On Jan 9, 2019, the Pennsylvania Environmental Hearing Board (EHB) ruled in favor of "progress towards clean air" in the Clean Air Council v. Sunoco Partners & DEP Appeal, saying that the Pennsylvania Department of Environmental Protection (DEP) broke the law when it issued Sunoco permits to build a Natural Gas Liquids facility at Marcus Hook. Attorneys here at Fair Shake took notice of the language that they used in this decision, which sends a clear message: No more egg-slicer permitting.
To make a long story short Sunoco used a common tactic some people call “egg-slicer permitting” to make one large project look like it was actually a number of smaller projects allowing them to emit more pollution. The DEP approved each one of Sunoco’s six permit applications as stand-alone projects even though the idea that each “was a stand-alone project, not linked with any other past or future construction work at the Marcus Hook facility, was unreasonable or unsupported by the facts,” according to the EHB who then laid out it’s reasoning:
“Our review leaves us with no doubt that all of these phased construction projects are part of the same project for applicability purposes, based on the considerations that follow."
Factors:
Close Physical Proximity
Temporal Proximity (plan approval applications submitted over a short period of time. Approx. 1 to 3 months apart.)
Interdependence of Phased Projects (technically and economically linked.)
Common Plan and Shared Objective
Other Relevant Factors (all factors taken in combination, no persuasive evidence to refute single project analysis.)
The EHB said that “allowing a facility to subdivide a project in any way it sees fit, based on its business plan or otherwise, would render the regulatory thresholds meaningless. Without constraints, any project could be divided up in such a way that each divided part falls below the applicability thresholds.” This was a heartening sign that the days of 'slice and dice' regulatory evasion may be numbered.
Sunoco Partners was found to have violated the anti-circumvention regulation 25 Pa. Code §127.216 "[A]n owner or other person may not circumvent this subchapter by causing or allowing a pattern of ownership or development, including the phasing, staging, delaying or engaging in incremental construction, over a geographic area of a facility which, except for the pattern of ownership or development, would otherwise require a permit or submission of a plan approval application."
Firmly reminding the DEP of the purpose of these laws, the Judge ruled, "ultimately, we should not lose sight of the fact that the Legislature created the NSR program to ensure that new significant emissions do not slow progress toward cleaner air, and the PSD program is designed to ensure that new emissions do not cause air quality to deteriorate significantly and will continue to obtain air quality standards. 42 U.S.C. §§ 7470. 7503(a)."
The EHB statement that “There is no question that Sunoco did have a plan to make all the adjustments necessary to turn the Marcus Hook facility into a comprehensive NGL hub….” rung loud and clear in Philadelphia. We are really proud of the great work by our friends, colleagues, and fellow neighbors in the Commonwealth at the Clean Air Council and hope that this decision can be a catalyst in a greater effort to hold the DEP accountable.
