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Public Serv. Co. of Colo. v. EPA

ELR Citation: 31 ELR 20098
Nos. No. 99-9542, 225 F.3d 1144/51 ERC 1263/(10th Cir., 08/29/2000)

The court dismisses a power plants's motion to challenge the U.S. Environmental Protection Agency's (EPA's) determination that a proposed new plant, when combined with an existing plant, would constitute a single source of air emission for permitting purposes under the Clean Air Act (CAA). The plants, which were, in part, under common ownership and management, entered an agreement whereby the existing plant would purchase all the energy output from the new plant. The state environmental agency solicited EPA's opinion as to whether the two plants would constitute a single source under the CAA. In two opinion letters, EPA replied in the affirmative, thereby triggering the CAA requirement that a prevention of significant deterioration (PSD) permit be obtained prior to construction of the new plant. The existing plant then appealed.

The court first holds that EPA's opinion letters do not constitute final agency action from which an appeal may be made under CAA §307(b)(1). The impact of the letters as they concern the existing plant is neither direct nor immediate. Because the existing plant is not even the company seeking a permit for the construction of the new plant, EPA's opinion concerning the type of permit required for the construction of the facility does not directly impact the existing plant. Further, EPA's letters do not even cause a direct and immediate impact on the company seeking a permit for the new facility because the state agency, not EPA, will initially determine whether a minor source permit or a PSD permit is required for the new plant. Although EPA could ultimately overturn the state, EPA's letters serve more like a tentative recommendation than a final and binding determination. Moreover, the opinion letters do not signify the culmination of EPA's decisionmaking process, which cannot occur until the state agency has acted on the permit application. Even if the state agency agrees with EPA's opinion and denies the new plant a permit, the new plant can appeal the decision to the state air quality commission. Last, the opinion letters do not determine any rights or obligations of the existing plant, and no legal consequences flow from them.

Counsel for Petitioner
James A. Holtkamp
LeBoeuf, Lamb, Greene & MacRae
1000 Kearns Bldg.
136 S. Main St., Salt Lake City UT 84101
(801) 320-6700

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

Before Brorby and McKay, JJ.