Typically, when a facility is applying for an air permit in the state of New Jersey, it is one entity which operates on a single site. However, there are some circumstances in which two entities can co-exist on a single site, contiguous, or adjacent site; whether they are two separate companies at the same physical location or a single company which has subdivided its operations for business, tax, or company purposes. Either way, the New Jersey Department of Environmental Protection (NJDEP) may view these entities as one facility because of their common control. This article will examine the definition of common control according to the state of New Jersey and the steps that facilities must take to determine whether they potentially share operations.
According to the
New Jersey Administrative Code 7:27-8.1, the term facility is defined as “the combination of all structures, buildings, equipment, control apparatus, storage tanks, source operations, and other operations that are located on a single site or on contiguous or adjacent sites and that are under common control of the same person or persons”.
Does Common Control Apply?
In order to determine whether common control is triggered, the facility is required to complete a
Common Control Self-declaration form. Within the Common Control Self-declaration form, the following questions must be answered:
- Does this facility share common workforces, plant managers, any corporate executive officers, OR any board members with the other facility?
- Does this facility share production equipment OR pollution control equipment with the other facility?
- If there are any contractual or other arrangements between this facility and the other facility (other than a lease), does the contract or arrangements provide operational control, financial control, exclusive supply and/or exclusive acceptance of all raw material except offsite utilities (gas, water, electric), or expansion decision rights for one party over the other?
- Is there any contract or other arrangement with a third party or parties that effectively links this facility and the other facility to a common source of control by the same person or persons?
These questions aim to ensure that the two entities do not employ the same people to operate equipment, manage employees, etc. There should also be no shared contracts or agreements that link the two entities’ operations. Additionally, they aim to validate whether equipment is owned and operated by a single entity. The two entities cannot share any equipment, including but not limited to:
- storage tanks
- wastewater treatment
- loading operations (truck, rail, marine)
- control devices
How Does Permitting Change?
If the answer to
any of the common control self-declaration questions is yes, the operations will be considered to be under common control. In this event, the two entities will either need to apply for a single air permit or modify an existing permit to include affected equipment from both entities’ operations. The air permit should be certified by a
single responsible official, or the existing responsible official at that site.
Larger facilities may have collectively greater emissions which may require them to be subject to State and Federal rules and regulations. These types of facilities would need an operating permit (Title V) for major source facilities as opposed to a pre-construction permit for minor facilities. If the combined emissions for the facility exceed any of the following air contaminants (tons per year) thresholds, the facility is considered to be major source.
