The Third Circuit Court of Appeals has dismissed a challenge by the owner of a New Jersey municipal solid-waste landfill to an EPA letter notifying the company that the landfill needed a federal operating permit under Title V of the Clean Air Act.Ocean County Landfill Corp. v. EPA, No. 09-2937 (3d Cir. 2/2/11).
The letter included EPA’s determination that the landfill and an adjacent gas-toenergy operation were under common control for Title V permitting purposes. The companies challenged the letter, arguing that EPA’s “common control” determination was final agency action because the letter itself describes EPA’s decision as “final” and the agency demanded that the companies’ existing individual permits be “reopened and reissued to both companies as a single source.”
The court disagreed with petitioner’s arguments, ruling that EPA’s letter is just one intermediate step in the permitting process. Only the final permit, not intermediate decisions, marks the consummation of the agency’s decisionmaking process and is reviewable “final agency action.”