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National Environmental Development Ass'n's Clean Air Project v. Environmental Protection Agency,

ELR Citation: 44 ELR 20123
Nos. 13-1035, (D.C. CIr., 05/30/2014)

The D.C. Circuit vacated an EPA memorandum directing regional air districts to apply different criteria when making source determinations in its Title V or new source review (NSR) permitting decisions for facilities located in areas within the jurisdiction of the U.S. Court of Appeals for the Sixth Circuit. In determining whether two or more facilities are “adjacent,” EPA would look at the functional interrelationships of the facilities and not simply the physical distance between the facilities. But in Summit Petroleum Corp. v. EPA, 690 F.3d 733, 42 ELR 20167 (6th Cir. 2012), the Sixth Circuit held that EPA's determination that the physical requirement of adjacency can be established through mere functional relatedness is unreasonable and contrary to the plain meaning of the term "adjacent." It therefore reversed an EPA determination that a natural gas plant and associated wells were one “source” for the purpose of Title V permitting. Two months after the court's ruling, EPA issued its memorandum telling the air districts that they may no longer consider interrelatedness in determining adjacency when making source determination decisions in its Title V or NSR permitting decisions in areas under the jurisdiction of the Sixth Circuit. Outside of the Sixth Circuit, however, EPA would continue to make source determinations on a case-by-case basis using a three factor test. But the memorandum is plainly contrary to EPA’s own regulations, which require EPA to maintain national uniformity in measures implementing the CAA, and to identify and correct regional inconsistencies by “standardizing criteria, procedures, and policies.” Because the petitioners challenging the memorandum had standing, and because the memorandum was final agency action, it was vacated by the court.