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Association of Irritated Residents v. U.S. Environmental Protection Agency

ELR Citation: 45 ELR 20118
Nos. 13-73398, (9th Cir., 06/23/2015)

The Ninth Circuit denied petitions for review challenging EPA's promulgation of 40 C.F.R. §52.245, a regulation that revised the scope of a previous EPA decision, after the Agency determined that it had mistakenly approved certain new source review rules in 2004 as part of California's SIP. EPA issued the regulation under CAA §110(k)(6), an error-correcting provision, and corrected its prior approval of the new source review rules after it learned that California law did not authorize the San Joaquin Valley air pollution control district to require new source permits or emissions offsets for minor agricultural sources. Because those rules conflicted with state law, they should not have been incorporated into the SIP in 2004. The court held that EPA, therefore, did not act improperly in correcting its prior approval. In addition, as a matter of first impression, the court held that CAA §110(k)(6) grants EPA authority to amend retroactively its approval of the 2004 new source review rules. The petitioner argued that the other enumerated actions in §110(k) strictly limit the Agency's methods of revising an error. But §110(k)(6) does not clearly speak to the issue at hand. In light of this ambiguity, the court held that EPA reasonably interpreted §110(k)(6)'s requirement that EPA "revise such [erroneous] action as appropriate" to encompass a retroactive limitation of its previous approval.