The National Environmental Development Association’s Clean Air Project (NEDA/CAP) recently filed suit against U.S. EPA claiming the Agency’s memorandum regarding the applicability of the Sixth Circuit’s decision in Summit Petroleum Corp. v. U.S. EPA, violates the Clean Air Act (CAA). In Summit,the United States Court of Appeals for the Sixth Circuit held that U.S. EPA cannot satisfy the “adjacency” prong of its aggregation analysis through a mere finding of “functional relatedness.” Aggregation is a regulatory scheme by which separate sources are treated as a single source when calculating total emissions to determine whether a source is a “major source” and, thus, subject to additional permitting requirements. (See our coverage of another aggregation issue here).
U.S. EPA’s memorandum notified the Agency’s 10 Regional Air Division Directors that the impetus of the Summit decision would only be applicable in permitting decisions in states under the jurisdiction of the Sixth Circuit – Michigan, Ohio, Kentucky, and Tennessee. In its lawsuit, NEDA/CAP, a trade association representing energy producers and manufacturers, asserts U.S. EPA’s memorandum creates uncertainty for facility operators and an unfair regional split. The group claims that this split violates CAA § 301(a)(2) which requires U.S. EPA to “assure fair and uniform application by all EPA Regional Offices of the criteria, procedures, and policies applied by the various regions.”