Sunoco Partners Marketing & Terminals, L.P. v. Clean Air Council & DEP ( 2019 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Sunoco Partners Marketing and :
Terminals, L.P., :
Petitioner :
:
v. :
:
Clean Air Council and Commonwealth :
of Pennsylvania, Department of :
Environmental Protection, : No. 145 C.D. 2019
Respondents : Argued: September 9, 2019
BEFORE: HONORABLE ANNE E. COVEY, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE ROBERT SIMPSON, Senior Judge
OPINION BY
JUDGE COVEY FILED: October 1, 2019
Sunoco Partners Marketing and Terminals, L.P. (Sunoco) petitions this
Court for review of the Commonwealth of Pennsylvania (Pennsylvania)
Environmental Hearing Board’s (EHB) January 9, 2019 Adjudication remanding Plan
Approval No. 23-0119E (Plan Approval E)1 to the Pennsylvania Department of
Environmental Protection (DEP) for further consideration. Sunoco presents three
issues for this Court’s review: (1) whether the Court has jurisdiction over this
interlocutory appeal pursuant to Pennsylvania Rule of Appellate Procedure (Rule)
311(f); (2) whether, after combining and treating emissions from Projects 1, A, B, C,
D and E as a single project, the EHB violated the administrative finality doctrine by
1
A plan approval is a permit that authorizes a permittee to construct, assemble, install and/or
modify and operate an air contamination emissions source. See Section 6.1 of Pennsylvania’s Air
Pollution Control Act, Act of January 8, 1960, P.L. (1959) 2119, as amended, added by Section 6 of
the Act of October 26, 1972, P.L. 989, 35 P.S. § 4006.1; see also Section 127.11 of the
Pennsylvania Department of Environmental Protection’s Regulations, 25 Pa. Code § 127.11; DEP
Br. at 7.
ordering DEP to reevaluate the applicability of federal air quality program
requirements; and (3) whether the EHB violated the administrative finality doctrine
by ordering DEP to consider combining Plan Approval E emissions with Plan
Approvals F, G, H and I (collectively, Post-Dated Plan Approvals).
Background
Sunoco is a limited partnership that owns and operates a terminal facility
at the Marcus Hook Industrial Complex (Facility) located in Marcus Hook Borough,
Delaware County, Pennsylvania, pursuant to Title V Operating Permit No. 23-0119.2
Sunoco, Inc. operated a crude oil refinery at the Facility until 2011. Sunoco Logistics
purchased the Facility from Sunoco, Inc.3 See EHB Adj. Finding of Fact (FOF) 7.
The Facility contains several stationary air contamination emissions
sources regulated by the federal Clean Air Act (CAA)4 and Pennsylvania’s Air
Pollution Control Act (APCA).
The CAA was enacted to, among other things, ‘protect and
enhance the quality of the Nation’s air resources so as to
promote the public health and welfare and the productive
capacity of its population.’ 42 U.S.C. [§] 7401(b)(1). To
achieve this goal, Congress instructed the United States
Environmental Protection Agency (EPA) to develop limits
on the maximum concentrations of various pollutants
allowable in different areas of the country known as
National Ambient Air Quality Standards (NAAQS). 42
U.S.C. [§] 7409(a)(1)(A). An area could be in compliance
or in ‘attainment’ with NAAQS for some pollutants while
2
A “Title V operating permit is an air permit for large facilities that have potential
emissions greater than a major source threshold.” Certified Record, Notes of Testimony (N.T.) at
730.
3
Sunoco is a division of Sunoco Logistics, and is a separate legal entity from Sunoco, Inc.
See EHB Adj. Finding of Fact 7.
4
42 U.S.C. §§ 7401-7671q. The Facility “also includes air contaminant sources located at
Sunoco’s facility in the state of Delaware (permitted under Title V Operating Permit No. AQM-
003/00021)[.]” EHB Adj. at 46; see also EHB Adj. FOFs 142, 153, 187; N.T. at 516-517.
2
not in compliance or in ‘nonattainment’ for other pollutants.
Sources in an area in attainment were subject to the
Prevention of Significant Deterioration (PSD)[5]
requirements while sources in an area in nonattainment
were subject to the New Source Review (NSR)[6]
requirements. To enforce NAAQS, the CAA employed a
system of cooperative federalism requiring states to create a
state implementation plan (SIP) ‘provid[ing] for
implementation, maintenance, and enforcement’ of the
NAAQS. 42 U.S.C. [§] 7410(a)(1).
The EPA approved Pennsylvania’s SIP which required the
issuance of a plan approval before construction could begin
on any new source of air contamination. 25 Pa. Code §
127.11.[FN2] The SIP adopted NSR regulations for [] DEP to
implement requiring, inter alia, a facility to comply with
the Lowest Achievable Emission Rate (LAER) for pollutant
emissions in nonattainment areas. It incorporated the
federal PSD permit regulations to serve as Pennsylvania’s
regulations[,] except that [] DEP was primarily the agency
with authority for an area in attainment. 25 Pa. Code §
127.83. The PSD regulations established allowable
increments for pollutants, which was the amount of
additional pollution that could be safely added to an area by
new or existing sources without endangering that area’s
attainment status. . . . Additionally, the general public was
required to receive notice and an opportunity to comment
on any proposed plan approval.
[FN2]
Pennsylvania enacted the [APCA] . . . to
protect, among other things, the Commonwealth’s
air resources for the protection of public health,
safety and well-being of its citizens and for the
development, attraction and expansion of industry,
commerce and agriculture. Under Section[] 5(a)(1)
and (8) of the APCA, 35 P.S. §[] 4005(a)(1) and (8),
5
“PSD regulations apply to the construction of any new major stationary source, or any
major modification of any existing stationary source in an area designated as attainment or
unclassifiable.” EHB Adj. FOF 21; see also 25 Pa. Code §§ 127.81-127.83. Pennsylvania
references and incorporates the federal PSD regulations. See EHB Adj. FOFs 21-22.
6
“NSR is a regulation for nonattainment areas for major sources of nitrogen oxide (NOx),
volatile organic compounds (VOCs), and particulate matter with a diameter less than 2.5
micrometers (PM 2.5).” EHB Adj. FOF 17; see also 25 Pa. Code §§ 127.201-127.218. In
Pennsylvania, NSR “generally refers to what in the [Code of Federal Regulations] is known as
Nonattainment New Source Review (‘NNSR’).” EHB Adj. FOF 16 n.1; see also N.T. at 456.
3
it assigned responsibility to the Environmental
Quality Board [(EQB)] to adopt rules and
regulations for the prevention, control, reduction
and abatement of air pollution and for the
implementation of the CAA.[7]
Groce v. Dep’t of Envtl. Prot., 921 A.2d 567, 571-72 (Pa. Cmwlth. 2007). Due to its
location in Delaware County, the Facility’s emissions sources are subject to PSD and
NSR requirements.8 See EHB Adj. FOF 16.
Sunoco is currently repurposing the Facility from a refinery to a location
to process (i.e., fractionate) and store natural gas liquids (NGLs) received from the
Mariner East pipeline for eventual redistribution and marketing.9 Since 2012, Sunoco
has adapted and repurposed parts of the Facility related to NGL processing through
Projects 1 (SXL Project Mariner), A (SXL Project Mariner – Deethanizer), B (SXL
Natural Gasoline Project), C (SXL Project Mariner – Cooling Tower), D (SXL New
7
The EHB and [DEP] are two branches of the tripartite administrative
structure that governs environmental regulation in Pennsylvania. The
third branch of that structure is the [EQB]. [DEP] is the executive
branch, assigned various duties to implement and enforce
environmental statutes and regulations. See, e.g., Section 4 of the
[APCA], . . . 35 P.S. § 4004. The EHB is the judicial branch,
empowered to hold hearings and issue adjudications on orders,
permits, licenses or decisions of [DEP]. Section 4 of the
Environmental Hearing Board Act (EHB Act), Act of July 13, 1988,
P.L. 530, 35 P.S. § 7514. Section 3(a) of the EHB Act, 35 P.S. §
7513(a), describes the EHB as ‘an independent quasi-judicial agency.’
The EQB is the legislative branch, responsible for developing a
master environmental plan for Pennsylvania and empowered to
formulate, adopt and promulgate rules and regulations for [DEP]. It is
comprised of representatives from a plethora of organizations,
including representatives from [DEP].
Dep’t of Envtl. Prot. v. N. Am. Refractories Co., 791 A.2d 461, 462 (Pa. Cmwlth. 2002).
8
The Facility is considered a major stationary source for PSD and NSR. See EHB Adj.
FOF 26; see also N.T. at 669, 735, 744.
9
NGL fractionation is the process of separating out various component products from the
mixed liquids, including ethane, propane, butane and pentane. See EHB Adj. FOFs 6, 11.
4
Tanks Project), E (ETP Project Revolution and SXL Depropanizer Project), F, G, H
and I (ME2X Project). See EHB Adj. FOFs 43, 60, 79, 114, 138, 167, 242-243.
Pursuant to Section 6.1 of the APCA, 35 P.S. § 4006.1, and Section
127.11 of DEP’s Regulations, 25 Pa. Code § 127.11, Sunoco sought and obtained
from DEP Requests for Determination (RFD) 5236 and 5597,10 and DEP plan
approvals11 to construct, install and/or modify emissions sources12 for each of the
projects, including Plan Approval E (issued April 1, 2016).
In accordance with Section 127.12 of DEP’s Regulations, 25 Pa. Code §
127.12, Sunoco had to specify in its plan approval applications, inter alia, the
pollutants an emissions source will emit, how much of each pollutant it expects to
emit, the air pollution control equipment to be used, operating specifications and
emissions limits. See DEP Br. at 7.
10
An RFD “is a request by a company to determine whether a[] . . . plan approval is needed
for a particular project.” Sunoco Br. App. A (EHB Adj.) ¶ 238. For RFD 5236 (issued August 13,
2015; Reproduced Record (R.R.) at 339a-352a), DEP “indicat[ed] that a plan approval was not
required for the proposed work [(i.e., installation of two 50,000 barrel spheres for propane and
butane storage)].” EHB Adj. FOF 240; see also Sunoco Br. at 9. For RFD 5597 (issued April 11,
2016; R.R. at 353a-359a), DEP determined that no plan approval was needed for Sunoco to transfer
the instrument air compressor cooling loads from the 15-6 cooling tower to the 15-2B cooling
tower. See R.R. at 359a; see also R.R. at 59a.
11
Sunoco’s plan approvals were correspondingly called Plan Approval 1 (issued February 5,
2013; R.R. at 77a-115a), Plan Approval A (issued September 5, 2013; R.R. at 116a-134a), Plan
Approval B (issued January 30, 2014; R.R. at 135a-221a), Plan Approval C (issued November 19,
2014; R.R. at 222a-238a), Plan Approval D (issued February 6, 2015; R.R. at 239a-279a), Plan
Approval E (issued April 1, 2016; R.R. at 11a-48a), Plan Approval F (issued August 15, 2016; R.R.
at 284a-302a), Plan Approval G (issued March 10, 2017; R.R. at 303a-320a), Plan Approval H
(issued April 13, 2018; R.R. at 321a-338a) and Plan Approval I (pending/withdrawn). See Sunoco
Br. at 8-9; see also CAC Br. at 3.
12
Emissions sources include new sources (for which calculations are based on potential
emissions), modified sources (for which baseline emissions are subtracted from actual emissions)
and existing unmodified sources (for which only the increases attributable to the project are
calculated). See N.T. at 736-737, 752. “Baseline actual emissions are the average actual emissions
over a 24-consecutive-month period as supplied by the . . . applicant[,]” which DEP then verifies
were emitted and reported. N.T. at 737-738.
5
“[B]efore [] DEP may issue a plan approval for a source subject to PSD
review, the owner or operator of the proposed source must demonstrate that allowable
emission increases would not ‘cause or contribute’ to air pollution in violation of the
NAAQS or the allowable increment.” Groce, 921 A.2d at 577 (footnote omitted).
DEP explained at the EHB hearings and in its brief to this Court:13
As part of its review of a plan approval application, DEP
examines the plan approvals a facility has received recently,
the projects it has installed or modified recently, as well as
the projects it may be constructing in the near future. DEP
examines the permitting of projects in the past and the
potential ones in the future to determine if any of the past or
future projects at the facility should be combined, or
aggregated, and treated as one project to prevent
circumvention of the permitting requirements.
If DEP determines that the project described in a current
application should be considered part of an existing project
permitted in an earlier plan approval, it will combine the
emissions from the existing project with the emissions from
the current application to determine whether NSR or PSD
apply to the current project.
The question of whether a current application for a plan
approval is really part of a project authorized in a
previously[]issued plan approval is a factual
determination that affects only the current permit and has
no impact on the prior one. DEP does not reopen or change
any of the previously issued plan approvals. If DEP
determines that the current project is part of a larger project
the company is planning to construct in the future, it will
combine the emissions from the current project with the
estimated emissions from the future portion of the overall
project. Once DEP determines that the application is
complete and performs its technical review, it has the
authority to issue a plan approval with the conditions it
deems necessary to assure the proper operation of a source.
25 Pa. Code § 127.12b.
13
Neither Sunoco nor Clean Air Council dispute DEP’s description.
6
DEP Br. at 7-8 (emphasis added; record citations omitted); see also Sunoco Br. at 6;
Clean Air Council (CAC) Br. at 3; N.T. at 258, 335, 337, 386-387, 451-454, 542-543,
732, 859-860; see also EHB Adj. FOFs 31-33, 276, 277.
Relative to Plan Approval E at issue in this appeal, DEP concluded
based on Sunoco’s application that there were no modified sources associated with
the proposed work, it was not linked14 to Plan Approvals 1, A, B, C or D, and it did
not alone trigger PSD significance thresholds. See EHB Adj. FOFs 216, 226-230,
234, 236. DEP did not determine whether the aggregated emissions from the linked
projects would trigger PSD or NSR significance thresholds. See EHB Adj. FOF 237;
see also Certified Record, Notes of Testimony (N.T.) at 382-383, 521-522. Plan
Approval E was published in the Pennsylvania Bulletin on April 16, 2016.15
On April 29, 2016, CAC, a Philadelphia, Pennsylvania-based citizen
action group, appealed from DEP’s Plan Approval E decision to the EHB, claiming
that DEP erred by (1) treating Project E as a stand-alone project for PSD and NSR
applicability purposes; and (2) determining which Project E emission units were
modified and undercounting the emissions increases associated therewith, thereby
allowing Sunoco to avoid PSD and NSR requirements. CAC did not previously
14
“[DEP] used the term ‘linked’ to refer to whether two or more projects are technically or
economically connected to each other and whether the emissions resulting from all of the work
associated with the projects should be added up to determine whether NSR or PSD requirements are
triggered.” EHB Adj. FOF 77.
15
Section 1021.52(a)(2)(i) of DEP’s Regulations mandates that persons aggrieved by DEP
actions have 30 days after the action is published in the Pennsylvania Bulletin to appeal to the EHB.
See 25 Pa. Code § 1021.52(a)(2)(i). “Pursuant to [Section 4(c) of] the [EHB Act], 35 P.S. §
7514(c), the failure to appeal within [30] days render[s] DEP’s action final.” Dep’t of Envtl. Prot.
v. Cromwell Twp., Huntingdon Cty., 32 A.3d 639, 652-53 (Pa. 2011).
Notably, “[t]he EHB is not an appellate body with a limited scope of review . . . . Rather,
the EHB’s duty is to determine if DEP’s action can be sustained or supported by the evidence taken
by the EHB.” Pa. Trout v. Dep’t of Envtl. Prot., 863 A.2d 93, 106 (Pa. Cmwlth. 2004). Thus,
“when an appeal is taken from DEP to the EHB, the EHB is required to conduct a hearing de novo.”
Id.
7
appeal from Plan Approvals 1, A, B, C, D or RFD 5236.16 See EHB Adj. FOFs 163,
240, 242, 244. The EHB conducted hearings on CAC’s appeal on May 7, 8, 9 and
10, 2018.
On January 9, 2019, the EHB issued the Adjudication, therein
concluding that Projects 1, A, B, C, D, E and RFD 5236 constituted a single project
(Project 1/A/B/C/D/E) for purposes of determining PSD/NSR applicability and, thus,
DEP erred by issuing Plan Approval E without aggregating its emissions with those
of Sunoco’s former Projects 1, A, B, C, D, now-known as Post-Dated Plan
Approvals. Rather than revoking Plan Approval E, the EHB remanded it to DEP for
further consideration, subject to the following constraints:
(1) the emissions from Projects 1 through E must be
aggregated as part of the new applicability determination
for Plan Approval E, and (2) [DEP] must consider whether
the now-known [Post-Dated Plan Approvals] should also be
aggregated with the Project E emissions as part of the new
applicability determination for Plan Approval E.
EHB Adj. at 74. On February 8, 2019, Sunoco appealed to this Court.17
On February 14, 2019, CAC filed an Application to Quash Sunoco’s
appeal as interlocutory (Quashal Application). On February 14, 2019, this Court
ordered the parties to address the appealability of the EHB’s interlocutory order under
Rule 311(f) in their principal briefs on the merits. On March 4, 2019, Sunoco
opposed CAC’s Quashal Application.
16
CAC appealed from Plan Approval H on May 25, 2018. See Sunoco Br. at 9.
17
Our appellate review of the [EHB’s] adjudications is limited to
determining whether the [EHB] committed an error of law, [whether
it] violated constitutional rights, or whether its material findings of
fact are supported by substantial evidence. On issues of law, our
standard of review is de novo and our scope of review is plenary.
EQT Prod. Co. v. Dep’t of Envtl. Prot., 193 A.3d 1137, 1148 (Pa. Cmwlth. 2018) (citations
omitted).
8
Discussion
1. Rule 311(f)
Preliminarily, this Court must determine whether it has jurisdiction over
this interlocutory appeal. Rule 341(a) provides, in relevant part, that “an appeal may
be taken as of right from any final order of a government unit . . . .” Pa.R.A.P.
341(a). Rule 341(b) specifies that “[a] final order is any order that . . . (1) disposes of
all claims and of all parties; or . . . (3) is entered as a final order pursuant to paragraph
(c) of this rule [(relating to orders granting interlocutory review of particular
issues)].” Pa.R.A.P. 341(b). Essentially, Rule 341(b) “limits [an] appeal to those
orders that essentially dispose of the entire case, unless the [administrative agency]
specifically orders otherwise.” Cent. Dauphin Sch. Dist. v. Cent. Dauphin Educ.
Ass’n, 739 A.2d 1164, 1167 n.4 (Pa. Cmwlth. 1999). Otherwise, the order is
interlocutory and generally not immediately appealable. See In re Dauphin Cty.
Fourth Investigating Grand Jury, 943 A.2d 929 (Pa. 2007); see also Peterson v.
Workers’ Comp. Appeal Bd. (Wal Mart, CMI, Inc.), 938 A.2d 512 (Pa. Cmwlth.
2007); Commonwealth v. Fleming, 794 A.2d 385 (Pa. Super. 2002).
This Court has ruled that “[an] . . . order remanding a matter . . . for
further proceeding is an unappealable interlocutory order unless it falls within one of
the exceptions set forth in [Rule] 311(f).” Peterson, 938 A.2d at 515. Rule 311(f)
provides:
An appeal may be taken as of right from: (1) an order of
a . . . government unit remanding a matter to an
administrative agency . . . for execution of the adjudication
of the reviewing tribunal in a manner that does not require
the exercise of administrative discretion; or (2) an order
of a . . . government unit remanding a matter to an
administrative agency . . . that decides an issue that would
ultimately evade appellate review if an immediate appeal
is not allowed.
9
Pa.R.A.P. 311(f) (emphasis added).
Here, the EHB’s Adjudication did not dispose of all claims or expressly
allow for interlocutory review, and the parties do not dispute that the EHB’s January
9, 2019 Adjudication remanding this matter to DEP was not a final order. See
Sunoco’s Petition for Review ¶ 3.
a. Rule 311(f)(1) - Administrative Discretion
Sunoco argues that this Court has jurisdiction pursuant to Rule 311(f)(1).
The EHB directs on remand that:
(1) the emissions from Projects 1 through E must be
aggregated as part of the new applicability determination
for Plan Approval E, and (2) [DEP] must consider
whether the [Post-Dated Plan Approvals] should also be
aggregated with the Project E emissions as part of the new
applicability determination for Plan Approval E.
EHB Adj. at 74 (bold and italics emphasis added).
Sunoco claims that since the EHB directed that DEP must aggregate
Project E emissions with Projects 1, A, B, C and D and RFD 5236, DEP lacks
administrative discretion and, thus, this appeal is authorized pursuant to Rule
311(f)(1). CAC asserts that “the authority for an appeal under [Rule] 311(f)(1) does
not apply because the EHB has explicitly left for [DEP] a complex and technical
application of law under the [CAA].” CAC Br. at 5. DEP similarly retorts that
DEP’s evaluation on remand does not meet the Rule 311(f)(1) criteria because it
necessarily involves administrative discretion, since the EHB instructed DEP to
combine the emissions, but did not specify how it should do so, and because PSD and
NSR application is complex and fact-specific. See DEP Br. at 11.
DEP Air Pollution Control Engineer and Air Quality Permit Reviewer
George Eckert (Eckert) reviewed Sunoco’s plan approvals and RFDs, and conducted
10
pre-application meetings with Sunoco representatives. See N.T. at 337, 391-392,
423, 451, 476-477, 543. He described at the EHB hearings that Sunoco’s plan
approvals and RFDs were also reviewed and approved by DEP’s Environmental
Engineer Manager/Chief of DEP’s Facilities Air Quality Permit Section Janine
Tulloch-Reid (Tulloch-Reid) and further by DEP’s Regional Air Quality Program
Manager James Rebarchak (Rebarchak). See N.T. at 732-733, 743.
Eckert explained that, after he reviews a plan approval application for
completeness, he examines its contents, consults applicable regulations and prepares
a review memo that outlines his analysis. Eckert stated that, as part of his review, he
verifies and confirms the applicant’s calculations. See N.T. at 733.
Eckert declared that he conducts NSR and PSD applicability
determinations for every Title V facility plan approval, including Sunoco’s projects at
the Facility. See N.T. at 736, 741. NSR applicability determinations require that
Eckert “look at the increases from [all emissions sources affected by] the project and
[] combine[s] those increases with increases over the previous five calendar years.
And if necessary, . . . [he] combine[s] the increases from the project with any
increases and decreases over the previous 10-year period.” N.T. at 736. Eckert
asserted that he “not only look[s] at the years that [the applicant] submit[s], but [] also
look[s] at a few years ahead of that, as well as a few years behind that . . . [to] try to
find out if any of the sources that are included in those emissions have changed and
why.” N.T. at 738.
Eckert testified that the consequences for triggering NSR are that the
applicant “would be subject to emission reduction credits and the new and modified
sources would be subject to LAER.” N.T. at 739. He described that “LAER can
change. Sometimes [the EPA LAER clearinghouse changes] . . . between the
submittal of the application and when [DEP] issues the plan approval.” N.T. at 739.
11
Thus, Eckert checks LAER during his initial application review and again before
DEP issues the plan approval. See N.T. at 740.
Eckert related that the PSD applicability determination involves a two-
step process:
The first step is looking solely at the emissions attributable
to the process itself. If that answer for each pollutant is less
than the significant level for the respected pollutant, then
the analysis ends. If one or more of those exceeds a
significant level, then [] step two . . . takes the analysis from
step one and combines it with any increases and decreases
over the previous 10-year period.
N.T. at 741-742. Among the consequences of triggering PSD, Eckert recalled that
the applicant must determine how to control the pollutant’s emissions by best
available control technology (BACT). See N.T. at 742-743.
Eckert specifically recalled relative to his Project E review that he
“needed to understand the sources which were new, which were modified, [and]
which were existing and not modified. [He] needed to understand any regulations
that might be applicable to those. [He] needed to know if anything was being
changed or affected by this project.” N.T. at 751. In the process, Eckert reviewed
and verified Sunoco’s emissions calculations. See N.T. at 751-752. Eckert also
disclosed that, after discovering he had deemed an unmodified source modified in his
Plan Approval E review memo, he issued a revised review memo. See N.T. at 534-
535, 759-760; see also N.T. CAC Exs. A-22, A-23.
Tulloch-Reid testified that, when reviewing a project for plan approval,
DEP assesses:
How does it affect your other sources that you have at the
facility? Are there any changes that are occurring at those
other sources[?] Is it interdependent on each other? Do
you have any other future plans? Do you need to make
those known up front, . . . so we can address those and look
at the emission on whole[?]
12
N.T. at 545. Tulloch-Reid explained that Eckert revised his Plan Approval E review
memo after she and Eckert
went back and looked at the definitions for modification
according to the regulations. And we made sure to make all
the checkpoints.
Is there a physical change? Is there a change in the
operation o[r] was there an increase in the operation? Was
modification due to maintenance or routine repair or was
there any omission?
We also went further and looked at what the federal
definition is. And that also had another additional
checkpoint to look at increase in -- or rates that do not
exceed their limits in their existing permit. We looked at all
of those. Then because we went back and evaluated all
those points, . . . we made our determination that some of
the sources were existing on modified sources.
N.T. at 536. Tulloch-Reid stated that they re-examined Project E to “mak[e] sure that
[DEP’s] judgment call [was] correct.” N.T. at 535.
Notably, CAC objected to DEP’s issuance of Plan Approval E on the
following grounds:
1. [DEP] miscalculated the emissions increase from the
project in its [NSR] analysis by accepting past potential
emissions, rather than past actual emissions, as baseline
actual emissions.
2. [DEP] miscalculated the level of future emissions of
[VOCs] from the cooling tower, leading [DEP] to require
fewer tons of VOC emissions reduction credits to be
retired than it should have.
3. [DEP] miscalculated the emissions increase from the
project with respect to the flare.
4. [DEP] miscalculated the fugitive emissions increase
from new piping components by using the ‘actual to
projected actual’ test rather than the ‘actual to potential’
test, in violation of [Section 127.203a(a)(1)(i)(B) of DEP’s
Regulations,] 25 Pa. Code § 127.203a(a)(1)(i)(B).
13
5. [DEP] miscalculated the fugitive emissions increase
from both new and existing piping components by failing
to take into account the higher-than-anticipated Reid
vapor pressure[18] of the product feedstock that would
move through the piping, as acknowledged by Sunoco in its
application for [P]lan [A]pproval [F].
6. [DEP] accepted Sunoco’s design values for emissions
calculations without requiring manufacturer
specifications or other documentation of the values, leaving
the resulting projected emissions numbers unverified.
7. In violation of [Section 127.203a(a)(4)(1) of DEP’s
Regulations,] 25 Pa. Code § 127.203a(a)(4)(1), Sunoco
used the baseline years 2009 and 2010 (more than five years
before submission of the application) in calculating whether
there will be a significant emissions increase from the
project, without seeking or receiving a written
determination from [DEP] that those years were more
representative of normal source operation. Sunoco has
chosen different baseline years for the same equipment
across related plan approval applications, violating the
principle in the above [DEP Regulation] provision that the
baseline should be the most representative of normal source
operation.
8. [DEP] otherwise miscalculated the emissions increase
from the project in its [NSR] analysis.
9. [DEP] wrongly accepted Sunoco’s division of its
Marcus Hook Mariner East project into multiple sub-
projects, allowing unlawful circumvention of [NSR] in
violation of [Section 127.216 of DEP’s Regulations,] 25 Pa.
Code § 127.216.
10. In violation of [Section 127.205(2) of DEP’s
Regulations,] 25 Pa. Code § 127.205(2), Sunoco failed to
provide information for the compliance certification for
other facilities owned or operated by entities under common
control with Sunoco.
11. [DEP] erred in accepting as complete Sunoco’s
materially incomplete application, which remains
18
The term Reid vapor pressure is not defined in the record.
14
incomplete even after Sunoco’s supplemental submissions
to [DEP].
12. The Pennsylvania Bulletin notice for the proposed plan
approval (a) listed all the emissions as fugitive, when most
of them are not fugitive, (b) did not include the boiler
emissions, (c) presented miscalculated emissions
numbers, and (d) presented the emissions tonnage as
‘[p]otential annual emissions,’ indicating that that tonnage
reflected the sources’ potential to emit, rather than correctly
indicating that the tonnage reflected projected actual
emissions. These failures render the notice in violation of
[Section 127.45(b)(3) of DEP’s Regulations,] 25 Pa. Code §
127.45(b)(3), which requires the notice to list the ‘type and
quantity of air contaminants being emitted.’
R.R. at 6a-8a (bold and italics emphasis added). In addition, DEP represents in its
brief to this Court that “whether a current application for a plan approval is really part
of a project authorized in a previously[]issued plan approval is a factual
determination[.]” DEP Br. at 8 (emphasis added).
Even Sunoco recognizes in its brief to this Court that “the EHB
remanded Sunoco’s permit specifically for [DEP] to use its expertise and
discretion to further investigate ‘whether the now-known [Post-Dated Plan
Approvals] should also be aggregated with the Project E emissions . . . .’” Sunoco
Br. at 15 (quoting EHB Adj. at 74) (emphasis added). Sunoco further acknowledges
in its Reply Brief: “[DEP] will engage in new fact-finding related to the aggregated
Plan Approval 1/A/B/C/D/E.” Sunoco Reply Br. at 19 (emphasis added).
Finally, “[t]he EHB determines from the evidence it receives whether
DEP’s action can be sustained. Where the EHB finds DEP abused its discretion, it
may substitute its discretion for that of DEP and order the relief requested.”19
19
Congress and Pennsylvania’s General Assembly have delegated to DEP the authority to
determine whether Sunoco’s operations at the Facility comply with federal and state regulations.
See Groce. Accordingly, this Court has clarified that “[DEP], and not the EHB, is empowered to
authoritatively interpret environmental regulations. That power is a necessary adjunct of [DEP’s]
authority to enforce environmental regulations. . . . [Therefore,] . . . [DEP’s] interpretation of
15
Leatherwood, Inc. v. Dep’t of Envtl. Prot., 819 A.2d 604, 611 (Pa. Cmwlth. 2003);
see also Marcon, Inc. v. Dep’t of Envtl. Res., 462 A.2d 969, 971 (Pa. Cmwlth. 1983)
(“The [EHB] . . . is . . . empowered to substitute its discretion for that of [DEP].”).
Here, the EHB expressed relative to modification:
[DEP] may need to reconsider on remand what sources if
any have been ‘modified’ as that term is used in the PSD
and NSR programs, and the consequences of any such
modifications. Determining whether a source has been
‘modified’ is one of the most contentious parts of air
pollution law and it is complicated and highly fact-
specific. A modification is defined as follows:
Modification - A physical change in a source or a
change in the method of operation of a source which
would increase the amount of an air contaminant
emitted by the source or which would result in the
emission of an air contaminant not previously
emitted, except that routine maintenance, repair and
replacement are not considered physical changes.
An increase in the hours of operation is not
considered a modification if the increase in the
hours of operation has been authorized in a way that
is [f]ederally enforceable or legally and practicably
enforceable by an operating permit condition.
25 Pa. Code § 121.1. . . . Not all modifications trigger
[NSR]. For example, it depends in part upon whether there
has been an increase in pollutant emissions from the project.
25 Pa. Code § 127.203a.
[I]t is not entirely clear how [DEP] should address the
modification of emission units in a post facto project
aggregation situation such as that presented here. . . . We
believe [DEP] should be afforded the opportunity to
decide in the first instance on remand how to address this
problem.
EHB Adj. at 69-70 (emphasis added). The EHB acknowledged:
environmental regulations is entitled to great deference, unless [its] interpretation is clearly
erroneous.” N. Am. Refractories Co., 791 A.2d at 466.
16
[CAC] has raised a few issues that are likely to persist on
remand. In determining whether an emissions unit has been
modified, there is an open issue in a case like this (where
multiple emission units are attached to each other), where
one emission unit ends and a different emission unit begins.
. . . Secondly, there is as [sic] an open issue of how
emissions attributable to modified and unmodified sources
need to be calculated for purposes of the PSD/NSR
applicability determinations.
EHB Adj. at 70.
The EHB also specified that “[DEP] will need to decide on remand
whether any of [the Post-Dated Plan Approval] construction work should be
considered part of the same project that includes Project 1 through Project E for its
revised applicability determination for Project E.” EHB Adj. at 73 (emphasis added).
The EHB further concluded:
There does not appear to be any dispute that the
applicability determination for Project E must be
redone by Sunoco and [DEP] in the first instance in the
event of a[n] [EHB] remand. No party has invited us to do
the determination ourselves. Indeed, [CAC] argues
repeatedly that it would be improper for us to do so. It
acknowledges that Sunoco maintains some discretion in
formulating the data used in a revised application, and it
says there is no one ‘correct’ set of NSR calculations.
At this point the parties’ various predictions regarding what
will happen on remand are just that: predictions. We will
not attempt to add our own prediction to the mix, preferring
instead that Sunoco and [DEP] perform the proper
analysis in the first instance.
EHB Adj. at 74 (emphasis added). The EHB also held: “If at any point it becomes
clear to [DEP] that extensive additional study will be needed because, e.g., PSD
applies, we will leave it to [DEP] to decide in the first instance whether Plan
Approval E should remain in place during that study.” EHB Adj. at 75 (emphasis
added).
17
Although the EHB could have decided that DEP abused its discretion
relative to Plan Approval E, and substituted its own discretion and revoked Plan
Approval E, the EHB acknowledged that the remanded issues were “complicated and
highly fact-specific,” EHB Adj. at 69, such that DEP should determine how to
approach modification and potential application of the Post-Dated Plan Approval
information.
It is clear based upon the applicable record evidence, including the
subject plan approvals, review memos and the parties’ representations, that EHB’s
order for DEP to aggregate the emissions from Projects 1 through E as part of a new
Plan Approval E PSD/NSR applicability determination, and also to “consider
whether” to include the Post-Dated Plan Approvals (not known at the time the prior
approvals were issued), necessarily requires DEP to exercise discretion. EHB Adj. at
74. Although Sunoco supplied emissions source descriptions and emissions tables
with its plan approval and RFD applications, see N.T. Sunoco Exs. 1-9, 19, 21,
DEP’s EHB-aggregated Plan Approval 1/A/B/C/D/E review will involve more than
mere emissions calculations, particularly when considering whether and which Post-
Dated Plan Approvals must be aggregated with Plan Approval 1/A/B/C/D/E. See
Sentinel Ridge Dev., LLC v. Dep’t of Envtl. Prot., 2 A.3d 1263 (Pa. Cmwlth. 2010)
(the EHB’s remand for DEP to use its expertise and discretion to further investigate a
proposed project’s impact calls for more than a ministerial task); see also City of
Phila. v. Workers’ Comp. Appeal Bd. (Mellon), 885 A.2d 640 (Pa. Cmwlth. 2005)
(fact-finding necessary to determine the basis for a calculation involves
administrative discretion). “Because [DEP’s] determination[s] . . . will involve
administrative discretion and [are] not a mere computation, [Sunoco’s] appeal does
not meet the requirements of [Rule] 311(f)(1) . . . .” Id. at 643. Therefore, the EHB’s
Adjudication is not appealable as of right under Rule 311(f)(1).
18
b. Rule 311(f)(2) - Evade Review
Sunoco argues that this Court has jurisdiction under Rule 311(f)(2)
because the key issues – Plan Approval E’s review in its initial scope (without
aggregated emissions), and the applicability of the administrative finality doctrine –
will evade review if this appeal is delayed until after remand. CAC contends that
“the authority for an appeal under [Rule] 311(f)(2) does not apply because the [EHB]
Act expressly provides for post-remand judicial review if Sunoco seeks it after a
future determination.” CAC Br. at 5. DEP asserts that the issues Sunoco raised will
not evade review because Sunoco may appeal from DEP’s action on the next Plan
Approval E (which may be the same as the first one) and can raise any arguments
about administrative finality then. See DEP Br. at 11, 16, 19.
According to Eckert, relative to Plan Approval E, DEP assessed whether
Project E was linked to and, thus, should be aggregated with Projects 1 through D.
He disclosed that, although DEP linked some of Sunoco’s projects,20 DEP determined
that Projects 1 through D were independent of Project E and, thus, aggregation was
not mandated. See EHB Adj. FOFs 226-231; see also N.T. at 347-351, 753-755. The
EHB disagreed, and concluded that since “Projects 1 through E and RFD 5236
constitute a single project for purposes of [NSR] and [PSD],” EHB Adj. Conclusion
of Law (COL) 8, “Project E should have been aggregated with Projects 1 through D
and RFD 5236, and [DEP] erred when it issued Plan Approval E without aggregating
it with Sunoco’s former and known future projects at the [Facility].” EHB Adj. COL
9. Accordingly, the EHB ruled that DEP must “perform the proper analysis” and
“red[o]” its NSR and PSD applicability determinations using the aggregated
20
DEP concluded that Plan Approval C was linked to Plan Approval A and Plan Approval F
was linked to Plan Approval B. See EHB Adj. FOFs 127, 243, 256; see also N.T. at 375, 378, 389,
424-425, 745-748; N.T. Exs. A-20 at 4, A-25 at 3.
19
emissions from Projects 1 through E and RFD 5236 and the projects approved
thereafter. EHB Adj. at 74.
Sunoco argues, based upon this Court’s holding in Department of
Environmental Resources v. Big B Mining Co., Inc., 554 A.2d 1002 (Pa. Cmwlth.
1989) that, because the EHB’s conclusion that emissions from Projects 1 through E
and RFD 5236 shall be aggregated and will not change on remand, whether DEP
properly analyzed Project E’s stand alone NSR and PSD requirements, will evade
review without this interlocutory appeal. At issue in Big B was a regulation that
protected high quality waters from being degraded by effluent discharges. The
regulation authorized some stream degradation only if certain conditions were met.
DEP concluded that, since the applicant mining company did not satisfy the
regulatory conditions, it issued a permit limited to effluent levels that did not degrade
the stream.
On appeal, based upon its interpretation of the regulations, the EHB
reversed, holding that since the mining company demonstrated compliance with the
regulation, some stream degradation was permitted. However, the EHB remanded
the matter for DEP to assess the allowable effluent limitations. DEP appealed to this
Court, which concluded that, since “the EHB finally determined that the mining
company satisfied the regulation requirements, and that determination would not
change on remand[,] . . . the final determination of regulation satisfaction could be
reviewed” on interlocutory appeal to this Court. Sentinel, 2 A.3d at 1267
(emphasis added).
DEP and CAC argue that the instant appeal is more akin to Sentinel than
Big B. See DEP Br. at 15; CAC Br. at 13. In Sentinel, a developer applied for a
storm water permit for a construction project near Holland Run. DEP granted the
permit after determining that construction would not result in the direct storm water
discharge into Holland Run and, thus, met DEP guidelines for a nondischarge site.
20
Local community organization Crum Creek Neighbors (CCN) appealed to the EHB
to have the permit revoked. At the EHB hearing, CCN presented expert testimony
that larger storms would discharge surface water, and neither party presented
evidence of subsurface water impact (i.e., hydrogeology). Based upon the evidence
before it, the EHB ruled that DEP erred by treating the construction site as a
nondischarge site, suspended the permit and remanded for DEP to conduct additional
fact-finding regarding the project’s impact on the subsurface water.
The developer appealed to this Court, arguing inter alia that the EHB’s
decision was not supported by sufficient scientific evidence. Regarding appealability,
the developer argued that because the EHB’s conclusion that CCN’s scientific
evidence was sufficient, its issue on appeal would be irreparably lost on remand.
This Court disagreed and quashed the appeal as interlocutory, reasoning:
After DEP conducts its review, it will either restore the
permit or revoke it. Any aggrieved party can then appeal.
The EHB can then review the permit in light of the
additionally gained information. The issues here relating to
the overflow and to the hydrogeology can then be fully
addressed with a fully developed record.
....
[T]he EHB did not finally address any aspect of the permit.
The EHB specifically indicated that it was not revoking the
permit, but that it was not ‘particularly receptive . . . based
on the existing record’ to ‘simply approv[ing] the permit
and dismiss[ing] the appeal.’ [Sentinel] EHB [No. 2007-
287-L] Dec. at 18. Rather, the EHB accepted many of the
concerns and questions raised by CCN and its experts as to
the methodologies used by [the developer] and DEP, and
has remanded the matter for further evaluation of the permit
under appropriate methodologies.
Sentinel, 2 A.3d at 1267.
The instant appeal has characteristics of both Big B and Sentinel. The
EHB exercised its discretion, declared that DEP erred in issuing the permits and
21
directed DEP to reexamine its actions subject to the EHB’s conclusions. Similar to
Big B, the EHB conclusively established the baseline from which DEP’s re-
assessment must begin. And, like in Sentinel, rather than revoke the permit, the EHB
remanded to DEP “for further evaluation of the permit under appropriate
methodologies.” Sentinel, 2 A.3d at 1267. Although neither case is directly on point,
Sentinel is more factually similar to the present matter than Big B.21
We acknowledge that this Court has permitted immediate appeals from
interlocutory orders pursuant to Rule 311(f)(2) in cases in which the lower tribunal
decided the merits of the case before remanding it for further action. See Vanvoorhis
v. Shrewsbury Twp., 176 A.3d 429 (Pa. Cmwlth. 2017) (an order that settles the only
point of contention between the parties before remand is immediately appealable);
see also Schultheis v. Bd. of Supervisors of Upper Bern Twp., 727 A.2d 145 (Pa.
Cmwlth. 1999) (immediate review granted where trial court decided the merits before
remanding the matter); Big B; G. Ronald Darlington, Kevin J. McKeon, Daniel R.
Schuckers, Kristen W. Brown and Patrick Cawley, 20 West’s Appellate Practice §
311:133 (2018-2019 ed.) (where the remand order directs a particular outcome or
forecloses issues, it is appealable under Rule 311(f)(2)). However, where the EHB
did not direct the outcome of DEP’s permitting decision, such that “it is not clear
what will occur upon further evaluation by DEP[,] . . . what will happen with the
permit, why it will happen, and which party, if any, will be aggrieved[,]” the EHB’s
order was not immediately reviewable. Sentinel, 2 A.3d at 1267; see also Mangan v.
21
CAC claims the distinguishing factor between Big B and Sentinel is that, in Big B, DEP
filed the interlocutory appeal, while, in Sentinel, the developer appealed. CAC points out that those
and the other cases Sunoco relies on are inapposite because the initially deciding governmental
body (rather than aggrieved private parties, like in this case) filed the interlocutory appeals. See
CAC Br. at 15-18. CAC convincingly argues that since there is no mechanism for DEP to appeal
under the EHB Act, when DEP is allegedly aggrieved by an EHB remand order, that order is final
as to DEP, so DEP’s sole option is an interlocutory appeal to this Court. It is not a private party’s
only option.
22
City of Carbondale Zoning Hearing Bd. (Pa. Cmwlth. No. 1143 C.D. 2011, filed June
27, 2012) (where the trial court’s order did not decide the merits before remand, there
was no issue capable of evading review).22
Here, CAC appealed from Plan Approval E to the EHB claiming that
DEP erred by treating Project E as a stand-alone project and by undercounting the
emissions increases, thereby allowing Sunoco to avoid applying NSR and PSD
requirements. The EHB concluded that, since the EHB was not authorized to do so,
Sunoco’s and DEP’s Project E NSR and PSD applicability determinations “must be
redone,” such that emissions from Projects 1 through E are aggregated as part of the
new Plan Approval E applicability determination, and DEP must also consider
whether Post-Dated Plan Approvals should also be aggregated therein. EHB Adj. at
74 (emphasis added). The EHB recognized that “Sunoco maintains some discretion
in formulating the data used in a revised application, and . . . there is no ‘correct’ set
of NSR calculations.” EHB Adj. at 74 (emphasis added). Thus, despite that the EHB
ruled that Projects 1 through E shall be aggregated, it nevertheless tasked DEP with
reevaluating which emissions sources and levels will be aggregated on remand.
Since the EHB did not revoke Plan Approval E, and “it is not clear . . . what will
happen [with Plan Approval E on remand], why it will happen, and which party, if
any, will be aggrieved[,]” Sentinel, 2 A.3d at 1267, this Court cannot conclude that
the EHB decided the merits before remand and that its aggregation ruling will evade
review if not immediately appealed.23 Accordingly, the EHB’s Adjudication is not
appealable as of right under Rule 311(f)(2).
22
This Court acknowledges that its unreported memorandum opinions may only be cited
“for [their] persuasive value, but not as binding precedent.” Section 414(a) of the Commonwealth
Court’s Internal Operating Procedures, 210 Pa. Code § 69.414(a). Mangan is cited herein for its
persuasive value.
23
Notably, “[b]ecause the EHB has not revoked Sunoco’s [P]lan [A]pproval [E], Sunoco
may continue to operate [pursuant thereto] in the meantime, subject to DEP’s [R]egulations.” CAC
23
There is no merit to Sunoco’s claim that it will be precluded from later
challenging the EHB’s Project 1 through E aggregation ruling, or applicability of the
administrative finality doctrine thereto, if this appeal is denied. Section 4(c) of the
EHB Act specifies that “no action of [DEP] adversely affecting a person shall be final
as to that person until the person has had the opportunity to appeal the action to the
[EHB].” 35 P.S. § 7514(c). Moreover, it is well settled that “an appeal of a final
order subsumes challenges to previous interlocutory decisions[.]”24 Betz v. Pneumo
Abex, LLC, 44 A.3d 27, 54 (Pa. 2012); see also Franciscus v. Sevdik, 135 A.3d 1092,
1093 n.1 (Pa. Super. 2016) (“[O]nce a final, appealable order has been appealed, any
prior interlocutory order can be called into question.”).
Although this Court has held that appeals after parties are permitted to
submit revised plans on remand are limited to issues related to the tribunal’s review
of the revised plans, Vanvoorhis; Schultheis, it is not entirely clear in the instant
matter whether Sunoco will submit a revised Plan Approval E application for DEP’s
reconsideration, or DEP will simply re-evaluate Sunoco’s original application. In
either event, Eckert confirmed that joining past and future projects with Project E
could change DEP’s calculations, see N.T. at 738, 816-817, thus, the EHB’s
directions on remand necessarily require DEP to re-examine Project E’s emissions
relative to Projects 1 through D and RFD 5236 and, potentially, add potential
emissions from Projects F through H. If either CAC or Sunoco are unsatisfied with
Plan Approval E after DEP’s decision on remand, they may appeal to the EHB and,
thereafter, to this Court.
Quashal Application at 12; see also EHB Adj. at 75 (the EHB refused to revoke Plan Approval E
and Sunoco’s construction pending remand).
24
“Failure to appeal an interlocutory remand order that could be appealed under [Rule]
311(f) will not result in a waiver of the objection to the order, such that an objection may be raised
on any subsequent appeal in the matter from a final determination on the merits.” 20 West’s
Appellate Practice § 311:134 (2018-2019 ed.).
24
Conclusion
Because the EHB’s Adjudication is not appealable as of right under Rule
311(f)(1) or (2), this Court lacks jurisdiction, and Sunoco’s appeal must be quashed.
Accordingly, CAC’s Quashal Application is granted.25
___________________________
ANNE E. COVEY, Judge
25
In light of the Court’s ruling on CAC’s Quashal Application, the Court lacks jurisdiction
to address Sunoco’s administrative finality doctrine issues.
25
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Sunoco Partners Marketing and :
Terminals, L.P., :
Petitioner :
:
v. :
:
Clean Air Council and Commonwealth :
of Pennsylvania, Department of :
Environmental Protection, : No. 145 C.D. 2019
Respondents :
ORDER
AND NOW, this 1st day of October, 2019, the Clean Air Council’s
Application to Quash this appeal is granted. Sunoco Partners Marketing and
Terminals, L.P.’s appeal from the Pennsylvania Environmental Hearing Board’s
January 9, 2019 Adjudication is quashed.
___________________________
ANNE E. COVEY, Judge