ELR Citation: ELR 21029
No(s). 87-4120 (2d Cir. Jun 15, 1988)

The court holds that a compliance order issued by the Environmental Protection Agency (EPA) under Clean Air Act §113(a)(3), finding a violation of the asbestos standards under §112, is not subject to judicial review. The plaintiff is an asbestos abatement contractor that performed asbestos removal work its client considered unsafe; the client notified EPA, which inspected the work and issued a compliance order. The court first holds that although Clean Air Act §307(b)(1) makes judicial review available for orders under §112(c), the legislative history makes clear that this refers only to grants or denials of locally applicable waivers, not compliance orders. The court next holds that the compliance order in this case is not reviewable under §307(b)(1) as "final action." In this case, EPA's compliance order is indeed its final and definitive statement of its position. However, preclusion of review would not have a practical and immediate effect on the plaintiff, its legal obligations have not been altered by the order, and its claimed stigma associated with having received the order is not sufficient. Moreover, the issues presented in reviewing the order are not fit for judicial review, since they are mostly factual and would place a significant burden on appellate courts. Finally, immediate review would not foster agency and judicial efficiency, since EPA must have some degree of free rein and to introduce the delay of court review would conflict with Congress' aim to accelerate control of air pollution.

The court last holds that EPA has not violated the Constitution's due process guarantees in the Fifth Amendment by failing to provide an administrative hearing on the order. The possible adverse effect of the order on the plaintiff's future business prospects is not a liberty interest protected by the Fifth Amendment. More than reputation alone must be at stake. The order is also not a deprivation of a property interest under the Fifth Amendment, since the plaintiff has not pointed to any certain benefits to which it would otherwise be entitled.

Counsel for Petitioner
Peter John Sacripanti
Beveridge & Diamond
Suite 1202, 101 Park Ave., New York NY 10178
(212) 557-3355

Counsel for Respondent
Michael Wenig
Land & Natural Resources Division
Department of Justice, Washington DC 20026-3986
(202) 786-4787

Christopher C. Herman
Environmental Protection Agency
401 M St., SW, Washington DC 20460
(202) 382-2090

Before Kaufman and Pratt, JJ.