Patrick Acker v. Environmental Protection Agency

In the
United States Court of Appeals
For the Seventh Circuit
No. 01-1928
Patrick Acker,
Petitioner,
v.
Environmental Protection Agency,
Respondent.
Appeal from the Environmental Protection Agency.
No. 5-01-113(a)-WI-0
Argued February 14, 2002--Decided MAY 17, 2002
Before Flaum, Chief Judge, Bauer and Evans,
Circuit Judges.
Bauer, Circuit Judge. The petitioner,
Patrick Acker, is Director of Building
and Grounds at Pewaukee High School in
Wisconsin, from which asbestos-containing
floor tiles and mastic were removed in
August 1997. After finding that the
method and manner of that removal failed
to comply with applicable federal
regulations, the respondent, the
Environmental Protection Agency ("EPA"),
issued an order directing Acker to comply
with such regulations in the future.
Acker now requests that this Court vacate
the EPA’s order pursuant to 42 U.S.C.
sec. 7607(b)(1). Because we are without
jurisdiction to review the EPA action at
issue, Acker’s petition is DISMISSED.
Background
In August 1997, Acker authorized the
removal of asbestos-containing material
from the gym balcony at Pewaukee High
School. The method and manner of removal
prompted the State of Wisconsin to file
suit in state court against the Pewaukee
School District, Acker and various
consultants, claiming violations of state
asbestos regulations. Before the parties
stipulated to dismiss the case on the
merits and with prejudice, those claims
against Acker were dismissed because the
State of Wisconsin failed to properly

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serve him with notice.
Subsequent to the disposition of the
state court action, the EPA issued an
administrative order to Acker that
identified seven violations of federal
asbestos regulations./1 In its order,
the EPA found that Acker failed to: (1)
thoroughly inspect the area of the high
school where the renovation activity was
to occur for the presence of asbestos
prior to commencing renovation; (2)
provide adequate notice to the EPA before
removing asbestos-containing material;
(3) remove all regulated asbestos-
containing material from the renovation
site before breaking up, dislodging or
otherwise disturbing such material; (4)
ensure adequate wetness of all regulated
asbestos-containing materials throughout
the renovation process; (5) have present
an authorized, on-site representative who
is properly trained under and educated
about federal asbestos regulations as
well as compliance with the same; (6)
seal the asbestos-containing material in
leak-tight containers when wet; and (7)
deposit all asbestos-containing waste
material as soon as practical at an EPA-
approved disposal site. In addition to
identifying these violations, the order
directed Acker to comply with applicable
federal asbestos regulations before
undertaking any further demolition or
renovation activity. While the order did
notify Acker that failure to comply with
its directives could result in the
imposition of fines, no sanctions were
imposed nor were any penalties assessed
for the violations identified therein.
Acker requests that this Court vacate
the EPA’s order, arguing that the
violations it identifies were already
litigated on the merits and dismissed
with prejudice in the state court action.
We need not reach the merits of Acker’s
arguments; the EPA’s issuance of the
administrative order does not constitute
a final action or penalty subject to
appellate review under 42 U.S.C. sec.sec.
7607(b)(1), 7413(d).
Discussion
The administrative order for which Acker
seeks review was issued by the EPA
pursuant to its enforcement authority
under the Clean Air Act ("CAA"). 42
U.S.C. sec. 7413. In enacting the CAA,

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Congress not only charged the EPA with
its general oversight and enforcement,
but also provided jurisdictional
provisions that define the scope of
judicial review to which actions taken by
the EPA in furtherance of its oversight
and enforcement responsibilities are
subject. Relevant here is 42 U.S.C. sec.
7607(b)(1), which authorizes judicial
review in the United States Court of
Appeals when the EPA takes one or more of
certain enumerated actions (none of which
is applicable here) or over any "other
final action of the Administrator."
Judicial review is also available to any
individual against whom an administrative
penalty is assessed or ordered under 42
U.S.C. sec. 7413(d). The CAA limits
judicial review beyond these specified
instances by providing "[n]othing in this
[Act] shall be construed to authorize
judicial review of regulations or orders
of the Administrator [the EPA] under this
[Act], except as provided [herein]." 42
U.S.C. sec. 7607(e). We are therefore
without jurisdiction unless the EPA
action at issue falls within either or
both sections 7607(b)(1) or 7413(d).
First, the EPA order issued to Acker
does not constitute a "final action of
the Administrator" under 42 U.S.C. sec.
7607(b)(1). An agency action is
considered "final" for purposes of
appellate review if (i) the action marks
the consummation of the decisionmaking
process--it must not be of a merely
tentative or interlocutory nature, and
(ii) the action determines a party’s
rights or obligations, or is otherwise of
legal consequence. Bennett v. Spear, 520
U.S. 154, 177-78 (1997) (citations
omitted). The administrative order issued
to Acker can hardly be said to mark the
consummation of anything, as its terms
refer only to the possibility that an
enforcement process may be initiated in
the future event of noncompliance with
existing regulations highlighted therein.
All the order does is alert Acker to the
potential for legal consequences if he
fails to comply with his existing duties
and obligations under the CAA.
As a practical matter, the order has no
legal force except to impose upon Acker
the already-existing burden of complying
with the CAA and its implementing
regulations. See FTC v. Standard Oil Co.
of California, 449 U.S. 232, 239-40

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(1980) (discussing the need for
considering the "finality" element
pragmatically in cases dealing with
judicial review of administrative actions
and finding no final agency action where
subject FTC document had no practical or
legal effect) (citations omitted). The
order did not impose upon Acker any
sanction or administrative penalty. Cf.
Abbs v. Sullivan, 963 F.2d 918, 926 (7th
Cir. 1992) (noting that final agency
action reviewable under the
Administrative Procedure Act ordinarily
means a final order imposing some sort of
sanction). Without any practical, legal
effect, there simply is no issue fit for
judicial resolution. See FTC, 449 U.S. at
239-40. Accordingly, we are without
authorization to review the EPA action at
issue under section 7607(b)(1).
Second, and as mentioned, Acker is not
an individual against whom an
administrative penalty was assessed or
ordered under 42 U.S.C. sec. 7413(d).
Indeed, the EPA would have to take
additional, affirmative steps before it
could enforce the order or impose any
sort of sanction. 42 U.S.C. sec.sec.
7413(b), (c)./2 Consequently, we are
likewise without authorization to review
the administrative order issued to Acker
under section 7413(d).
Conclusion
Acker’s petition is hereby DISMISSED.
FOOTNOTES
/1 Some of the EPA’s findings were substantively
similar to the violations claimed by the State of
Wisconsin in the state court action.
/2 Notably, the preclusion of pre-enforcement judi-
cial review here is consistent with jurisdiction
law in comparable administrative contexts. See,
e.g., Rueth v. EPA, 13 F.3d 227, 231 (7th Cir.
1993) (pre-enforcement review of EPA orders
precluded under Clean Water Act); Hoffman Group,
Inc. v. EPA, 902 F.2d 567, 569 (7th Cir. 1990)
(same); United States v. Outboard Marine Corp.,
789 F.2d 497, 505-06 (7th Cir. 1986) (pre-en-
forcement review precluded under Comprehensive
Environmental Response, Compensation, and Liabil-
ity Act of 1980).

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