filed: June 27, 1989; As Corrected June 29, 1989.
On Petition for Review from the United States Environmental Protection Agency. On Appeal from the United States District Court for the Middle District of Pennsylvania, D.C. Civil No. 88-0221.
Sloviter and Becker, Circuit Judges, and Barry, District Judge.*fn*
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.
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. § 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. §§ 7407-10, and for maintaining air quality in those regions which are in compliance with the national standards, see 42 U.S.C. §§ 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. §§ 7410, 7471. SIPs must be submitted to the EPA for approval. Id. at § 7410.
Each SIP must contain a permit program to regulate the "modification, construction, and operation of any stationary source." 42 U.S.C. § 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. §§ 7470-79. In such regions, no "major emitting facility" may be constructed without a PSD permit. 42 U.S.C. § 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. § 7479(1), must incorporate the "best available control technology" (BACT) for each regulated pollutant. 42 U.S.C. § 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. § 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. § 7477, which states that "[the] [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.
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 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. § 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 165(a)(4), 42 U.S.C. § 7475(a)(4), in its controls restricting emissions of nitrogen oxide. The order "[required] 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 §§ 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, 678 F. Supp. 93, 98 (M.D.Pa. 1988). The court ruled that the issuance of the administrative order was not a final agency action, that it had federal question jurisdiction under 28 U.S.C. § 1331 and jurisdiction under the Clean Air Act, 42 U.S.C. § 7401 et seq., that the dispute was ripe because of the threat of sanctions against Solar Turbines, and that Solar Turbines had made the requisite showing to be entitled to a temporary restraining order.
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, 688 F. Supp. 1012 (M.D.Pa. 1988).
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. § 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 ...