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NSR Issues for Reform: Source Aggregation

The very first step in determining NSR applicability is to define what constitutes the “stationary source.” When determining which pollutant-emitting activities should be considered part of the same “major source” under the Title V operating permit program, and/or part of the same “stationary source” under the New Source Review (NSR) program, permitting authorities assess three factors-same industrial grouping, location on contiguous or adjacent property, and common control-on a case-by-case basis. In the original promulgation of these three factors in the NSR program regulations, EPA was mindful of a decision from the D.C. Circuit Court holding that the “source” for NSR permitting purposes should comport with the “common sense notion of a plant.” (45 Fed. Reg. 52676, 52694, Aug. 7, 1980, (citing Alabama Power Co. v. Costle, 636 F.2d 323, D.C. Cir. 1979). The determination of stationary source was further complicated by adding the “support facility” test in determining what constitutes the stationary source.

EPA and courts have added more clarity and guidance over the past 3 years. Most recently, EPA released detailed guidance on this subject in the 2018 Meadowbrook letter which addressed the “common control” factor in the definition of stationary source. The 2012 Summit Petroleum case focused on the “contiguous or adjacent property” element. The concept of “same industrial grouping” (SIC code) has been covered in various EPA letters/memos that address the “support activity” vagaries. Our presenters examine the three part criteria including how the Summit Petroleum case and 2018 Meadowbrook affect future determinations of stationary sources. Topics include:

  • Defining contiguous or adjacent post-2012 Summit Petroleum Case
  • Considerations related to contractual relationships between operators
  • Implications of the 2018 EPA Meadowbrook memo



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