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Ocean County Landfill Corp. v. United States Environmental Protection Agency

Citation: 41 ELR 20079
No. No. 09-2937, (3d Cir., 02/02/2011)

The Third Circuit dismissed a petition for review of an EPA letter opining that facilities operated by a landfill and a neighboring energy company were under common control for purposes of air emissions permitting. The landfill owner challenged EPA's determination under CAA §307(b)(1), which provides for judicial review of any final action by the Agency. EPA's letter, however, is not "final" for purposes of judicial review because the letter was only one intermediate step in the permitting process. There is no way to know in advance whether the final permit that results from that process will incorporate the common control determination challenged here. Thus, a new permit, not intermediate decisions, will mark the "consummation" of the agency's decisionmaking process. In addition, EPA‘s decision does not contemplate immediate compliance, and EPA's decision has no effect on the petitioner's day-to-day operations, as it will continue to operate under the terms of its existing permits until a new permit issues. Moreover, the question of the validity of EPA's common control determination is not purely a legal one. Finally, immediate review would not speed enforcement of the CAA. To the contrary, it would delay further the permitting process.