ELR Citation: ELR 20009
No(s). C88-0190-8 (D. Wyo. Jun 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