On Petition for Review from the Environmental Protection Agency Region II
The opinion of the court was delivered by: Ambro, Circuit Judge
Before: RENDELL, AMBRO, and FISHER, Circuit Judges
The Environmental Protection Agency ("EPA") issued a letter opining that facilities operated by Ocean County Landfill Corporation ("OCLC") and Manchester Renewal Power Holdings ("MRPC") were under common control for the purposes of air emissions permitting. In this petition for review, OCLC challenges that determination under subsection 307(b)(1) of the Clean Air Act. See 42 U.S.C. § 7607(b) (providing for judicial review of any "final action" by the EPA). The EPA moved to dismiss for lack of subject matter jurisdiction. We now grant that motion.
Under Title V of the Clean Air Act, certain stationary sources of air pollution must obtain federal operating permits. See generally 42 U.S.C. §§ 7661-7661f. Although a federal requirement, Title V permitting programs are administered and enforced primarily by state and local air permitting authorities, though EPA oversight continues. See 42 U.S.C. § 7661a(d)(1). That is the case in New Jersey, where the New Jersey Department of Environmental Protection ("NJDEP") acts as the statewide Title V permitting authority. See 40 C.F.R. § 70, App. A.OCLC owns and operates a municipal solid waste landfill in Ocean County, New Jersey. MRPC operates a gasto-energy facility on adjacent property. Currently, each entity operates under its own Title V permit.
MRPC's permit expired in 2004, and it sought renewal. In March 2005, the NJDEP issued a draft permit for public comment. Three months later, the EPA notified the NJDEP that there appeared to be a common control relationship between OCLC's landfill and MRPC's gas-to-energy facility, and requested a common control determination from the State.*fn1 When the State failed to take action, the EPA formally objected to the draft permit. Subsequently, the NJDEP requested the EPA's assistance in making the determination.
Over the next several years, with substantial input from OCLC and MRPC, the EPA assisted the NJDEP in conducting the common control analysis. This process culminated on May 11, 2009, when the EPA sent a letter to both entities advising them that the process had been concluded, and that it had found OCLC and MRPC to be under common control.*fn2 The letter indicated that the EPA "render[ed] the determination as final," and would require the existing Title V permits to be "reopened and reissued to both companies as a single source." The EPA also noted that it had "directed NJDEP to proceed with permit modification, as required, to reflect the single source status of [OCLC] and [MRPC] operations," although the NJDEP has yet to take any action. Under New Jersey's application shield law, OCLC and MRPC will continue to operate under the conditions imposed by their expired permits until NJDEP issues a new permit.*fn3 N.J. ADMIN. CODE § 7:27-22.8.
Pursuant to 42 U.S.C. § 7607(b)(1), we have jurisdiction over "any . . . final action of the Administrator." Thus, the question before us is whether the EPA's common control determination is "final action" within the meaning of the statute. control: (1) APC retains control over some stock in MRPC's subsidiary, Ocean Energy Holdings ("OEC"), that APC sold to MRPC; (2) MRPC depends on OCLC as its only source of fuel; (3) MRPC and OEC are not allowed to sell or transfer gas to another entity without written consent from a subsidiary of APC; and (4) the entities have a financial interest in each other (i.e., MRPC shares tax credits with APC).
And second, the action must be one by which ‗rights or obligations have been determined,' or from which ‗legal consequences will flow' . . . ." Bennett v. Spear, 520 U.S. 154, 177-78 (1997) (internal citations omitted). We review the ...