On June 2, the Commonwealth Court weighed in on the long-simmering national debate surrounding questions of when two or more facilities must be regulated as a single source under the federal Clean Air Act (CAA) and state air pollution control statutes. The U.S. Environmental Protection Agency and state agencies have sought to aggregate facilities where certain factors support a finding that the facilities are operationally related, and especially where the level of emissions from the combined source would trigger heightened regulatory or permitting requirements. National Fuel Gas Midstream v. Pennsylvania Department of Environmental Protection, No. 116 CD 2016 (June 2, 2017), provides some clarity about the meaning of the term “common control,” one of the three factors for determining if facilities should be aggregated for air permitting purposes. The decision finds that regulated facilities should not be combined as a single source merely because they are each owned by a separate subsidiary of a shared corporate parent.
Significance of Source Aggregation
Under the CAA, “major” stationary sources of air pollution are required to obtain Title V permits, which impose monitoring, recordkeeping and reporting requirements to ensure compliance with applicable air pollution control requirements. Major sources may also be subject to more stringent requirements under the EPA’s New Source Review program and would typically not be eligible to operate under general permits published by state air pollution control agencies.
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