5/11/2023 0 Comments Vexing notion definition![]() The guidance explicitly repudiates EPA’s prior positions that adjacency can include sites that are merely “nearby,” so long as the pollutant emitting activities are functionally interrelated. EPA states this is a return to its initial position when the PSD rules were developed in 1980. ![]() Circuit Court of Appeals decades ago called the “common-sense notion of a plant.” Alabama Power Co. Instead, it explains that properties should comport with what the D.C. The guidance does not establish a bright-line test or a fixed distance that can be used to evaluate adjacency. In this new guidance, which applies to all sources except those in the oil and gas sector that are subject to separate guidance specific to that industry, EPA clarifies that “adjacent” is based solely on physical proximity. On November 26, 2019, Anne Idsal, Acting Assistant Administrator for EPA’s Office of Air and Radiation, issued new guidance explaining that EPA will now determine if different emission-generating activities are on “adjacent” properties solely by looking at their physical proximity to each other. For entities with multiple sites of operation, this can add significant complexity, uncertainty, and cost. The more expansive the term “adjacent” is, the more likely sources will be aggregated and therefore the more likely that air permitting will be required or that air pollution controls will be required. ![]() Court of Appeals for the Sixth Circuit ruled against EPA. The agency’s most recent prior interpretation of “adjacent” included an evaluation of functional interrelatedness and concluded that properties located miles apart were “adjacent.” This interpretation was controversial among regulated sources and prompted litigation in which the U.S. ![]() But the term “adjacent” has been subject to numerous agency interpretations over time. Are under the control of the same person (or persons under common control).ĮPA’s Title V permitting rules contain a similar definition for what constitutes a “major source.”įor two or more activities to be considered a single source, the second prong of this test requires the activities to be located on “one or more contiguous or adjacent properties.” The term contiguous has consistently been interpreted to mean properties that are touching each other.Are located on one or more contiguous or adjacent properties.Belong to the same industrial grouping.EPA’s NSR permitting regulations defines a stationary source as being comprised of all of the pollutant-emitting activities which: After years of uncertainty, EPA recently issued a guidance document to return to its 1980 position that “adjacent” means physical proximity, not functional interrelatedness or other relationship criteria.ĮPA has long used a three-part “source determination” test to determine if different emission-generating activities should be aggregated together into a single “stationary source” under the Clean Air Act for Title V and New Source Review (NSR) purposes. Yet for many years, one of the most vexing questions has been how to determine which air emission sources located near each other and under common ownership or control need to be aggregated into a ‘single source’ when determining if air permitting thresholds are met. The definition of a “source” is the foundation of air permitting.
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