Ocean County Landfill Corp. v. United States Environmental Protection Agency
631 F.3d 652
| 3rd Cir. | 2011Background
- EPA issued a letter opining that Ocean County Landfill Corporation (OCLC) and Manchester Renewal Power Holdings (MRPC) were under common control for air emissions permitting.
- OCLC challenged the EPA’s common control determination under 42 U.S.C. § 7607(b)(1) (judicial review of final EPA action).
- Title V permits govern federal operation permits; NJDEP administers New Jersey’s Title V program with EPA oversight.
- MRPC’s Title V permit expired in 2004; NJDEP drafted a renewal permit in 2005 and EPA objected to MRPC’s draft permit.
- EPA advised NJDEP that there appeared to be common control and formally objected to MRPC’s permit; EPA later concluded common control and directed NJDEP to proceed with a single-source permit.
- Under New Jersey law, OCLC and MRPC continue under existing permit conditions while a new joint permit is contemplated, and the NJDEP has not yet issued a new permit reflecting single-source status.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether EPA's common control determination is final agency action. | OCLC argues the letter is final and reviewable. | EPA contends the determination is interlocutory and not final until a permit is issued. | Not final action; lacks jurisdiction for review. |
Key Cases Cited
- Public Service Co. of Colorado v. EPA, 225 F.3d 1144 (10th Cir. 2000) (letters not final action; no immediate rights or obligations)
- Univ. of Med. & Dentistry of N.J. v. Corrigan, 347 F.3d 57 (3d Cir. 2003) (finality factors for agency action)
- Hindes v. FDIC, 137 F.3d 148 (3d Cir. 1998) (state reliance on federal notice does not make action final)
- American Paper Institute, Inc. v. EPA, 882 F.2d 287 (7th Cir. 1989) (review available after final agency decision or permit action)
- Appalachian Energy Group v. EPA, 33 F.3d 319 (4th Cir. 1994) (review when permit actions are appealed; not preliminary)
- City of San Diego v. Whitman, 242 F.3d 1097 (9th Cir. 2001) (agency opinions not final where permitting process not complete)
- Star Enterprise v. EPA, 235 F.3d 139 (3d Cir. 2000) (final action status not conceded when permit process pending)
- Hawaiian Electric Co. v. EPA, 723 F.2d 1440 (9th Cir. 1984) (changes triggering permits not immediately enforceable final action)
- American Paper Institute, Inc. v. EPA, 882 F.2d 287 (7th Cir. 1989) (review available if final agency action occurs upon permit decisions)