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A number of industry trade associations (“Associations”) submitted collective October 5th comments on the United States Environmental Protection Agency’s (“EPA”) draft guidance titled:
Interpreting ‘Adjacent’ for New Source Review and title V Source Determinations in All Industries Other Than Oil and Gas
The Associations submitting the comments included:
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American Chemistry Council
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American Coke and Coal Chemicals Institute
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American Forest & Paper Association
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American Fuel & Petrochemical Manufacturers
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American Petroleum Institute
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Council of Industrial Boiler Owners
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National Mining Association
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Portland Cement Association
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The Fertilizer Institute
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Tile Council of North America
The draft guidance relates to a key Clean Air Act issue.
This issue involves a determination as to when operations in the vicinity of each other should be aggregated for Clean Air Act purposes. This can be a critical determination since sources falling within the scope of the phrase “located on adjacent properties” may be “aggregated” for purposes of determining whether a Clean Air Act Title V or New Source Review determination must be obtained.
By way of summary, the Associations recommend when the draft EPA guidance is finalized that it:
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Address the entirety of the phrase “contiguous and adjacent properties,” rather than just the component term “adjacent”;
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Recognize that EPA’s interpretation applies for purposes of Section 112 Maximum Achievable Control Technology (MACT) stationary source determinations;
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Use the term “pollutant-emitting activities,” rather than “operations”;
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Focus on proximate “properties,” not “operations”;
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Consider using distance ranges as parameters for explaining the level of rationale needed to aggregate properties;
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Recognize that “contiguous and adjacent properties” unambiguously refers to proximity and that states have no discretion to interpret such language differently in their approved State Implementation Plans (“SIPs”).
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Encourage permitting authorities to provide stationary sources with fair notice and reasonable time periods to comply when they disagree with a stationary source’s determination; and,
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Recognize that reliance interests support leaving existing stationary source determinations undisturbed unless an owner or operator requests that the permitting authority re-evaluate a prior decision.
A copy of the October 5th comments can be found here.
