Solar Turbines, Inc. v. Seif, Civ. A. No. 88-0221.

• Decision Date: 26 May 1988
• Docket Number: Civ. A. No. 88-0221.
• Citation: 688 F. Supp. 1012
• Parties: SOLAR TURBINES, INCORPORATED, Plaintiff, v. James M. SEIF, Regional Administrator, Region III, United States Environmental Protection Agency, and United States Environmental Protection Agency, Defendants.
• Court: U.S. District Court — Middle District of Pennsylvania

688 F. Supp. 1012

SOLAR TURBINES, INCORPORATED, Plaintiff, v. James M. SEIF, Regional Administrator, Region III, United States Environmental Protection Agency, and United States Environmental Protection Agency, Defendants.

Civ. A. No. 88-0221.

United States District Court, M.D. Pennsylvania.

May 26, 1988.

Harold A. Kurland, Nixon, Hargrave, Devans & Doyle, Rochester, N.Y., Terry R. Bossert, McNees, Wallace & Nurick, Harrisburg, Pa., for plaintiff.

Tim Haney, Asst. U.S. Atty., Harrisburg, Pa., Bradley S. Bridgewater, Peter Wykoff, U.S. Dept. of Justice, Lane & Natural Resources, Washington, D.C., Jean Anne Kingrey (Lead Counsel), Dept. of Justice, Land and Natural Resources Div., Washington, D.C., for defendants.

MEMORANDUM

RAMBO, District Judge.

Procedural Background

Plaintiff, Solar Turbines, Inc. (Solar), filed this action February 10, 1988. Solar is the owner and operator of a gas turbine cogeneration facility currently under construction at a Caterpillar, Inc. plant in York County, Pennsylvania. The defendants are the Environmental Protection Agency (EPA or the Agency) and James M. Seif, the Regional Administrator for Region III of the EPA. Solar seeks relief in the form of a declaratory judgment and a preliminary and permanent injunction. Pursuant to 28 U.S.C. § 2201, plaintiff seeks a declaration that the EPA acted outside its jurisdiction in issuing an Administrative Order directing Solar to halt construction of its power plant. In addition, Solar sought a temporary injunction enjoining the EPA from enforcing its Administrative Order and from revoking, revising or challenging plaintiff's state-issued construction permit.

On February 12, 1988 the court granted plaintiff's request for a temporary restraining order (TRO) 678 F.Supp. 93. The order provided the TRO would remain in effect until the case could be heard on the merits. Originally a hearing on the merits was scheduled for March 21, 1988. Thereafter, a stipulation was filed, Doc. No. 16, providing that the TRO would remain in effect until the court either disposed of defendants' motion to vacate and dismiss or until a hearing on the merits, but not beyond June 27, 1988. This memorandum and order is the court's disposition on defendants' motion to vacate and dismiss.

Factual Background

To obtain a permit to construct a facility which will emit air pollutants, a builder must satisfy both state and federal regulations. The federal regulations are found in the Clean Air Act, 42 U.S.C. § 7401, et seq., and the state regulations for the Commonwealth of Pennsylvania are found in the Air Pollution Control Act, 35 Pa.Code, Chapter 23, which requires the builder to obtain a "plan approval," 25 Pa.Code § 127.11, from the Commonwealth of Pennsylvania Department of Environmental Resources (PADER).

To satisfy the federal regulations, facilities such as Solar's, which will emit a regulated pollutant in excess of specified amounts, must obtain a specific permit— Prevention of Significant Deterioration (PSD) permit, 42 U.S.C. § 7475. In the Clean Air Act, Congress provided a procedure whereby the appropriate state environmental agencies would be given EPA approval to issue the PSD permits. 42 U.S.C. §§ 7410(a)(2)(D), 7471, implemented by 40 C.F.R. § 51, et seq. PADER received approval for its permit process in 1984.

Before commencing construction at the Caterpillar site, Solar applied to PADER for a construction permit. PADER issued a final permit to Solar on September 9, 1987. On February 1, 1988 Solar received an Administrative Order (AO) dated January 25, 1988 issued by defendant Seif.

The AO states in pertinent part:

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.

The construction of the Solar Turbine facility at the Caterpillar Tractor plant pursuant to an invalid permit constitutes a violation of Section 165(a) of the Act, 42 U.S.C. § 7475(a).

AO at "Conclusions of Law" ¶¶ 7 and 8. The AO ordered Solar to "cease any on-site construction activity" within ten (10) days after receipt of the AO.

Discussion

The emphasis in defendants' motion to vacate and dismiss is on whether the court has jurisdiction to hear this case in its present posture. Defendants argue the action is not ripe because the Agency has not taken final action vis-a-vis Solar.

The Clean Air Act has two sections delineating federal court jurisdiction in suits filed against the EPA. 42 U.S.C. § 7604, citizens suits, gives district courts jurisdiction over actions "to enforce such an emission standard or limitation, or such an order, or to order the Administrator to perform such an act or duty, as the case may be." The other section which delineates jurisdiction is 42 U.S.C. § 7607(b)(1). This section gives the circuit courts of appeals exclusive jurisdiction to review action taken by the EPA or its administrators which action involved approval or promulgation of implementation plans under various sections of the Clean Air Act or "any other final action of the Administrator under this Act ... which is locally or regionally applicable...." Id. In the memorandum, dated February 12, 1988, the court found it did not have jurisdiction pursuant to the section governing citizens suits, 42 U.S.C. § 7604, and the court agreed with the EPA that its action did not constitute final agency action so that 42 U.S.C. § 7607(b)(1) was not implicated. The court found jurisdiction based on 42 U.S.C. § 7604(e) (nonrestriction of other rights). This section is a savings clause as it provides, "nothing in this section shall restrict any right which any person (or class of persons) may have under any statute or common law to seek ... relief against the Administrator or a State agency...." Id. The court found this section applicable because Solar seeks review of the Agency's activity under principles of constitutional law (taking of property without due process, Fifth Amendment, 28 U.S.C. § 1331), under the Administrative Procedures Act (Agency exceeded its authority, violated procedures, and abused its discretion, 5 U.S.C. § 702), and under the Clean Air Act (Agency has acted in excess of its authority under the Act, 42 U.S.C. § 7401, et seq.).

Today the court reconsiders its findings on jurisdiction, and specifically it reconsiders whether the EPA's action constitutes final agency action.

If agency action is not final, the controversy is not considered "ripe" for judicial resolution. The ripeness doctrine "prevents the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies and also ... protects agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties." Abbott Laboratories v. Gardner, 387 U.S. 136, 148-49, 87 S.Ct. 1507, 1515, 18 L.Ed.2d 681 (1967). The EPA argues its action is not final because the AO is not self-enforcing. Before the EPA could actually shut-down Solar's construction, it would have to go to court to seek an order enforcing its AO or seek injunctive relief. The Agency's argument is specious, but in light of the cases interpreting finality, it is ultimately unpersuasive.

In Abbott Laboratories the Commissioner of Food and Drugs issued regulations requiring labels and advertisements for prescription drugs which bear brand names to list the corresponding generic names. Drug manufacturers and a manufacturers' association made a pre-enforcement challenge to the regulations on the ground the Commissioner exceeded his authority. The Court found the agency action final even though the regulations were not self-enforcing. The regulations were "made effective upon publication, and ... compliance was expected." Id. at 151, 87 S.Ct. at 1517. In addition, the impact of the regulations upon the drug manufacturers was found "sufficiently direct and immediate as to render the issue appropriate for judicial review ... in the pre-enforcement stage." Id. at 152, 87 S.Ct. at 1517. If the manufacturers had not been permitted to bring a pre-enforcement suit, they would have had two choices: they could have either complied with the regulation which would have been a large financial burden, or they could have not complied and risked incurring civil and criminal penalties.

To illustrate what it termed a "flexible view of finality," id. at 150, 87 S.Ct. at 1516, the Abbott Laboratories Court discussed its earlier decision in Columbia Broadcasting Systems, Inc. v. United States, 316 U.S. 407, 62 S.Ct. 1194, 86 L.Ed. 1563 (1942). In Columbia Broadcasting, the Federal Communications Commission (FCC) promulgated regulations which provided it would not renew the licenses of local stations whose contracts with broadcasting networks contained certain provisions proscribed by the FCC. The court found the agency's action in promulgating the regulations was sufficiently "final" to warrant judicial review even though in fact no license had been denied or revoked. The regulations themselves had an effect on stations and broadcasters. The court reasoned:

It is the signing of the contract which, by virtue of the regulations alone, has legal consequences.... The regulations are not any the less reviewable because their promulgation did not operate of their own force to deny or cancel a license. It is enough that failure to comply with them penalizes licensees, and appellant, with whom they contract. If an administrative order has that effect it is reviewable and it does not cease to be so merely because it is not certain whether the Commission will institute proceedings to enforce the penalty incurred under its regulations for non-compliance.

Id. at 417-18, 62 S.Ct. at...