SOLAR TURBINES INCORPORATED, Petitioner,
v.
James M. SEIF, Regional Administrator, Region III, United
States Environmental Protection Agency, and United
States Environmental Protection Agency,
Respondents.
SOLAR TURBINES INCORPORATED, Appellant in No. 88-5623
v.
James M. SEIF, Regional Administrator, Region III, United
States Environmental Protection Agency, and United
States Environmental Protection Agency,
Appellant in No. 88-5591.
Nos. 88-3178, 88-5591 and 88-5623.
United States Court of Appeals,
Third Circuit.
Argued Dec. 6, 1988.
Decided June 27, 1989.
Scott M. Turner (argued) (Harold A. Kurland, Ronald G. Hull, of counsel), Nixon, Hargrave, Devans & Doyle, Rochester, N.Y. (Terry R. Bossert, of counsel), McNees, Wallace & Nurick, Harrisburg, Pa., for petitioner in No. 88-3178 and appellant in No. 88-5623.
Roger J. Marzulla, Asst. Atty. Gen., John Stahr, Jean Anne Kingrey (argued), Sp. Litigation Counsel, Dept. of Justice, Washington, D.C. (Leslie Guinan, of counsel), E.P.A., Region III, Philadelphia, Pa., for respondents in No. 88-3178 and appellant in No. 88-5591.
Before SLOVITER and BECKER, Circuit Judges, and BARRY, District Judge.*
OPINION OF THE COURT
SLOVITER, Circuit Judge.
The consolidated appeals and the petition for review in this case are from the preliminary skirmishes in the Environmental Protection Agency's (EPA's) attempt to prevent Solar Turbines Inc., a subsidiary of Caterpillar, Inc., from constructing and operating a cogeneration facility at a Caterpillar, Inc. manufacturing plant in York County, Pennsylvania. We conclude that we cannot reach the merits of the dispute at this juncture.
I. BACKGROUND
A. The Statute
The procedural posture in which this case reaches us can best be understood after a brief review of the statutory scheme. The Clean Air Act, 42 U.S.C. Sec. 7401 et seq. (1982) (the Act), creates, inter alia, a framework for improving air quality in regions which do not meet national primary and secondary ambient air quality standards, see, e.g., 42 U.S.C. Secs. 7407-10, and for maintaining air quality in those regions which are in compliance with the national standards, see 42 U.S.C. Secs. 7470-79. This national framework relies on the cooperation of the states in administering and enforcing the law and monitoring compliance. Each state has the responsibility of promulgating a State Implementation Plan (SIP) which outlines the means it will adopt to guarantee compliance with the Act. 42 U.S.C. Secs. 7410, 7471. SIPs must be submitted to the EPA for approval. Id. at Sec. 7410.
Each SIP must contain a permit program to regulate the "modification, construction, and operation of any stationary source." 42 U.S.C. Sec. 7410(a)(2)(D). Regions which are in compliance with the national primary and secondary ambient air quality standards are subject to the provisions of the statute governing "Prevention of Significant Deterioration of Air Quality" (PSD), 42 U.S.C. Secs. 7470-79. In such regions, no "major emitting facility" may be constructed without a PSD permit. 42 U.S.C. Sec. 7475(a)(1). A "major emitting facility," which is defined, inter alia, as any stationary source with "the potential to emit two hundred and fifty tons per year or more of any air pollutant," 42 U.S.C. Sec. 7479(1), must incorporate the "best available control technology" (BACT) for each regulated pollutant. 42 U.S.C. Sec. 7475(a)(4). "Best available control technology" is defined as that emission limitation which the permitting authority determines is the maximum achievable, taking into account energy, environmental and economic considerations. 42 U.S.C. Sec. 7479(3). Because York County, Pennsylvania, has met the baseline air quality standards for all pollutants except ozone, facilities located there are subject to these PSD provisions.
Among the various enforcement mechanisms which the EPA is given by the Act is that contained in section 167 of the Act, 42 U.S.C. Sec. 7477, which states that "[t]he [EPA] shall, and a State may, take such measures, including issuance of an order, or seeking injunctive relief, as necessary to prevent the construction of a major emitting facility which does not conform to the requirements of this part." The effect of a section 167 order is at the center of this appeal.
B. Procedural History
On September 16, 1986 Solar Turbines filed an application with the Pennsylvania Department of Environmental Resources (PADER) for a PSD permit to construct the gas turbine cogeneration facility in York County. PADER granted the permit on September 9, 1987, thereby authorizing Solar Turbines to construct and begin operating a facility comprising six gas turbines at Caterpillar's York plant. This cogeneration facility is designed to produce electricity and thermal energy simultaneously and to sell the output to Caterpillar for the energy needs of the York plant and excess electricity to the Metropolitan Edison Company, a local utility. PADER issued the permit without requiring any controls for nitrogen oxide (NOx) emissions, notwithstanding the EPA's position communicated to it that, inter alia, the NOx limit contained in the permit did not adequately reflect BACT. EPA informed PADER that for many permits issued for new gas turbines in other states BACT was determined to require water or steam injection to control NOx emissions.
On January 25, 1988 the EPA issued an administrative order pursuant to section 167 of the Clean Air Act, 42 U.S.C. Sec. 7477, asserting that the cogeneration facility as approved by PADER would use a process which failed to comply with the requirements of PSD and that Solar Turbines would not incorporate BACT as required by Sec. 165(a)(4), 42 U.S.C. Sec. 7475(a)(4), in its controls restricting emissions of nitrogen oxide. The order "requir[ed] the immediate cessation of construction and/or operation of the gas turbine facility at Caterpillar Tractor." EPA App. at 1.
On February 10, 1988 Solar Turbines filed a complaint in the district court for the Middle District of Pennsylvania against the EPA and James M. Seif, the Regional Administrator for the EPA, seeking a declaratory judgment that the administrative order was unlawfully issued and requesting injunctive relief requiring the EPA to withdraw the order. Solar Turbines' principal argument is that because EPA approved Pennsylvania's State Implementation Plan, which incorporates the federal standards for pollution control, see 25 Pa.Code Secs. 127.81--127.83 (1987), the EPA is precluded from challenging construction or operation of a facility after PADER has given its final approval thereto.
On February 12, 1988 the district court issued a temporary restraining order and enjoined the EPA from enforcing its administrative order. Solar Turbines, Inc. v. Seif,
The EPA promptly filed a motion to vacate or dismiss the temporary restraining order. While the motion was pending, Solar Turbines filed a petition for review of the EPA's administrative order with this Court, which is docketed at No. 88-3178.
Shortly thereafter, on May 26, 1988, the district court granted the EPA's motion to dismiss and vacate the temporary restraining order, reversing its earlier position and now holding that the administrative order issued by the EPA was a final agency action, which could be reviewed only in the court of appeals. The court dismissed Solar Turbines' action for lack of jurisdiction. Solar Turbines, Inc. v. Seif,
On June 17, 1988 the EPA withdrew its administrative order and filed an action in district court pursuant to section 167 of the Act, 42 U.S.C. Sec. 7477, seeking injunctive relief preventing further construction by Solar Turbines. The district court stayed the enforcement action pending resolution of this appeal.
On July 22, 1988 the EPA filed an appeal from the district court's May 26 order dismissing the action. EPA's appeal is docketed at No. 88-5591. Although the EPA agrees with the district court's determination that it had no jurisdiction, its appeal seeks to challenge that court's conclusion that the administrative order constituted a final agency action.
On August 1, 1988 Solar Turbines filed a cross-appeal from the district court's May 26 order, claiming that the district court properly had jurisdiction of its challenge to EPA's action on grounds that it was ultra vires. This appeal is docketed at No. 88-5623.
II. Nos. 88-5591, 88-5623
The Cross-Appeals From the District Court's Order
The cross-appeals from the district court's order turn on the question of the district court's jurisdiction. EPA argues that the district court had no subject matter jurisdiction over Solar Turbines' action because the Clean Air Act precludes pre-enforcement review of section 167 administrative orders. We look to the Supreme Court's decision in Abbott Laboratories v. Gardner,
Section 307 of the Clean Air Act, 42 U.S.C. Sec. 7607, expressly sets forth the procedural route and timing for judicial review of EPA actions. Section 307(a) gives the EPA the authority to issue administrative subpoenas and gives the district courts jurisdiction over actions to enforce such subpoenas. Section 307(b)(1) provides for judicial review in the courts of appeals over actions of the EPA in promulgating rules, regulations and standards, and approving State Implementation Plans. Finally, section 307(e) states that "[n]othing in this chapter shall be construed to authorize judicial review of regulations or orders of the [EPA] under this chapter, except as provided in this section." 42 U.S.C. Sec. 7607(e).
Because the Act explicitly provides for review of certain actions and explicitly denies review for everything else, we cannot look elsewhere for authority to justify the district court's review. "If Congress specifically designates a forum for judicial review of administrative action, such a forum is exclusive." Getty Oil Co. v. Ruckelshaus,
Solar Turbines contends that section 307(e) is not applicable in this instance because it is "seeking to enjoin plainly ultra vires EPA action under constitutional, Administrative Procedure Act, and common law principles." While there may be certain extraordinary circumstances in which Congress' creation of an exclusive avenue for judicial review of agency action may be bypassed by an action in the district court, see Leedom v. Kyne,
The results reached in cases seeking to challenge administrative orders under section 113 of the Clean Air Act, the most closely analogous provision to section 167,1 are fully in accord with the result we reach today. Both this court in West Penn Power Co. v. Train,
The basis for these decisions was the statutory framework created by Congress for obtaining compliance with the Clean Air Act which led to the conclusion that pre-enforcement review would interfere with that framework. While these cases were interpreting section 113(a), which unlike section 167 mandates the procedures and timing of agency action to follow issuance of a notice of violation, the reasoning which underlays those cases remains relevant to section 167 as well. A challenge to a section 167 administrative order would intrude on the procedural sequence created by Congress whereby parties receiving notice of noncompliance are first encouraged to resolve their problems with the states and with EPA in an informal, less costly manner. Judicial review becomes appropriate when the EPA, failing efforts at negotiation and compromise, takes steps at enforcement subjecting the facility to consequential penalties.
It follows that the district court had no subject matter jurisdiction over Solar Turbines' action, see FCC v. ITT World Communications, Inc.,
III. No. 88-3178
A. The Withdrawal of the Administrative Order
We turn therefore to the petition for review to determine if that is an appropriate route for review at this time. We consider first the EPA's argument that the petition for review is moot because EPA has withdrawn the administrative order.
The issue of mootness following the withdrawal of agency action is not a new one for this court. In Hooker Chemical Co. v. EPA,
In Dow Chemical Co. v. EPA,
This court held that the controversy was not mooted by virtue of the EPA's withdrawal of its rule. The EPA's action was not an indication of any reluctance or hesitation regarding the agency's position that the statute permitted such a rule. In fact, by initiating the process to repromulgate the rule, the EPA demonstrated its steadfast commitment to requiring the release of the desired information. With such a posture, the controversy could not be considered moot.
In Dow, we also considered whether, even if the legal prerequisites for Article III jurisdiction were satisfied, there were policy considerations that would warrant application of the mootness doctrine. We noted first that it was the EPA who was urging that the dispute was mooted by its withdrawal of the rule, and we stated that "[c]ourts are understandably reluctant to permit agencies to avoid judicial review, whenever they choose, simply by withdrawing the challenged rule." Id. at 678. In the absence of an agency's change of heart or desire to reconsider its position, we could not permit the mere withdrawal of the rule to effectuate avoidance of review; otherwise, "the timing and venue of judicial review could be effectively controlled by the agency." Id. at 679.
Informed by our precedent, we hold that here also the EPA's withdrawal of the administrative order did not render the petition for review moot. EPA has not altered its position on the merits, and indeed has instituted an action in the district court seeking injunctive relief to prevent further violation of the Clean Air Act on the same grounds as contained in the administrative order. Here, as in Hooker, we cannot allow the agency to control the timing and venue of judicial review by its own procedural maneuvers.
B. Review of the Administrative Order
Of course, even if the petition for review is not moot, we must still decide if the petition is properly before us at this time. Section 307(b) of the Act provides for direct review in a federal court of appeals of certain enumerated actions not relevant here as well as "any other final action." See 42 U.S.C. Sec. 7607(b)(1) (emphasis added).4 The Supreme Court has interpreted the phrase "any other final action" to incorporate the finality requirement of the Administrative Procedure Act. See Harrison v. PPG Industr., Inc.,
The EPA issued the administrative order to Solar Turbines pursuant to section 167 of the Act, 42 U.S.C. Sec. 7477, which requires the EPA to take measures, including issuing an order or seeking injunctive relief, to prevent the construction of a nonconforming major emitting facility.
The Administrative Order in this case sets forth what are denominated as "Findings of Fact," "Conclusions of Law," and an "Order." Such characterizations are ordinarily made by an agency or court following a hearing. There was no such hearing or adversarial factfinding process in this case. Thus, notwithstanding the headings, the "Findings of Fact" and "Conclusions of Law" merely state EPA's position and are best analogized to a complaint. They allege the EPA's position with respect to the relevant facts,5 the crux of the dispute,6 the procedural sequence, and EPA's legal position.7
Although the language of the "Order" section "ordered" Solar Turbines to cease construction and operation of the facility immediately, and the cover letter accompanying the administrative order stated that "[f]ailure to comply with this Order could subject your firm to civil and criminal liabilities pursuant to the Clean Air Act," Petitioner's App. at 1, all parties agree that the administrative order is not self-executing. The EPA argues that because violation of the administrative order in itself effects no legal or relevant practical consequences, and such an "Order" requires court action to enforce, it is not "final action" within the meaning of section 307(b).
This is apparently the first case to consider the effect of a section 167 administrative order. Counsel for the EPA states that she knows of no other and our independent research has uncovered none. Nonetheless, we are guided by the Court's analysis in Abbott Laboratories v. Gardner,
In Standard Oil, the Supreme Court ruled that the issuing of a complaint by the Federal Trade Commission to initiate proceedings against Standard Oil under section 5 of the Federal Trade Commission Act lacked finality. On the other hand, in Abbott Laboratories the Court ruled that a suit by drug manufacturers challenging regulations promulgated by the Food and Drug Administration requiring prescription drug manufacturers and retailers to display a drug's generic name every time the brand name is used was ripe for judicial review.
We are advised in Abbott Laboratories that finality is to be "interpreted ... in a pragmatic way."
It does appear that the EPA has taken a definitive position on the question of Solar Turbines' compliance with the requirements of PSD and, if we resolved the issue of EPA's authority to override PADER's approval of Solar Turbines' emissions controls in EPA's favor, our holding would probably speed enforcement of the Act. On the other hand, it is not clear whether the merits in this case present a pure question of law or require factual development, an issue on which the parties disagree. In any event the determinative factor on finality in this case is that the administrative order has no operative effect on Solar Turbines.
Even though the wording of the administrative order is in the imperative and directs immediate compliance with its command to stop construction or operation of the cogeneration facility, and even though the accompanying letter seems to threaten civil and criminal liability upon noncompliance, no civil or criminal liabilities accrue from the violation of the order. The EPA concedes that its only enforcement mechanism with teeth under section 167 is the injunctive relief alternative, which the EPA has finally chosen to pursue in the ongoing action in the district court.
The plain language of the statute does not identify any adverse consequences from violating a section 167 administrative order. The EPA has promulgated no regulations to accompany section 167 which impose a sanction for violation of such an order. We have found no legislative history that Congress intended any meaningful consequences from a violation of a section 167 order. The only apparent function of a section 167 order is to serve as a vehicle by which the EPA can notify a party that it believes the requirements of PSD are being violated. Even though section 167 does not contain the statutory provision of a thirty-day period for informal consultation prior to the commencement of enforcement actions which section 113 contains, see 42 U.S.C. Sec. 7413(a)(1); West Penn Power Co. v. Train,
A section 167 order is thus unlike those administrative actions which have been held to be final agency action because of their practical consequences. See, e.g., Abbott Laboratories,
Solar Turbines' situation is more similar to those of parties whose challenges were dismissed because the administrative action lacked finality. See Standard Oil,
Solar Turbines suggests that the administrative order requires it to change its day-to-day conduct but it offers no concrete examples. In fact, at oral argument counsel for Solar Turbines stated that construction of the cogeneration facility was continuing, and affidavits submitted by employees of Solar Turbines indicate that the facility must be nearing completion, if its operation has not commenced already. Thus, even if uncertainty in long-term corporate decisionmaking could possibly be viewed as an adverse consequence of a section 167 order lending legitimacy to the claim of finality, an issue we expressly do not decide, there is no basis on this record to find that Solar Turbines is currently facing a Hobson's choice.8
In many respects, Solar Turbines' situation is like that of the plaintiff in Wilmac Corp. v. Bowen,
We thus conclude that because Solar Turbines is not compelled to obey the order at the risk of sanctions and does not face severe hardship as a result of the order, the administrative order issued under section 167 does not constitute final agency action. Therefore, Solar Turbines' petition for review must be dismissed.
IV. CONCLUSION
For the reasons set forth above, we will affirm the district court's dismissal of Solar Turbines' action, and we will dismiss Solar Turbines' petition for review of the EPA's administrative order.
BECKER, Circuit Judge, concurring.
I join in the court's judgment and in Parts I, II and III-A of its opinion. I do not, however, join in Part III-B. Although I ultimately conclude, as does the majority, that the order in question here is not final and therefore not reviewable in the court of appeals, I believe that the question whether a section 167 cease and desist order is final is far closer than the majority opinion renders it, and I approach the issue quite differently.
* Where a statute allows for appellate review of agency action, the Supreme Court has held that such jurisdictional provisions should be construed generously, absent clear and convincing evidence of a contrary congressional intent. See Lindahl v. Office of Personnel Management,
The challenged order in this case required the immediate cessation of construction of Solar's gas turbine facility. It further ordered that Solar certify its compliance with the order within 10 days after its receipt. EPA's cover letter accompanying the order stated that "[f]ailure to comply with this Order could subject your firm to civil and criminal liabilities pursuant to the Clear Air Act, as amended." This language has the clear ring of finality to it. Indeed, the majority concedes that the order reflects EPA's definitive position on the question of Solar Turbine's compliance with the requirements of PSD, thus satisfying one of the Abbott Laboratories criteria.
The acknowledged linchpin of the majority opinion lies in its conclusion that the order has no adverse legal consequences on Solar Turbines, Maj. Op. at 1081, and that the sole source of sanction against it is the incipient enforcement action. I am not so sure. Pursuant to 40 C.F.R. Sec. 15.31(a) (1988), Solar Turbines may be placed, prior to resolution of the enforcement action, on the EPA's blacklist, making it ineligible for the award of many federal government contracts. Moreover, section 304, 42 U.S.C. Sec. 7604(a)(1)(B), states that citizens may bring suit against any person who is alleged to be in violation of an order issued by the Administrator; the order would therefore seem to submit Solar Turbines to the possibility of citizen suits, a serious threat to Solar's economic interests. But even assuming that the majority has the better of the argument as to the order's absence of adverse legal consequences, we must confront the fact that the Supreme Court has frequently held agency action to be final and reviewable even though no civil or criminal liabilities accrue from the action.
In Harrison v. PPG Industries, Inc.,
In Frozen Food Express v. United States,
The determination by the Commission ... has an immediate and practical impact on carriers.... The "order" of the Commission warns every carrier, who does not have authority from the Commission to transport [certain] commodities, that it does so at the risk of incurring criminal penalties.
I understand the majority as distinguishing such cases on the ground that "there is no basis on this record to find that Solar Turbines is currently facing a Hobson's choice." Maj. Op. at 1082. This conclusion is apparently based on counsel's representations at oral argument that "construction of the cogeneration facility was continuing ... if its operation has not commenced already." Id. at 1082. I will not engage the majority as to the precise meaning of a "Hobson's choice"2 or its legal significance as a measure of administrative finality. I do note, however, that to the extent that construction of the facility has been completed, Solar Turbines must choose between not operating the completed plant (an extremely costly option) and operating the plant despite the attendant risk of enormous penalties.3 To the extent that construction of the facility is not yet complete, Solar Turbines must choose among installing the technology that the EPA asserts is required, continuing to install the technology approved by PADER with the attendant risk that the facility will later have to be retrofitted at enormous expense, and halting construction until the dispute has been adjudicated. Hence, in the absence of a declaratory judgment as to whether its technology meets the BACT standard, I believe that Solar Turbines is faced with a problem as serious as that faced by PPG or Frozen Food Express regardless of whether it has completed the construction of its facility. This dilemma suggests compliance with another of the Abbott Laboratories criteria. Moreover, we have been cited to no indicia of congressional intent to deny review of a section 167 order.
II
Where deferring judicial review of informal agency adjudication creates hardship to a party subject to the adjudication, the agency action has frequently been held to be reviewable. This is not to say, however, that such adjudications are always reviewable. In West Penn Power Co. v. Train,
One could argue that a section 113 notice of violation seems more like the FTC complaint held non-final in FTC v. Standard Oil Co.,
Although these arguments have considerable force, they are somewhat awkward as applied to the instant case. Since the section 167 order in this case preceded the section 113 notice, it would indeed seem untoward to hold that the section 167 order represented final agency action while a section 113 notice is analogous to a mere decision to sue held non-final in Standard Oil. In addition, although it is disturbing to establish a judicial review regime that denies declaratory relief to those in Solar Turbine's position, it is also awkward for a court of appeals to conduct judicial review of the type of informal adjudication rendered in this case, for there is no record here to speak of. The lack of a record in a case which might require one is, in my view, a powerful factor inveighing against a finding of finality. See Abbott Laboratories,
Although the question here is extremely close and the applicable law quite muddy, I am inclined to think that we should follow West Penn and hold the section 167 order in this case to be non-final. A holding that the order is non-final has the advantage of permitting development of a record in an orderly way and is also consonant with our decision in West Penn.
It is true that the Supreme Court in PPG held that an EPA informal adjudication that certain boilers constituted a section 111 "new source" was final agency action within the meaning of section 307(b); the Court rejected the argument that the courts of appeals are ill-suited to the task of review of such action by noting that in a case in which the administrative record is inadequate "an appellate court may always remand a case to the agency for further consideration."
The Supreme Court has held that a "relevant consideration[ ] in determining finality [is] whether the process of administrative decisionmaking has reached a stage where judicial review will not disrupt the orderly process of adjudication." Port of Boston Marine Terminal Association v. Rederiaktiebolaget Transatlantic,
It is to be hoped, however, that future Supreme Court cases will clarify the import of cases such as PPG and Frozen Food Express upon the finality doctrine in terms of the need to show immediate operative effect to hold declaratory agency action final. Moreover, since section 167 has proven so problematic, perhaps the EPA and ultimately the Congress will reconsider its utility. That section seems to provide an anomalous and perhaps unnecessary remedy, neither fish nor fowl, which skews the administrative enforcement scheme and forces the courts to engage in lengthy exegeses such as this, adding to the pages of the federal reporter without noticeable benefit to our polity. At the very least, Congress could clarify its intent with respect to the finality of section 167 orders.
Notes
Hon. Maryanne Trump Barry, United States District Court for the District of New Jersey, sitting by designation
Section 113(a), 42 U.S.C. Sec. 7413(a), has since 1977 provided that when "the [EPA] finds that any person is in violation of any requirement of an applicable implementation plan, the [EPA] shall notify the person in violation of the plan." If the violation by a major stationary source persists for longer than thirty days, the EPA is required to institute an enforcement action. 42 U.S.C. Sec. 7413(b)
At the time the West Penn and Lloyd A. Fry cases were decided, section 113 did not contain the provision mandating enforcement which was added in 1977. Thus, the statute construed in those cases was comparable to section 167, which does not contain any provision compelling further action
Our decision in No. 88-5623 (Solar Turbines' appeal) effectively disposes of the EPA's appeal in No. 88-5591. Therefore, we need not decide whether the EPA could appropriately appeal from an order which granted it the relief it sought but did so on the basis of a conclusion which it seeks to challenge. Cf. Watson v. City of Newark,
The pertinent portion of the statute reads, "[a] petition for review of ... any other final action of the [EPA] under this chapter ... which is locally or regionally applicable may be filed only in the United States Court of Appeals for the appropriate circuit." 42 U.S.C. Sec. 7607(b)(1)
For example, the "finding" in p 3 states: "The Solar Turbines facility ... will have the potential to emit 1698 tons per year ... [of] nitrogen oxides." Petitioner's App. at 2
The "finding" in p 7 states: "[N]o information in support of [PADER's] cost determination [that the cost of controls for NOx emissions was 'economically infeasible'] was offered." Id. at 5
For example, the "conclusion" in p 7 states: "EPA finds that the PADER PSD permit issued to Solar Turbines does not conform to the requirements of Part C of the Act insofar as it fails to require installation of water or steam injection controls on the proposed gas turbines, in light of an absence of adequate justification as to why their installation is not required." Id. at 10
Since Solar Turbines has not shown that its placement on a "List of Violating Facilities" which recipients of federal contracts, grants and loans may not patronize, see 40 C.F.R. Sec. 15.31(a) (1988), is imminent, we do not decide whether noncompliance with a section 167 order alone is enough to place Solar Turbines on such a list or whether, if it were, that would render a section 167 order final agency action
Other cases have also held that agency action with no independent legal effect is reviewable. See Red Lion Broadcasting Co. v. FCC,
The language of the APA also suggests that final declarations of an agency are reviewable. The APA states that "[a]gency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court are subject to judicial review." 5 U.S.C. Sec. 704. "Agency action" is defined as including an agency "order." 5 U.S.C. Secs. 701(b)(2), 551(13). And "order" is defined as "the whole or a part of a final disposition, whether affirmative, negative, injunctive, or declaratory in form, of an agency in a matter other than rule making but including licensing." 5 U.S.C. Sec. 551(6) (emphasis added). Although review under the Clean Air Act is controlled by Sec. 307(b) rather than the APA, we have suggested that "[i]t makes sense to define 'finality' under the Clean Air Act in the same way that it is defined in administrative law generally." West Penn Power Co. v. EPA,
Liveryman Thomas Hobson, who died in 1630 at the age of eighty-five or eighty-six, obliged customers "to take the horse which stood near the stable door" or none at all. Steele, The Spectator, no. 509 (Oct. 14, 1712)
On June 16, 1988, the EPA issued a notice of violation, pursuant to Sec. 113(a)(1) of the Clean Air Act, 42 U.S.C. Sec. 7413(a)(1), asserting that Solar was violating the Clean Air Act on the same grounds as that asserted in the prior section 167 order. The next day the EPA filed suit in the Middle District of Pennsylvania. Under Sec. 113(c)(1)(A)(ii), Solar is potentially liable for fines of $25,000 per day of violation if it is still in violation of the Act more than 30 days following notification of violation
Although West Penn was decided before the addition of the "final action" language to Sec. 307(b)(1), West Penn concluded that the notice of violation was not "final agency action" within the meaning of the Administrative Procedure Act. See
FTC v. Standard Oil Co.,
Wearly v. FTC,
Hooker Chemical Co. v. EPA,
Wilmac Corp. v. Bowen,