Ajax Materials Corporation (Board decision, January 10, 2022)

Plain-English summary

Melvin Jones challenged Michigan's approval of a Permit to Install for Ajax Materials Corporation's facility in Flint, Michigan. The permit authorized Ajax to install and operate emission units and was issued under Michigan law as a minor-source New Source Review permit. The Environmental Appeals Board acknowledged the environmental and environmental-justice concerns raised in the submissions, but held that neither the petitioner nor the Board had identified a regulation giving the Board authority to review this state permitting decision. The Board dismissed the petition for lack of jurisdiction.

Decision snapshot

• Cited authorities: 40 C.F.R. §§ 49.151-.161
• Outcome: The petition for review was dismissed for lack of jurisdiction.
• Key point: The Board cannot review a state minor-source permit decision without regulatory authority granting it jurisdiction.

Full text (EPA EAB public release)

572 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

         IN RE AJAX MATERIALS CORPORATION

                          CAA Appeal No. 21-04

ORDER DISMISSING PETITION FOR REVIEW FOR LACK OF
JURISDICTION

                         Decided January 10, 2022



                                     Syllabus

     Mr. Melvin Jones Jr. filed a petition for review with the Environmental Appeals

Board (“Board”), followed by a number of other submissions, challenging the Michigan Department of Environment, Great Lakes, and Energy, Air Quality Division’s approval of a “Permit to Install” issued to Ajax Materials Corporation (“Ajax”), which authorizes Ajax to install and operate emission units at its facility located in Flint, Michigan. The permit states that it was issued in accordance with and subject to provisions of Michigan law. This Permit to Install is a type of New Source Review permit for a minor source, and the U.S. Environmental Protection Agency has approved Michigan’s Permit to Install regulations as part of Michigan’s Clean Air Act State Implementation Plan.

    Held: The Board dismisses the petition for review for lack of jurisdiction. The

Board’s authority to review permitting decisions is circumscribed by its governing regulations. Mr. Jones has failed to identify, and the Board has not identified, any regulation providing the Board authority to review the Michigan permitting decision that Mr. Jones challenges.

  Before Environmental Appeals Judges Aaron P. Avila, Mary Kay Lynch,

and Kathie A. Stein.

    Opinion of the Board by Judge Avila:

  Mr. Melvin Jones Jr. filed a petition for review with the Environmental

Appeals Board (“Board”) on December 21, 2021, followed by a number of other submissions, challenging a permit issued by the Michigan Department of

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                     AJAX MATERIALS CORPORATION                               573

Environment, Great Lakes, and Energy (“Michigan Department of Environment”). 1 More specifically, on November 15, 2021 the Michigan Department of Environment, Air Quality Division approved a “Permit to Install” (No. 90-21) to Ajax Materials Corporation (“Ajax”). Mich. Dep’t of Env’t, Great Lakes, & Energy, Permit to Install No. 90-21 (Nov. 15, 2021). The permit authorizes Ajax to install and operate emission units at its facility located in Flint, Michigan. The permit states that it was “issued in accordance with and subject to Section 5505(1) of Article II, Chapter I, Part 55, Air Pollution Control, of the Natural Resources and Environmental Protection Act, 1994 PA 451, as amended.” Id. at cover page. This Permit to Install is a type of New Source Review (“NSR”) permit for a minor source. See Mich. Dep’t of Env’t, Great Lakes, & Energy, Response to Comments Document, Ajax Materials Corp., Permit Application No. APP-2021-0019, at 58 (Nov. 15, 2021), available at https://content.govdelivery.com/attachments/ MIDEQ/2021/11/15/file_attachments/1995972/90-21RTC.pdf. The U.S. Environmental Protection Agency (“EPA”) has approved Michigan’s Permit to Install regulations as part of Michigan’s Clean Air Act State Implementation Plan. See generally Air Plan Approval; Michigan; Minor New Source Review, 83 Fed. Reg. 44,485 (Aug. 31, 2018); Air Plan Approval; Michigan; Permit to Install Public Hearing Provisions, 84 Fed. Reg. 25,180 (May 31, 2019).

    The Board acknowledges the concerns expressed by Mr. Jones about the

environment and environmental justice in his submissions to the Board. The Board’s authority to review permitting decisions is, however, circumscribed by its governing regulations. Mr. Jones’s petition for review and other submissions do not identify authority for the Board to review the Michigan Department of Environment’s decision to issue this Permit to Install to Ajax. And the Board has identified no regulation providing any authority for the Board to review the permitting decision challenged by Mr. Jones. See In re DPL Energy Montpelier Elec. Generating Station, 9 E.A.D. 695, 699 (EAB 2001) (reviewing sources of Board’s authority to review permit decisions and concluding that “[n]one * * * confers jurisdiction on the Board for the sole purpose of reviewing permits issued under an approved minor source NSR program of any State.”). To the contrary, the regulations providing for Board review in the context of minor sources are directed to review of permit decisions issued under the Federal Minor New Source Review

   1
      Mr. Jones’s submissions to the Board contained self-identifying medical

information and they have not been posted to the public docket in this matter.

574 ENVIRONMENTAL ADMINISTRATIVE DECISIONS

Program in Indian Country. See 40 C.F.R. §§ 49.151-.161. We also note that Michigan’s Natural Resources and Environmental Protection Act provides:

    Any person may appeal the issuance or denial by the department of
    a permit to install * * * for a new source in accordance with section
    631 of the revised judicature act of 1961, 1961 PA 236, MCL
    600.631. Petitions for review shall be the exclusive means to obtain
    judicial review of such a permit and shall be filed within 90 days
    after the final permit action * * *.

Mich. Comp. Laws Ann. § 342.5505(8) (West 2021).

    Accordingly, the Board dismisses the petition for review for lack of

jurisdiction. 2

    So ordered.




    2
      To the extent Mr. Jones raises complaints or has documents related to

Title VI of the Civil Rights Act of 1964, those complaints and documents should be directed to EPA’s External Civil Rights Compliance Office, not the Board.

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