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Sunoco Partners Marketing and Terminals, L.P. v. Clean Air Council

Commonwealth Court of Pennsylvania

October 1, 2019

Sunoco Partners Marketing and Terminals, L.P., Petitioner
v.
Clean Air Council and Commonwealth of Pennsylvania, Department of Environmental Protection, Respondents

          Argued: September 9, 2019

          BEFORE: HONORABLE ANNE E. COVEY, Judge, HONORABLE MICHAEL H. WOJCIK, Judge, HONORABLE ROBERT SIMPSON, Senior Judge

          OPINION

          ANNE E. COVEY, JUDGE

         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 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 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), 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 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 approvals[11] to construct, install and/or modify emissions sources[12] 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.

          "[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.

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 linked[14] 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 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.

         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.

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 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 ...


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