Appeal to DEP s Approval of Perdue s Soybean Processing Plant

8/15/2019 Appeal to DEP s Approval of Perdue s Soybean Processing Plant

1/21

COMMONWEALTH OF PENNSYLVANIA

BEFORE THE ENVIRONMENTAL BEARING BOARD

ANNETTE LOGAN PATTY

LONGENECKER AND NICK BROMER

Appellants

V

COMMONWEALTH OF

PENNSYLVANIA DEPARTMENT OF

ENVIRONMENTAL PROTECTION

Appellee

ME

PERDUE AGRIBUSINESS LLC

Permittee

EIIB Docket No.

2016

-

NOTICE OF APPEAL

Annette Logan, Patty Longenecker and Nick Bromer ( Appellants ), by their

undersigned attorney, hereby appeal the issuance by the Commonwealth of Pennsylvania,

Department of Environmental Protection ( Department ) of Air Quality Plan Approval No. 36-

051 58A ( Plan Approval ) issued to Perdue Agribusiness ILLC, and in support thereof, state as

follows:

1.

Annette Logan is an individual who resides at

5874

River Drive York PA

17406. Her phone number is 717-870-2191 and e-mail is a1oganycp.edu

.

2.

Patty Longenecker is an individual who resides at 2094 Turnpike Road,

Elizabethtown PA 17022. Her e-mail address is [email protected]

and

her phone number is

717-367-2405.

65144 1 6 6116

06/06/


2/21

3.

Nick Bromer is an individual who resides at 402 Stackstown Road, Marietta

PA 17547. His e-mail address is nickbi mer; ail.çom and phone number

is 717-426-1664.

4.

Review is sought of Air Quality Plan Approval No. 36-05158A issued to

Perdue Agribusiness LLC ('Perdue ). A copy of the first page of the Plan

Approval is attached to this Notice of Appeal as Exhibit A.

5.

William R. Weaver, Southcentral Region Air Program Manager, Air Quality

Program is the Department official who issued the Plan Approval. Mr.

Weaver's address is Southcentral Regional Office, 909 Elmerton Avenue,

Harrisburg, Pennsylvania 17110.

6. The facility and sources subject to the Plan Approval are located in Conoy

Township, Lancaster County.

7. Appellants participated in

the

public comment process and received notice of

the issuance of the Plan Approval via Department press release issued May

5

2016.

8. The Plan Approval is for the installation of a grain elevator and a soybean oil

extraction facility.

9.

Initially, Perdue's corporate predecessor sought to permit the facility as a two

phase process. The application for Phase I was submitted June 27, 2012 by

Perdue Grain & Oil Seed, LLC for installation of a grain elevator. The

application for Phase 2 was submitted August 13, 2012 for installation of a

soybean oil extraction process.

2

06/06/


3/21

10.

On December 13, 2012, the Department held a public hearing on both the

Phase 1 and Phase 2 applications. Approximately 90 people attended the

hearing, 20 persons presented oral testimony and 50 written comments were

submitted.

11.

On March 29, 2013, the Department issued Plan Approval 36-03189A for the

Phase I grain elevator.

12.

On April 16, 2013, the environmental director for Perdue Agribusiness LLC

submitted a letter on behalf of Perdue Grain & Oilseed, LLC requesting

withdrawal of Plan Approval 36-03189A. On April 17, 2013, the Department

revoked Plan Approval 36-03189A.

13. On June 4, 2013, Perdue Grain & Oilseed, LLC submitted a revised plan

approval application for Phase 1 and Phase 2.

14.

On July 13, 2013, the Department published notice in the Pennsylvania

Bulletin of receipt of the June 4, 2013 revised application. The notice

described the revised application as for modification of the pending plan

approval application for a soybean processing facility in Conoy Township,

Lancaster County

to include application updates, including the additional

installation of a grain elevator facility, an expanded siting analysis, and a

revised analysis of Lowest Achievable Emission Rate (LAER).

15.

On November 3, 2014 and November 7, 2014, Perdue Grain & Oilseed, LLC

submitted to the Department significant revisions to the plan approval

application.

3

06/06/


4/21

16.

On February 25, 2015, the Department sent a draft of Plan Approval 36-

051 58A to Perdue Grain & Oilseed, LLC. Perdue's outside counsel submitted

comments on the draft plan approval to the Department on April 10, 2015.

17.

Notice of the Department's intent to issue the Plan Approval was published in

the Pennsylvania Bulletin on February 28, 2015. The notice provided the

following information to the public: Plan Approval No. 36-05158A is for the

installation of a grain elevator and a soybean oil extraction facility. Air

emissions from various grain elevator operations will be controlled by

baghouses. Air emissions from soybean oil extraction operations will be

controlled by several baghouses, a mineral oil scrubber and various cyclones.

Potential emissions from the proposed project are estimated to be: 178.34 tpy

PM, 44.73 tpy PM10, 8.05 tpy PM25, 0.04 tpy SO,, 1.02 tpy CO. 4.08 tpy NO R

208.05 tpy VOC, 104.01 tpy of a single HAP (n-hexane), 104.02 tpy

combined HAPs, and 4,565.87 tpy CO2. DEP's review of the information

submitted by the applicant indicates that the air contamination sources as

constructed or modified will comply with all regulatory requirements

pertaining to air contamination sources and the emission of air contaminants

including the best available technology requirement (BAT) of 25 Pa. Code §

127.1 and 127,12, storage tank requirements of 25 Pa. Code § 129.57, the

new source review (NSR) requirements of 25 Pa. Code §§ 127.201-127.211,

40 CFR 60, Subpart DD—Standards of Performance for Grain Elevators. 40

CFR 63, Subpart (XIGG—National Emission Standards for Hazardous Air

Pollutants: Solvent Extraction for Vegetable Oil Production, and Compliance

l

06/06/


5/21

Assurance Monitoring (CAM) requirements of 40 CFR Part 64. Based on

these findings, the Department proposes to

issue a

plan approval for the

proposed construction.

18. On March 31, 2015, the Department held another public hearing.

19.

Although the Department had published notice of its intent to issue the plan

approval, on July 8, 2015, the Department sent a technical deficiency letter to

Perdue Grain & Oilseed, LLC identifying 41 deficiencies in the application.

20. On January 25, 2016, Environmental Resources Management ( ERM )

submitted to the Department on behalf of Perdue Grain & Oilseed, LLC,

responses to the Department's July 8, 2015 technical deficiency letter. ERM

submitted two versions of the letter, one being a confidential copy and the

other a public version redacted of purported confidential business

information.

21.

On January 25, 2016, general counsel for Perdue AgriBusiness LLC,

submitted a confidentiality request to the Department. The January 25,

2016 confidentiality request is attached hereto as Exhibit B.

22.

On February 1, 2016, the Department acknowledged receipt of the request

from Perdue AgriBusiness LLC to treat as confidential certain portions of the

ERM response to the Department's technical deficiency letter for the proposed

Perdue Grain & Oilseed, LLC soybean extraction facility.

23.

The Department agreed to treat as confidential the portions identified in the

January 25, 2016 letter from general counsel for Perdue AgriBusiness, LLC.

A copy of the February 1, 2016 letter is attached hereto as Exhibit C.

5

06/06/


6/21

24.

Appellants object to the Department's determination to treat certain

information as confidential in the ERM response to the Department's

technical deficiency letter.

25.

Appellants were denied due process where the Department did not provide

notice and an opportunity for the public to comment on the request to treat

certain information as confidential.

26.

The Department acted contrary to law, abused its discretion,, and was arbitrary

and unreasonable in approving the request for confidential treatment of certain

information submitted by ERM.

27. On February 24, 2016, Perdue AgriBusiness, LLC submitted follow up

information to several of ERM's January 25, 2016 responses to the

Department's technical deficiency letter.

28.

In that February 24, 2016 letter, Perdue AgriBusiness, LLC notified the

Department that on March 30, 2015, Perdue AgSolutions LLC and Perdue

Grain & Oilseed LLC began doing business as Perdue AgriBusiness, LLC.

29.

The Department did not provide public notice of the change to the corporate

identity of the Plan Approval applicant.

30. The Plan Approval was issued by the Department to Perdue AgriBusiness

LLC on May

5,

2016.

31.

The facility is subject to Title

25, Chapter 127, Subchapter E of the

Pennsylvania Code relating to New Source Review.

32.

Plan approval applicants are required to show that emissions will be the

minimum attainable using best available technology ( BAr').

3

06/06/


7/21

33.

BAT is defined in Department regulations as equipment, devices, methods or

techniques as determined by the Department which will prevent, reduce or

control emissions of air contaminants to the maximum degree possible and

which are available or may be made available.

34.

The Legislature, in adopting the Air Pollution Control Act, determined it is

hereby declared to be the policy of the Commonwealth of Pennsylvania to

protect the air resources of the Commonwealth to the degree necessary for the

protection of public health, safety and well-being of its citizens.

35.

The plan approval application did not address BAT for the entire facility. The

Department abused its discretion, acted contrary to law and was arbitrary and

unreasonable in failing to require the applicant to demonstrate BAT for the

facility.

36.

New Source Review regulations require an analysis shall be conducted of

alternative sites, sizes, production processes and environmental control

techniques for the proposed facility, which demonstrates that the benefits of

the proposed facility significantly outweigh the environmental and social costs

imposed within this Commonwealth as a result of its location, construction or

modification.

37.

The applicant failed to perform an adequate analysis of alternative sites for the

soybean oil extraction facility.

38.

The Department abused its discretion, acted contrary to law, arbitrary and

unreasonable when it issued the Plan Approval without requiring an adequate

alternative site analysis.

7

06/06/


8/21

39.

The applicant failed to perform an analysis of production processes and

environmental control techniques for the proposed facility that would not

require the use of n-hexane.

40.


unreasonable when it issued the Plan Approval without requiring the applicant

to perform an analysis of production processes and environmental control

techniques for the proposed facility that would not require the use of n-hexane.

41.

The applicant failed to demonstrate the benefits of the proposed facility

significantly outweigh the environmental and social costs imposed within the

Commonwealth as a result of the facility's location and construction.

42.


unreasonable when it issued the Plan Approval without requiring the applicant

to demonstrate the benefits of the proposed facility significantly outweigh the

environmental and social costs imposed within the Commonwealth as a result

of the facility's location and construction.

43.

The Department's analysis of potential harms [rather than environmental

and social costs] was arbitrary, unreasonable and inconsistent with New

Source Review and Article I, Section 27 of the Pennsylvania Constitution.

44. The Department's analysis of potential benefits was arbitrary, unreasonable

and inconsistent with New Source Review and Article I, Section 27 of the

Pennsylvania Constitution.

45.


capricious and unreasonable when it determined the benefits of the proposed

E

06/06/


9/21

facility significantly outweigh the environmental and social costs imposed

within the Commonwealth.

46. The Plan Approval authorizes 1189 tons per year of fugitive VOC emissions.

47. It appears the Department determined those fugitive emissions of VOCs were

of minor significance.

48. As a matter of law, fugitive emissions cause or contribute to a condition of air

pollution.

Department ofEnvironmental Resources v. Locust Point Quarries

Inc., 483 Pa. 352,

360(1979).

49. No person may emit fugitive air contaminants into the outdoor atmosphere

from any source, unless an exemption under

25 Pa. Code §

123.1 a) applies.

50.

Where a fugitive emission does not otherwise qualify for an exemption under

25 Pa. Code § 123.1(a)(l)-(8), for a source to be exempt an operator must

obtain: a determination from the Department that the fugitive emissions from

the source, after appropriate control, meet the following requirements:

(i) The emissions are of minor significance with respect to causing air

pollution.

(ii) The emissions are not preventing or interfering with the attainment or

maintenance of an ambient air quality standard.

25

Pa. Code §

123.1 a) 9)..)

51.

When the Department fails to properly apply its own regulations to its review

of a permit application and issuing a permit, the Department acts contrary to

law.

06/06/


10/21

52.

If the Department determined the fugitive emissions of VOCs are of minor

significance, the determination is clearly erroneous, contrary to law and an

abuse of discretion.

53.

Sources subject to new source review must also achieve LAER. Department

regulations define LAER—Lowest Achievable Emission Rate— as

(i) The rate of emissions based on the following, whichever is more

stringent:

(A)

The most stringent emission limitation which is contained in the

implementation plan of a state for the class or category of source unless the

owner or operator of the proposed source demonstrates that the limitations are

not achievable.

(B) The most stringent emission limitation which is achieved in practice

by the class or category of source.

(ii) The application of the term may not allow a new or proposed modified

source to emit a pollutant in excess of the amount allowable under an

applicable new source standard of performance.

54. The Plan Approval does not meet LAER.

55. For the foregoing reasons, the Department's issuance of the Plan Approval

was contrary to the Air Pollution Control Act and its regulations, as well as

Article I, Section 27 of the Pennsylvania Constitution.

10

06/06/


11/21

56.

Appellants reserve the right to supplement or amend this Notice of Appeal

based upon information obtained during discovery and as provided by the

Rules of Practice and Procedure before the Board.

Respectfully submitted,

William J. Cluck

Pa Attorney Id No. 52892

Law Office of William J Cluck

587

Showers Street

Harrisburg, Pa 17104

Date: June 6, 2016

17-238-3027

717-238-8033 (fax)

e-mail: [email protected]

11

06/06/


12/21

CERTIFICATE OF SERVICE

The undersigned hereby certifies

that a

copy of the foregoing Notice of Appeal was

served on this date upon the following:

By electronic filing:

pril

a m

Office of Chief Counsel

PA Department of Environmental Protection

16th Floor, Rachel Carson State Office Building

400 Market Street, P.O. Box 8464

Harrisburg, PA 17105-8464

William Weaver

Southcentral Region Air Program Manager

Air Quality Program

Southcentral Regional Office

Pa. Department of Environmental Protection

909 Elmerton Avenue

Harrisburg PA 17110

By e-mail to counsel who agreed to accept service:

Peter Fontaine

Counsel for Perdue Agribusiness LLC

Cozen O'Conner

One Liberty Place

1650 Market Street

Philadelphia, PA 19103

Date: June 6, 2016

William J Cluck, Esquire

12

06/06/


13/21

Exhibit

A

06/06/


14/21

•

ERDUE M 3RIBUSINESS IICRAARIE1T&

COMMONW EALTH OF PBINSYLVANIA

DEPARTMENT OF ENVIRONMENTAL PROTECTION

AIR C)UAUIY PROG RAM

PLANAPPROVAL

Issue

Date:

ayS, 2016

fCUVe Date:

ay 5. 2016

Expiration Date: October 31,2017

In accordance with the provisions of the

r

Pollution Control Act, the Act of January 8,1960. P.L. 2119, as

amended, and 25 Pa. Code Chapter 127, the Owner, [and Operator if notedi (hereinafter referred to as

permittee) identified below is authorized by the Department of Eniñronmental Protection (Department) to

construct, install, modify or reactivate the air emission source(s) more fully described in the site inventory list

This Facility is subject to all terms and conditions specified in this plan approval. Nothing in this plan approval

relieves the permittee from its obligations to comply with all applicable Federal, State and Local laws and

regulations.

The regulatory or statutory authority for each plan approval condition is set forth in brackets. MI terms and

conditions In this permit are federally enforceable unless otherwise designated as 'State-Only requirements.

Plan Approval No. 36-051 58A

Federal Tax Id - Plant Code: 20-5172625-1

Owner Information

Name: PERDUE AGRIBUSINESS LLC

Mailing Address: PC BOX 1637

SALISBURY, MD 21802-1537

Plant Information

Plant PERDUE AGRIBUSINESS LLCWRIEUA

Location: 36

ancaster County

8920 Conoy Township

SIC Code: 2075 Manufacturing - Soybean 011 Mills

Responsible Official

Name: C. lt I 'I 'NE BLACK

Title: DR AGRIBUSINESS ENRON

Phone 252)348 -4326

Plan Ppproval

Contact Person

Name: C. WAYNE BLACK

Title: DR AGRIBUSINESS ENVIRON

Phone: (252)348- 4326

Signature)

4 ) k(uu.ef

I M L L I A M R I 4 E A V E R S O U T H C E N T R A L R E G I O N A I R P R O G R A M M A N A G E R

DEP Auth ID: 938531

age 1

06/06/


15/21

Exhibit B

06/06/


16/21

January 25, 2016

Tom Hanlon, Environmental Engineering Manager

Air Quality Permitting

Southcentral Regional Office

Pennsylvania Department of Environmental Protection

909 Elmerton Avenue

Harrisburg, PA 17110

Re

onfidentiality Request

Perdue AgriBusiness LLC ( Perdue )

Plan Approval Application No. 36-05158A

onoy Township, Lancaster County

Dear Mr. Hanlon:

In accordance with the Department's request, enclosed herewith are a confidential copy and a public

(redacted) copy of Perdue's response to the Department's July 8, 2015, Technical Deficiency Letter

( MV). Certain portions of Perdue's submission contain information, which if made public, would

divulge production or sales figures or methods, processes or production unique to Perdue and/or its

potential vendors, or would otherwise tend to affect adversely the competitive position of Perdue

and/or Its potential vendors by revealing trade secrets, including Intellectual property rights. Such

Information relates to proprietary Perdue soybean processing cost information, internal capital

Investment decision strategies and processes, internal business model strategies and corporate strategy

information for the proposed Lancaster plant, in addition to vendor costs, designs, and other

Information that Is considered trade secret and Intellectual property, the disclosure of which would tend

to affect adversely the competitive position of Perdue and/or the potential vendors with whom Perdue

does business. The Information Is considered trade-secret information because it (1) reflects

Information of Perdue and/or the potential vendors that derives independent economic value from not

being generally known or readily ascertainable by others who can obtain economic value from its

disclosure or use and (2) is subject to reasonable efforts by Perdue and/or the potential vendors to

maintain their secrecy. Accordingly, such documents are exempt from disclosure under the protective

provisions of Section 13.2 of the Pennsylvania Air Pollution Control Act Pennsylvania and under the

provisions of the Pennsylvania Right-to-Know Law ( RTKL ), including but not limited to 65 P.S.

67.102, 67.707(b), 67.708(b)(10), 67.708(b)(11), and 67.708(b)(17). Perdue requests that the

4 FannJy C.,,,,,,it,,c,t to Qi.IiIv Veto I ,ZO

06/06/


17/21

Department provide notification of any request for the disclosure of this information and grant Perdue

an opportunity to provide further Input justifying the exemption from disclosure.

The specific basis for each confidentiality claim Is set forth In the attached Confidential information

Log., which provides the location of the confidential information in the document, a description of such

Information, and the specific basis for the confidentiality claim.

Please call If you have any questions.

Respec fully,

Herbr2hs J./

General Counsel

Enclosures

cc: regory Rowe, Vice President

David Jordan, ERM

Peter Fontaine, Cozen

06/06/


18/21


19/21

APCA §13.2 Methods, processes or

production unique to vendor







Vendor particulate matter performance

guarantees

Identification of vendor with lowest

control equipment costs

Identification of vendor quote with

lowest control equipment costs

Vendor particulate matter control

guarantee information and identification

of vendor with lowest control equipment

costs

Page 220

Page 220

Page 220

Page 222

06/06/


20/21

Exhibit C

06/06/


21/21

ennsylvania

DEPARTMENT OF ENVIRONMENTAL.

PROTECTION

February 1, 2016

M r. Gregory Rowe

Perdue Agribusiness LLC

P0 Box 1537

Salisbury, Ml) 21802-1537

Re:

onfidentiality Request App roval

Perdue Agribusiness I A

Plan Approval Application No. 36-05158A

Conoy i'ownsbip, Lancaster County

Dear Mr. Rowe:

The D epartment is responding to the January 25, 2016 letter submitted by H erbert D. Frerichs, Jr. Mr.

Frerichs' letter requested that portions of Perdue's responses to the D epartment's July 8, 2015 T echnical

Deficiency Letter for the proposed Perdue Grain Oilseed, LLC soybean oil extraction facility located

in Conoy T own ship, Lancaster County, be considered confidential.

The req uested portions that Mr. Frerichs has identified as confidential in nature will be c onsidered

confidential by the D epartment subject to the prov isions of Section 13.2 of the Pennsylva nia Air

Pollution Control Act,

35

P.S. Section 4013.2. If the confidential designation is challenged in any

proceeding or is proposed to be changed b y the Dep artment, you will be notified.

Under Section 13.2, confidential information may be disclosed to federal, state, or local representatives

for administration of a ny air pollution control law. S uch representatives m ay include contractors

performing studies for the government. Any such representative w ill be required to safeguard

confidential information.

If you hav e any further questions concerning this matter, please call me at 717.705.4862.

Sincerely,

/,erw

h

Thom as J. 1111 a, P.E.

Permitting Chief

Air Quality Program

cc: SCRO, 36-05158A, 3.1

Lancaster D istrict

Permits

Air Quality Program

Southcentral Regional Office 1909 Elmerton Avenue

Harrisburg, PA 17110-8200 1717.705.4702

F 717.705.4830

06/06/

Appeal to DEP s Approval of Perdue s Soybean Processing Plant

Documents

Transcript of Appeal to DEP s Approval of Perdue s Soybean Processing Plant