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Florida Power & Light Co. v. EPA

Citation: 28 ELR 21347
No. 95-1093, 145 F.3d 1414/46 ERC 2013/(D.C. Cir., 06/26/1998)

The court dismisses a power company's petitions for review of two preamble statements made by the U.S. Environmental Protection Agency (EPA) in conjunction with a proposed rule concerning state authorization of Resource Conservation and Recovery Act (RCRA) corrective action programs at interim status facilities. The court first holds that the preamble statements are not final regulations within the meaning of RCRA § 7006(a). On its face, the action at issue is merely a proposed, not a final, rulemaking. In addition, the power company failed to show that the challenged statements have any binding effects on either private parties or EPA. The court also holds that the power company's claims are not ripe for review. Because it remains uncertain whether, or on what grounds, EPA would even apply this rule to clean-closed facilities, the specific question of whether EPA has the authority to inspect such facilities is not fit for review at this time. In addition, the power company is unable to demonstrate hardship because the company suffers no harm unless and until EPA or an authorized state issues a RCRA § 3008(h) corrective action order against it.

Counsel for Petitioner
Douglas H. Green
Piper & Marbury
1200 19th St. NW, Washington DC 20036
(202) 861-3900/3847

Counsel for Respondent
Seth M. Barsky
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before Sentelle and Garland, JJ.