Aggregation?: Only If Industry Asks For It.
August 28, 2012 - For over a year now environmentalists across Pennsylvania have been arguing that interdependence is an important consideration when determining whether two air pollution sources should be considered one facility for permitting purposes. PA DEP has failed to include that analysis and has instead maintained that the distance between two sources is the determininative factor when deciding whether to aggregate two sources.
Aggregation is an important concept in permitting air emissions. A source is regulated more leniently or more strictly depending on how much pollution it emits. A prerequisite to determining how much the facility emits is defining what the facility is. Under the Clean Air Act sources will be aggregated and determined to be one source if they are commonly controlled, part of the same industry and are contiguous (touching) or adjacent (close).
The argument between states, environmentalists, industry and EPA is over the analysis required to determine whether two sources are adjacent or close. Industry and Pennsylvania contend that it is merely about distance while environmentalists have argued that you must look at context in order to determine closeness. Your friend 30 feet away may be close for purposes of throwing them a football but they are not close if you want to high five them. Therefore environmentalists and EPA argue that you must look at the purposes of these multiple sources and whether they are interconnected, interdependent or support one another along with distance.
This analysis is particularly important in the context of natural gas operations because the sources are an interconnected web of wells, pipelines, compressor stations and processing plants that wind their way across the state. For example, a source is a major source of air pollution if it emits 100 tons per year of nitrogen oxide. There are cases where there are 10 compressor stations within 10 miles which each emit 80-99 tons per year of NOx but are each regulated as minor sources of air pollution by the Pennsylvania Department of Environmental Protection (PA DEP) and thus subject to less stringent pollution controls.
However, in an odd turn of events, PA DEP reversed course on July 26, 2012 at the request of Sunoco. Sunoco owns two refineries, one in Philadelphia and one in Marcus Hook. If they are considered one facility they can get credit for some emissions reductions taken at the Marcus Hook refinery and apply it to reductions required of the Philadelphia refinery. Sunoco submitted an application to PA DEP requesting that they find that these two refineries be aggregated as one source. PA DEP found that the refineries were not proximate to one another because they are 17 miles apart but despite physical distance they are interdependent and functionally interrelated and therefore should be aggregated as one source.
On February 16, 2012 the Clean Air Council submitted a petition to EPA requesting that they find that PA DEP is failing to properly implement the Clean Air Act because they are not aggregating sources of air pollution in the Marcellus Shale correctly. Today the Council supplemented the petition attaching the memo outlining the Sunoco decision and pointing to the arbitrariness of PA DEP's application of the Clean Air Act. When it benefits industry PA DEP aggregates, when it doesn't, they don't. The Council will seek judicial review in thirty days if EPA fails to respond to their petition.
|Sunoco Review Memo||91.43 KB|
|Aggregation Petition Supplement.pdf||1.96 MB|
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