 [16 ELR 20866] (9th Cir. 1986); E.I. DuPont de Nemours & Co. v. Daggett, 610 F. Supp. 260 [15 ELR 20745] (D.N.Y. 1985) (Neither statutory language nor legislative history prohibit pre-enforcement review). As Daggett explains, however, § 3013 does not employ an "imminent and substantial endangerment" standard which presumes the need to respond quickly to emergencies, language typically found to preclude pre-enforcement review. Daggett, 610 F. Supp. at 263. Because § 7003 does contain an "imminent and substantial endangerment" standard, Daggett and § 3013 do not support plaintiff's position.

Congress' objective in passing § 7003(a) was to provide EPA with emergency powers to respond to emergency situations. See United States v. Price, 688 F.2d 204 [12 ELR 21020] (3rd Cir. 1982). Preclusion of judicial review may be necessary to ensure a prompt response to emergency conditions. But that argument is less compelling in a case such as this where the emergency has been largely abated.

Plaintiff contends it has complied with the order, and that the "imminent and substantial endangerment" to the public has been removed. Plaintiff's Reply to Defendants' Amended Motion to Dismiss, or Alternatively, for Summary Judgment, at 12 (Feb. 8, 1989) ("Plaintiff's Reply"). In the § 3008(h) order, defendants' pleadings, and at the February 9, 1989 hearing, defendants conceded plaintiff has complied, allegedly late, with most of the § 7003 order's requirements. Defendants' Memorandum in Support of Amended Motion to Dismiss, or Alternatively, for Summary Judgment, at 16 (Jan. 23, 1989) ("Defendants' Memo"); Plaintiff's Amended Complaint, at Appendix F, PIV.7h(Jan. 9, 1989). Defendants argue, however, that Sinclair's efforts to comply after filing the suit are irrelevant. EPA contends that reviewing the § 7003 order in the manner proposed would allow future recipients of such orders to delay compliance with, and obtain de novo review of, emergency orders whenever they so desired. Defendants' Memo at 17 n.18. The Court disagrees.

It is precisely because Sinclair continued to take remedial action after it filed suit, and because EPA admits the plaintiff has substantially complied, that pre-enforcement review of this order is not precluded. No evidence was presented that indicates this suit was responsible for any compliance delays that may have occurred. Indeed, over one year has elapsed since the § 7003(a) order was issued, and EPA has yet to bring proceedings to enforce the order. Defendants' Memo at 19. It is reasonable to infer that any emergency that did exist has been largely abated, or EPA would have employed the powerful legal remedies at its disposal to ensure abatement. Under these circumstances, the emergency response objective of § 7003(a) has been all but satisfied. Allowing a review of the § 7003(a) order would not undermine EPA's ability to swiftly respond to future emergency conditions, or establish a precedent allowing the recipient of such an order to evade or delay compliance by seeking pre-enforcement review.

Defendants note that § 106(a) of the Comprehensive Environmental Response, Compensation and Liability Act of 1980 ("CERCLA"), 42 U.S.C. § 9606 (1983 & Supp. 1988), contains the same "imminent and substantial endangerment" precondition to agency action as RCRA's § 7003, and virtually identical enforcement language. Courts considering this CERCLA provision have found that although § 106(a) does not expressly prohibit pre-enforcement review of administrative orders, the statute's purpose to provide prompt response to emergency situations precludes such a review. Wagner Elec. Corp. v. Thomas, 612 F. Supp. 736, 740 [15 ELR 20977] (D. Kan. 1985); Aminoil, Inc. v. United States EPA, 599 F. Supp. 69, 73 [14 ELR 20801] (D. Cal. 1984). The CERCLA cases, however, arose in the context of pre-compliance challenges to agency emergency orders. As noted above, that is not the situation in the present case. Although the CERCLA provision has essentially the same emergency response objective as § 7003, the emergency conditions extant in the CERCLA cases do not exist in the present action. The CERCLA cases are not, therefore, dispositive.

Given the presumption in favor of judicial review, and the fact that neither the structure of the statutory scheme nor its objectives preclude judicial review under such non-emergency situations as presented in this case, summary judgment on the § 7003 claims on these grounds is inappropriate.

This disposes of defendants' further contention that because Congress precluded pre-enforcement review of § 7003 orders, plaintiff cannot rely upon the Administrative Procedure Act ("APA"), 5 U.S.C.A. § 701 et seq. (1977 & Supp. 1988), or the Declaratory Judgment Act, 28 U.S.C.A. §§ 2201-2202 (1982 & Supp. 1988), to [20 ELR 20012] provide an independent basis of jurisdiction for judicial review of the § 7003 order. No independent basis of jurisdiction is required because Congress did not preclude pre-enforcement review of § 7003 orders in non-emergency situations.

Defendants' challenge to plaintiff's claims concerning the constitutionality of § 7003, is not persuasive. In the amended complaint's third, fourth and fifth claims, plaintiff contends it is deprived by § 7003 of the due process right to pre-enforcement review of threatened civil penalties. The due process clause of the fifth amendment to the United States Constitution requires that a person deprived of a liberty or property interest by governmental action be entitled to be heard in "some kind of hearing . . . at some time." Parratt v. Taylor, 451 U.S. 527, 539 (1981); overruled on other grounds, Daniel v. Williams, 474 U.S. 327 (1986). The fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner. Matthews v. Eldridge, 424 U.S. 319, 333 (1976).

In the instant case, EPA argues that judicial review of that order is not available until EPA institutes a judicial enforcement action. Sinclair alleges it expended large sums of money responding to the § 7003 order, and has suffered negative publicity in the process. Moreover, EPA, under the purported authority of the § 7003 order, is allegedly requiring additional expenditures by Sinclair. (Limes affidavit, Exhibit 8, PP6, 7).

Assuming, arguendo, Sinclair has complied with the terms of the § 7003 order, EPA would have no reason to bring an enforcement action. In this situation, Sinclair's opportunity for meaningful review within a meaningful time is illusory at best. Accordingly, EPA is not entitled to summary judgment on this issue.

Defendants also attack, on ripeness grounds, Sinclair's challenge to the penalties EPA may seek for tardy compliance with the § 7003 order. EPA contends that because it has not sought to collect such penalties, plaintiff's claims are not ripe for review, which deprives the court of subject matter jurisdiction. The "basic rationale [for the ripeness doctrine] is to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties." Abbott Laboratories v. Gardner, 387 U.S. 136, 148-49 (1967). In Hodel v. Virginia Surface Mining & Reclamation Ass'n, 452 U.S. 264, 304 [11 ELR 20569] (1981), the Supreme Court applied the ripeness doctrine to a challenge brought by a number of coal companies to, inter alia, the civil penalty provision of the Surface Mining Control and Reclamation Act. Because none of the petitioners had ever had civil penalties assessed against them or had been otherwise affected by the provision, the Court held that the challenge presented no concrete case or controversy and denied review. Id.

In the present case, issues of fact exist regarding whether Sinclair has felt the effects of the § 7003 order in a concrete way. Plaintiff contends it has spent substantial sums in an effort to comply with the § 7003 order, and contends it faces a very real possibility that enforcement action will soon be taken. Because questions of fact exist, summary judgment on ripeness grounds is not appropriate.

Section 3008(h) Order

Defendants contend claims six through ten of plaintiff's amended complaint, which concern EPA's § 3008(h) comprehensive corrective action order, are not justiciable due to Sinclair's failure to exhaust available administrative remedies. Defendants assert plaintiff failed to timely request an administrative hearing on the order. Even if a request had been timely made, defendants contend no exception justifies waiving the exhaustion requirement. Defendants' arguments are not persuasive.

Section 3008(b) provides that an order issued pursuant to § 3008(h) becomes final if the party served does not request a hearing within thirty days of service. 42 U.S.C.A. § 6928(b) (1983 & Supp. 1988). Plaintiff concedes that it filed its appeal one day out of time. The § 3008(h) order was issued on December 1, 1988, sent by certified mail to plaintiff, and was received on December 12, 1988. On or about December 22, Sinclair's counsel contacted EPA and verified that December 12, 1988 would start the thirty-day appeals clock. Declaration of Alicia Hoegh, P5. At the latest, the thirty-day period expired on January 11, 1989. Sinclair served its hearing request on EPA on January 12, 1989, one day late.

Defendants contend that by missing the deadline, plaintiff failed to exhaust its administrative remedies and cannot now seek judicial review. Defendants correctly note that when exhaustion is statutorily mandated, the exhaustion requirement is a jurisdictional prerequisite to judicial review. The Supreme Court discussed when exhaustion is statutorily mandated in Weinberger v. Salfi, 422 U.S. 749 (1975). In that case the court found that exhaustion was mandated by a provision of the Social Security Act which established a number of prerequisites for judicial review, including a final decision of the agency Secretary made after a hearing, and commencement of a civil action in a certain court within a certain time. Id. at 763-64. No such prerequisites to judicial review condition the appealability of § 3008(h) orders. Indeed, RCRA is as silent regarding judicial review of § 3008(h) orders as it is concerning review of § 7003(a) orders. Exhaustion is not statutorily mandated.

Defendants also cite Geosearch, Inc. v. Hodel, 801 F.2d 1250, 1252 (10th Cir. 1986) for the proposition that a statutorily specified period for appealing an administrative decision is jurisdictional. That case is inapposite, however, for it concerned the appeal of an agency decision to federal court, not to a higher agency level. Timely invocation of judicial review is not at issue on the exhaustion question. In Park County Resource Council v. United States Dept. of Agriculture, 613 F. Supp. 1182, 1186 [15 ELR 21036] (D. Wyo. 1985), this Court did enforce a strict statute of limitations for appeal of an agency decision, but for reasons quite different than those presently before the Court. In that case plaintiffs missed the appeals deadline for an oil and gas lease by almost two years, a deadline which congressional policy required be strictly enforced to provide stability and to remove clouds from titles to federal oil and gas leases. Id. at 1186. No such substantial delay in filing for appeal occurred in the instant case, nor does a similarly strong policy require strict enforcement of the agency appeals time limit.

Because there is no statutory exhaustion requirement, application of the exhaustion doctrine is within the discretion of the courts. Wyoming Refining Co. v. United States Dept. of the Interior, 547 F. Supp. 297, 301 (D. Wyo. 1982). The underlying goal in exercising this discretion is the expenditious administration of justice, both in courts and agency tribunals. Montgomery v. Rumsfeld, 572 F.2d 250, 253 (9th Cir. 1978). In making a determination whether exhaustion should be required, courts have employed a balancing analysis which considers both the interests of the agency in applying its expertise, correcting its own errors, making a proper record, enjoying appropriate independence of decision and maintaining an administrative process free from deliberate flouting, and the interests of private parties in finding adequate redress for their grievances. Id. Consideration of these factors persuades the Court that exhaustion is inappropriate in this case.

Plaintiff's counsel admits he miscounted the appeal deadline by one day, and there is no evidence this was anything other than an innocent mistake. In December of 1988, plaintiff's counsel verbally contacted the agency to determine when the thirty-day period commenced, and notified EPA that plaintiff intended to appeal the § 3008(h) order. Plaintiff's Reply, Ex. 2 at 3, 4. Plaintiff's counsel does not appear to have deliberately flouted EPA's administrative process, nor does EPA appear to have been prejudiced by the delay. Further, on March 10, 1989, EPA Regional Administrator Scherer affirmed the agency's position that Sinclair's appeal was rejected as untimely. EPA's Section Motion for Leave to Supplement Administrative Record for RCRA Section 3008(h) Order, at attachment (Mar. 17, 1989). Requiring exhaustion would foreclose the opportunity for expeditious redress of plaintiff's grievances. The agency would not have occasion to apply its expertise, further develop the record, or correct any errors it may have made. Additionally, exhaustion is not required where resort to further administrative proceedings would be futile. Bradley v. Laird, 449 F.2d 898 (10th Cir. 1971); Wyoming Refining, 547 F. Supp. at 301; cf. Way of Life Television Network, Inc. v. F.C.C., 593 F.2d 1356, 1360 (D.C. Cir. 1979). In this case, requiring plaintiff to exhaust its administrative remedies would be tantamount to dismissal, for the agency has already rejected plaintiff's appeal as untimely. Given the peculiar factual context of this case, requiring exhaustion would not serve the interests of justice and summary judgment on the § 3008(h) claims is inappropriate on exhaustion grounds.

[20 ELR 20013]

Furthermore, on June 15, 1989, the United States on behalf of the EPA filed an action in this Court seeking to enforce penalties for Sinclair's alleged violation of the same § 3008(h) order. This action appears to render moot EPA's argument in its motion to dismiss that Sinclair's untimely hearing request bars review of the § 3008(h) order. Therefore, it is

ORDERED that plaintiff's motion to dismiss without prejudice the first four claims of its original complaint be, and the same hereby is, granted. It is further

ORDERED that defendants' amended motion to dismiss or for summary judgment be, and the same hereby is, denied.