ELR Citation: ELR 20297
No(s). 86-4276 (5th Cir. Nov 17, 1987)

The court holds that an Environmental Protection Agency (EPA) Regional Administrator's interpretation in a letter of a federal regulation concerning vinyl chloride discharges is not final agency action for purposes of judicial review under the Clean Air Act. The court first holds that petitioner is not bound by an earlier district court decision, 16 ELR 20845, which held that the Regional Administrator's letter was a final action, since this court affirmed that decision on other grounds. The court then holds that the Regional Administrator's letter was not a final agency action. Although the trial judge in a pending EPA enforcement action against petitioner may eventually come to the conclusion that petitioner has not complied with the applicable regulation, as did the Regional Administrator in his letter, the legal source for any orders from the court will originate from the regulation and not any later EPA interpretation. Moreover, EPA's interpretation does not establish any new rights or duties. The court next holds that EPA's amendment of its complaint in the ongoing enforcement action to include allegations that petitioner had violated the same regulation was also not final agency action. Although a lawsuit does impose obligations, the allegations made in the course of litigation do not impose the kind of legal obligations with which the finality doctrine is concerned.

Counsel for Petitioner
Robert Brager, Charles F. Gauvin
Beveridge & Diamond
1333 New Hampshire Ave. NW, Washington DC 20036
(202) 828-0200

Samuel P. Jordan Jr.
Dow Chemical Co.
P.O. Box 150, Plaquemine LA 70764
(504) 389-8226

Counsel for Respondent
Stephen L. Samuels
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2000

Before WISDOM, HIGGINBOTHAM, and DAVIS, Circuit Judges.