Aggregation Appeal Denied

The 6th Circuit Court of Appeals rejected U.S. EPA’s appeal of the Court’s August 7th, 2012 aggregation decision (see previous ALL4 blog post here).  The August 7th decision invalidated U.S. EPA’s method of considering the functional relationship of operations as an overriding factor for determining whether emissions from facilities should be aggregated.  In the specific case, natural gas wells located miles away from an energy company’s primary sweetening plant were being considered “adjacent” and thus U.S. EPA contended that the emissions from the wells should be combined with the sweetening plant, making the source major for air permitting under New Source Review (NSR).  U.S. EPA argued in their appeal that sources would now face uncertainty and even more burdensome air permitting requirements.  Given this ruling, some sources may face a degree of uncertainty.  However, the functional relatedness criteria always was a little difficult to interpret, and as for more burdensome air permitting requirements, the scenario presented by U.S. EPA is a low probability occurrence and furthermore nothing in the ruling precludes a facility from voluntarily aggregating sources should there be a strategic advantage to doing so.  Since there are no conflicting decisions involving the aggregation issue from other Circuit Courts, there is minimal likelihood that U.S. EPA would be successful appealing this decision to the Supreme Court.