Air Permitting Update: EPA Ignores Summit Outside Sixth Circuit

By Lesley Foxhall Pietras

On December 21, 2012, the Environmental Protection Agency (EPA) issued a policy announcement addressing how it will deal with source aggregation following the Sixth Circuit’s decision in Summit Petroleum Corp. v. EPA, 690 F.3d 733 (6th Cir. Aug. 7, 2012). (Our previous blog entry on this decision is available here.) In Summit, the Sixth Circuit concluded that the term “adjacent” implies only physical proximity, and EPA’s consideration of functional interrelatedness to combine geographically distant facilities into a single source for air permitting purposes was unlawful. EPA sought panel rehearing of that decision, but its request was denied. Summit Petroleum v. EPA, 2012 U.S. App. LEXIS 23988 (6th Cir. Oct. 29, 2012).

In the recent policy announcement, EPA stated that, due to Summit, the agency “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 6th Circuit; i.e., Michigan, Ohio, Tennessee and Kentucky.” Memorandum from Stephen D. Page, Director, Office of Air Quality Planning and Standards, to Regional Air Division Directors, Regions 1-10, at 1 (Dec. 21, 2012), available here (PDF). EPA further declared, however, that it will continue to consider functional interrelatedness in areas outside of the Sixth Circuit. Id. (“Outside the 6th Circuit, at this time, the EPA does not intend to change its longstanding practice of considering interrelatedness in the EPA permitting actions in other jurisdictions.”).

Thus, although there was some hope that the Summit decision would restore adjacency to its plain meaning in all areas of the country, it appears that additional circuit courts will be required to weigh in before this administration adopts such a policy. In the meantime, industry likely will continue to point to Summit for persuasive authority for state or local permitting authorities.

EPA concluded the policy announcement by noting that it “is assessing what additional actions may be necessary to respond” to the Summit decision. Id. EPA therefore is likely still considering whether to file a petition for certiorari with the U.S. Supreme Court. 

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