06/06/2016

COMMONWEALTH OF PENNSYLVANIA
BEFORE THE ENVIRONMENTAL BEARING BOARD

ANNETTE LOGAN, PATTY

LONGENECKER AND NICK BROMER
Appellants
V

EIIB Docket No.

2016 -

COMMONWEALTH OF
PENNSYLVANIA, DEPARTMENT OF
ENVIRONMENTAL PROTECTION,
Appellee
ME
PERDUE AGRIBUSINESS LLC
Permittee
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. 36051 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 bpatch38@comcast.net and
her phone number is 717-367-2405.

65144.1 6/6116

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

PA 17547. His e-mail address is nickbi mer; ail.om 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.

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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.

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16. On February 25, 2015, the Department sent a draft of Plan Approval 36051 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 DDStandards of Performance for Grain Elevators. 40
CFR 63, Subpart (XIGGNational Emission Standards for Hazardous Air
Pollutants: Solvent Extraction for Vegetable Oil Production, and Compliance
El

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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.

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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').
311

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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.
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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. The Department abused its discretion, acted contrary to law, arbitrary and
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. The Department abused its discretion, acted contrary to law, arbitrary and
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. The Department abused its discretion, acted contrary to law, arbitrary and
capricious and unreasonable when it determined the benefits of the proposed
E1

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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.

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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 LAERLowest 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.

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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
717-238-3027
717-238-8033 (fax)
e-mail: billcluck@billciuck.com

Date: June 6, 2016

11

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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:

April Ham
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

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Exhibit A


PERDUE M3RIBUSINESS IICRAARIE1T&
COMMONWEALTH OF PBINSYLVANIA
DEPARTMENT OF ENVIRONMENTAL PROTECTION
AIR C)UAUIY PROGRAM
PLANAPPROVAL
Issue Date:

MayS, 2016

EfCUVe Date:

May 5. 2016

Expiration Date: October 31,2017

In accordance with the provisions of the Mr 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 Enironmental 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

Lancaster County

38920 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)

1&4 ) k(uu.ef

IMLLIAMR. I4EAVER SOUTHCENTRAL REGION AIR PROGRAMMANAGER

DEP Auth ID: 938531

Page 1

06/06/2016

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Exhibit B

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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

Confidentiality 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''

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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:

Gregory Rowe, Vice President

David Jordan, ERM
Peter Fontaine, Cozen

06/06/2016

Perdue Confidential Information Log

Page ft in
Document

Description

Page 65

Identification of low cost vendor and the

location of the low cost vendor quote
Identification of vendor pricing details

Page 66
Page 67
Page 69
Page 69
Page 70
Page 70
Page 70
Page 71
Page 72
Page 73

1 Vendor performance guarantee

Identification of vendor with highest
performance guarantee
Identification of vendor providing
building cost estimate
Identification of control equipment with
the highest performance guarantee
Identification of vendor providing cost
data
Identification of control equipment with
the highest performance guarantee
Identification of vendor providing
building cost estimate
Identification of vendor performance

Pages 103-116

identification of control equipment with

the highest performance guarantee
Adwest proposal text

Pages 120-160

Anguil proposal text

Page 162

NESTEC performance guarantee

Pages 163-196

NESTEC proposal text

Pages 198-202

Internal Perdue analysis of soybean

processing cost Information, internal
capital investment decision strategies and
processes, internal business model
strategies, and corporate strategy
information.

Basis for Confidential Treatment:

Pennsylvania Air Pollution Control Act,
35 P.S. 4013.2
APCA 13.2 Methods, processes or
production unique to vendor
APCA 13.2 Methods, processes or
production uniqe to vendor
APCA 13.2 Methods, processes or
production unique to vendor
APCA 13.2 Methods, processes or
production unique to vendor
APCA 13.2 Methods, processes or
production unique to vendor
APCA 13.2 Methods, processes or
production unique to vendor
APCA 13.2 Methods, processes or
production unique to vendor
APCA 13.2 Methods, processes or
production unique to vendor APCA 13.2 Methods, processes or
production unique to vendor
APCA 13.2 Methods, processes or
production unique to vendor
APCA13.2 Methods, processes or
production unique to vendor
APCA 13.2 Trade Secret, including
intellectual property disclosure of
which would tend to affect adversely
vendor
APCA 13.2 Trade Secret, including
intellectual property disclosure of
which would tend to affect adversely
vendor competitive position
APCA 13.2 Methods, processes or
to
APCA 13.2 Trade Secret, including
Intellectual property disclosure of
which would tend to affect adversely
vendor competitive position
APCA 13.2 Trade Secret, including
intellectual property disclosure of
which would tend to affect adversely
Perdue's competitive position

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Page 220
Page 220
Page 220
Page 222

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

APCA 13.2 Methods, processes or

production unique to vendor APCA 13.2 Methods, processes or
production unique to vendor
APCA 13.2 Methods, processes or
production unique to vendor
APCA 13.2 Methods, processes or
production unique to vendor

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Exhibit C

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pennsylvania
DEPARTMENT OF ENVIRONMENTAL.
PROTECTION

February 1, 2016
Mr. Gregory Rowe
Perdue Agribusiness LLC
P0 Box 1537
Salisbury, Ml) 21802-1537
Re:

Confidentiality Request Approval

Perdue Agribusiness I A
Plan Approval Application No. 36-05158A
Conoy i'ownsbip, Lancaster County

Dear Mr. Rowe:

The Department is responding to the January 25, 2016 letter submitted by Herbert D. Frerichs, Jr. Mr.
Frerichs' letter requested that portions of Perdue's responses to the Department's July 8, 2015 Technical
Deficiency Letter for the proposed Perdue Grain & Oilseed, LLC soybean oil extraction facility located
in Conoy Township, Lancaster County, be considered confidential.
The requested portions that Mr. Frerichs has identified as confidential in nature will be considered
confidential by the Department subject to the provisions of Section 13.2 of the Pennsylvania 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 by the Department, you will be notified.
Under Section 13.2, confidential information may be disclosed to federal, state, or local representatives
for administration of any air pollution control law. Such representatives may include contractors
performing studies for the government. Any such representative will be required to safeguard
confidential information.
If you have any further questions concerning this matter, please call me at 717.705.4862.
Sincerely,
/,erw

/h

Thomas J. 1111 a, P.E.

Permitting Chief
Air Quality Program
cc: SCRO, 36-05158A, 3.1
Lancaster District
Permits

Air Quality Program

Southcentral Regional Office 1909 Elmerton Avenue

3 Harrisburg, PA 17110-8200 1717.705.4702 1 F 717.705.4830

www.dep.pa.gov