On August 7, the US Court of Appeals for the Sixth Circuit issued a decision in the case of Summit Petroleum v. EPA. The court addressed the nagging question of how to define a facility under the Clean Air Act. Can several facilities that are separate physically, but interdependent, be considered a single facility for regulatory purposes? I was involved about 12 years ago in such an argument for a client, a cement manufacturing plant that wanted to build a new, modern one several miles away. While they would shut down the existing plant, the area around it would still store pre- and post-manufacturing materials for the new proposed facility. The USEPA then said that these were separate facilities because of the distance and that a river ran between them. Therefore, in terms of PSD applicability, the proposed new facility would have a baseline of zero and not what the old plant emitted, causing them to address PSD.
In Summit Petroleum v. EPA, the wells that feed unrefined oil to the plant and the flares are miles away and non-contiguous (land between components is owned by others). Summit treated each “plant” separately, each one being a minor one. The EPA ruled that because they are dependent on each other, the various plants must be considered a single one; total emissions making it a major source, requiring a Title V Permit. The Court agreed with Summit in a 2 to 1 decision that the meaning of “adjacent” should be based on the dictionary meaning of physical (not functional) proximity.
On August 21, the US Court of Appeals for the District of Columbia Circuit ruled in EME Homer City Generation v. EPA that the USEPA had overstepped its bounds in its Cross-State Air Pollution Rule (CSAPR), which replaced the previous “CAIR” rule. The court determined that CSAPR exceeded the authority given to the USEPA in the Clean Air Act (CAA) for two reasons: by requiring applicable sources in upwind states to reduce its impacts on downwind states by more than its estimated significant impact (contribution); and by implementing the rule without allowing states even the option to develop and implement their own program meeting federal requirements. The court stated that CSAPR, while perhaps effective in reducing cross state transport of ozone precursors, violated the CAA by not allowing state participation as other CAA rules do. Therefore, the court vacated CSAPR and ordered the USEPA to develop a new rule.
Please note that this document does not constitute a legal analysis. Discuss all implications of these rulings with your environmental attorney.
Marc Karell is the owner of Climate Change & Environmental Services. CCES can assist you with the technical details of: your emissions inventory; your air permitting status; and whether your facility is subject to air rules such as Title V and/or PSD. We can help you navigate through their complex processes. Read more useful material in the company’s blog: www.CCESworld.com/blog.