Argued: September 9, 2019
BEFORE: HONORABLE ANNE E. COVEY, Judge, HONORABLE MICHAEL H.
WOJCIK, Judge, HONORABLE ROBERT SIMPSON, Senior Judge
E. COVEY, JUDGE
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) 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 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
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.Sunoco, Inc. operated a crude oil refinery
at the Facility until 2011. Sunoco Logistics purchased the
Facility from Sunoco, Inc. See EHB Adj. Finding of Fact
Facility contains several stationary air contamination
emissions sources regulated by the federal Clean Air Act
(CAA) 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 not
in compliance or in 'nonattainment' for other
pollutants. Sources in an area in attainment were subject to
the Prevention of Significant Deterioration
(PSD) requirements while sources in an area in
nonattainment were subject to the New Source Review
(NSR)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), 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
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. See EHB Adj. FOF 16.
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. 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 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.
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,  and DEP plan
approvals to construct, install and/or modify
emissions sources for each of the projects, including Plan
Approval E (issued April 1, 2016).
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.
"[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
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
previouslyissued 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.
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,
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
linked 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,
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 appeal
from Plan Approvals 1, A, B, C, D or RFD 5236. See
EHB Adj. FOFs 163, 240, 242, 244. The EHB conducted hearings
on CAC's appeal on May 7, 8, 9 and 10, 2018.
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
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
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.
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
Pa.R.A.P. 311(f) (emphasis added).
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.
Rule 311(f)(1) - Administrative Discretion
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
Adj. at 74 (bold and italics emphasis added).
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.
Pollution Control Engineer and Air Quality Permit Reviewer
George Eckert (Eckert) reviewed Sunoco's plan approvals
and RFDs, and conducted 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.
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.
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