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Solar Turbines, Inc. v. Seif

Citation: 19 ELR 21091
No. Nos. 88-5591, -5623, 879 F.2d 1073/29 ERC 1840/(3d Cir., 06/27/1989) District court's dismissal aff'd

The court holds that the district court lacked jurisdiction over a challenge to the Environmental Protection Agency's (EPA's) administrative order under the Act's prevention of significant deterioration (PSD) enforcement provision directing the operator of a gas turbine cogeneration facility to halt construction. The court rules that the Clean Air Act precludes preenforcement review of PSD administrative orders, which may be challenged in an EPA enforcement action or in the court of appeals if EPA takes a final action within the meaning of Clean Air Act § 307(b). As with administrative orders under § 113, preenforcement review would interfere with the Clean Air Act procedural framework envisioned by Congress whereby noncomplying parties are first encouraged to resolve their problems with the states and EPA in an informal manner less costly than litigation. The court then holds that EPA's withdrawal of the administrative order does not render the petition for review before this court moot. EPA has not altered its position on the merits, and has instituted an action in district court seeking injunctive relief against the cogeneration facility's operator. To hold that the issue is moot would allow EPA to control the timing and venue of judicial review. The court holds that the administrative order is not final agency action and thus is not subject to review in this court. Although the order does appear to represent EPA's definitive position on the question of the operator's compliance with the PSD requirements, it has no operative effect on the operator. No civil or criminal liability accrues from violation of the order, and there are no other sanctions that can automatically be imposed. Even if uncertainty in the operator's long-term corporate decisionmaking process could be viewed as an adverse consequence of a § 167 order, the operator does not appear to have suffered any hardship, since construction appears to be almost complete.

A concurring judge finds that the hardship to the operator is more serious than the majority opinion suggests, but would hold that the order is not final because it would result in a § 167 order representing final agency action while a § 113 notice of violation, which is issued subsequent to an administrative order, has been held not to be final. Moreover, there is no administrative record despite what appears to be an informal adjudication.

[The district court's decision is published at 19 ELR 21088.]

Counsel for Petitioner-Appellant
Scott M. Turner, Harold A. Kurland, Ronald G. Hull
Nixon, Hargrave, Devans & Doyle
Lincoln First Tower, Rochester NY 14603
(716) 546-8000

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

Before Becker and Barry,* JJ.