Solar Turbines Inc. v. Seif , 879 F.2d 1073 ( 1989 )

OPINION OF THE COURT

SLOVITER, Circuit Judge.

The consolidated appeals and the petition for review in this case are from the preliminary skirmishes in the Environmental Protection Agency’s (EPA’s) attempt to prevent Solar Turbines Inc., a subsidiary of Caterpillar, Inc., from constructing and operating a cogeneration facility at a Caterpillar, Inc. manufacturing plant in York County, Pennsylvania. We conclude that we cannot reach the merits of the dispute at this juncture.

I. BACKGROUND

A. The Statute

The procedural posture in which this case reaches us can best be understood after a brief review of the statutory scheme. The Clean Air Act, 42 U.S.C. § 7401 et seq. (1982) (the Act), creates, inter alia, a framework for improving air quality in regions which do not meet national primary and secondary ambient air quality standards, see, e.g., 42 U.S.C. §§ 7407-10, and for maintaining air quality in those regions which are in compliance with the national standards, see 42 U.S.C. §§ 7470-79. This national framework relies on the cooperation of the states in administering and enforcing the law and monitoring compliance. Each state has the responsibility of promulgating a State Implementation Plan (SIP) which outlines the means it will adopt to guarantee compliance with the Act. 42 U.S.C. §§ 7410, 7471. SIPs must be submitted to the EPA for approval. Id. at § 7410.

Each SIP must contain a permit program to regulate the “modification, construction, and operation of any stationary source.” 42 U.S.C. § 7410(a)(2)(D). Regions which are in compliance with the national primary and secondary ambient air quality standards are subject to the provisions of the statute governing “Prevention of Significant Deterioration of Air Quality” (PSD), 42 U.S.C. §§ 7470-79. In such regions, no “major emitting facility” may be constructed without a PSD permit. 42 U.S.C. § 7475(a)(1). A “major emitting facility,” which is defined, inter alia, as any stationary source with “the potential to emit two hundred and fifty tons per year or more of any air pollutant,” 42 U.S.C. § 7479(1), must incorporate the “best available control technology” (BACT) for each regulated pollutant. 42 U.S.C. § 7475(a)(4). “Best available control technology” is defined as that emission limitation which the permitting authority determines is the maximum achievable, taking into account energy, environmental and economic considerations. 42 U.S.C. § 7479(3). Because York County, Pennsylvania, has met the baseline air quality standards for all pollutants except ozone, facilities located there are subject to these PSD provisions.

Among the various enforcement mechanisms which the EPA is given by the Act is that contained in section 167 of the Act, 42 U.S.C. § 7477, which states that “[t]he [EPA] shall, and a State may, take such measures, including issuance of an order, or seeking injunctive relief, as necessary to prevent the construction of a major emitting facility which does not conform to the requirements of this part.” The effect of a section 167 order is at the center of this appeal.

B. Procedural History

On September 16, 1986 Solar Turbines filed an application with the Pennsylvania Department of Environmental Resources (PADER) for a PSD permit to construct the gas turbine cogeneration facility in York County. PADER granted the permit on September 9, 1987, thereby authorizing Solar Turbines to construct and begin operating a facility comprising six gas turbines at Caterpillar’s York plant. This cogeneration facility is designed to produce electricity and thermal energy simultaneously and to sell the output to Caterpillar for the energy needs of the York plant and excess electricity to the Metropolitan Edison Company, a local utility. PADER issued the permit without requiring any controls for nitrogen oxide (NOx) emissions, notwithstanding the EPA’s position communicated to it that, inter alia, the NOx limit contained in the permit did not adequately reflect BACT. EPA informed PADER that for many permits issued for new gas turbines in other states BACT was determined to require water or steam injection to control NOx emissions.

On January 25, 1988 the EPA issued an administrative order pursuant to section 167 of the Clean Air Act, 42 U.S.C. § 7477, asserting that the cogeneration facility as approved by PADER would use a process which failed to comply with the requirements of PSD and that Solar Turbines would not incorporate BACT as required by § 165(a)(4), 42 U.S.C. § 7475(a)(4), in its controls restricting emissions of nitrogen oxide. The order “requir[ed] the immediate cessation of construction and/or operation of the gas turbine facility at Caterpillar Tractor.” EPA App. at 1.

On February 10, 1988 Solar Turbines filed a complaint in the district court for the Middle District of Pennsylvania against the EPA and James M. Seif, the Regional Administrator for the EPA, seeking a declaratory judgment that the administrative order was unlawfully issued and requesting injunctive relief requiring the EPA to withdraw the order. Solar Turbines’ principal argument is that because EPA approved Pennsylvania’s State Implementation Plan, which incorporates the federal standards for pollution control, see 25 Pa. Code §§ 127.81 — 127.83 (1987), the EPA is precluded from challenging construction or operation of a facility after PADER has given its final approval thereto.

On February 12, 1988 the district court issued a temporary restraining order and enjoined the EPA from enforcing its administrative order. Solar Turbines, Inc. v. Seif, 678 F.Supp. 93, 98 (M.D.Pa.1988). The court ruled that the issuance of the administrative order was not a final agency action, that it had federal question jurisdiction under 28 U.S.C. § 1331 and jurisdiction under the Clean Air Act, 42 U.S.C. § 7401 et seq., that the dispute was ripe because of the threat of sanctions against Solar Turbines, and that Solar Turbines had made the requisite showing to be entitled to a temporary restraining order.

The EPA promptly filed a motion to vacate or dismiss the temporary restraining order. While the motion was pending, Solar Turbines filed a petition for review of the EPA’s administrative order with this Court, which is docketed at No. 88-3178.

Shortly thereafter, on May 26, 1988, the district court granted the EPA’s motion to dismiss and vacate the temporary restraining order, reversing its earlier position and now holding that the administrative order issued by the EPA was a final agency action, which could be reviewed only in the court of appeals. The court dismissed Solar Turbines’ action for lack of jurisdiction. Solar Turbines, Inc. v. Seif, 688 F.Supp. 1012 (M.D.Pa.1988).

On June 17, 1988 the EPA withdrew its administrative order and filed an action in district court pursuant to section 167 of the Act, 42 U.S.C. § 7477, seeking injunctive relief preventing further construction by Solar Turbines. The district court stayed the enforcement action pending resolution of this appeal.

On July 22, 1988 the EPA filed an appeal from the district court’s May 26 order dismissing the action. EPA’s appeal is docketed at No. 88-5591. Although the EPA agrees with the district court’s determination that it had no jurisdiction, its appeal seeks to challenge that court’s conclusion that the administrative order constituted a final agency action.

On August 1, 1988 Solar Turbines filed a cross-appeal from the district court’s May 26 order, claiming that the district court properly had jurisdiction of its challenge to EPA’s action on grounds that it was ultra vires. This appeal is docketed at No. 88-5623.

II. Nos. 88-5591, 88-5623

The Cross-Appeals From the District Court’s Order

The cross-appeals from the district court’s order turn on the question of the district court's jurisdiction. EPA argues that the district court had no subject matter jurisdiction over Solar Turbines’ action because the Clean Air Act precludes pre-enforcement review of section 167 administrative orders. We look to the Supreme Court’s decision in Abbott Laboratories v. Gardner, 387 U.S. 136, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967), for the standard for determining the appropriateness of pre-enforcement review of agency action in general. Under the analysis applied there, we must first inquire whether anything in the statute prohibits pre-enforcement review of the challenged action. Id. at 139-40, 87 S.Ct. at 1510-11.

Section 307 of the Clean Air Act, 42 U.S.C. § 7607, expressly sets forth the procedural route and timing for judicial review of EPA actions. Section 307(a) gives the EPA the authority to issue administrative subpoenas and gives the district courts jurisdiction over actions to enforce such subpoenas. Section 307(b)(1) provides for judicial review in the courts of appeals over actions of the EPA in promulgating rules, regulations and standards, and approving State Implementation Plans. Finally, section 307(e) states that “[njothing in this chapter shall be construed to authorize judicial review of regulations or orders of the [EPA] under this chapter, except as provided in this section.” 42 U.S.C. § 7607(e).

Because the Act explicitly provides for review of certain actions and explicitly denies review for everything else, we cannot look elsewhere for authority to justify the district court’s review. “If Congress specifically designates a forum for judicial review of administrative action, such a forum is exclusive.” Getty Oil Co. v. Ruckelshaus, 467 F.2d 349, 356 (3d Cir.1972), cert. denied, 409 U.S. 1125, 93 S.Ct. 937, 35 L.Ed.2d 356 (1973); see also Cost Control Marketing and Management, Inc. v. Pierce, 848 F.2d 47, 49 (3d Cir.1988) (per curiam); Connors v. Tremont Mining Co., 835 F.2d 1028, 1029-30 (3d Cir.1987); Compensation Dept. of Dist. Five, United Mine Workers of Am. v. Marshall, 667 F.2d 336, 340-44 (3d Cir.1981).

Solar Turbines contends that section 307(e) is not applicable in this instance because it is “seeking to enjoin plainly ultra vires EPA action under constitutional, Administrative Procedure Act, and common law principles.” While there may be certain extraordinary circumstances in which Congress’ creation of an exclusive avenue for judicial review of agency action may be bypassed by an action in the district court, see Leedom v. Kyne, 358 U.S. 184, 190, 79 S.Ct. 180, 184-185, 3 L.Ed.2d 210 (1958) (district court review available if it is the only means to protect a statutory right clearly violated by agency action); Fitzgerald v. Hampton, 467 F.2d 755, 768-69 (D.C.Cir.1972) (procedures employed by agency obviously violated constitutional right); see generally C. Wright, A. Miller, E. Cooper & E. Gressman, Federal Practice and Procedure § 3943 at 324-30 (1977 & 1988 Supp.), such circumstances are not present here. Despite Solar Turbines’ attempt to characterize its claims otherwise, it is evident that Solar Turbines’ district court action in fact seeks to challenge the merits of EPA’s position under the Clean Air Act. Whether Solar Turbines is correct in its assertion that the EPA has no statutory authority to contest the PSD permit because the EPA has approved Pennsylvania’s implementation plan is an issue fully cognizable in the district court in the enforcement action initiated by the EPA, or pursuant to a petition for review in this court if the EPA takes some “final action” within the meaning of section 307(b) of the Act.

The results reached in cases seeking to challenge administrative orders under section 113 of the Clean Air Act, the most closely analogous provision to section 167,¹ are fully in accord with the result we reach today. Both this court in West Penn Power Co. v. Train, 522 F.2d 302 (3d Cir.1975), cert. denied, 426 U.S. 947, 96 S.Ct. 3165, 49 L.Ed.2d 1183 (1976), and the Eighth Circuit in Union Electric Co. v. EPA, 593 F.2d 299 (8th Cir.), cert. denied, 444 U.S. 839, 100 S.Ct. 76, 62 L.Ed.2d 50 (1979), held that a Notice of Violation issued under section 113(a)(1) was not subject to pre-enforcement review because the agency action did not inexorably lead to an enforcement action; it only “trigger[edj the statutory mechanism for informal accommodation which precedes any formal enforcement measures,” West Penn Power, 522 F.2d at 311; see Union Electric Co., 593 F.2d at 304. For the same reasons, in Lloyd A. Fry Roofing Co. v. EPA, 554 F.2d 885, 891 (8th Cir.1977), the court held that a compliance order issued by the EPA pursuant to section 113(a)(1) could not be challenged in the district court until the EPA brought an enforcement action under section 113(b).²

The basis for these decisions was the statutory framework created by Congress for obtaining compliance with the Clean Air Act which led to the conclusion that pre-en-forcement review would interfere with that framework. While these cases were interpreting section 113(a), which unlike section 167 mandates the procedures and timing of agency action to follow issuance of a notice of violation, the reasoning which underlays those cases remains relevant to section 167 as well. A challenge to a section 167 administrative order would intrude on the procedural sequence created by Congress whereby parties receiving notice of noncompliance are first encouraged to resolve their problems with the states and with EPA in an informal, less costly manner. Judicial review becomes appropriate when the EPA, failing efforts at negotiation and compromise, takes steps at enforcement subjecting the facility to consequential penalties.

It follows that the district court had no subject matter jurisdiction over Solar Turbines’ action, see FCC v. ITT World Communications, Inc., 466 U.S. 463, 468-69, 104 S.Ct. 1936, 1939-40, 80 L.Ed.2d 480 (1984) (district court lacks jurisdiction where claims could be presented via statutorily prescribed petition for review in court of appeals and where district court complaint raises same issues as petition for review), whether or not the administrative order was final. That issue is one for this court. We will therefore affirm the court’s dismissal, albeit for reasons different from those relied on by the district court.³

III. No. 88-3178

A. The Withdrawal of the Administrative Order

We turn therefore to the petition for review to determine if that is an appropriate route for review at this time. We consider first the EPA’s argument that the petition for review is moot because EPA has withdrawn the administrative order.

The issue of mootness following the withdrawal of agency action is not a new one for this court. In Hooker Chemical Co. v. EPA, 642 F.2d 48 (3d Cir.1981), Hooker Chemical Co. and Tenneco Chemicals, Inc. filed petitions to review EPA orders finding their discharges of vinyl chloride to be in violation of the Clean Air Act and directing them to implement measures to prevent further discharges. The EPA thereafter withdrew its orders, but continued to insist that the dischargers’ actions violated the regulations and stated that it would still take appropriate enforcement measures. Id. at 49-50. We refused to hold the dispute moot, noting that “[a]n enforcement proceeding has been instituted against Tenneco as a result of the vinyl chloride discharges, and it is not unreasonable to assume that some, if not all, of the same issues will be contested in that litigation.” Id. at 52.

In Dow Chemical Co. v. EPA, 605 F.2d 673 (3d Cir.1979), Dow filed a petition to review a rule promulgated by the EPA pursuant to the Toxic Substances Control Act which would have forced companies to release to the EPA certain information concerning research they had conducted. Dow challenged the rule on the grounds that it was inconsistent with the statute and also that its promulgation failed to conform with the notice and comment procedures required by the Administrative Procedure Act. In response, the EPA withdrew the rule, but continued to assert its authority to issue the rule and in fact renewed its rulemaking procedures in order to repro-mulgate the rule.

This court held that the controversy was not mooted by virtue of the EPA’s withdrawal of its rule. The EPA’s action was not an indication of any reluctance or hesitation regarding the agency’s position that the statute permitted such a rule. In fact, by initiating the process to repromulgate the rule, the EPA demonstrated its steadfast commitment to requiring the release of the desired information. With such a posture, the controversy could not be considered moot.

In Dow, we also considered whether, even if the legal prerequisites for Article III jurisdiction were satisfied, there were policy considerations that would warrant application of the mootness doctrine. We noted first that it was the EPA who was urging that the dispute was mooted by its withdrawal of the rule, and we stated that “[cjourts are understandably reluctant to permit agencies to avoid judicial review, whenever they choose, simply by withdrawing the challenged rule.” Id. at 678. In the absence of an agency’s change of heart or desire to reconsider its position, we could not permit the mere withdrawal of the rule to effectuate avoidance of review; otherwise, “the timing and venue of judicial review could be effectively controlled by the agency.” Id. at 679.

Informed by our precedent, we hold that here also the EPA’s withdrawal of the administrative order did not render the petition for review moot. EPA has not altered its position on the merits, and indeed has instituted an action in the district court seeking injunctive relief to prevent further violation of the Clean Air Act on the same grounds as contained in the administrative order. Here, as in Hooker, we cannot allow the agency to control the timing and venue of judicial review by its own procedural maneuvers.

B. Review of the Administrative Order

Of course, even if the petition for review is not moot, we must still decide if the petition is properly before us at this time. Section 307(b) of the Act provides for direct review in a federal court of appeals of certain enumerated actions not relevant here as well as “any other final action.” See 42 U.S.C. § 7607(b)(1) (emphasis added).⁴ The Supreme Court has interpreted the phrase “any other final action” to incorporate the finality requirement of the Administrative Procedure Act. See Harrison v. PPG Industr., Inc., 446 U.S. 578, 586, 100 S.Ct. 1889, 1894, 64 L.Ed.2d 525 (1980).

The EPA issued the administrative order to Solar Turbines pursuant to section 167 of the Act, 42 U.S.C. § 7477, which requires the EPA to take measures, including issuing an order or seeking injunctive relief, to prevent the construction of a nonconforming major emitting facility.

The Administrative Order in this case sets forth what are denominated as “Findings of Fact,” “Conclusions of Law,” and an “Order.” Such characterizations are ordinarily made by an agency or court following a hearing. There was no such hearing or adversarial factfinding process in this case. Thus, notwithstanding the headings, the “Findings of Fact” and “Conclusions of Law” merely state EPA’s position and are best analogized to a complaint. They allege the EPA’s position with respect to the relevant facts,⁵ the crux of the dispute,⁶ the procedural sequence, and EPA’s legal position.⁷

Although the language of the “Order” section “ordered” Solar Turbines to cease construction and operation of the facility immediately, and the cover letter accompanying the administrative order stated that “[f]ailure to comply with this Order could subject your firm to civil and criminal liabilities pursuant to the Clean Air Act,” Petitioner’s App. at 1, all parties agree that the administrative order is not self-executing. The EPA argues that because violation of the administrative order in itself effects no legal or relevant practical consequences, and such an “Order” requires court action to enforce, it is not “final action” within the meaning of section 307(b).

This is apparently the first case to consider the effect of a section 167 administrative order. Counsel for the EPA states that she knows of no other and our independent research has uncovered none. Nonetheless, we are guided by the Court’s analysis in Abbott Laboratories v. Gardner, 387 U.S. 136, 148-56, 87 S.Ct. 1507, 1515-1519, 18 L.Ed.2d 681 (1967), which outlined the requirements for ripeness, and FTC v. Standard Oil Co., 449 U.S. 232, 101 S.Ct. 488, 66 L.Ed.2d 416 (1980), which incorporated the ripeness standard into the standard for determining whether agency action is final. See Carter/Mondale Presidential Comm., Inc. v. FEC, 711 F.2d 279, 285 (D.C.Cir.1983); see also C. Wright, A. Miller, E. Cooper & E. Gressman, Federal Practice and Procedure § 3942 at 314-15 and cases cited in n. 6 (1977 & 1988 Supp.) (noting substantial overlap, if not interchangeability, of notions of finality and ripeness).

In Standard Oil, the Supreme Court ruled that the issuing of a complaint by the Federal Trade Commission to initiate proceedings against Standard Oil under section 5 of the Federal Trade Commission Act lacked finality. On the other hand, in Abbott Laboratories the Court ruled that a suit by drug manufacturers challenging regulations promulgated by the Food and Drug Administration requiring prescription drug manufacturers and retailers to display a drug’s generic name every time the brand name is used was ripe for judicial review.

We are advised in Abbott Laboratories that finality is to be “interpreted ... in a pragmatic way.” 387 U.S. at 149, 87 S.Ct. at 1515. The factors to be considered in assessing finality are: First, does the agency action represent the definitive position of the agency? Second, does the agency pronouncement have the status of law, so that immediate compliance is expected? Third, does the agency action have an immediate impact on the daily operations of the plaintiff? Fourth, is the dispute over a pure question of law, without the need for factual development? Finally, will a pre-enforcement challenge speed enforcement of the relevant act? Standard Oil, 449 U.S. at 239-40, 101 S.Ct. at 493; Abbott Laboratories, 387 U.S. at 149-53, 87 S.Ct. at 1515-1518.

It does appear that the EPA has taken a definitive position on the question of Solar Turbines’ compliance with the requirements of PSD and, if we resolved the issue of EPA’s authority to override PADER’s approval of Solar Turbines’ emissions controls in EPA’s favor, our holding would probably speed enforcement of the Act. On the other hand, it is not clear whether the merits in this case present a pure question of law or require factual development, an issue on which the parties disagree. In any event the determinative factor on finality in this case is that the administrative order has no operative effect on Solar Turbines.

Even though the wording of the administrative order is in the imperative and directs immediate compliance with its command to stop construction or operation of the cogeneration facility, and even though the accompanying letter seems to threaten civil and criminal liability upon noneompliance, no civil or criminal liabilities accrue from the violation of the order. The EPA concedes that its only enforcement mechanism with teeth under section 167 is the injunctive relief alternative, which the EPA has finally chosen to pursue in the ongoing action in the district court.

The plain language of the statute does not identify any adverse consequences from violating a section 167 administrative order. The EPA has promulgated no regulations to accompany section 167 which impose a sanction for violation of such an order. We have found no legislative history that Congress intended any meaningful consequences from a violation of a section 167 order. The only apparent function of a section 167 order is to serve as a vehicle by which the EPA can notify a party that it believes the requirements of PSD are being violated. Even though section 167 does not contain the statutory provision of a thirty-day period for informal consultation prior to the commencement of enforcement actions which section 113 contains, see 42 U.S.C. § 7413(a)(1); West Penn Power Co. v. Train, 522 F.2d 302, 310-11 (3d Cir.1975), cert. denied, 426 U.S. 947, 96 S.Ct. 3165, 49 L.Ed.2d 1183 (1976), notice provided by a section 167 order can initiate a period of negotiation and hopefully produce a satisfactory resolution, which makes resort to the more time-consuming and cumbersome alternative of an injunctive action unnecessary.

A section 167 order is thus unlike those administrative actions which have been held to be final agency action because of their practical consequences. See, e.g., Abbott Laboratories, 387 U.S. at 152-53, 87 S.Ct. at 1517-18 (regulations had “the status of law and violations of them carrped] heavy criminal and civil sanctions,” and compliance would have required significant expenses in repackaging pharmaceutical products); Frozen Food Express v. United States, 351 U.S. 40, 43-44, 76 S.Ct. 569, 570-71, 100 L.Ed. 910 (1956) (ICC’s classification of certain commodities as nonagricultural thereby affecting the rates available to carriers was final agency action because failure to adhere to the classification exposed carriers to civil and criminal liability); Columbia Broadcasting System v. United States, 316 U.S. 407, 418, 62 S.Ct. 1194, 1200, 86 L.Ed. 1563 (1942) (promulgation of FCC regulations precluding approval of licenses for radio stations which had certain types of contracts with broadcasting networks could be challenged because failure to comply subjected a station to revocation of its license, and therefore the regulations “have the force of law before their sanctions are invoked as well as after”); A.O. Smith Corp. v. FTC, 530 F.2d 515, 522-24 (3d Cir.1976) (FTC orders requiring plaintiffs to submit extensive financial information about their businesses pursuant to a federal reporting program were ripe for judicial resolution because plaintiffs risked civil fines for noncompliance and compliance required the commitment of substantial resources, which would have resulted in lost profits).

Solar Turbines’ situation is more similar to those of parties whose challenges were dismissed because the administrative action lacked finality. See Standard Oil, 449 U.S. at 242, 101 S.Ct. at 494 (“[s]erving only to initiate the proceedings, the issuance of the complaint ... ha[d] no legal force comparable to that of the regulation at issue in Abbott Laboratories, nor any comparable effect upon Socal’s daily business”); Wearly v. FTC, 616 F.2d 662, 667-68 (3d Cir.), cert. denied, 449 U.S. 822, 101 S.Ct. 81, 66 L.Ed.2d 25 (1980) (plaintiff cannot challenge FTC’s subpoena duces te-cum by suit in district court but must await the FTC’s enforcement action because, among other reasons, waiting for an enforcement action did not result in civil or criminal penalties); Hooker Chem. Co. v. EPA, 642 F.2d 48, 53 (3d Cir.1981) (“[t]he absence of a requirement to comply with the orders of the EPA at this time ... militates against a finding that [review is appropriate]”).

Solar Turbines suggests that the administrative order requires it to change its day-to-day conduct but it offers no concrete examples. In fact, at oral argument counsel for Solar Turbines stated that construction of the cogeneration facility was continuing, and affidavits submitted by employees of Solar Turbines indicate that the facility must be nearing completion, if its operation has not commenced already. Thus, even if uncertainty in long-term corporate decisionmaking could possibly be viewed as an adverse consequence of a section 167 order lending legitimacy to the claim of finality, an issue we expressly do not decide, there is no basis on this record to find that Solar Turbines is currently facing a Hobson’s choice.⁸

In many respects, Solar Turbines’ situation is like that of the plaintiff in Wilmac Corp. v. Bowen, 811 F.2d 809 (3d Cir.1987), a nursing facility which hoped to build an addition and gain Medicaid certification of the new beds. Plaintiff challenged amendments by the Pennsylvania Department of Public Welfare to the state’s Medicaid reimbursement scheme which eliminated Medicaid reimbursement for capital costs and would have reduced the plaintiff’s return on the addition. The plaintiff sought to challenge the amendments in the district court prior to completing the addition to the nursing facility. We ruled that the challenge was not ripe because plaintiff was not threatened with any injury or sanction by completing construction, and no action was compelled. Plaintiff’s future economic return was simply placed in some uncertainty, id. at 813, and this uncertainty alone was not enough hardship to warrant review. See also Suburban Trails, Inc. v. New Jersey Transit Corp., 800 F.2d 361, 365-67 (3d Cir.1986) (preliminary state agency action not final or ripe if only adverse effect is “some uncertainty over [plaintiff’s] eventual inclusion in the grant program”).

We thus conclude that because Solar Turbines is not compelled to obey the order at the risk of sanctions and does not face severe hardship as a result of the order, the administrative order issued under section 167 does not constitute final agency action. Therefore, Solar Turbines’ petition for review must be dismissed.

IV. CONCLUSION

For the reasons set forth above, we will affirm the district court’s dismissal of Solar Turbines’ action, and we will dismiss Solar Turbines' petition for review of the EPA's administrative order.

1 . Section 113(a), 42 U.S.C. § 7413(a), has since 1977 provided that when "the [EPA] finds that any person is in violation of any requirement of an applicable implementation plan, the [EPA] shall notify the person in violation of the plan.” If the violation by a major stationary source persists for longer than thirty days, the EPA is required to institute an enforcement action. 42 U.S.C. § 7413(b).

2 . At the time the West Penn and Lloyd A. Fry cases were decided, section 113 did not contain the provision mandating enforcement which was added in 1977. Thus, the statute construed in those cases was comparable to section 167, which does not contain any provision compelling further action.

3 . Our decision in No. 88-5623 (Solar Turbines' appeal) effectively disposes of the EPA’s appeal in No. 88-5591. Therefore, we need not decide whether the EPA could appropriately appeal from an order which granted it the relief it sought but did so on the basis of a conclusion which it seeks to challenge. Cf. Watson v. City of Newark, 746 F.2d 1008, 1010 (3d Cir.1984) ("Generally, a party who receives all of the relief which he sought is not aggrieved by the judgment affording the relief and cannot appeal from it;”); In re Arthur Treacher’s Franchisee Litigation, 689 F.2d 1137, 1149 n. 16 (3d Cir.1982) (" ‘[a] party successful in the district court has no right of appeal from a judgment in its favor, for the purpose of obtaining a review of findings he deems erroneous which are not necessary to support the decree.’ ’’ (quoting Electrical Fittings Corp. v. Thomas & Betts Co., 307 U.S. 241, 242, 59 S.Ct. 860, 860, 83 L.Ed. 1263 (1939))).

4 .The pertinent portion of the statute reads, "[a] petition for review of ... any other final action of the [EPA] under this chapter ... which is locally or regionally applicable may be filed only in the United States Court of Appeals for the appropriate circuit.” 42 U.S.C. § 7607(b)(1).

5 . For example, the "finding” in ¶ 3 states: "The Solar Turbines facility ... will have the potential to emit 1698 tons per year ... [of] nitrogen oxides.” Petitioner’s App. at 2.

6 . See note 6 on page 1080.

6. The "finding" in ¶ 7 states: “[N]o information in support of [PADER’s] cost determination [that file cost of controls for NOx emissions was ‘economically infeasible’] was offered.” Id. at 5.

7 . For example, the “conclusion” in ¶7 states: "EPA finds that the PADER PSD permit issued to Solar Turbines does not conform to the requirements of Part C of the Act insofar as it fails to require installation of water or steam injection controls on the proposed gas turbines, in light of an absence of adequate justification as to why their installation is not required.” Id. at 10.

8 . Since Solar Turbines has not shown that its placement on a “List of Violating Facilities” which recipients of federal contracts, grants and loans may not patronize, see 40 C.F.R. § 15.31(a) (1988), is imminent, we do not decide whether noncompliance with a section 167 order alone is enough to place Solar Turbines on such a list or whether, if it were, that would render a section 167 order final agency action.