EPA Issues Memorandum Regarding Policy on Single Source Determinations Following U.S. Court of Appeals Summit Decision
By Kelly D. Bartley, Attorney, Bingham Greenebaum Doll LLP
As reported in the third quarter issue of the Air Quality Letter, on August 7, 2012 the U.S. Sixth Circuit Court of Appeals concluded in Summit Petroleum Corp. v. EPA that the term “adjacent,” for purposes of determining whether a group of air emissions sources constitute a single stationary source under Clean Air Act Title V program requirements, relates only to physical proximity. Accordingly, the court determined that an EPA determination considering the functional interrelatedness of sources to determine adjacency was improper. EPA sought rehearing of the court’s decision, but by order issued October 29, 2012, that request was denied.
On December 21, 2012, EPA issued a memorandum to all EPA Regional Air Division Directors advising that it does not intend to change its long-standing practice of considering interrelatedness in EPA single source determinations in jurisdictions outside the Sixth Circuit. EPA advised that outside the Sixth Circuit, the agency will continue to make single source determinations on a case by case basis and, with regard to determinations of adjacency, will consider both proximity and functional interrelatedness of the sources at issue. EPA advised that only in areas under the jurisdiction of the Sixth Circuit, i.e., Michigan, Ohio, Tennessee and Kentucky, will EPA no longer consider functional interrelatedness in determining adjacency. The memorandum advises that EPA is still assessing how to implement the Summit decision in permitting actions in the Sixth Circuit.
As reported in the third quarter 2012 issue of the Air Quality Letter, the other two factors relevant to determining whether a group of buildings, structures or facilities may be considered a single stationary source, and thus their emissions aggregated for purposes of determining whether emission levels trigger Title V permitting requirements, are whether the sources are under common control and whether the sources belong to the same major industrial grouping. See 40 CFR 70.2. If pollutant emitting activities fail to satisfy any one of the three criteria they are considered separate stationary sources and their emissions cannot be aggregated to meet the Title V major source threshold.
To view a complete PDF of the Fourth Quarter 2012 issue of the Air Quality Letter, click HERE.