“Common Control” in States

“Common Control” in the States

October 30, 2018 | John Evans

The June 2, 2017, Pennsylvania Commonwealth Court decision in National Fuel Gas Midstream Corp. v. Pennsylvania Dep’t of Envt’l Protection, No. 116 C.D. 2016 (“Trout Run”), may have finally shown a way out of the seemingly never-ending disputes that arise when determining what constitutes a stationary source for NSR purposes.  In Trout Run, the Commonwealth Court of Pennsylvania overturned the Pennsylvania Department of Environmental Protection (“PDEP”) and Pennsylvania’s Environmental Hearing Board (“EHB”) both of whom had, for slightly differing reasons, found that two distinct corporations – “Trout Run” and “Seneca” – should be combined as a single stationary source for permitting purposes.  The determination turned on the issue of “control” and the court set forth a straight-forward bright line test for determining “control.”

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