Aggregation of Air Emissions - 

What Does Adjacency Really Mean

YVONNE E. HENNESSEY, ESQ.

AWMA OIL & GAS ENVIRONMENTAL COMPLIANCE CONFERENCE

APPALACHIAN BASIN 

MAY 14, 2014
Presentation Overview

I. Definition of “Major Source”

II. Regulatory History of “Adjacency”

III. The Summit decision

IV. How States in the Appalachian Basin are Addressing 

Aggregation

a. Pennsylvania

b. West Virginia 

c. New York

V. Conclusion: Current State of the Law
I. “Major Source”

“any building, structure, facility, or 

installation which emits or may emit a 

regulated NSR pollutant”
“Major Source”

• CAA regulations define a “Major Source” as any 

stationary facility or source of air pollutants that 

directly emits, or has the potential to emit, 100 

tpy of any air pollutant.

• Nitrogen Oxides (NOX)

• Carbon Monoxide (CO)

• Particulate Matter (PM)

• Sulfur Dioxide (SO2)

• Lead (Pb)

• Ozone (O3) and precursors (e.g., VOCs)
“Major Source”

• PSD, NSR, and Title V regulations apply to certain 

sources with the potential to emit pollutants in 

excess of the “major” source thresholds. 

• To assess applicability, permitting authorities 

evaluate whether emissions from two or more 

pollutant-emitting activities should be aggregated 

into a single “major” stationary source.
“Major Source”

• The evaluation begins with the federal definition of 

“stationary source.” 40 CFR 52.21(b)(5) 

• Pennsylvania: a “major emissions unit” is based on the 

thresholds of a “major facility,” as defined in 25 Pa. Code §121.1, 

which are similar to the federal definition.

• New York: similar definition for major source exists at 6 NYCRR 

201-2.1(b)(21). 

• West Virginia: defines a major stationary source under 45 CSR 

14-2.43a, similar to federal definition.

• A stationary/major source is...

“any building, structure, facility, or installation which 

emits or may emit a regulated NSR pollutant.”
“Major Source”

“Building, structure, facility, or installation” is 

defined, in turn, as: 

“all of the pollutant-emitting

activities which belong to the same

industrial grouping, are located on

one or more contiguous or

adjacent properties, and are under

the control of the same person (or

persons under common control)

except the activities of any vessel.”

40 CFR 52.21(b)(6); 

40 CFR 51.166(b)(6)
Aggregation Factors

• To determine if separate emission points belong to the same 

“building, structure, facility, or installation” (i.e. whether 

aggregation is required), permitting authorities generally rely 

on the following three criteria:

1. Whether the activities belong to the same industrial grouping 

(SIC Code);

2. Whether the activities are located on one or more contiguous or 

adjacent properties; and

3. Whether the activities are under common control.

• No statutory or regulatory definition of “adjacent” exists at 

either the state or federal level.
“Adjacent”

• The key issue:

– What does it mean to be adjacent?

• Should adjacency be determined based on geographic 

proximity alone, or, 

• Should a strict functional relationship or operational 

interdependence test apply to determine whether sources 

should be considered “adjacent,” or

• Is there a middle ground?

– functional relationship or operational interdependence of 

the sources a factor to be analyzed in order to give context to 

geographic proximity
II. The Regulatory History of 

“Adjacency”

“Common sense notion of a plant”

-Alabama Power Co. v. Costle
Alabama Power v. Costle

636 F.2d 323 (D.C. Cir. 1979)

• 1979 Federal Circuit decision.

• Litigation concerned challenges to the EPA’s final regulations 

implementing the 1977 CAA Amendments.

• Court found that the EPA’s definition of “stationary source” 

must not be broader than the CAA.

• The definition can be broad enough to cover an entire plant.

• Must be in accordance with the “common sense notion of a plant.”

• USEPA must avoid aggregating sources that would not fit into the 

ordinary meaning of “building,” “structure,” “facility,” or “installation.” 

• Directed USEPA to:

– develop regulatory definition using considerations such as proximity and 

ownership

– make rules predictable.
1980 PSD rules

• USEPA confirmed that it does not intend a single source 

to encompass activities that would be many miles apart 

along a long line operation.

• e.g., USEPA would not treat all of the pumping stations along a 

multistate pipeline as one source. 

• Declined to add a specific “functionality” criteria to the 

definition of source because of belief that “assessments 

of functional interrelationships would be highly 

subjective” and “embroil[ ] the Agency in fine-grained 

analysis.”

• USEPA wanted to avoid a highly subjective test. BUT...
1980 PSD Rules

• USEPA unable to say precisely how far apart 

activities must be in order to be treated separately. 

• No bright line distance test established to determine 

adjacency.

• USEPA opted for case-by-case determinations.
Adjacency: 

Beyond Geographic Proximity

• Early on, the USEPA rejected the idea of looking beyond 

geographic proximity to define adjacency.

• Despite this, USEPA determinations over the years and with 

changes in leadership began aggregating sources that were 

miles away and considered them a single source for air 

permitting and regulatory purposes.

• During the 1990s, USEPA began giving more weight to the 

functional interrelatedness of operations than to the 

physical separation of facilities in making single source 

determinations.

– Notably – no change in regulations during this time. Pattern 

emerged in individual letter determinations.
The Wehrum Memo

USEPA’s 2007 guidance memo on “Source 

Determinations for Oil and Gas Industries”

• Purpose was to provide guidance to assist permitting 

authorities in making major stationary source 

determinations for the oil and gas industry.

• Looked to Alabama Power for boundaries on 

USEPA’s discretion to interpret the component terms 

of “stationary source.”

• Recognized that source determinations within the oil 

and gas industries are not always straightforward. 

• Sought to simplify the analysis.
The Wehrum Memo

• Found that “[g]iven the diverse nature of the oil and gas 

activities, ... proximity is the most informative factor in making 

source determinations for the oil and gas industries.”

• Stated that interconnected sources could be considered 

separate minor sources for NSR and Title V purposes if the 

sites were located more than a quarter mile from each other.

• “adjacent” = 1⁄4 mile

• Made geographic proximity, and not interrelatedness, the 

determining factor:

“Unless unique factors (such as proximity or interdependence) indicate 

otherwise, permitting authorities can consider oil and gas exploration and 

production activity located on a single surface site to be an individual 

stationary source.”
The McCarthy Memo

• In 2009, Gina McCarthy, the Assistant Administrator 

for USEPA’s office of Air and Radiation, issued the 

Withdrawal of Source Determinations for Oil and 

Gas Industries

• Withdrew the Wehrum Memo:

“The [Wehrum] memorandum did not mandate application of a 

particular approach but instead was a non-binding policy statement 

that set forth a possible methodology for making source 

determinations in these industries.”
The McCarthy Memo

• Rejected prior memo’s emphasis on proximity:

• “I find individual facts warrant a closer examination of all three criteria 

identified in those regulations to arrive at a reasoned decision, and 

therefore, the simplified approach provided in the [Wehrum] 

memorandum should not be relied on by permitting authorities as a 

sufficient endpoint in the decision-making process.”

• Stated that aggregation determinations must be made on a 

case-by-case basis analyzing the 3 regulatory criteria.

• Indicated that activities located more than a short distance 

away could be aggregated and considered a single source if 

the specific facts warranted such a conclusion.

• Uses interrelatedness as a means of determining adjacency. 
III. Summit Petroleum 

Corporation v. EPA (2012)

“Whether the distance between two facilities 

enables a given relationship to exists between 

them is immaterial to the concept of adjacency”
Summit

• Summit is a natural gas producer that owns and operates a 

sweetening plant. It also operates all of the wells and 

pipelines that connect the wells to the sweetening plant.

• The plant sweetens gas from approximately 100 production 

wells.

• Wells located over 43 square miles, located from 500 feet to 8 

miles from the sweetening plant.

• None of the wells share a common boundary with each other 

or the plant (not contiguous), and Summit does not own the 

intervening property.

• Alone, the plant does not exceed “Major” source thresholds, 

but would exceed them if it were aggregated with one or more 

of the wells.
Location of Sweetening Plant, 

Pipeline, and Well Fields

1 Sq. Mile

(approx)
Summit

• USEPA made a determination based on a request from Summit 

Petroleum and the Michigan Department of Environmental Quality 

that a sweetening plant and some wells should be aggregated 

because they were “truly interrelated” and, therefore, adjacent.

– USEPA concludes that the plant, well site and flares were “adjacent” 

because of the interdependent nature of the activities.

• USEPA relied on the McCarthy Memo to support its determination 

that facilities were adjacent despite the lack of physical proximity.

• Summit appealed the USEPA’s decision and challenged the use of 

functional relatedness. 
Summit

• The Sixth Circuit ruled that the USEPA could not base adjacency on 

anything but geographical proximity. 690 F.3d 733 (6th Cir. 2012)

• The Court considered the dictionary definition and plain meaning of 

“adjacent” and determined that:

• “adjacent” is unambiguous;

• it requires proximity;

• case law supports the idea that adjacency relates only to physical 

proximity; 

• USEPA’s functional interrelatedness test was unreasonable; and 

• USEPA’s own regulatory history does not support the use of a 

relatedness test
Summit

• The Court looked to API’s arguments and agreed that the USEPA’s 

test was particularly ill-suited for the oil and gas industry ... 

operations do not comport with the common sense notion of a plant.

– Also agreed that the “common sense notion of a plant” directive was 

meant to constrain, not enlarge, the USEPA’s definition of a single 

stationary source.

• The court remanded back to the USEPA.

• Ordered USEPA to make its determination based on the requirement 

that the activities be aggregated only if they are located on 

physically contiguous or adjacent properties.

• Court did not determine how geographically close is sufficient for 

facilities to be considered a single source.

• One judge dissented.
Summit

“We are particularly struck by API’s final observation—that the EPA’s source 

determination in this case is an ironic showcase of the very fears that 

caused the agency not to adopt a functional relatedness test for source 

determinations in the first instance. From Summit and MDEQ’s joint source 

determination request in January 2005 to the final iteration of the EPA’s 

decision, nearly five years passed. The parties engaged in at least twentyfive conference calls and exchanged “a small mountain of paper” within this 

period. Certainly, the cost for Summit to produce the data and schematics 

requested by the EPA, and the cost for the EPA to distill and understand the 

same, were high in terms of both monetary and capital resources. As API 

points out, this process produced exactly the “fine-grained” and 

administratively burdensome result the EPA sought to avoid in its drafting of 

its Title V stationary source test, see 45 Fed. Reg. at 52,695, and is strong 

evidence that the EPA’s interpretation of its own regulation was 

unreasonable.”
USEPA’s Response to Summit

• USEPA sought rehearing of Summit Decision, which was 

denied by the Court on October 29, 2012.

• On December 21, 2012, the USEPA issued the Applicability of 

the Summit Decision to USEPA Title V and NSR Source 

Determination memo.

• Policy of Non-Acquiescence: 

• The memo states that, in jurisdictions outside of the Sixth Circuit, the 

USEPA will not follow the Summit Decision.

• In these jurisdictions (e.g., PA, WV, NY), the USEPA will continue to look at 

the interrelatedness of sources to determine whether they should be 

aggregated. 

• The 6th Circuit includes: Ohio, Kentucky, Tennessee, and 

Michigan. 
IV. How States in the 

Appalachian Basin are 

Addressing Aggregation

Pennsylvania

West Virginia

New York
PA Guidance

• PADEP “Guidance For Performing Single Stationary 

Source Determination For Oil And Gas Industries”

• Effective October 6, 2012. 

• Press release when issued:

• “The court’s opinion in Summit Petroleum v. EPA, which dealt with the 

aggregation of separate natural gas facilities in Michigan, made very clear 

that Pennsylvania’s approach is the correct interpretation and application of 

the law.” 

• “We in Pennsylvania have a lengthy and successful history of regulating the 

oil and gas industry, and we are ensuring that this state and this country 

realize the full promise of abundant, domestic, cheap, clean-burning natural 

gas extracted and brought to market in an environmentally sensitive 

manner.”
PA Guidance

• Makes geographical proximity the key factor in 

source determinations.

• “the plain meaning of the terms ‘contiguous’ and ‘adjacent’ should 

be the dispositive factor” when determining whether stationary 

sources are located on contiguous or adjacent properties.

• “contiguous” – sharing an edge or boundary; touching; neighboring, 

adjacent, connecting without a break.

• “Adjacent” – close to; lying near, next to; adjoining.
PA Guidance

• If sources are less than 1⁄4 mile away, they are presumed to be a 

single source (if they meet two other regulatory criteria).

• Single source determinations for properties located beyond this 

quarter-mile range will be considered on a case-by-case basis. 

• “The application of the quartermile ‘rule of thumb’ takes the 

‘common sense approach’ to aggregation issues and does not 

aggregate pollutant-emitting activities that, as a group, would not fit 

within the ordinary meaning of a ‘structure, building, facility or 

installation.’”

• USEPA Region III provided negative comments on PADEP’s 

Guidance.
Laurel Mtn. Midstream

• Group Against Smog and Pollution (“GASP”) v. 

PADEP / Laurel Mtn. Midstream (EHB 2011-065)

– In May 2011, GASP challenged PADEP’s finding that 

the Shamrock Compressor Station emissions should 

not be aggregated with well pad emissions.

• Neither Laurel Mtn. nor its parent company owned or 

controlled the wells (common control prong not met)

– GASP withdrew its appeal in April 2013 citing 

“Appellant has determined that further pursuing this 

appeal would no longer be productive.”
MarkWest

Clean Air Council v. Commonwealth of Pennsylvania 

Department of Environmental Protection, EHB Docket 

No. 2011-072-R.

• PADEP determined that a processing plant and 

several compressor stations (located between 1.6 

and 11 miles from the plant) were not a single source 

and declined to aggregate.

• CAC appealed PADEP’s decision, arguing that 

emissions from the compressor stations and the 

processing plant should be aggregated.
Location of MarkWest Houston Gas Processing Plant 

Relative to Compressor Stations
MarkWest

• MarkWest filed a motion to preclude evidence aimed at showing a 

functional relationship between MarkWest’s gas processing plant 

and compressor stations. 

• The question was whether MarkWest’s facilities could be considered 

“adjacent” based on their functional relationship to one another, or 

whether the inquiry is limited to geographical proximity.

• The EHB concluded that:

• evidence of the functional relationship of MarkWest’s facilities could be 

presented by CAC, and 

• the EHB would determine at trial how much weight the functional 

relationship should be given in determining whether the compressor 

stations and the plant are “adjacent.” 
MarkWest

• In September 2013, CAC and MarkWest settled, and the 

EHB case closed.

• CAC agreed not to appeal a plan or permit associated with 

the facility or the compressor stations.

• MarkWest agreed not to appeal any prior determinations of 

the EHB.

• PADEP and CAC also entered into a separate 

settlement, wherein PADEP has agreed to make 

aggregation decisions more transparent.
PennFuture v. Ultra Resources

• Federal court case pending in U.S. District Court, M.D. Pa

• PADEP not a party.

• Background

– Ultra Resources currently operates natural gas wells on 13 producing well pads with 8 

compressor stations, connected by gathering lines in Potter and Tioga Counties.

– Gas is piped to a Metering and Regulation Station before it enters the Dominion 

interstate transmission pipeline.

– Between 2009 and 2011, PADEP approved the construction and operation of each 

compressor station and associated equipment under various General Permits

• Four compressor stations were operational in 2010; the remaining four operational in 2011.

– In authorizing each facility under GP-5, PADEP made the decision that each was a 

separate NOx emitting facility.

– PennFuture did not appeal any of the permit approvals to the EHB.

PennFuture v. Ultra Resources

• July 2011 - PennFuture filed a Citizen Suit under Section 304 of the 

Clean Air Act against Ultra Resources.

– Alleges violations of the CAA, the PA SIP, and the PA Nonattainment 

New Source Review (“NSR”) regulations for failure to obtain an NSR 

permit to construct the compressor stations.

– Contends that Ultra Resources’ network of wells, pipelines, and 

compressor stations in its Marshlands Play (over 558 sq. miles) are a 

single NOx emitting source for air permitting purposes.

– Argues that activities which occur several miles apart may be deemed 

“contiguous or adjacent” if they are operationally interdependent (relying 

on USEPA letter to John Slade, PADEP, dated Jan. 15, 1999).

– Therefore, PennFuture asserts that NOx emissions from each 

compressor station should have been aggregated such that an NSR 

permit was required. 
PennFuture v. Ultra Resources

• Sept. 2011 – 2012 Court considers Ultra Resoruces’ Motion to Dismiss for 

lack of subject matter jurisdiction and for the court to abstain. 

– Court denies motion to dismiss. Holds that although PennFuture had not exhausted its 

administrative remedies, the CAA did not contain an exhaustion requirement and 

expressly allows citizens’ suits. 

• Feb. 2014 – Ultra Resources files motion for summary judgment 

– “Contiguous or adjacent” does not include “operational interdependence;” cite Summit 

and PADEP guidance; also points to plain language of regulation.

– Even if “operational interdependency” is used, the facilities do not meet the definition.

• The fact that each compressor station ties into metering and regulation station does not make 

them functionally related. Compression stations are not interdependent on one another.

• The metering and regulation station is not an air contamination source; does not emit NOx.

– Adopting PennFuture’s definition would be contrary to public policy and interfere with a 

coherent PADEP policy on single source determinations.

• Cause a “chilling effect” on construction of new and modified industrial facilities throughout the 

state, such that the regulated community will be left with no certainty on key environmental 

issues.

• PADEP’s proper permitting decisions and guidance would necessarily be overturned.
PennFuture v. Ultra Resources

• March 2014 – PennFuture files its opposition brief

– Disputed issues of fact exists.

– Summit is distinguishable: Ultra Resources’ Marshlands Play is 13 square miles 

less than the area occupied by the facilities in Summit where court remanded.

– Functional interdependency is not an alternative to proximity but an additional 

factor to consider.

– The compressor stations are interrelated because they collectively function as a 

production unit that delivers gas to Dominion’s transmission pipeline through the 

metering and regulation station.

– The Summit decision is “unworkable” and has been rejected by USEPA and the 

PA EHB.

• A strict proximity approach does not eliminate consideration of other factors; just as 

subjective as adjacency.

• Citing MarkWest, argues that the PA EHB rejected Summit because the EHB allowed 

evidence of functional interdependency.

• Notes that USEPA refuses to apply Summit outside the Sixth Circuit; Court not bound..

• Apr. 21, 2014 – Oral argument held on summary judgment motion
National Fuel Gas Midstream/Seneca Resources

NFG Midstream is wholly owned by National Fuel Gas Midstream Corp., which is a subsidiary of National Fuel Gas Co.; 

Seneca is a subsidiary of National Fuel Gas Co.

SRC Tionesta Station Facility 

(EHB 2013-113-B)

• PADEP aggregated emissions from the SRC Tionesta Compressor 

Station and the NFG Tionesta Interconnect Facility (dehydration unit 

and generator) as a single source.

• PADEP arguments:

– existence of a support relationship; differences in SIC codes, therefore, irrelevant;

– facilities were on “one property” (located 200-300 ft apart);

– support relationship and contractual / financial agreements established common 

control even though they did not meet the SEC’s definition of “control”; and

– facilities functioned together to create a single common product meeting the 

“common sense notion of a plant.”

• July 2013 – SRC appealed to EHB

• Sept. 2013 – EHB grants NFG Midstream petition to intervene
NFG Midstream, Bodine Compressor Station 

(EHB 2013-206-B)

• PADEP aggregated emissions of the NFG Bodine Compressor Station 

and SRC Well Pad E.

• PADEP arguments:

– Straight-line distance between Well Pad E and Compressor Station: 

0.24 miles; no physical boundary between the two sites.

– existence of a support relationship because the gas would be conveyed, 

dehydrated, and metered by the Bodine Compressor Station;

– the support relationship overrode the difference in SIC codes; and 

– common control prong met because both SRC and NFG Midstream are 

owned by National Fuel Gas Company and based on a contract between 

SRC and NFG Midstream.

• Nov. 12, 2013 – NFG Midstream appealed

• Apr. 30, 2014 – EHB grants SRC petition to intervene

National Fuel Gas Midstream/Seneca Resources

NFG Midstream is wholly owned by National Fuel Gas Midstream Corp., which is a subsidiary of National Fuel Gas Co.; 

Seneca is a subsidiary of National Fuel Gas Co.
NFG Midstream Mt. Jewett (EHB 2013-123)

SRC Mt. Jewett (EHB 2013-124)

• PADEP aggregated emissions from the SRC Mt. Jewett Pad G Station 

and NFG Midstream Mt. Jewett Interconnect Facility

– SRC compressor station and NFG gas dehydrator and generator located “on one 

property,” but in separate counties

– Boundaries of SRC compressor station and the pertinent ROWs for NFG Midstream 

Interconnect Facility separated by approx. 1.38 miles.

• PADEP Arguments:

– Found the sources should be aggregated for the same reasons cited in the SRC 

Tionesta case (sit on the same property, support relationship existed such that SIC 

differences irrelevant, common control present as evidenced by contractual and 

financial relationships, and facilities function to create a single common product 

meeting the “common sense notion of a plant”).

• Aug. 21, 2013 – Appeals filed separately by NFG and SRC

• May 1, 2014 – cases consolidated into one action (EHB 2013-123)

National Fuel Gas Midstream/Seneca Resources

NFG Midstream is wholly owned by National Fuel Gas Midstream Corp., which is a subsidiary of National Fuel Gas Co.; 

Seneca is a subsidiary of National Fuel Gas Co.
GP-70 Application Guidance (Oct. 2013, rev, Feb. 

2014) – Three-Prong Test:

(1) Same Industrial Grouping. (same two (2)-digit SIC code).

(2) Common control. 

(3) Contiguous or Adjacent Properties. The sources are located on one or 

more “contiguous or adjacent” properties

• “Case by case” determinations based on the relationship between 

the activities in question (same industrial grouping, common 

control).

• Recites dictionary definitions: 

• Contiguous – being in actual contact; touching along a boundary or at a point

• Adjacent – not distant; nearby; having common endpoint or border; 

“Contiguous” or “adjacent” are proximity based

• No defined distance. 

West Virginia Guidance
West Virginia

Admin Decisions

• West Virginia – Appalachia Midstream Services (August 6, 

2011) 

– The West Virginia Air Quality Board dismissed the appeal of two permits on the 

grounds that aggregation was not necessary because there was no evidence 

presented that the two compressor stations operated interdependently. 

• Williams Ohio Valley Midstream – Woodruff Dehy Station 

Dehydration Facility (WVDEP Engineering Eval., Jan. 30, 

2014)

– WV DEP declined to aggregate emissions with local gas wells. 

1. Dehydration facility had same SIC as upstream gas wells.

2. The production wells were owned and operated by unaffiliated companies.

3. Although located in close proximity to the wells, it was not necessary that 

the facility be located in the immediate vicinity such that it could be moved.
West Virginia

Admin Decisions

• Stone Energy Corporation – Mills Wetzel Well Pad 3 (WV DEP 

Engineering Eval., Dec. 2, 2013)

– Proposed facility was a natural gas well pad that would receive and manage raw 

natural gas and associated produced fluids from the wells at the site. After 

separation of the liquids, the gas would be injected into a gathering line owned 

by others (Eureka Hunter Pipeline, LLC) for transportation to Stone Energy’s 

Carbide Compressor Station.

– Emissions from well pad, wells, and equipment aggregated.

• same SIC

• common owner

• located at a contiguous property

– No aggregation with other well pads because no gas from other wells would be 

routed to or away from the new facility. 

– No aggregation with the receiving Carbide Compressor Station.

• same SIC code

• completely separate ownership

• located 2.1 miles from the new facility
New York

• New York does not have a formal written policy/guidance 

document to address aggregation of air emissions for oil and 

gas facilities.

• 2011 Revised Draft SGEIS includes the only NYSDEC policy 

statement on aggregation related to the oil and gas industry.

• Still a work in progress; industry and environmental NGOs have 

commented.

• Final SGEIS likely to have changes based on public comments 

and the passage of time/evolution of issue in other jurisdictions.

• NOTE: New York has not always agreed with USEPA on 

source determinations unrelated to the oil and gas industry.
New York rdSGEIS

Appendix 18 of the rdSGEIS:

– Cites primarily to USEPA determinations and guidance as 

well as to a Colorado Order.

– Released prior to Sixth Circuit’s Summit Decision.

– NYSDEC notes that no specific distance has been 

established that would make sources adjacent.
New York rdSGEIS

• Recognizes that interdependence:

1. is a factor that is not part of the PSD or Title V definitions of 

“source,” and

2. “in the context of oil and gas infrastructure, it may have 

reduced relevance to an agency determination” (quoting a 

Colorado Order granting a petition to object).

• States that “to be thorough,” NYSDEC staff will evaluate 

the nature of the relationship between the facilities and 

the degree of interdependence between them to 

determine whether the non-contiguous emissions points 

should be aggregated. 

• cites EPA’s Summit determination (2010)
New York rdSGEIS

• Interdependence requires that two activities rely on each 

other – not just that one activity relies on the other activity.

• If activities operate independently and one activity does not act solely as 

a support operation for the other, the activities should not be deemed 

contiguous or adjacent.

• NYSDEC will use the following questions, and others to 

inform its source determinations:

• Whether materials will be routinely transferred back and forth between 

the facilities;

• Whether the location of the facility was chosen because of proximity;

• Whether workers will be shared; and

• Whether the production process will be split.

• NYSDEC indicates that some of these questions may not be 

relevant for oil and gas industry determinations. 
V. Conclusion

Current State 

of the Law
Current State of the Law

• USEPA: “EPA does not intend to change its longstanding 

practice of considering interrelatedness in the EPA permitting 

actions in other jurisdictions” 

• i.e. PA, NY and WV

• Pennsylvania – 1⁄4 rule of thumb; greater than 1⁄4 mile, then 

case-by-case determination

• West Virginia – no defined distance, case-by-case 

determination

• New York – no formal/adopted policy statement
VI. Questions
Contact Information

Yvonne E. Hennessey

Hiscock & Barclay, LLP

80 State Street

Albany, New York 12207

518.429.4293

yhennessey@hblaw.com

http://hblaw.com/blog/energymatters/