219 A.3d 280
Pa. Commw. Ct.2019Background:
- Sunoco converted a Marcus Hook facility from a refinery to NGL processing and obtained multiple DEP plan approvals and RFDs for discrete projects (Plans 1, A–E and later F–I; RFDs 5236, 5597).
- DEP issued Plan Approval E (April 1, 2016) treating Project E as a stand‑alone project and concluding it did not trigger PSD/NSR significance thresholds when not aggregated with earlier projects.
- Clean Air Council (CAC) appealed Plan Approval E to the Environmental Hearing Board (EHB), arguing DEP improperly treated Project E as standalone and miscalculated emissions/baselines, enabling circumvention of PSD/NSR.
- The EHB held Projects 1–E and RFD 5236 constituted a single project for PSD/NSR applicability, remanded Plan Approval E to DEP to (1) aggregate emissions from Projects 1–E and (2) consider whether post‑dated plan approvals (F–I) should also be aggregated, but did not revoke the permit.
- Sunoco appealed to the Commonwealth Court; CAC moved to quash as interlocutory. The Commonwealth Court considered whether exceptions in Pa. R. App. P. 311(f) made the remand immediately appealable.
- The Commonwealth Court concluded the remand required DEP fact‑finding and discretion and would not evade review after a final order; it quashed Sunoco’s interlocutory appeal for lack of jurisdiction and did not reach the administrative‑finality merits.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Jurisdiction under Pa. R. App. P. 311(f)(1): whether EHB remand left no administrative discretion and thus was immediately appealable | EHB’s directive to aggregate Projects 1–E removed DEP discretion; appealable under 311(f)(1) | DEP/CAC: remand requires complex, fact‑specific determinations (modification, baseline, linking), so DEP retains discretion | Not appealable under 311(f)(1); remand requires DEP expertise/discretion, so no immediate jurisdiction |
| Jurisdiction under Pa. R. App. P. 311(f)(2): whether EHB’s rulings would evade review if appeal delayed | Aggregation ruling is final and will evade review on remand absent immediate appeal | DEP/CAC: issues (and any EHB determination) can be reviewed after DEP’s action on remand and on final appeal; remand did not decide the merits | Not appealable under 311(f)(2); remand did not finally decide merits and issues will not evade later review |
| Whether EHB violated the administrative‑finality doctrine by ordering DEP to reevaluate applicability of federal PSD/NSR requirements after aggregating Projects 1–E | Sunoco: EHB’s order effectively altered final agency determinations and violated administrative finality | CAC/DEP: remand was proper to correct DEP errors; DEP must reassess using its technical expertise | Merits not reached — appeal quashed for lack of jurisdiction |
| Whether EHB violated administrative‑finality doctrine by instructing DEP to consider combining Plan Approval E with later (post‑dated) approvals F–I | Sunoco: directing DEP to consider post‑dated approvals retroactively violates finality | CAC/DEP: considering future/unknown projects is a factual/legal question for DEP on remand | Merits not reached — appeal quashed for lack of jurisdiction |
Key Cases Cited
- Department of Environmental Resources v. Big B Mining Co., Inc., 554 A.2d 1002 (Pa. Cmwlth. 1989) (interlocutory appeal may lie where remand forecloses review of a final legal determination)
- Sentinel Ridge Dev., LLC v. Dep’t of Envtl. Prot., 2 A.3d 1263 (Pa. Cmwlth. 2010) (remands for DEP fact‑finding and technical review are not immediately appealable)
- Peterson v. Workers’ Comp. Appeal Bd. (Wal‑Mart), 938 A.2d 512 (Pa. Cmwlth. 2007) (orders remanding for further proceedings are interlocutory unless an exception applies)
- Vanvoorhis v. Shrewsbury Twp., 176 A.3d 429 (Pa. Cmwlth. 2017) (immediate review allowed when remand settles the only point in controversy)
- Betz v. Pneumo Abex, LLC, 44 A.3d 27 (Pa. 2012) (a final order subsumes challenges to prior interlocutory rulings)
- Groce v. Dep’t of Envtl. Prot., 921 A.2d 567 (Pa. Cmwlth. 2007) (DEP’s obligations under PSD/NSR and the SIP framework)