PRECEDENTIAL

      UNITED STATES COURT OF APPEALS
           FOR THE THIRD CIRCUIT
               _______________

                   No. 09-2937
                 _______________

   OCEAN COUNTY LANDFILL CORPORATION,

                              Petitioner

                         v.

       UNITED STATES ENVIRONMENTAL
            PROTECTION AGENCY,
                 REGION II,

                           Respondent
                 _______________

           On Petition for Review from the
          Environmental Protection Agency
                      Region II
                 _______________

              Argued January 10, 2011
                 _______________

Before: RENDELL, AMBRO, and FISHER, Circuit Judges

          (Opinion filed February 2, 2011 )
Sandra T. Ayres, Esquire (Argued)
Scarinci & Hollenbech
1100 Valley Brook Avenue
P.O. Box 790
Lyndhurst, NJ 07071-0000

      Counsel for Petitioner

Ignacia S. Moreno
  Assistant Attorney General
Amanda S. Berman, Esquire (Argued)
United States Department of Justice
Environmental Defense Section
601 D Street, N.W.
Washington, D.C. 20004-0000

Maria Quintin, Esquire
Scott Jordan, Esquire
United States Environmental Protection Agency
1200 Pennsylvania Avenue, N.W.
Ariel Rios building
Washington, D.C. 20460-0000

      Counsel for Respondent
                    _______________

              OPINION OF THE COURT
                  _______________

AMBRO, Circuit Judge

       The Environmental Protection Agency (―EPA‖) issued
a letter opining that facilities operated by Ocean County




                               2
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.

                       I. Background

       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 gas-
to-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




                              3
determination from the State.1 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.2 The letter indicated that the EPA

1
    Two or more stationary sources of air pollution may be
considered a single source for air pollution permitting
purposes if they are ―located within a contiguous area and
under common control.‖ 42 U.S.C. § 7661(2). The phrase
―common control‖ is not defined in the statute, but, elsewhere
in its regulations, the EPA has defined it as ―the power to
direct or cause the direction of the management and policies
of a person or organization, whether by ownership of stock,
voting rights, by contract, or otherwise.‖ 40 C.F.R. § 66.3(f)
(setting forth when penalties may be imposed on a source that
fails to meet a deadline or make an upgrade).
2
   The EPA presumes that two entities are under common
control when one operator locates on the property of another.
JA 10. Because the OCLC and MRPC facilities are both
located on property owned by OCLC‘s corporate parent, the
Atlantic Pier Company, Inc. (―APC‖), the EPA employed the
presumption. 

letter of May 11, 2009, the EPA also
pointed to the elaborate contractual relationships connecting
the two entities and articulated the following (non-exhaustive)
list of factors in support of its determination of common




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―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.3 N.J. ADMIN. CODE § 7:27-22.8.

                        II. Discussion

        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.

       ―As a general matter, two conditions must be satisfied
for agency action to be ‗final‘: First, the action must mark the
‗consummation‘ of the agency‘s decisionmaking process . . .
– it must not be of a merely tentative or interlocutory nature.


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).
3
  We use the singular only for convenience, as we realize the
theoretical possibility of new, but separate, permits.




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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, 

, 177-78 (1997) (internal citations omitted). We review
the following factors to determine whether an agency action
is final:

       1) whether the decision represents the agency‘s
       definitive position on the question; 2) whether
       the decision has the status of law with the
       expectation of immediate compliance; 3)
       whether the decision has immediate impact on
       the day-to-day operations of the party seeking
       review; 4) whether the decision involves a pure
       question of law that does not require further
       factual development; and 5) whether immediate
       judicial review would speed enforcement of the
       relevant act.

Univ. of Med. & Dentistry of N.J. v. Corrigan, 

,
69 (3d Cir. 2003) (citations omitted).

        OCLC argues that the EPA‘s common control
determination is final agency action because the EPA, in its
letter of May 11, 2009, described its decision as ―final‖ and
required immediate enforcement of its decision by demanding
that OCLC and MRPC‘s existing permits be ―reopened and
reissued to both companies as a single source.‖ We disagree.

        First, although the EPA described its decision as
―final,‖ it reasonably explains this comment to be in reference
to the four-year-long process of making its common control
determination. EPA‘s letter is not ―final‖ in the sense
required for judicial review under 42 U.S.C. § 7607(b)(1)
because the letter was only one, intermediate, step in the
permitting process. Before a new permit governing OCLC




                              6
and MRPC will issue, the NJDEP must provide the parties
and the EPA with notice and an opportunity to comment on
any draft permit. See 42 U.S.C. §§ 7661a(b)(6), 7661d(a).
The EPA will also have an opportunity to object formally to
the draft permit, and, if the NJDEP declines to address the
EPA‘s objections, to take over the permitting process from
the State. See 42 U.S.C. § 7661d(b)-(c). There is no way to
know in advance whether the final permit that results from
that process will incorporate the common control
determination that OCLC seeks to challenge here. Thus, a
new permit, not intermediate decisions, will mark the
―consummation‖ of the agency‘s decisionmaking process.

       Second, the EPA‘s decision does not contemplate
immediate compliance. Although the EPA has directed the
NJDEP to accept its determination and begin a new
permitting process, the NJDEP has yet to do either formally.
OCLC contends that the NJDEP has agreed to rely on the
EPA‘s decision, but this is also not dispositive. See, e.g.,
Hindes v. FDIC, 

, 163 (3d Cir. 1998) (―[W]here
a state actor relies upon a federal agency‘s notice, the state
action does not convert the notice into a final agency act
under the APA.‖).

      Additionally, OCLC will continue to operate under the
terms of its existing permits until a new permit issues.
Therefore, and third, the EPA‘s decision has no effect on
OCLC‘s day-to-day operations.

       Fourth, the question of the validity of the EPA‘s
common control determination is not purely a legal one: our
ability to decide the issue would benefit greatly from
additional facts, most importantly the terms of a new permit
and whether and/or how it will harm OCLC and, perhaps,
how the new permit affects MRPC, which is not a party to
OCLC‘s petition for review.




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       Finally, our immediate review would not speed
enforcement of the Clean Air Act. To the contrary, it would
delay further the permitting process.

       In sum, the EPA‘s common control decision simply is
not final agency action, which will only occur when a new
permit issues.

       The text of the statute bolsters our conclusion.
Specifically, 42 U.S.C. § 7661d(c) provides that "[n]o [EPA]
objection shall be subject to judicial review until the
Administrator takes final action to issue or deny a permit
under this subsection." Although OCLC correctly points out
that the EPA's May 11, 2009 common control determination
was not itself a formal EPA "objection" to a draft permit, it
arose out of, and directly relates to, EPA's formal objection to
the NJDEP's draft permit for MRPC. We therefore regard
§ 7661d(c) as indicating Congress's intent to subject those
objections to judicial review only after the EPA's issuance or
denial of a permit. By contrast, the statutory provision on
which OCLC seeks to rely, 42 U.S.C. § 7661d(b)(2), plainly
does not apply here. That section provides for immediate
judicial review when the EPA denies a third party's petition
requesting that the EPA object to a draft permit. In this case,
OCLC has not petitioned the EPA to object to a draft permit;
instead, it effectively has asked EPA to withdraw its objection
to the NJDEP's draft permit for MRPC.

        Several other Courts of Appeals have reached the same
conclusion in similar circumstances. In Public Service
Company of Colorado v. EPA, the Court of Appeals for the
Tenth Circuit held that two EPA letters, which set forth the
agency‘s common control determination as to certain
facilities, were not final action. 

(10th Cir.
2000). The Court dismissed the challenge for lack of
jurisdiction, holding that the EPA‘s opinion letters ―in no way




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mark the consummation of its decision-making process,
which cannot occur before the [Colorado Department of
Public Health and Environment] has acted on the permit
application.‖ 

The Court went on to note that the
letters ―do not determine any rights or obligations of [the
Public Service Company] or any other entity; nor do legal
consequences flow from these letters.‖ 

(citing
Christensen v. Harris Cnty., 

, 587 (2000)
(―[Statutory] interpretations such as those in [agency] opinion
letters . . . lack the force of law . . . .‖)).

        OCLC attempts to distinguish Public Service Company
on grounds that the EPA letters in that case neither stated that
the agency‘s determination was final nor directed the State to
enforce the determination. OCLC argues further that the state
permitting agency retained authority to decide that the
facilities at issue were not under common control, and thus
the EPA letters were more like ―tentative recommendations.‖

        These arguments do not persuade us. First, as
discussed above, the EPA‘s characterization of its decision as
―final‖ is not dispositive. Moreover, although the EPA has
directed the NJDEP to reopen the permitting process, the
latter retains the authority to decline or delay adopting the
determination and set the terms of the new permit. In
addition, as the Tenth Circuit opined, ―[e]ven if the [State]
accedes to the EPA‘s opinion . . . and denies the . . . permit,
the opinion letters still would not constitute the
consummation of EPA‘s decision-making process.‖ 

. Here, as in that case, once the NJDEP issues a permit,
OCLC will be entitled to challenge it in state court, and the
―EPA might well be convinced by a decision rendered in state
court‖ to reverse itself on the common control decision. 

reasoning of the Court of Appeals for the Seventh
Circuit in American Paper Institute, Inc. v. EPA also applies
here. 

(7th Cir. 1989). In that case, the
American Paper Institute sought judicial review of a policy
statement drafted by EPA Region V. The Seventh Circuit
Court dismissed the petition for lack of jurisdiction, stating
that

      Region V does not demand that any firm change
      its conduct now . . . . Every permit holder may
      proceed under the authority of its existing
      permit. . . . If states heed [Region V‘s]
      suggestions to the detriment of paper mills,
      review is possible in state court. If states
      propose a course of action inconsistent with
      Region V‘s wishes, the Administrator may
      overrule Region V. If the Administrator adopts
      Region V‘s position and a permit is turned
      down, modified, or rescinded, review will be
      available in state or federal court. That review,
      on a full record, will disclose the EPA‘s final
      position, as applied to the plant in question.

Similarly, here, if the NJDEP adopts the EPA‘s
determination and issues a permit that OCLC believes to be to
its detriment, OCLC may seek review in state court. If the
NJDEP refuses to adopt the EPA‘s determination, the
Administrator may overrule that decision, and review will be
available in state or federal court. See Appalachian Energy
Group v. EPA, 

(4th Cir. 1994) (dismissing for
lack of jurisdiction a challenge to a memo in which the EPA
opined that a permit would be required for certain storm
water discharges from construction activities because, among
other reasons, the EPA had not issued or denied a permit);
City of San Diego v. Whitman, 

(9th Cir. 2001)
(dismissing San Diego‘s challenge to an EPA letter—opining




                             10
that the Oceans Pollution Reduction Act would apply to the
City‘s pollution discharge permit renewal—because agency
action would not be final until the completion of the permit
appeals process).

       The cases cited by OCLC are distinguishable. For
example, in Star Enterprise v. EPA, both parties conceded
that the determination at issue (that certain regulations
promulgated under the Clean Air Act applied to gas turbines
in an electrical power plant) was final agency action. 

, 146 n.9 (3d Cir. 2000). Likewise, in Hawaiian
Electric Company v. EPA, the agency determined that
Hawaiian Electric Company‘s proposed change to higher
sulfur fuel would be a ―major modification‖ that would
trigger a permitting process. 

, 1441 (9th Cir.
1984). Consistent with the EPA‘s position in that case, the
Court of Appeals for the Ninth Circuit held that the
determination was final and reviewable because it represented
―EPA‘s final statement on the legal issues‖ and had
immediate legal consequences – namely, that the company
had to obtain a permit before switching fuels. 

Clearly, the situation here is different, as OCLC must obtain a
permit regardless of the EPA‘s determination on the issue of
common control. 4


4
  We also question whether Hawaiian Electric was correctly
decided, as it seems to be at odds with FTC v. Standard Oil
Company, 

, 242 (1980), in which the Supreme
Court held that regulatory proceedings before an agency are
―different in kind and legal effect from the burdens attending
what heretofore has been considered to be final agency
action.‖ Along the same lines, a more recent decision of the
Court of Appeals for the Ninth Circuit suggests that ―costs of
statutory compliance,‖ such as the costs of undergoing




                              11
       In sum, the EPA determination at issue here, an
interlocutory decision in the larger permitting process, ―defies
characterization . . . as ‗final action‘ from which an appeal
may be taken . . . .‖ Public Serv. 

.

                       III. Conclusion

      For these reasons, the EPA‘s common control
determination is not ―final action‖ within the meaning of 42
U.S.C. § 7607(b). Therefore, we lack jurisdiction to hear
OCLC‘s petition for review, and grant the motion to dismiss
it.




permitting proceedings, must be borne by the private party
and do not render an agency decision ―final‖ for purposes of
judicial review. Fairbanks N. State Borough v. U.S. Army
Corps of Eng’rs, 

, 596 n.11 (9th Cir. 2008)
(contrasting Helca Mining Co. v. EPA, 

(9th Cir.
1993) (holding that EPA action initiating permitting
proceedings was not final agency action), with Hawaiian
Electric).




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