On Monday, the Pennsylvania Environmental Hearing Board (the “Board”) issued an adjudication in Logan v. DEP, EHB Docket No. 2016-091-L (Adjudication issued Jan. 29, 2018), in which the Board dismissed an appeal challenging the Pennsylvania Department of Environmental Protection’s (“DEP”) issuance of an air quality plan approval to Purdue Agribusiness LLC (“Purdue”) for construction of a soybean solvent extraction plant. In upholding the plan approval, the Board rejected the appellants’ argument that DEP’s issuance of the plan approval violated Article I, Section 27 of the Pennsylvania Constitution, known as the Environmental Rights Amendment.
In its decision, the Board upheld DEP’s determinations that (1) Perdue’s volatile organic compound (VOC) emissions were of minor significance under 25 Pa. Code § 123.1; (2) Perdue was not required to install an incinerator, known as a regenerative thermal oxidizer, to capture VOC emissions under DEP’s lowest achievable emissions rate (“LAER”) regulations at 25 Pa. Code § 127.205; and Perdue properly demonstrated in its analysis of alternative sites, sizes, production processes, and environmental control techniques for the proposed facility that the benefits of the facility significantly outweigh the environmental and social costs under 25 Pa. Code § 127.205. The Board found that Perdue’s chosen facility size was appropriate and that the appellants failed to demonstrate “that traffic associated with the facility would cause an unreasonable delay or so impede the flow of traffic in the vicinity of the facility that it renders the Department’s issuance of the plan approval unreasonable or contrary to law.”
After finding that the appellants failed to prove that DEP’s issuance of the plan approval violated the Air Pollution Control Act or its regulations, the Board ended its decision by dismissing the appellants’ argument that DEP’s issuance of the plan approval violated Article I, Section 27. The appellants argument on Article I, Section 27 was essentially that, “because the Department’s approval of Perdue’s plan approval was allegedly contrary to the Air Pollution Control Act and its regulations, the Department’s action necessarily violated the Constitution.” The Board explained, however, that the appellants never articulated how DEP “sanctioned a project that unreasonably degrades the environment and infringes on the Appellants’ rights to clean air, pure water, and to the preservation of the natural, scenic, historic, and esthetic values of the environment.” The Board held that, having concluded that DEP “did not violate the Air Pollution Control Act or any applicable regulations in issuing the plan approval, and being provided with no additional arguments from the appellants,” the appellants failed to meet their burden of proof to show that DEP acted unconstitutionally.
The Perdue decision continues the trend in recent Board holdings that statutory and regulatory compliance has resulted in compliance with Article I, Section 27, even though the Board continues to state that the Article I, Section 27 standard is not coextensive with statutory and regulatory compliance. See our earlier posts on Center for Coalfield Justice v. DEP, EHB Docket No. 2014-072-B (Adjudication issued Aug. 15, 2017) (applying the Pennsylvania Supreme Court’s decision in Pa. Environmental Defense Found. v. Commonwealth, No. 10 MAP 2015 (Pa. June 20, 2017), and holding that Article I, Section 27 standard is not coextensive with compliance with DEP’s statutes and regulations); Friends of Lackwanna v. DEP, EHB Docket No. 2015-063-L (Adjudication issued Nov. 8, 2017) (reiterating that Article I, Section 27 applies “[r]egardless of which statutory or regulations apply” and that “in theory, an operation may be compliant with all specific regulatory requirements and yet not be permittable due to the unreasonable degradation it will cause” under Article I, Section 27). Going forward, given the ongoing uncertainty over the Board’s Article I, Section 27 standard in the permitting context, permit applicants should continue to demonstrate strict compliance with all applicable statutes and regulations.