When the Title V permitting program was created it was sold as a way to simplify complex air permitting. U.S. EPA said that it would allow large facilities to aggregate all their air pollution sources under one permit. EPA indicated this would make it easier for businesses to track their requirements.
What emerged from this "simplified" permitting process was, in fact, permits that were hundreds of pages along. In addition, new reporting requirements were added onto businesses. Also, businesses were required to submit an annual certification of compliance which had to be attested to by a responsible official with the company.
The cumbersome nature of the Tittle V permitting process coupled with the new regulatory requirements created a significant incentive for businesses to avoid Title V permitting. Under Title V, every "major source" of air pollution is required to obtain a Title V permit. EPA defines "major source" as any facility that is a source of air pollutants that "directly emits, or has the potential to emit, one hundred tons per year of any pollutant." See, 42 U.S.C. Section 7602(j).
The most common way to avoid Title V for facilities that have a potential emit above 100 tons per year (tpy) is by placing enforceable restrictions (through permitting) that cap emissions below the trigger threshold of 100 tpy. These permits are referred to as "synthetic minor" permits. Facilities that cannot reduce actual emissions below 100 tpy can’t use this method to avoid Title V.
What happens when two air sources, owned by the same company, exceed 100 tpy?
EPA will evaluate whether the sources should be treated as a single source for Title V purposes. EPA’s guidance in this area is not straightforward and has led to creative interpretations aggregating sources together.
What Constitutes a "Single Facility" for Purposes of Title V Permitting
Under EPA rules, multiple pollutant-emitting activities can be aggregated together and considered a single source for purposes of determining whether the 100 tpy threshold for Title V permitting has been exceeded. Under EPA rules, a single stationary source for Title V purposes must satisfy all of the following factors: (1) the sources are under common control; (2) they are located on one or more contiguous or adjacent properties; and (3) belong to the same industrial grouping. 40 C.F.R. Section 71.2.1
In guidance issued by EPA, the Agency stated that single stationary source determinations should be made on a case-by-case basis and that "in some cases, ‘proximity’ may serve as the overwhelming factor." See, Memorandum from Gina McCarthy, Assistant Adm’r, to Reg’l Admr’s Regions I-X (Sept. 22, 2009).
EPA Finds Summit’s Production Plant and Wells One Facility for Purposes of Title V
While EPA guidance says proximity should be the key factor, EPA appears to not always follow its own guidance. Such was the case in its determination with regard to Summit Petroleum Company ("Summit").
EPA found that Summit’s natural gas sweetening plant and the associated production wells were one facility for purposes of Title V. Summit’s plant “sweetens” the “sour” gas from approximately one hundred sour gas production wells by removing hydrogen sulfide so that the gas can be used. Summit owns all of the production wells and the subsurface pipelines that connect each of the wells to the sweetening plant. The wells themselves 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
EPA said that Summit’s plant, wells and flares worked together as a single unit that "together produced a single product." EPA said Summit could not produce any evidence that the plant and wells were not "truly interdependent." EPA concluded that given the functional interrelationship, Summit’s plant and wells should not be considered separate emissions sources.
Summit challenged the EPA interpretation arguing that EPA’s interpretation ignored the plain language in the regulations that calls for sources to be "adjacent." The Sixth Circuit Court, in a 2-1 decision, agreed with Summit after reviewing the regulatory history and EPA guidance. The Court said EPA may not ignore the term "adjacent’ when making determinations as to whether to aggregate related sources. The Court found that the wells distance from the plant – from five hundred feet to eight miles- meant the source were not "adjacent’ for purposes of treating them as a single source under Title V. See, Summit v. EPA, Nos. 09-4348; 10-4572 (6th Cir. Aug. 7, 2012).
The Sixth Circuit decision goes a long way in reducing the reach of EPA in trying to aggregate separate emission sources for purposes of Title V. Based upon the ruling, a company with operations in different locations that are related to one another may be able to still avoid Title V permitting so long as there is some geographic separation between the sources.