Selco Supply Company v. United States Environmental Protection Agency , 632 F.2d 863 ( 1980 )

BREITENSTEIN, Circuit Judge.

Petitioner, Selco Supply Company, seeks review of orders of the Environmental Protection Agency,.EPA. We dismiss because the petition was not filed within the time provided by the statute and, hence, the court of appeals is without jurisdiction.

The case arises under the Federal Insecticide, Fungicide and Rodenticide Act, FI-FRA, 7 U.S.C. § 136 et seq., which regulates the sale, transportation, and use of pesticides. The Act requires registration of pesticides with the EPA. In November, 1974 EPA, gave notice of intent to cancel registrations of pesticides containing heptachlor and chlordane. Selco responded to a suspension notice. In December, 1975, EPA suspended some, but not all, use of products containing heptachlor and chlordane, and a month later clarified that order. In 1977 EPA began administrative enforcement proceedings against Selco by filing a complaint charging violations of the suspension order. On September 8, 1978, an Administrative Law Judge, ALJ, rejected the Selco claim that it had not received notice of the suspension order, found that Selco had violated that order, and assessed a $15,000 penalty against it. Selco did not appeal the decision of the ALJ but filed a motion to reopen on the ground that the suspension order was not served on Selco but on a law firm that was not authorized to represent it. On March 19, 1979, the EPA Regional Administrator denied the Selco motion to reopen and assessed a $15,000 civil penalty against Selco. On April 4, 1979, Selco filed a motion for reconsideration of the March 19 order and on May 24, 1979, filed the pending petition seeking review of both the September 8,1978, and March 19,1979 EPA orders. EPA denied the motion to reconsider on July 9, 1979. Selco did not petition for review of the July 9 order.

FIFRA provides, 7 U.S.C. § 136n(b) that “ * * * any person * * * may obtain judicial review of [an EPA order] by filing in the United States Court of Appeals * * * within 60 days after the entry of such order, a petition praying that the order be set aside in whole or in part.”

The grant of exclusive jurisdiction in the court of appeals is intended to insure prompt resolution of the validity of EPA orders. See Environmental Defense Fund, Inc. v. Environmental Protection Agency, D.C.Cir., 485 F.2d 780, 783. The time limits for judicial review of actions taken under environmental protection statutes provide a statute of limitations which bars late filings. See Sun Enterprises, Ltd. v. Train, 2 Cir., 532 F.2d 280, 290-291 (Clean Water Act) and Oljato Chapter of Navajo Tribe v. Train, D.C.Cir., 515 F.2d 654, 661 (Clean Air Act).

Selco’s May 24, 1979, petition sought review of the EPA September 8, 1978, order which had been entered over 250 days before and of the March 19, 1979 order which had been entered 66 days before. As to the last order Selco says that the time should run from the date of service of the order on it.

Selco points out that EPA regulation, 40 C.F.R. § 168.70(c), permits a petition for reconsideration to be filed within 10 days after the date of service of the final order and that under Id. § 168.60(c)(1) judicial review of an order assessing a civil penalty must be sought within 60 days after service of the order on the respondent. The difficulty is that the statute, 7 U.S.C. § 136n(b) requires that a petition for judicial review be filed within 60 days after the entry of the order, and contains no provision for tolling by a motion for reconsideration. Federal courts may exercise only that judicial power provided by the Constitution and conferred by Congress. See Powell v. McCormack, 395 U.S. 486, 512-513, 89 S.Ct. 1944, 1959, 23 L.Ed.2d 491, and Baker v. Carr, 369 U.S. 186, 198-199, 82 S.Ct. 691, 699-700, 7 L.Ed.2d 663. For a regulation to be valid it must be consistent with the statute under which it is promulgated. United States v. Larionofi, 431 U.S. 864, 873, 97 S.Ct. 2150, 2156, 53 L.Ed.2d 48.

We are convinced that the statute applies and precludes review when the petition is not filed within the prescribed 60 day period from the entry of the order. Decisions under other federal statutes permitting tolling of the limitation period are not pertinent. See e. g. B. J. McAdams, Inc. v. Interstate Commerce Commission, 8 Cir., 551 F.2d 1112, 1115 (Interstate Commerce Act) and Samuel B. Franklin & Co. v. Securities and Exchange Commission, 9 Cir., 290 F.2d 719, 725 (Securities and Exchange Act). Resolution of EPA orders under FIFRA, like orders under other environmental protection statutes, should be made promptly.

Even if tolling is permitted, the court of appeals is without jurisdiction because then the final order would be the July 9 order denying the motion for reconsideration and Selco has presented no petition for the review of that order. The May 24 petition for review was premature. We have held that a premature notice of appeal is insufficient to sustain jurisdiction of the court of appeals when no notice of appeal has been filed for review of a final judgment of a federal district court. Century Laminating, Ltd. v. Montgomery, 10 Cir., 595 F.2d 563, 568-569. The same principle applies to review of action of an administrative agency. The present action is barred by the failure to comply with the jurisdictional requirements.

Petition dismissed.