(CN) – The operator of a New Jersey municipal landfill cannot appeal an air pollution permitting dispute with the Environmental Protection Agency until final agency action creates jurisdiction, the 3rd Circuit ruled.
Since the Ocean City, N.J., landfill was the sole source of fuel for an adjacent gas-to-energy facility, and the two shared tax credits, the EPA sought to combine their operating permits under the Clean Air Act in 2005.
By 2009, the EPA sent a letter to Ocean City Landfill Corporation and Manchester Renewal Power Holdings, saying the two were officially deemed “to be under common control.”
The companies immediately brought the case to the Philadelphia-based appeals court, which found such action was premature because the the EPA letter “simply is not final agency action.”
Writing for the three-judge panel, Judge Thomas L. Ambro noted that the ruling aligns with those of sister circuits because the EPA did not give the parties a chance to comment on proposed permitting scheme.The agency’s letter is also not a final decision because it does not require immediate compliance or affect the day-to-day operations of the facilities. This will only happen when a new permit is issued, the court concluded.