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West Penn Power Co. v. EPA

Citation: 19 ELR 20221
No. No. 87-3220, 860 F.2d 581/28 ERC 1489/(3d Cir., 11/01/1988)

The court rules that a pending petition for reconsideration of an agency action deprives the action of finality, and the petitioning party therefore has no right to review until the agency acts on the petition or the petition is withdrawn. Petitioner, an electric utility in Pennsylvania, constructed a 307-meter smokestack to disperse its sulfur dioxide emissions and bring the local air quality region into attainment with the Clean Air Act's national ambient air quality standard for sulfur dioxide. Petitioner had constructed the smokestack in reliance on the Environmental Protection Agency's (EPA's) proposed tall stack regulations, which became far more stringent in final form. When EPA failed to redesignate the local region as an attainment region because petitioner's smokestack violates the new regulations and therefore cannot receive a pollution reduction credit, petitioner simultaneously filed a petition for reconsideration with the agency and a petition for review with the court. The court rules that the pendency of a petition for reconsideration causes an agency decision to be unreviewable, and therefore holds that the court lacks jurisdiction to hear petitioner's claim. Petitioner brought its claim under § 307(b)(1) of the Clean Air Act, which provides for review of final agency actions. Finality for purposes of § 307 should be analyzed in the same manner as it is analyzed in administrative law generally. A line of cases concerning the time limit for appeal has held that the filing of a petition for reconsideration stays the running of the limitations period because the filing of the motion renders the decision nonfinal. This approach conserves judicial resources, since to allow review by the agency and the court to proceed simultaneously would result in duplicated efforts. The court notes that the petition for reconsideration affects the finality of the agency action only with respect to the petitioning party; nonpetitioning parties are free to seek judicial relief.

Counsel for Petitioner
Lawrence A. Demase
Rose, Schmidt, Chapman, Duff & Hasley
900 Oliver Bldg., Pittsburgh PA 15222-5369
(412) 355-8600

Counsel for Respondents
Charles S. Carter, Ass't General Counsel
U.S. Environmental Protection Agency
401 M St. SW, Washington DC 20460
(202) 475-8040

Lisa F. Ryan
Environmental Defense Section, Land and Natural Resources Division
U.S. Department of Justice, P.O. Box 23986, Washington DC 20026-3986
(202) 633-3126

Before Sloviter and Cowen,* JJ