Reed Smith Client Alerts

Clean Air Council v. Department of Environmental Protection and Sunoco Partners Marketing & Terminals, L.P., EHB Dkt. No. 2016-073-L (Adjudication Jan. 9, 2019)

On January 9, 2019, the Pennsylvania Environmental Hearing Board issued its adjudication in an appeal by Clean Air Council of a plan approval issued to Sunoco Partners Marketing & Terminals, L.P. The Board ultimately remanded the plan approval to the Commonwealth of Pennsylvania Department of Environmental Protection (DEP) for further consideration. The Board’s discussion of why it remanded the plan approval provides in-depth insight into what it considers to be indicia of project aggregation for purposes of New Source Review (NSR) and Prevention of Significant Deterioration (PSD) under the Clean Air Act.

Authors: Jennifer A. Smokelin

Factual background

This matter concerns the Marcus Hook Industrial Complex operated by Sunoco, and its conversion from a crude oil refinery to a facility for storing, shipping, and processing natural gas liquids. The conversion required construction of new air emissions sources, controls, and other infrastructure, and therefore required necessary air permitting. Sunoco pursued this permitting through a series of plan approvals and Requests for Determination (RFD). DEP issued plan approvals and RFDs, “linking” some of them for aggregation purposes.

What is project aggregation?

Project aggregation, the aggregation concept in play, is not a question of whether there is one facility, but rather whether physical and operational changes should be considered as a single project when determining whether NSR or PSD is triggered. Project aggregation can have a significant impact on the calculation of total emissions to determine whether the requirements of NSR or PSD apply.

Legal issues raised in Council appeal

The Council focused its case on two main objections: that DEP should have considered the construction work under the appealed plan approval as part of a larger project, and that DEP was incorrect in determining which emissions units for the appealed plan approval should have been considered to have been “modified,” pursuant to the regulations.