EPA tells federal court that dictionaries are 'incomplete'

Michael P. Tremoglie Aug. 14, 2012, 2:14pm

CINCINNATI, Ohio (Legal Newsline) -- Another Clean Air Act enforcement effort by the Environmental Protection Agency was rolled back by another federal court.

This time it was the U.S. Court of Appeals for the Sixth Circuit for the case Summit Petroleum Corporation v. United States Environmental Protection Agency.

The court, in a 2-1 decision issued Aug. 7, declared invalid an EPA ruling that Summit Petroleum Corp. facilities were a single stationary source under the EPA's Clean Air Act Title V permitting program. An EPA final action determined that a natural gas 'sweetening' plant and various 'sour' gas production wells commonly owned by SPC and "separately located within an area of approximately forty-three square miles constitute a single stationary source."

SPC is a provider of natural gas and owns and operates a natural gas
sweetening plant in Rosebush, Michigan. The plant "sweetens" - which means it removes the excess hydrogen sulfides from the natural that contains it - known as "sour" gas so it can be used.

SPC owns the wells and pipelines that connect each of the wells to the sweetening plant. The wells are located over an area of approximately forty-three square miles at varying distances from the plant-from five hundred feet to eight miles away.

According to court records, specifically at issue was EPA's conclusion that Summit's facilities satisfy the regulatory requirement of being "located on ... adjacent properties" because, although physically independent, they are "truly interrelated." SPC said that EPA's determination was unfair. The company, along with amici briefs provided by the American Petroleum Institute and American Exploration and Production Counsel, argued that the EPA's contention that physical requirement of "adjacency" can be established through mere functional relatedness is unreasonable and contrary to the plain meaning of the term "adjacent."

SPC said the term "adjacent," both generally and as it appears in the EPA's regulatory requirement that aggregated activities be "located on contiguous or adjacent properties," is unambiguous. The EPA disagreed stating that the term "adjacent" is unquestionably ambiguous because the EPA has never defined it.

The Court concurred with SPC. It concluded that both the dictionary definition and etymological history of the term "adjacent," as well as applicable case law, support Summit's position. It vacated the EPA's final determination and remanded the case back to the EPA "to determine whether Summit's sweetening plant and sour gas wells are sufficiently physically proximate to be considered "adjacent" within the ordinary, i.e., physical and geographical, meaning of that requirement."

One peculiar aspect to the case was that the EPA disputed dictionary definitions of the word "adjacent." It stated that "though they are not incorrect, dictionaries provide an incomplete definition of "adjacent," and that the functional interrelationship of two facilities must be considered because physical distance is meaningless without context."

Court said it consulted dictionaries to ascertain the meaning of "adjacent." It noted that courts have done this in the past. It asserted, "Our research satisfies us that dictionaries agree that two entities are adjacent when they are "[c]lose to; lying near ... [n]ext to, adjoining." American Heritage Dictionary of the English Language, available at www.ahdictionary.com. ..."

It also observed that the etymology of "adjacent" is contrary to the EPA's position. The Sixth Circuit also noted that "Several cases specifically address whether the term "adjacent" is ambiguous. While some courts conclude that "adjacent" is ambiguous in the limited sense of lacking an abstract definition, there is common recognition of the fact that adjacency is a purely physical and geographical, even if case-by-case, determination."

After reviewing all the possible sources for defining "adjacent" the court concluded that, "The EPA makes an impermissible and illogical stretch when it states that one must ask the purpose for which two activities exist in order to consider whether they are adjacent to one another."

The Court continued by asserting, "The EPA's interpretation of the term "adjacent," to which no deference is owed, runs contrary to its plain meaning. Having determined that the word "adjacent" is unambiguous, we apply no deference in our review of the EPA's interpretation of it. Instead, we must test the agency's interpretation against the plain meaning of its unambiguous regulation.

The Sixth Circuit Court concluded, "EPA has interpreted its own regulatory term in a manner unreasonably inconsistent with its plain meaning and vacate the EPA's stationary source determination hereby directing the EPA to reassess the aggregation of Summit's facilities under the ordinary understanding of its requirement that Summit's plant and wells be located on adjacent."

The fact that the EPA would seek to dispute the dictionary definition of a term has been found by some as bizarre.

"EPA's regulatory appetite is insatiable. If it requires twisting the plain meaning of words like "adjacent" to exert regulatory authority, the agency will claim "adjacent" doesn't mean what most of humanity has understood it to mean for centuries," said Robert Gordon of the Heritage Foundation. Mr. Gordon founded the National Wilderness Institute in 1989. It is a nonprofit conservation organization whose mission was to promote conservative environmental vision and policies.

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U.S. Environmental Protection Agency (EPA)
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