dissenting.
From May 1976 through June 1977, respondent PPG Industries, Inc. (PPG), exchanged a series of letters with various officials of the Environmental Protection Agency concerning the applicability of certain federal performance standards to PPG’s waste-heat boilers at its Lake Charles, La., plant. PPG took the position that its boilers were not required to meet these standards, first, because construction had begun on them prior to the effective date of the standards and, second, because waste-heat boilers are not within the category of sources to which the standards in question apply.1
In April 1977 PPG submitted a formal request, pursuant to 40 CFR § 60.5 (a), for a definitive determination on these issues. Although § 60.5 (a) provides for such determinations only with respect to the, first issue raised by PPG,2 EPA’s Regional Administrator apparently rejected both arguments *603in her June 1977 response, unequivocally stating that PPG’s boilers were subject to the standards in question.
After a few more “clarifying” letters were exchanged, PPG brought two separate petitions for review of EPA’s determination, filing in both the District Court for the Western District of Louisiana and the Court of Appeals for the Fifth Circuit. The Fifth Circuit dismissed the petition on the ground that review was properly had, if at all, in the District Court.
There are two issues before us today: first, whether EPA’s determination constitutes “final” agency action such that any review is appropriate and, second, if so, whether that review must be had in the Court of Appeals because the determination constituted “any other final action” within the meaning of § 307 (b)(1) of the Clean Air Act, 42 U. S. C. § 7607 (b) (1) (1976 ed., Supp. II). While I accept the Court’s holding that the Agency’s determination constituted “final” action as that term is ordinarily used under the Administrative Procedure Act, I am not persuaded that Congress intended exclusive review of this type of action in the courts of appeals.
In Abbott Laboratories v. Gardner, 387 U. S. 136, 149-156, this Court set out three tests that informal agency action must meet in order to be considered final agency action that is ripe for judicial review. First, the action must involve an issue that is appropriate for judicial review, such as a purely legal question. Second, it must be a definitive statement of the agency’s position and not merely a tentative view or the opinion of a subordinate official. Finally, the party seeking review of the action must be faced with serious hardship if he is not allowed to obtain pre-enforcement review. In Abbott Laboratories itself the third requirement was satisfied by the fact that the affected companies either had to expend substantial amounts of money to comply with the regulation or not comply and risk serious 'criminal and civil penalties.
Although informal advice by agency personnel as to how the agency is likely to react to a particular set of circumstances *604will not ordinarily be subject to judicial review under the Abbott Laboratories tests, this case would seem to be an exception. As EPA argues, the only issue to be decided is whether certain regulations apply under the facts submitted to the Agency by PPG. Second, the Regional Administrator of EPA herself signed the letter rejecting PPG’s position; thus, it appears to be, as the Court suggests, the Agency’s “last word” on the issue. Ante, at 586.3 And finally, although the parties have not informed us of the magnitude of PPG’s estimated compliance costs, it appears that PPG would have to risk sizeable penalties under 42 U. S. C. §§ 7413 (b), (c), and 7420 (1976 ed., Supp. II) in order to challenge EPA’s determination in enforcement proceedings.4
Assuming that EPA’s letter in this case would constitute “final agency action” under the APA, the second question is whether we are compelled by the language of § 307 (b)(1) to hold that the Court of Appeals had exclusive jurisdiction to *605review that action. As Mr. Justice Rehnquist points out in his dissent, such a construction of the statute will greatly increase the burdens currently borne by the courts of appeals, both in terms of numbers of cases and difficulty of issues presented.5 Ante, at 596-597, 600-601. In my view, it will also distort the concept of final agency action by giving EPA virtually unlimited discretion to transform its informal advice into final agency action subject to court of appeals review.
Under § 307 (b) (2)- of the Clean Air Act, any agency action that was reviewable in the courts of appeals cannot be challenged in an enforcement proceeding, whether or not review was actually sought.6 Under §307 (b)(1), a petition for review must be filed within 60 days of the publication of the agency action in the Federal Register. Although EPA apparently did not publish letters like its letter to PPG in the Federal Register prior to the Clean Air Act Amendments of 1977, it is now embarking on a program to do so.7 Because *606publication may give the Agency the benefit of the preclusive effect of § 307 (b)(2), it has every incentive to notice a wide range of actions in the Federal Register.
Once notice of an action has been published in the Federal Register, it would be difficult to argue that it was not “final” agency action. Most of the determinations would, like this one, concern applications of particular regulations to undisputed fact situations. Second, the very fact that the Agency had published its position would indicate that it was a definitive statement of agency policy. And finally, the requirement that an aggrieved person show some hardship entitling him to pre-enforcement review would also seem to be satisfied by mere publication, since the failure to raise the issue might well foreclose future review entirely.8
I find it difficult to believe that Congress intended this highly undesirable result. Although I do not share Mr. Justice Rehnquist’s interpretation of the statute, I would construe it as drawing a line short of allowing EPA complete discretion to turn anything it chooses into final action reviewable only in the courts of appeals.
Section 307 (b)(1) mandates exclusive review in the courts of appeals of the Administrator’s actions under certain specific subsections of the Act. Those subsections contain specific grants of authority to the Administrator to make certain determinations. Thus, §§ 110 and 111 (d), 42 U. S. C. §§ 7410 and 7411 (d) (1976 ed., Supp. II), empower the Administrator to approve state implementation plans; §§ 111 (j), 112 (c), 113 (d), and 119, 42 U. S. C. §§ 7411 (j), 7412 (c), 7413 (d), *607and 7419 (1976 ed., Supp. II), empower the Administrator to grant (and by necessary implication to deny) waivers to companies that are unable to comply with the applicable standards; and § 120, 42 U. S. C. 1 7420 (1976 ed., Supp. II), sets up a procedure through which the Administrator is to assess noncompliance penalties, after notice and hearing on the record. Each of these types of agency action has an immediate impact on the legal rights of the affected party.
By contrast, agency advice as to whether or not particular sources are subject to previously promulgated regulations does not, in itself, change any party’s legal status; nor is there anything in the statute that specifically requires or permits the Administrator to give such advice. This does not mean that it is beyond the Administrator’s power to do so or to set up his own procedures, as he has done in 40 CFR § 60.5 (a) (1979), for giving advice in a formalized manner. But I do not believe Congress intended the review provisions of the statute to cover this type of “agency action” as well as those types specifically contemplated by the statute. In making reviewable “any other final action of the Administrator under this chapter,” Congress must have been thinking of actions it had specifically directed or authorized the Administrator to take under sections of the Act not specifically enumerated in §307 (b)(l). This interpretation is consistent with both an ejusdem generis construction of the statute and its plain language. It is also supported by Congress’ apparent belief that it was extending court of appeals review only to the types of actions that EPA had been accustomed to publishing in the Federal Register. See n. 7, supra.
Accordingly, I respectfully dissent.
PPG also had questions about compliance in the event that the standards were found to apply.
Title 40 CFR §60.5 (a) (1979) provides:
“When requested to do so by an owner or operator, the Administrator will make a determination of whether action taken or intended to be taken by such owner or operator constitutes construction (including reconstruction) or modification or the commencement thereof within the meaning of this part.”
The Court relies exclusively on this factor, along with the fact that the parties agree that the action is “final.” I would not place much reliance on the parties’ agreement, however, since they share a common interest in having the threshold jurisdictional question resolved in the affirmative. Thus, it serves PPG’s interests to treat EPA’s letter as a final action because PPG wants judicial review as soon as possible. It also serves EPA’s interests because broadening the category of agency actions that are final and reviewable only in the courts of appeals increases the number of agency actions that cannot be challenged in enforcement proceedings under the Act. See infra, at 605.
See National Automatic Laundry & Cleaning Council v. Shultz, 143 U. S. App. D. C. 274, 281, 443 F. 2d 689, 696 (1971), in which the court held a letter signed by the Wage-Hour Administrator concerning a particular application of the Fair Labor Standards Act to be “final action” in light of the fact that noncompliance with the agency’s policy could have led to criminal liability and actions for double damages by affected employees. But see West Penn Power Co. v. Train, 522 F. 2d 302, 310-311 (CA3 1975), cert. denied, 426 U. S. 947; 522 F. 2d, at 317-319 (Adams, J., dissenting), where the court refused to considera notice of violation issued pursuant to the Clean Air Act to be final agency action despite the severe penalties that could have attached to future noncomplianee.
Whether or not the record in this case was sufficiently developed for purposes of court of appeals’ review (an issue on which the parties differ), it is clear that there will be many cases involving informal EPA action in which the “record” on which the Agency relied in making its determination will be minimal.
Section 307 (b) (2) of the Clean Air Act provides:
“Action of the Administrator with respect to which review could have been obtained under paragraph (1) shall not be subject to judicial review in civil or criminal proceedings for enforcement.”
In EPA’s brief in the Court of Appeals, it took the position that, by adding “any other final action” to §307 (b)(1), Congress intended to require the Agency to give notice in the Federal Register of each and every “final action” it takes, contrary to its prior practice. Although the Agency noted that it had not yet begun complying with this obligation, it stated that it intended to begin publication in the near future of all final agency actions taken since the 1977 amendments. Brief for Respondents in No. 77-2989 (CA5), pp. 27-29. EPA’s interpretation of the Federal Register clause as a requirement that notice of final determinations be given seems backwards to me. I think a more plausible interpretation of the statute is that Congress intended the term “final agency action” to *606refer only to the types of actions that EPA was accustomed to publishing in the Federal Register prior to the 1977 amendments.
The hardship determination, of course, becomes circular, since there is no preclusion unless there is “final” agency action and no finality unless there is some hardship in not according pre-enforcement review. Under these circumstances, the courts are likely to emulate the Court’s approach in this case, ignoring the hardship component entirely and making reviewable any action that constitutes a definitive statement of the Agency’s position.