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Solar Turbines, Inc. v. Seif

Citation: 19 ELR 21088
No. No. 88-0221, 688 F. Supp. 1012/28 ERC 1201/(M.D. Pa., 05/26/1988)

The court holds that an administrative order issued under Clean Air Act § 167 by the Environmental Protection Agency (EPA) directing the owner of a gas turbine cogeneration facility to cease construction activities is final agency action and reviewable only in the court of appeals under § 307(b). The declaratory judgment plaintiff, a gas turbine cogeneration facility, had been issued a prevention of significant deterioration permit from the Pennsylvania Department of Environmental Resources, which had received approval from EPA for its permit process several years earlier. EPA subsequently issued an administrative order under Clean Air Act § 167 alleging that the permit was deficient and ordering construction of the facility to cease. The court holds that the order is final agency action and thus the dispute is ripe for judicial review under § 307(b). Although the order is not self-enforcing and EPA would have to ask the court to enforce the order or impose injunctive relief, EPA expects plaintiff to comply with the order and civil and criminal penalties could be imposed on plaintiff for failure to comply with the order. The order does not cease to be reviewable merely because EPA's future enforcement action is uncertain.

Counsel for Plaintiff
Harold A. Kurland
Nixon, Hargrave, Devans & Doyle
Lincoln First Tower, Rochester NY 14603
(716) 546-8000

Counsel for Defendants
Jean Anne Kingrey
Land and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 633-2716