U. S. Environmental Protection Agency

Region 9

Responses to Public Comments

Prevention of Significant Deterioration (PSD)

Permit Amendment

Resolute Natural Resources Company

McElmo Creek Unit Oil Production Facility

PSD Permit No. NU 05-01

September 30, 2016
McElmo Creek Unit Oil Production Facility (PSD No. NU 05-01)

Responses to Public Comments for PSD Permit Amendment

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TABLE OF CONTENTS

ABBREVIATIONS & ACRONYMS ...........................................................................................4

1. INTRODUCTION.................................................................................................................6

2. COMMENTS ON THE PSD PERMIT AMENDMENT & AAQIR/FACT SHEET ...11

3. COMMENTS ON COMPLIANCE...................................................................................27

4. COMMENTS ON PUBLIC PARTICIPATION & OUTREACH..................................34

5. COMMENTS ON GENERAL ENVIRONMENTAL & HEALTH CONCERNS .......38

6. SUPPLEMENTAL BACT ANALYSIS FOR FLARE MINIMIZATION PRACTICES 

FOR SO2, CO, NOX, AND VOC EMISSIONS AT THE MAIN FLARE......................45
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ABBREVIATIONS & ACRONYMS

AAQIR/Fact Sheet Ambient Air Quality Impact Report and Fact Sheet dated October 2014

for the proposed PSD permit amendment

Act Clean Air Act [42 U.S.C. Section 7401 et seq.]

Applicant Resolute Natural Resources Company

AZ Arizona

BACT Best Available Control Technology

BTU British thermal units

BTU/hr2 British thermal units per hour squared

CAA Clean Air Act [42 U.S.C. Section 7401 et seq.]

CERCLA Comprehensive Environmental Response, Compensation and Liability 

Act

CFR Code of Federal Regulations

CO Carbon Monoxide

CO2 Carbon Dioxide

Consent Decree United States v. Mobil Exploration and Producing U.S. Inc., Case No. 

2:05–CV–319, filed June 8, 2005

e-mail Electronic mail

EPA United States Environmental Protection Agency

ESA Endangered Species Act

Facility McElmo Creek Unit Oil Production Facility

Fact Sheet Ambient Air Quality Impact Report and Fact Sheet

FMP Flare Minimization Plan

FR Federal Register

H2S Hydrogen sulfide

hr hour

lb, lbs pound, pounds

MCU Facility McElmo Creek Unit Oil Production Facility

MMBTU million British thermal units

NAAQS National Ambient Air Quality Standards

NESHAP National Emission Standards for Hazardous Air Pollutants

NHVdil Net heating value air assist dilution

NHVvg Net heating value of flare vent gas

NHPA National Historic Preservation Act

NNEPA Navajo Nation Environmental Protection Agency
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NO2 Nitrogen Dioxide

NOx Nitrogen Oxides or Oxides of Nitrogen (NO + NO2)

NSPS New Source Performance Standards, 40 CFR Part 60

NSR New Source Review

O&M Plan Operations and Maintenance Plan

Permittee Resolute Natural Resources Company; or the owner and/or operator of 

the McElmo Creek Unit Oil Production Facility

PM Total Particulate Matter

PM2.5 Particulate Matter less than 2.5 micrometers (μm) in diameter

PM10 Particulate Matter less than 10 micrometers (μm) in diameter

PSD Prevention of Significant Deterioration

RBLC U.S. EPA RACT/BACT/LAER Clearinghouse

rpm Revolutions per minute

scf standard cubic foot

scfh standard cubic feet per hour 

scfm standard cubic feet per minute

SHPO State Historic Preservation Officer

SO2 Sulfur Dioxide

SOx Sulfur Oxides

SPCC Plan Spill Prevention, Control, and Countermeasure Plan

THPO Tribal Historic Preservation Officer

Title V Title V of the Clean Air Act [42 U.S.C. Sections 7661 through 7661f]

tpy tons per year

UIC Underground Injection Control

UT Utah

VOC Volatile Organic Compounds
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1. INTRODUCTION

On December 5, 2005, Mobil submitted an application to the United States Environmental 

Protection Agency (EPA), Region 9 to revise its Prevention of Significant Deterioration (PSD) 

permit, initially issued on February 2, 1987, and amended on October 27, 1987, March 21, 1989, 

and April 19, 1991. Specifically, Mobil’s application requested permit revisions relating to a 

federal Consent Decree for the existing Main Flare at the McElmo Creek Unit Oil Production 

Facility (MCU Facility or Facility), an existing oil and gas production operation located within 

the Four Corners Area on the Navajo Nation Indian Reservation near the city of Aneth, San Juan 

County, Utah.1,2 Mobil provided supplemental information in 2006 and 2007. Resolute Natural 

Resources Company (Resolute) acquired ownership of the MCU Facility in 2006, and submitted 

a revised PSD application dated April 2008, as well as various supplemental information 

thereafter.

The PSD applications were submitted to meet the requirements of the Consent Decree, which 

included analyzing the best available control technology (BACT) for the Facility’s Main Flare.

Additionally, the applicant requested other updates to the PSD permit associated with equipment 

that had been shut down and removed from the MCU Facility site.

On October 15, 2014, the EPA provided notice of and requested public comment on a proposal 

to amend the PSD permit for the MCU Facility. The EPA also announced a public information 

meeting and public hearing for the proposed PSD permit amendment. The public comment 

period on the proposed PSD permit amendment began on October 15, 2014, and ended on 

November 20, 2014.

The EPA Region 9 announced the public comment period through public notices published in the

Navajo Times, Farmington Daily Times, Cortez Journal, and San Juan Record on October 15-

17, 2014. We also announced the public comment period on the EPA Region 9 website. We 

distributed the public notices to the necessary parties in accordance with 40 CFR part 124, 

including notices sent by mail and email on October 15, 2014. We notified affected government 

agencies, organizations, and public members for whom contact information was obtained 

through a number of different methods, including requests made directly to the EPA Region 9 

through our website, contacts provided by the Navajo Nation Environmental Protection Agency 

(NNEPA), and other parties known to the EPA Region 9 that may have an interest in this action 

based on interest in previous actions within the Navajo Nation.

The administrative record for the proposed PSD permit amendment was made available at the 

EPA Region 9’s Office. The proposed PSD permit amendment, Ambient Air Quality Impact 

Report and Fact Sheet (AAQIR/Fact Sheet), and other supporting documents were available 

through the EPA Region 9’s website. We also made the key documents available at the 

following public libraries and Navajo Nation chapter houses: Monticello Library, Monticello, 

 1 Mobil includes Mobil Exploration & Producing U. S., Inc. and ExxonMobil Production Company. The 

ExxonMobil Production Corporation was formed in 1999 by the merger of Exxon and Mobil, and ExxonMobil 

became the owner and operator of the MCU facility that year. 2 See United States v. Mobil Exploration and Producing U. S. Inc., Case No. 2:05–CV–319, filed June 8, 2005.
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UT; Blanding Library, Blanding, UT; Montezuma Creek Library, Montezuma Creek, UT; 

Bluff Library, Bluff, UT; La Sal Library, La Sal, UT; Aneth Chapter House, Aneth, UT; Red 

Mesa Chapter House near Montezuma Creek, UT; Teec Nos Pos Chapter House, Teec Nos 

Pos, AZ; Mexican Water Chapter House, Bluff, AZ; Sweetwater Chapter House, Sweetwater, 

AZ; and Dennehotso Chapter, Dennehotso, AZ.

Additionally, because the Facility is located within the Navajo Nation Indian Reservation, the 

EPA issued a public service announcement in the Navajo Indian language of Diné to notify 

affected communities of our proposed PSD permit action. The public service announcement

was made through the KTNN AM-660® commercial radio station that provides information 

and local news on the Navajo Nation Indian Reservation in the Four Corners Region (Arizona, 

New Mexico, Utah, and Colorado).

On November 20, 2014, the EPA held a formal public hearing at the Aneth Chapter House

located in Aneth, Utah, to receive oral and written comments on the proposed PSD permit 

amendment. A court reporter was present at the hearing, as well as a Diné language interpreter 

for oral translation. Prior to the public hearing, the EPA held a public information meeting. The 

purpose of the public information meeting was to provide interested parties with additional 

information and an opportunity for informal discussion on the proposed PSD permit amendment.

EPA staff displayed poster-sized maps, diagrams, and informational materials especially 

prepared for the public meeting, and had hand-out materials available to anyone interested. EPA 

staff also answered questions from the public regarding the proposed permit amendment and the 

impacts of the proposed project on air quality. The EPA responded to questions at the public 

information meeting but did not formally record remarks from those in attendance. However, 

attendees of the meetings were given the opportunity to submit written comments.

The EPA held a separate public comment period from September 30, 2015, through November 3, 

2015, for the consultation process under the National Historic Preservation Act (NHPA) to take 

public comment on potential impacts on nearby historic properties. The EPA has determined 

that issuance of the amended PSD permit for the Main Flare will have no effect upon historic 

properties within the area of potential effects which consisted of an area within a 2-kilometer

(1.2 miles) radius around the Main Flare. The EPA did not receive any objections from the State

Historic Preservation Officers (SHPO) or Tribal Historic Preservation Officers (THPO) within 

the Four Corners area (i.e., for the States of Utah, Arizona, New Mexico, Colorado, and the 

Navajo Nation and Ute Mountain Indian Reservations) regarding this determination. 

Additionally, the EPA did not receive any comments from the public regarding the NHPA 

consultation.

The EPA’s response to the written and oral comments is contained in this document. We have 

summarized the comment letters and oral testimonies, some of which have been paraphrased. 

The EPA has made the following changes to the proposed PSD permit amendment which was 

public noticed in October 2014. These changes are indicated in redline/strikethrough version of 

the final PSD permit amendment in the Administrative Record (See docket #7.5, Final MCU 

PSD Permit Amendment (Redline/Strikethru Version)). 
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• Signature page – Minor wording changes.

• Abbreviations and Acronyms section – Minor changes by adding applicable acronyms and 

deleting inapplicable acronyms. 

• Project Description – Minor wording changes and clarifications.

• Equipment List – (1) Clarified description of the Glycol Dehydrator; and (2) added the five 

compressors (Aerial C-5, HOS-4, HOS-6, Acid Gas A, and Acid Gas B) that are located at 

the Facility’s gas compression plant.

• Permit Condition IV.A. (General Malfunction Reporting) – Minor wording changes.

• Permit Condition IX.A. (Special Conditions for the Main Flare; Definitions) – Minor 

wording changes.

• Permit Condition IX.B. (Special Conditions for the Main Flare; Air Pollution Control 

Equipment) – Removed requirement for installation and operation of a variable speed fan.

• Permit Condition IX.C. (Special Conditions for the Main Flare; Emission Limitations) –

Clarified that the emission limitations are for the Main Flare Emissions, which is a defined 

term.

• Permit Condition IX.D.4. (Special Conditions for the Main Flare, Main Flare Operational 

Requirements) – (1) Removed requirement for installation and operation of a variable speed 

fan; (2) removed “cumulative volumetric flow of total steam” parameter from net heating 

value air assist dilution (NHVdil) parameter equation; (3) changed the NHVdil parameter from 

24.4 to 24; (4) changed to clarify that the NHVdil parameter is to be met on a daily basis and 

that actions must be taken as expeditiously as practicable to address noncompliance with the 

parameter; (5) defined premix assist air and perimeter assist air; and (6) provided correct 

units of BTU/ft2 for the NHVdil parameter.

• Permit Condition IX.E.1. (Special Conditions for the Main Flare; Monitoring, Testing, and 

Emissions Calculation) – (1) Removed requirement for continuous monitoring systems for 

usage of pilot gas and purge gas; (2) added clarification that the volume of gas combusted is 

in scfm and applies when the flare is in use; and (3) added clarification that calculation of the 

365-day rolling total emissions is based on the use of the best available data and good 

engineering practices.

• Permit Condition IX.E.2. (Special Conditions for the Main Flare; Monitoring, Testing, and 

Emissions Calculation; Determination of Net Heating Value) – (1) Removed requirement to 

automatically supply supplemental fuel to the Main Flare if the field gas does not have 

sufficient heating value; (2) added the option to monitor the mass flow rate in lieu of 
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monitoring the volume of gas combusted; (3) added the options to monitor the fan speed, fan 

power, or mass flow rate in lieu of monitoring the volumetric flow rate of assist air; (4) for 

optional pressure/temperature monitoring systems, added clarification that “continuous” 

means at least once every fifteen minutes; (5) for determining the net heating value of flare 

vent gas (NHVvg), replaced 40 CFR 60.18(f)(3) with the options of measuring the 

concentration of individual components in the vent gas on a monthly basis, measuring NHVvg

on a monthly basis using a calorimeter, or selecting a different monitoring method consistent 

with good engineering practices; (6) revised the time period to determine the NHVdil

parameter from 60-minute averages (rolled every five minutes) to daily; and (7) made other 

minor wording changes.

• Permit Condition IX.E.3. (Special Conditions for the Main Flare; Monitoring, Testing, and 

Emissions Calculation) – Minor wording changes and clarifications regarding monitoring of 

the pilot flame.

• Permit Condition IX.E.5. (Special Conditions for the Main Flare; Monitoring, Testing, and 

Emissions Calculation) – Added calibration and quality control requirements for applicable 

continuous parameter measurement systems.

• Permit Condition IX.F. (Special Conditions for the Main Flare; Operation and Maintenance 

of Main Flare and Compressors) – (1) Added requirement in Condition IX.F.10 for 

periodically updating the Operations and Maintenance Plan (O&M Plan) in Appendix A of 

the PSD Permit and resubmission of the O&M Plan to the EPA.; and (2) made other minor 

wording changes.

• Permit Condition IX.G. (Special Conditions for the Main Flare; Flare Minimization for the 

Main Flare) – (1) Combined root cause and corrective action requirements in new 

Conditions IX.G.2 and IX.G.3; (2) renamed Condition IX.G from “Root Cause Analysis” to 

“Flare Minimization for the Main Flare”; (3) added requirements for development and 

implementation of a flare minimization plan for the Main Flare in Condition IX.G.1; (4) 

added requirement for periodically updating the Root Cause Failure Analysis Program in 

Appendix B of the PSD Permit and resubmission of the Root Cause Failure Analysis 

Program to the EPA; and (5) made other minor wording changes. 

• Permit Condition IX.H. (Special Conditions for the Main Flare; Compliance Reporting) – (1)

Renumbered Conditions from “IX.I” to “IX.H”; (2) added a requirement in Condition IX.H.3

for requiring semiannual reports to include a list of the NHVdil parameters in BTU/ft2

determined for each day in that semiannual period; (2) added a requirement in Condition 

IX.H.3 for requiring semiannual reports to include reports generated from the flare 

minimization plan; and (3) made other minor wording changes.

• Permit Condition IX.I. (Special Conditions for the Main Flare; Recordkeeping 

Requirements) – (1) Renumbered this Condition from “IX.J” to “IX.I”; (2) added a 
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requirement in Condition IX.I.2 for retaining the records of the daily calculations of the 

NHVdil parameter in BTU/ft2; and (3) made other minor wording changes.

• Permit Condition X.C. (Agency Notification; Compliance Reporting) – Minor wording 

changes.

• Operations and Maintenance Plan (Appendix A of the PSD Permit) – Revised this document 

based upon Resolute’s operation of the Facility because the previous version issued with the 

proposed permit amendment was tailored to Mobil’s operation of the Facility. (A 

redline/strikeout version of this document is not available.)

• Root Cause Failure Analysis Program (Appendix B of the PSD Permit) – Minor wording 

changes. (A redline/strikeout version of this document is not available.)
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2. COMMENTS ON THE PSD PERMIT AMENDMENT & AAQIR/FACT SHEET

2.1 Comment: Resolute appreciates the opportunity to comment and believes that much of the 

draft Permit is workable and consistent with the Consent Decree, which required Resolute 

to apply for the PSD permit for the Facility’s Main Flare. However, Resolute notes that 

the permit does not accurately describe current facility equipment and operations, a 

problem which could have been avoided had [the] EPA shared a draft permit or factual 

portions thereof with Resolute earlier. (Patrick Flynn, Resolute Natural Resources 

Company)

Response: It is not clear from this comment which equipment and operations the 

commenter is referring to as not being accurately described. The commenter provided a 

redlined-version of the proposed permit amendment to reflect the commenter’s proposed 

revisions; however, the commenter’s redlined-version made no changes to the equipment 

list in the proposed permit amendment. Therefore, the EPA assumes that the commenter is 

referring to the need to update the descriptions of the equipment and operations in the 

O&M Plan included in Appendix A of the proposed PSD permit amendment (see the 

comment in Section 2.9 below). In response to this comment, the EPA revised the 

equipment list in the final PSD permit amendment to include (i) the glycol dehydrator 

associated with the TEG reboiler; and (ii) the five compressors at the gas compression 

plant. In addition, the EPA revised the O&M Plan to account for changes in the operations 

of the Facility, as described in the response to the comment in Section 2.9 below.

2.2 Comment: The Facility is not a PSD major source as presently operated, since potential 

criteria pollutant emissions do not exceed the relevant PSD major source thresholds in 40 

CFR 52.21. Indeed, Resolute’s PSD permit application was required solely by the terms of 

the Consent Decree negotiated and committed to years ago by a prior owner and operator, 

which, importantly, requires only that certain Consent Decree conditions be included in the 

draft permit. The draft permit, however, includes a number of proposed conditions that are 

not required by the Consent Decree and, in our view, are not appropriate or feasible for the 

Facility as currently configured and operated. (Patrick Flynn, Resolute Natural Resources 

Company)

Response: The commenter’s claim that the Facility is not a PSD major source as presently 

operated misses the point. The Consent Decree requirement to apply for a PSD permit (in 

this case, a revision to the 1991 amended PSD permit) that includes BACT for the Main 

Flare is based on alleged PSD violations for the failure to comply with the terms and 

conditions of the 1991 amended PSD permit. Specifically, the EPA alleged violations of 

PSD requirements for operating unauthorized pollutant-emitting equipment (e.g., the Main 

Flare) and for exceeding the 1991 amended PSD permit’s emission limits. Moreover, in 

the time between the EPA’s issuance of its notice of violation for the alleged PSD 

violations and the resolution of the violations by the Consent Decree, the Main Flare by 

itself had at one point emitted enough pollutants to qualify as a PSD major source. While 

the EPA appreciates the efforts made by Resolute to reduce flaring at the Facility (the 

commenter states that Resolute spent approximately $5 million on additional compression 
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resulting in reduced flaring), the Facility must still apply for and obtain a PSD permit that 

includes BACT for the Main Flare.

Paragraph 14.a of the Consent Decree requires the submittal of an application for a PSD 

permit for the Main Flare that includes a BACT analysis for SO2, NOx, CO, and VOC for 

the Main Flare. Although the Consent Decree requires that the PSD permit application

include terms and conditions that are at least as stringent as certain terms and conditions of 

the Consent Decree, Paragraph 14.a of the Consent Decree states that “[n]othing in this 

Consent Decree is intended to nor shall be construed to operate in any way to prohibit the 

applicable permitting authority from issuing a PSD permit that includes requirements that 

differ from or are more stringent than the requirements of this Consent Decree....” The 

Consent Decree also defines “Final PSD Permit” as a permit that “includes, but is not 

limited to, federally-enforceable terms and conditions that are at least as stringent as” 

certain terms and conditions of the Consent Decree (emphasis added). Thus, the terms and 

conditions cited in the Consent Decree are a starting point for purposes of determining 

BACT for the Main Flare. The EPA conducted a BACT analysis, which is provided in the 

AAQIR/Fact Sheet, and a supplemental BACT analysis, which is in included in Section 6 

of this response to comments document, based on 40 CFR 52.21 and relevant EPA policy 

and guidance. In the end, the EPA’s BACT determination includes additional measures for 

minimizing flaring emissions beyond those that the Consent Decree required to be 

included in the PSD application.

2.3 Comment: Resolute requests removal of the reference to the plant inlet volume of between 

10 and 18 million standard cubic feet per day in the third paragraph in the Project 

Description section of the PSD permit amendment, since, according to Resolute, the 

Facility throughput may increase or decrease without directly impacting emissions from 

the equipment covered by the permit, and removal of this reference would not impact the 

basis or substance of any draft Permit condition. Additionally, Resolute requests that the 

project description reflect a fifth electrically-driven compressor in use at the Facility. 

(Patrick Flynn, Resolute Natural Resources Company)

Response: The EPA has removed references to plant inlet gas volume in the Project 

Description of the PSD permit amendment. The EPA also added the five compressors in 

the equipment list of the PSD permit amendment. These changes are administrative in 

nature and do not significantly change the permit amendment or the EPA’s analysis.

2.4 Comment: Resolute requests that the definition of Flaring Incident, as well as all other 

permit requirements relating to a Flaring Incident (i.e., Root Cause Analysis, Corrective 

Action, and other related requirements) be removed from the draft Permit (see the permit 

conditions listed in Table 2-1 below). Resolute argues that the Consent Decree does not 

require that these requirements be included in the draft PSD, and that these requirements

are not required by 40 CFR 60.18 or 63.11. Resolute also argues that the EPA summarily 

concluded that the Root Cause and Corrective Action requirements for Flaring Incidents 

are BACT for the Main Flare, but did not specifically analyze these requirements or 

explain why they are necessary and feasible control requirements for the Facility. Finally, 
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Resolute states that the Facility is subject to an annual emissions limitation for SO2, 

required to record and report annual SO2 emissions, and also subject to the general 

obligation to “maintain and operate the Facility, including associated air pollution control 

equipment, in a manner consistent with good air pollution control practice for minimizing 

emissions;” therefore, according to Resolute, it is not necessary or warranted to require the 

additional and prescriptive root cause analysis and corrective action requirements. (Patrick

Flynn, Resolute Natural Resources Company)

Table 2-1: “Flaring Incident” Requirements in Draft PSD Permit Amendment

Permit Condition Section Name 

IX.A.5 Definition of “Flaring Incident”

IX.A.9 Definition of “Root Cause”

IX.G Root Cause Analysis

IX.H Corrective Action

IX.I.3.(j) Compliance Reporting

IX.J.2.(l) Recordkeeping

Response: As stated in our response to the comment in Section 2.2 above, Paragraph 

14.a of the Consent Decree requires the submittal of an application for a PSD permit that 

includes a BACT analysis for the Main Flare. Although the Consent Decree requires that 

the PSD permit application include terms and conditions that are at least as stringent as 

certain terms and conditions of the Consent Decree, Paragraph 14.a of the Consent 

Decree states that “[n]othing in this Consent Decree is intended to nor shall be construed 

to operate in any way to prohibit the applicable permitting authority from issuing a PSD 

permit that includes requirements that differ from or are more stringent than the 

requirements of this Consent Decree....” Thus, the terms and conditions cited in the 

Consent Decree are a starting point for purposes of determining BACT for the Main 

Flare. While the commenter is correct that the Consent Decree did not require that the 

root cause and corrective action requirements of the Consent Decree be included in the 

PSD permit application, the Consent Decree does not bar the permitting authority from 

considering these requirements as BACT for the Main Flare.

In general, a BACT analysis is intended to consider available control options. Available 

control options are those air pollution control technologies or techniques with a practical 

potential for application to the emissions unit and the regulated pollutant under 

evaluation.3

 Conducting a root cause analysis for larger flaring events (e.g., those that 

emit 500 pounds (lbs) or more of SO2 emissions in a 24-hour period) is meant to identify 

if any equipment or operational changes are needed to eliminate or minimize the cause so 

as to reduce or avoid future flaring events. The EPA included root cause and corrective 

action requirements in the proposed PSD permit amendment as part of BACT for the 

Main Flare because the EPA considers these requirements as good air pollution control 

practices and as available control options to minimize flaring emissions from industrial 

flares in general and the Facility’s Main Flare in particular. Nothing the commenter 

 3 See New Source Review Workshop Manual, Draft, October 1990, at Page B-5.
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provided suggests that the root cause and corrective action requirements are not an 

available control option or should be eliminated as a control option based on energy, 

environmental, or economic impacts. In fact, as referenced in the AAQIR/Fact Sheet, the 

Facility is already implementing these control techniques as part of the Consent Decree.

In response to this comment, the EPA evaluated flare minimization practices in greater 

detail, including root cause and corrective action control techniques. This evaluation, 

which supplements our initial BACT analysis, can be found in section 6 of this response 

to comments document. Based on this evaluation, the EPA determined that BACT for

the Main Flare includes root cause and corrective action control techniques. Moreover, 

the EPA found in the cases it examined that root cause and corrective action control 

techniques are required in every case where there is also an emission limitation on the 

flare, which is contrary to the commenter’s position that root cause and corrective action 

requirements are not necessary or warranted if the flare is already subject to an SO2

emission limitation. Therefore, the EPA is retaining the proposed PSD permit

amendment’s root cause and corrective action requirements in the final PSD permit

amendment.

In addition, based on this evaluation, the EPA determined that BACT for the Main Flare 

also includes requirements for developing a flare minimization plan (FMP) to minimize 

flaring events. The development of a FMP is a one-time event, with periodic updates as 

necessary to reflect changes in the Main Flare. These additional FMP requirements, 

which have been incorporated into the final permit amendment, are as follows:

Flare Minimization Plan (FMP)

(1) Develop and implement a written FMP for the Main Flare that contains information 

about the operation of the flare to minimize flaring events. The FMP must include 

the following minimum information:

• A listing of all process units and ancillary equipment connected to the flare.

• Flare design parameters including:

o A general description of the flare, including whether it is a ground flare 

or elevated (including height);

o Information regarding design capacity;

o General description of flare tip (date installed, manufacturer, nominal 

and effective tip diameter, tip drawing);

o A description of the assist system and an indication of whether the 

fan/blower is single speed, multi-fixed speed (e.g., high, medium, and 

low speeds), or variable speeds; and

o The flame detection system and pilot ignition system.
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• Detailed description of the manufacturer’s specifications, including, but not 

limited to, make, model, type, range, precision, accuracy, calibration, 

maintenance and quality assurance procedures.

• A simple process flow diagram of the flare system illustrating all connections to 

the flare including all pipelines, process units, compressors and other ancillary 

equipment that vent to the flare.

• A description of the locations of all associated monitoring and of the methods 

for monitoring flow rate to the flare (including a detailed description of the 

manufacturer’s specifications for each flow monitoring system, including but 

not limited to, make, model, type, range, precision, accuracy, calibration, 

maintenance, and quality assurance procedures for flare gas monitoring 

devices).

• A description of the data recording, collection and management for the flare 

monitoring system.

• An assessment of whether discharges to the flare from these process units and 

ancillary equipment can be minimized or prevented during periods of upsets, 

malfunctions, or emergency releases.

• A description of the method to alert personnel designated to collect samples 

that a flare incident has started.

(2) Develop and implement a written FMP no later than three (3) years after the final 

PSD permit amendment becomes effective pursuant to 40 CFR 124.15(b).

(3) The FMP shall be updated periodically to account for changes in the operation of 

the Main Flare, such as new connections to the Main Flare, but not more than every 

five (5) years since the previous update of the plan. The owner or operator need 

not resubmit the plan to the EPA unless the owner or operator alters the design 

capacity of the flare. The owner or operator must comply with the updated plan as 

submitted.

2.5 Comment: Resolute requests that Conditions IX.B.2 and IX.D.4.(a) requiring installation 

and operation of a variable speed fan for the Main Flare be removed from the draft PSD 

permit amendment. According to Resolute, in 2006, per paragraph 11.b. of the Consent 

Decree, ExxonMobil retrofitted the Main Flare with an automatic air-assisted flare tip to 

significantly improve combustion efficiency. Resolute argues that the Consent Decree 

does not require the Main Flare to be operated with a variable speed fan, a variable speed 

fan is not required by 40 CFR 60.18 or 63.11, and a variable speed fan was not assessed or 

identified under the EPA’s BACT analysis for the Main Flare. According to Resolute, the 

EPA has not identified any data or information that would suggest a variable speed fan is 

necessary for the Main Flare to comply with applicable requirements of 40 CFR 60.18, and 
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compliance with this permit condition would require Resolute to incur significant 

additional costs to retrofit the Main Flare to include a variable speed fan, which were not 

considered by the EPA in the BACT analysis. Resolute argues that the proposed 

requirement for a variable speed fan, as well as the continuous monitoring requirements in 

Condition IX.E.2.(a)-(e) of the draft permit, are based solely on new and potential 

requirements for refineries and are therefore not appropriate BACT for this particular 

Facility: (i) petroleum refinery-level instrumentation and control on a flare is not practical 

to maintain and operate at an upstream oil and gas production facility; (ii) refineries are 

“mini-cities” with their own in-house utilities, shops, craftsmen, engineers, and major 

process control and data acquisition systems; and (iii) this Facility is a wellhead production 

(i.e. “upstream”) facility with extra compression equipment for gas re-injection – the 

Facility’s onsite staff is small and does not include any of the support services or personnel 

found at a typical refinery. Therefore, Resolute concludes, proper operation and 

maintenance of the flare monitoring and control equipment included in the draft permit 

would likely require a number of readily-available contract craftsmen and specialists, 

which may not be available in the Facility’s rural location. Resolute also argues that the 

BACT analysis supporting the proposed monitoring and control provisions is deficient

because the documentation and studies underlying the BACT analysis lists only 

suggestions as to how potential low heating value and flame quenching issues can be 

addressed; the literature cited is not prescriptive. According to Resolute, although a high 

level of monitoring and control may be warranted on a steam-assist refinery flare serving 

many vent streams with highly variable flows and compositions, such requirements are not 

appropriate for the Facility’s air-assist flare, which serves only a few vent streams that are 

stable in flow and of known and stable composition compared to those at a refinery. For 

this Facility, Resolute argues that good manual control is a possible and practical 

alternative to maintain the required control efficiency for the Main Flare (Resolute notes 

that the 2010 TCEQ Flare Study, one of the purported bases for the draft permit 

requirements, indicates that steam-assist flares generally require tighter control than airassist flares to maintain control efficiency greater than 98 percent). Resolute states that it 

is willing to consider alternative control methods (e.g., separate flare, thermal oxidizer, 

etc.) to address the vent stream from the dehydrator.

Resolute states that it was only provided 30 days to comment on the draft permit and was 

not significantly involved in its development over the past several years. Therefore, 

Resolute argues that it has not had sufficient time to obtain and review the air quality 

permits or BACT analyses for the sources listed in the EPA’s BACT analysis and RBLC 

search results; but, it appears that the identified sources all predate the 2012 Enforcement 

Alert relied upon by the EPA for the draft control and monitoring requirements. Resolute 

concludes that it is highly unlikely that any of the identified sources are subject to the same 

level of control required by the draft permit provisions – from cost-effectiveness 

standpoint, controls at the listed sources are therefore not comparable to what is proposed 

for the Facility.

Resolute argues that the Facility is only required to obtain a PSD permit by virtue of the 

Consent Decree. According to Resolute, (i) the emissions from the Facility itself are not 
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over any applicable major source threshold; (ii) nearly every petroleum refinery in the 

country is a major source of air pollutants due to the magnitude of their emissions; and (iii) 

the Facility is not a refinery, but is an upstream oil production facility, very few of which 

are major sources, and their flares are not subject to the stringent monitoring and control 

requirements being considered by this PSD permit review. Resolute states that if these 

requirements were to be established as BACT for upstream oil and gas production facility 

flares, literally tens of thousands of flares across the country could be required to 

implement them when the flares are permitted. Since these types of flare installations are 

being permitted on an almost daily basis in jurisdictions across the country without these 

proposed monitoring and control provisions, their application to the Main Flare cannot be 

required as BACT. (Patrick Flynn, Resolute Natural Resources Company)

Response: This comment requests the removal of the permit amendment requirement that 

the Main Flare be operated with a variable speed fan. First, the EPA would like to clarify 

that the commenter’s claim that the emissions from the Facility itself are not over any 

applicable major source threshold misses the point. The Consent Decree requirement to 

apply for a PSD permit (in this case, a revision to the 1991 amended PSD permit) that 

includes BACT for the Main Flare is based on alleged PSD violations for the failure to 

comply with the terms and conditions of the 1991 amended PSD permit. Specifically, the 

EPA alleged violations of PSD requirements for operating unauthorized pollutant-emitting 

equipment (e.g., the Main Flare) and for exceeding the 1991 amended PSD permit’s 

emission limits. Moreover, in the time between the EPA’s issuance of its notice of 

violation for the alleged PSD violations and the resolution of the violations by the Consent 

Decree, the Main Flare by itself had at one point emitted enough pollutants to qualify as a 

PSD major source. Second, as stated in our response to the comment in Section 2.2 above, 

the Consent Decree does not prohibit the permitting authority from issuing a PSD permit 

that includes requirements that differ from or are more stringent than the requirements of 

the Consent Decree. Third, the EPA would also like to clarify that the Main Flare was 

originally installed as part of a natural gas processing plant, and was only later re-purposed 

as a flare for the gas compression plant to support tertiary recovery of crude oil in the 

oilfield.

Air-assist flares, such as the Main Flare at the Facility, add air to promote mixing of 

oxygen within the gases to be flared to ensure combustion occurs without smoke, which is 

an indication of incomplete combustion of hydrocarbons. However, adding too much air 

can cool the flame and lower the heating value (i.e., the measure of combustibility) of the 

gases to be flared. In its analysis of BACT for VOC emissions, the EPA found that proper 

mixing at the flare tip, which is where combustion occurs, is needed to prevent overaeration in air-assist flares (see page 30 of the AAQIR/Fact Sheet). The EPA also found 

that one technique to ensure proper mixing for air-assist flares is the use of variable 

frequency drives on the air supply system (e.g., a variable speed fan). As a result, the 

proposed PSD permit amendment included a requirement to install and operate a variable 

speed fan for the Main Flare.
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In response to this comment, we re-evaluated whether it is necessary to require the use of a 

variable speed fan to prevent over-aeration at the Main Flare. First, in its recent revisions 

to the NESHAP that applies to petroleum refineries, the EPA did not specifically require 

facilities to install any certain fan type on flare systems to address over-aeration of airassist flares (see 80 FR 75178-75354, December 1, 2015). Second, in the federal consent 

decrees in Table 2-2 below that include flare combustion efficiency requirements for 

specific refineries, only the LPG flare at BP Products North America Inc. requires 

installation of a variable speed fan.

4

 

Table 2-2

Facility Consent Decree 

Case No. Date Flare Efficiency Requirements 

BP Products North 

America Inc. 

Civil No. 2:12-CV00207-PPS-APR5/23/20125

(Date Filed)

See Appendix D (“Emissions Reductions 

from Flares and Control of Flaring Events”)

(We note that paragraph 42 in Appendix D 

requires installation of a variable speed fan 

for an LPG air-assist flare)

Marathon Petroleum 

Company LP and 

Catlettsburg 

Refining LLC

Civil No. 2:12-CV11544-DML-MJH

4/5/2012

(Date of 

Settlement)

See paragraphs 41 through 55 in section 

V.C. of the Consent decree (“Compliance 

Requirements”)

Shell Oil Company, 

Deer Park Refining 

Limited Partnership 

and Shell Chemical 

LP

Civil No. 4:13-CV020097/10/2013

(Date Filed)

See paragraphs 50 through 63 in section 

V.H. of the Consent decree (“Compliance 

Requirements”)

Third, we also received additional information by email on June 15, 2015, from Resolute 

that the Facility is able to comply with the NHVdil parameter of 24.4 BTU/ft2 in the draft 

permit and the requirements in condition IX.D.4 of the proposed PSD permit amendment 

using the Main Flare’s existing two-speed, electrically-driven fan.6 For these reasons, the 

EPA has removed Conditions IX.B.2 and IX.D.4.(a) in the proposed PSD permit 

amendment that require the installation and operation of a variable speed fan. Therefore, 

these conditions are not in the final PSD permit amendment.

2.6 Comment: Compliance with Conditions IX.E.2.(a)-(e) would require Resolute to install 

costly metering and supervisory control and data acquisition equipment, which is not 

required by the Consent Decree and again exceeds the requirements of 40 CFR 60.18 or 

63.11. The EPA references several Consent Decrees, as well as proposed revisions to 

federal air quality standards for the refinery sector in the background for these 

requirements. Injunctive relief requirements included in a judicial settlement, however, is 

 4

 See Consent Decree filed July 10, 2013, and BP Whiting title V permits dated December 3, 2012, and December 

20, 2012, issued by the Indiana Department of Environmental Management. 5

 In the AAQIR/Fact Sheet (October 2014), footnote 17 incorrectly states the Consent Decree for BP Products 

North America, Inc., case 2:12-CV-00207, was filed on September 18, 2012. The correct date is May 23, 2012. 6

 We note that in Permit Condition IX.D.4. of the final PSD permit amendment, the NHVdil parameter has been 

changed from 24.4 to 24 BTU/ft2

.
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not an appropriate basis for including such requirements in a PSD permit. Moreover, this 

Facility is not a refinery, which engages in many more complex processes and handles 

many different and varying intermediate chemical products than this Facility. Finally, 

although the permit characterizes the requirements in this section as monitoring 

requirements, they are actually control requirements that have not undergone an 

appropriate BACT analysis to determine whether the requirements are achievable at this 

particular Facility. The EPA did not specifically evaluate the costs at the Facility resulting 

from these requirements. Moreover, for the same reasons as discussed in response to 

Condition IX.B.2 of the draft permit (i.e., the comment in Section 2.5 of this response to 

comments document), these draft continuous monitoring requirements, which are based on 

new and suggested requirements for refineries, are not appropriate for this particular 

Facility, which is an upstream oil production facility, not a refinery. Accordingly, 

Resolute requests that these conditions be removed from the draft permit. Resolute also 

submitted a redline/strikeout version of the company’s proposed changes to the PSD 

permit amendment, which requested that the flare combustion efficiency requirements in 

Conditions IX.D.4 and IX.E.2 be removed from the proposed permit amendment. (Patrick 

Flynn, Resolute Natural Resources Company)

Response: As stated in our response to the comment in Section 2.2 above, the terms and 

conditions cited in the Consent Decree are a starting point for purposes of determining 

BACT for the Main Flare. The Consent Decree does not prohibit the permitting authority 

from issuing a PSD permit that includes requirements that differ from or are more stringent 

than the requirements of this Consent Decree.

As stated in our response to the comment in Section 2.5 above, air-assist flares, such as the 

Main Flare at the Facility, add air to promote mixing of oxygen within the gases to be 

flared to ensure combustion occurs without smoke, which is an indication of incomplete 

combustion of hydrocarbons. However, adding too much air can cool the flame and lower 

the heating value (i.e., the measure of combustibility) of the gases to be flared. The NSPS 

requirements of 40 CFR 60.18(c)(3)(ii) specify that the net heating value of the gases to be 

combusted (NHVvg, with “vg” or “vent gas” signifying the gases to be combusted) must be 

300 BTU/scf or greater for air-assist flares. However, this NSPS minimum NHVvg limit

does not include specific monitoring requirements to ensure that the NHVvg remains at or 

above 300 BTU/scf. Moreover, this NSPS requirement does not take into account the 

problem of adding too much air to the flare’s flame.

The EPA’s studies that provide the basis for the BACT flare requirements in the proposed 

PSD permit amendment estimate that the vent gas in an air-assist flare should have a 

combustion zone heating value that is greater than or equal to 270 BTU/scf and a net 

heating value air assist dilution (NHVdil) value that is greater than or equal to 22 BTU/ft2.

7

 

Conditions IX.D.4 and IX.E.2 of the proposed PSD permit amendment reflect these flare 

“combustion efficiency” requirements, including the requirement to meet a NHVdil

 7 Memorandum regarding Petroleum Refinery Sector Rule: Operating Limits for Flares, Jeff Coburn, RTI 

International to Andrew Bouchard and Brenda Shine, EPA/OAQPS, December 12, 2013. 
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parameter of 24.4 BTU/ft2.

8

 According to additional information the EPA received from 

Resolute by email on June 15, 2015, the Facility informed us that it is able to comply with 

this NHVdil parameter.

We understand the commenter’s concern that there are differences between flares at 

petroleum refineries and the Main Flare at the Facility. However, ensuring proper 

operation of flares, including maintaining proper combustion efficiency, is crucial for 

reducing harmful emissions from industrial flares in general, not just petroleum refinery 

flares. See the EPA’s Enforcement Alert – EPA Enforcement Targets Flaring Efficiency 

Violations, August 2012. We cannot ignore the problem of poor flare operation due to 

over-aeration, which can result in lower combustion efficiency and possibly no combustion 

at all at the Main Flare (i.e., merely venting pollution directly to the atmosphere) simply 

because the Main Flare is not located at a petroleum refinery.9 While many flare studies 

and enforcement activities regarding flares have focused on the petroleum refining 

industry, the commenter has not provided any evidence that the combustion efficiency and 

associated flare monitoring requirements in the proposed PSD permit amendment are not 

feasible as applied to the Main Flare. In fact, as mentioned above, Resolute has stated that 

it is able to comply with the NHVdil parameter.

In response to this comment, we re-evaluated these requirements as they apply to the Main 

Flare and have made the following revisions to provide the permittee with more 

compliance options while at the same time ensuring proper operation of the Main Flare. 

First, we clarified that the NHVdil parameter is to be met on a daily basis, as compared to 

the 15-minute compliance time-frame applicable to refineries. See 80 FR 75207, 

December 1, 2015. Second, we removed the requirement to automatically supply 

supplemental fuel to the Main Flare if the field gas does not have sufficient heating value, 

instead adding a requirement that actions must be taken as expeditiously as practicable to 

address noncompliance with the NHVdil parameter. Third, we added an option to monitor 

the mass flow rate in lieu of monitoring the volume of gas combusted. Fourth, we added 

the options to monitor the fan speed, fan power, or mass flow rate in lieu of the volumetric 

flow rate of assist air. Fifth, for determining NHVvg, we replaced the reference to 40 CFR 

60.18(f)(3) with the options of (i) measuring the concentration of individual components in 

the vent gas on a monthly basis, (ii) measuring NHVvg on a monthly basis using a 

calorimeter, or (iii) selecting a different monitoring method consistent with good 

engineering practices. As compared to the requirements applicable to refineries, NHVvg at 

 8

 We note that in Permit Condition IX.D.4. of the final PSD permit amendment, the NHVdil parameter has been 

changed from 24.4 to 24 BTU/ft2

. 9 Even assuming, as the commenter apparently does, that flare combustion efficiency concerns are something that 

apply to (downstream) refinery flares but not to “upstream” flares, EPA guidance makes clear that, in the case of 

identifying available control options, “the control alternatives should include not only existing controls for the 

source category in question, but also (through technology transfer) controls applied to similar source categories and 

gas streams.” EPA’s Draft New Source Review Workshop Manual, October 1990, at B.5. The commenter has not 

provided any evidence that the waste streams at downstream petroleum refineries are sufficiently different from the 

waste streams at upstream gas compression plants to preclude the transfer of technology. Furthermore, we do not 

accept the commenter’s assumption that flare combustion efficiency concerns are limited to petroleum refinery 

flares.
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the Facility is determined on a monthly basis rather than the continuous monitoring or once 

every 8-hour grab sampling at refineries. See 80 FR 75183-75184, December 1, 2015. As 

stated above, these revisions provide the permittee with more compliance options that are 

tailored to the Facility’s operations while ensuring proper operation of the Main Flare.

The NHVdil parameter is determined based on flare vent gas flow rate, the air assist flow 

rate, and the NHVvg. We provided more precise requirements for measuring these 

parameters. A summary of the compliance options in the final PSD permit amendment is 

provided in Table 2-3. These compliance options provide a feasible approach to 

addressing the problem of low combustion efficiency by ensuring proper operation and 

monitoring of the Main Flare. These options do not require Resolute to install additional 

controls; rather, they require Resolute to properly operate the Main Flare through more 

appropriate monitoring. Nothing provided in the comment suggests that these combustion 

efficiency requirements are not available or should be eliminated because of energy, 

environmental, or economic impacts.

Table 2-2: Summary of Compliance Options for Determining NHVdil

Parameter Measurement Options Permit Condition in 

Final PSD Permit 

Flare vent 

gas flowrate

• Operate a volumetric flowrate continuous monitoring system 

(CMS) for flare vent gas flow rate (Resolute may use its 

current volumetric flowrate CMS for measuring the flare 

vent gas); or

• Operate a mass flow monitor, with a temperature and 

pressure CMS, in lieu of a volumetric flow rate CMS for 

flare vent gas flow rate.

IX.E.2(a)(1)

Air assist 

flowrate

• Monitor fan speed or power, and use fan curves, and 

appropriate engineering calculations; or

• Operate a volumetric flow rate CMS for assist air; or

• Operate a mass flow monitor, with a temperature and 

pressure CMS, in lieu of a volumetric flow rate CMS for 

assist air.

IX.E.2(a)(2)

NHVvg

• Measure concentration monthly and calculate NHVvg on a 

monthly basis; or

• Measure NHVvg on a monthly basis; or

• Use a different monitoring method for measuring vent gas 

composition or NHVvg consistent with good engineering 

practices on a monthly basis.

IX.E.2(b) and (c)

2.7 Comment: Resolute believes that draft permit Condition IX.C.4 would essentially 

eliminate the current Consent Decree affirmative defense for excess emissions during 

malfunction events. Paragraph 9.b. of the Consent Decree provides that Resolute “may 
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assert, as an affirmative defense to a demand by the United States for stipulated penalties, 

that the alleged violation was due to a Malfunction,” provided Resolute demonstrates that, 

for example, the emissions were caused by a sudden, unavoidable breakdown of process or 

pollution control equipment, beyond Resolute’s control. It is our understanding that the 

absence of an affirmative defense mechanism is unique to the draft PSD permit and not 

characteristic of other PSD permits issued by Region 9. To the extent the EPA has 

eliminated the malfunction affirmative defense based on the EPA’s recent proposal to 

eliminate such affirmative defenses from State Implementation Plans, Resolute believes 

that the circumstances surrounding this Facility’s draft permit warrant a different result.

The EPA’s reasoning for proposing wholesale elimination of the malfunction affirmative 

defense does not apply in this instance. The EPA has a long-standing policy supporting 

and encouraging malfunction affirmative defenses, but has apparently decided to abandon 

this policy based solely on the D.C. Circuit’s decision in Natural Resources Defense 

Council v. EPA, 749 F.3d 1055 (D.C. Cir. 2014). That decision, however, has no 

application here, as it addressed only the EPA’s authority to create affirmative defenses 

under NESHAPs applicable to private suits under Section 304(a) of the CAA. The D.C. 

Circuit found that federal courts, not the EPA, have authority under Section 304(a) to 

create and apply affirmative defenses in such private suits. The EPA’s proposed wholesale 

reversal of its startup, shutdown, and malfunction policy is directly contrary to numerous 

other federal appellate courts that have squarely addressed the issue and held that 

affirmative defense provisions for malfunction events are consistent with the CAA. See, 

e.g., Luminant Generation Co. v. EPA, 714 F.3d 841 (5th Cir. 2013), cert. denied, 134 

S.Ct. 387 (2013); Mont. Sulphur & Chemical Co. v. EPA, 666 F.3d 1174 (9th Cir. 2012); 

Ariz. Public Service Co. v. EPA, 562 F.3d 1116 (9th Cir. 2009). 

Here the malfunction affirmative defense has been specifically approved in the existing 

Consent Decree by the United States District Court for the District of Utah. The sole basis 

for the draft PSD permit is the Consent Decree; the Facility does not exceed applicable 

PSD thresholds. Thus, inclusion of an affirmative defense for excess emissions during 

malfunction events in the draft permit would not encroach upon the federal court’s 

authority, as the federal court has already specifically approved the defense.

Additionally, Resolute does not believe it is appropriate to exclude the affirmative defense 

from the draft permit, as the EPA’s proposal to eliminate malfunction affirmative defenses 

is not final, and the EPA is still considering public comment on the proposal. And more 

importantly, the EPA’s removal of the malfunction affirmative defense directly contradicts 

the requirements of the Consent Decree, which, again, is the sole basis for the permit.

For the reasons discussed above, Resolute requests that the EPA include in the draft Permit 

a condition consistent with Paragraph 9.b. of the Consent Decree, which provides Resolute 

an affirmative defense for excess emissions during malfunction events in certain 

circumstances. (Patrick Flynn, Resolute Natural Resources Company)
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Response: First, the EPA would like to clarify that the commenter’s claim that the Facility 

does not exceed applicable PSD thresholds misses the point. The Consent Decree 

requirement to apply for a PSD permit (in this case, a revision to the 1991 amended PSD 

permit) that includes BACT for the Main Flare is based on alleged PSD violations for the 

failure to comply with the terms and conditions of the 1991 amended PSD permit. 

Specifically, the EPA alleged violations of PSD requirements for operating unauthorized 

pollutant-emitting equipment (e.g., the Main Flare) and for exceeding the 1991 amended 

PSD permit’s emission limits. Moreover, in the time between the EPA’s issuance of its 

notice of violation for the alleged PSD violations and the resolution of the violations by the 

Consent Decree, the Main Flare by itself had at one point emitted enough pollutants to 

qualify as a PSD major source. Second, the affirmative defense requirements in the 

Consent Decree allow Resolute to avoid agreed upon stipulated penalties for violating the 

Consent Decree if it could demonstrate that it had met the affirmative defense requirements

of the Consent Decree. In National Resources Defense Council v. EPA, 749 F.3d 1055

(D.C. Cir. 2014), the United States Court of Appeals for the District of Columbia (D.C. 

Circuit) vacated the affirmative defense in one of the the EPA’s NESHAPs on the basis 

that the authority to determine civil penalty amounts under the CAA lies exclusively with 

the courts, not the EPA. Specifically, the D.C. Circuit found that the courts determine, on 

a case-by-case basis, whether civil penalties are appropriate. Further, as the D.C. Circuit 

recognized, in an EPA or citizen enforcement action, the court has the discretion to 

consider any defense raised and determine whether penalties are appropriate.

While the D.C. Circuit analyzed the legal validity of an affirmative defense provision in a 

specific NESHAP, the NRDC v. EPA decision is based on provisions of Sections 113 and 

304 of the CAA. Sections 113 and 304 pertain to administrative and judicial enforcement 

in general and are not limited to enforcement of NESHAPs. As explained in its final 

rulemaking addressing its startup, shutdown, or malfunction policy applicable to state 

implementation plans, “[the] EPA has now concluded that the enforcement structure of the 

CAA, embodied in section 113 and section 304, precludes any affirmative defense 

provisions that would operate to limit a court’s jurisdiction or discretion to determine the 

appropriate remedy in an enforcement action.” See 80 FR 33851, June 12, 2015. Since the 

affirmative defense provisions are not consistent with the CAA’s enforcement structure, 

the preclusion of affirmative defense provisions goes beyond the specific NESHAP 

analyzed in the NRDC v. EPA decision. As noted in the EPA’s proposal to remove the 

affirmative defense provisions from Title V permit programs, “[s]ince 2014, the EPA has 

removed or omitted affirmative defense provisions in numerous regulations throughout 

other CAA program areas following the NRDC v. EPA case.” See 81 FR at 38649, June 

14, 2016. In light of the NRDC v. EPA decision and the EPA’s subsequent rulemakings, 

The EPA is not following the commenter’s suggestion to include the affirmative defense in 

Paragraph 9.b. of the Consent Decree in the final PSD permit amendment.

2.8 Comment: Compliance with Condition IX.E.1.c of the draft Permit regarding the 

installation, operation, and maintenance of continuous monitoring systems on the Main 

Flare for the usage of pilot gas and purge gas would require Resolute to install costly 

metering and supervisory control and data acquisition equipment, which is not required by 
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the Consent Decree and exceeds current requirements in 40 CFR 60.18 or 63.11. 

Furthermore, Resolute believes the proposed requirement is unnecessary. The purge gas 

for the Main Flare enters the flare header upstream of the existing flare meter and is 

therefore already measured and included in estimated emissions calculations. The pilot gas 

is not currently metered; however, the Main Flare manufacturer’s data are available, which 

document the pilot gas consumption rate of 65 standard cubic feet per hour. Finally, 

emissions from pilot gas combustion are insignificant (approximately 250 lbs per year of 

CO and 40 lbs per year of NOx), and therefore do not warrant such monitoring and 

recordkeeping. Accordingly, Resolute requests that [the] EPA eliminate this provision 

from the draft permit. (Patrick Flynn, Resolute Natural Resources Company)

Response: As stated in our response to the comment in Section 2.2 above, the terms and 

conditions cited in the Consent Decree are a starting point for purposes of determining 

BACT for the Main Flare. The Consent Decree does not prohibit the permitting authority 

from issuing a PSD permit that includes requirements that differ from or are more stringent 

than the requirements of this Consent Decree.

We received additional information from Resolute in an email dated December 22, 2015,

providing that the purge gas is continuously measured with the vent gas as required in 

Condition IX.E.1.b of the proposed PSD permit amendment. Therefore, we have removed 

Condition IX.E.1.c as the commenter requested and made minor changes to Condition 

IX.E.1.b.

2.9 Comment: Condition IX.F of the draft permit requires that Resolute comply with the 

provisions of the O&M Plan included in Appendix A of the draft permit. The existing 

O&M Plan in the draft permit is the identical O&M Plan included in the Consent Decree, 

which was developed and tailored to ExxonMobil’s historical operations and equipment at 

the Facility. For example, the existing O&M Plan includes certain phrases and programs 

(e.g. Life Cycle Maintenance Program and Equipment Strategies Program) that are specific 

and unique to the operations and management of ExxonMobil, but may not apply to 

Resolute, which has owned and operated the Facility since 2006. Additionally, the 

existing O&M Plan does not address certain equipment and other changes Resolute has 

made since Resolute’s acquisition of the facility (e.g. Resolute’s addition of the Ariel C5 

compressor). Accordingly, Resolute proposes to provide the EPA within the next six 

months a revised O&M Plan that would replace the existing O&M Plan. 

Resolute believes its proposed approach is consistent with the Consent Decree. Paragraph 

14.a. of the Consent Decree requires that a PSD permit application be submitted for the 

Main Flare, which shall include “terms and conditions that are at least as stringent as the 

terms and conditions included in Paragraphs 9.a., 10, 11 [the operations and maintenance 

provision], and 25(i)-(ix).” This does not mean that the O&M Plan included within the 

permit must be identical to the O&M Plan included in the Consent Decree, only that the 

operation and maintenance provisions in the Permit be at least as stringent as those in the 

Consent Decree. Resolute’s revised O&M Plan would include operation and maintenance 

requirements that are substantively comparable to (and at least as stringent as) the 
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operation and maintenance requirements of paragraph 11 of the Consent Decree. But, 

again, Resolute would update and tailor the O&M Plan to Resolute’s current operations 

and equipment at the Facility, which will ultimately make the O&M Plan more effective 

and transparent.

Resolute does not propose that [the] EPA delay its finalization of the permit to address 

Resolute’s proposal. Instead, Resolute proposes that the permit include a new provision 

that would allow Resolute to replace the existing O&M Plan under the Consent Decree 

with the revised O&M Plan upon approval by [the] EPA. Resolute suggests that the 

revised O&M Plan be submitted by Resolute to [the] EPA for review and approval within 

180 days of issuance of the final amended PSD permit. (Patrick Flynn, Resolute Natural 

Resources Company)

Response: We agree with the commenter that the previous O&M Plan was tailored to 

ExxonMobil’s operation of the Facility. Resolute submitted a revised O&M Plan on April 

23, 2015, based on current operation of the Facility. The EPA has been in discussions with 

Resolute regarding changes to the O&M Plan. The final revised O&M Plan is attached to 

the final PSD permit amendment. The O&M Plan should be updated periodically to 

account for changes in the operation of the Main Flare, but the plan will need to be 

resubmitted to the EPA only if the owner or operator adds new equipment or removes 

existing equipment listed in the PSD permit. If such revision is needed, Resolute may 

request a permit amendment. The owner or operator must comply with the updated O&M 

Plan as submitted.

2.10 Comment: We do very much support and will work with [the] EPA to get, not only this 

amended PSD permit formalized and finalized, but also to then move on with both [the] 

EPA and NNEPA to complete the part 71 permitting process of this Consent Decree and 

finally to terminate it. (Patrick Flynn, Resolute Natural Resources Company)

Response: With regard to CAA permitting at the Facility, Paragraph 52 of the Consent 

Decree provides that the Consent Decree shall terminate, among several other things, when

the final Title V (i.e., 40 CFR Part 71) permit is issued, as defined by Paragraph 4.p of the 

Consent Decree. Included in the Consent Decree’s definition of “Final Title V Permit” is 

the requirement that such permit includes terms and conditions at least as stringent as the 

terms and conditions in the final PSD permit. 

2.11 Comment: I think it’s very important to know, as has been discussed in Shaheerah’s 

presentation, that this is not reflecting any change in process, any change of equipment, or 

any change in air emissions at this facility. The amendment to the PSD permit is 

formalizing, simply, the requirements, the emission limits, and other operating standards 

that have been part of the Consent Decree since we assumed operations in 2006. (Patrick 

Flynn, Resolute Natural Resources Company)

Response: The EPA assumes that the commenter is referring to the proposed PSD permit 

amendment and not the changes that led to the alleged violations that were resolved by the 
McElmo Creek Unit Oil Production Facility (PSD No. NU 05-01)

Responses to Public Comments for PSD Permit Amendment

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Consent Decree. The EPA agrees that the proposed PSD permit amendment did not 

authorize any new construction. The purpose of the permitting action is to properly permit 

construction and changes that have already occurred at the Facility. However, we want to 

emphasize that while the proposed PSD permit amendment does not reflect any increase in 

air emissions at the Facility, it may lead to a decrease in air emissions due to, among other 

things, addressing the potential for over-aeration while flaring. In addition, the EPA does 

not agree that the proposed PSD permit amendment is simply formalizing the requirements 

of the Consent Decree. Rather, as contemplated by the Consent Decree, the proposed PSD 

permit amendment ensures that BACT is applied to the Main Flare.
McElmo Creek Unit Oil Production Facility (PSD No. NU 05-01)

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September 30, 2016

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3. COMMENTS ON COMPLIANCE 

3.1 Comment: The question I have is that, yes, this is a modification and new equipment 

that’s going to be used. Considering the constituents that you guys are going to be testing 

for, how are we going to be regulated, or how, and who’s going to do it, who’s going to 

oversee it. Are we going to have air monitoring devices surrounding this equipment? 

(Melvin Capitan, Aneth Chapter House, Red Mesa Chapter House, and Mexican Water 

Chapter House)

Response: The EPA’s action is to amend the PSD permit to incorporate pollution limits, 

terms, and conditions for the already existing Main Flare at the MCU Facility pursuant to 

BACT. The EPA is also amending the permit to remove certain equipment and the permit 

requirements associated with such equipment because this equipment has been shut down 

and removed from the site. This permit action does not authorize any new construction or 

modification of existing equipment at the MCU Facility.

The amended permit contains annual emission limits (based on daily rolling totals) for 

SO2, NOx, CO, and VOC for the already existing Main Flare. It includes operational 

requirements for ensuing proper operation and maintenance of the Main Flare. It requires 

monthly measurement of H2S and continuous measurement of the volume of gas 

combusted in the Main Flare for calculating SO2 emissions, and continuous monitoring of 

the presence of a flare pilot flame using a thermocouple or equivalent device to detect the 

presence of a flame. It also requires a root cause analysis for flaring incidents (i.e., flaring 

at the Main Flare that results in the emissions of greater than or equal to 500 lbs of SO2 in 

any 24-hour period). However, has stated in our response to the comment in Section 3.6 

below, the permit action does not require ambient air quality monitoring.

The EPA is the permitting authority for the PSD permit and has the authority to enforce the 

requirements in the PSD permit. The NNEPA is the permitting authority for the Title V 

operating permit for the MCU Facility (which has not yet been issued). The Title V 

operating permit must assure compliance with all applicable requirements under the CAA, 

which includes any applicable federal standards (e.g., NSPS or NESHAP) and the 

requirements in the PSD permit. In accordance with the delegation of the Title V 

permitting program, the NNEPA will have the authority to pursue various enforcementrelated activities (e.g., issuance of notices, findings, and letters of violation) with regard to 

the requirements in the PSD permit once those requirements are made part of the Title V 

operating permit.

3.2 Comment: We’re looking at having other entities, like [the] EPA and the state, to come in 

and help the people, the community here to address not only air quality issues, but other 

issues related to the Safe Drinking Water Act, Clear Water Act, Solid Waste Act, and 

Underground Injection Control Act. (Melvin Capitan, Aneth Chapter House, Red Mesa 

Chapter House, and Mexican Water Chapter House)
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Responses to Public Comments for PSD Permit Amendment

September 30, 2016

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Response: The EPA’s current action is amending and issuing a PSD permit pursuant to the 

CAA. See our response to the comment in Section 3.10 below for other federal regulatory 

activities related to the site. The comment is not requesting any clarifications or changes to 

the proposed PSD permit amendment or the EPA’s analysis.

3.3 Comment: Who will be the regulatory agency to watch over the new flaring system? How 

often will the flaring system and air monitoring station be recalibrated? We’d like to see 

that to make sure they’re recalibrated and give us some information on what it’s reading 

during the different season[s] of the year. (Melvin Capitan, Aneth Chapter House, Red 

Mesa Chapter House, and Mexican Water Chapter House)

Response: The EPA is the permitting authority for the PSD permit and has the authority to 

enforce the requirements in the PSD permit. The NNEPA is the permitting authority for 

the Title V operating permit for the MCU Facility (which has not yet been issued). The 

Title V operating permit must assure compliance with all applicable requirements under 

the CAA, which includes any applicable federal standards (e.g., NSPS or NESHAP) and 

the requirements in the PSD permit. In accordance with the delegation of the Title V 

permitting program, the NNEPA will have the authority to pursue various enforcementrelated activities (e.g., issuance of notices, findings, and letters of violation) with regard to 

the requirements in the PSD permit once those requirements are made part of the Title V 

operating permit.

This permit action does not authorize any new construction or modification of existing 

equipment at the MCU Facility. Regarding monitoring and operation of the Main Flare, 

the PSD permit amendment requires monthly monitoring of H2S, continuous monitoring of 

the volume of gas combusted in the Main Flare, and continuous monitoring for the 

presence of a flare pilot flame. It also requires a root cause analysis and, when necessary, 

corrective action for flaring incidents (i.e., flaring at the Main Flare that results in the 

emissions of greater than or equal to 500 lbs of SO2 in any 24-hour period) in accordance 

with the Root Cause Failure Analysis Program in Appendix B of the PSD Permit. 

Resolute is also required to operate the Main Flare in accordance with the provisions of the 

O&M Plan in Appendix A of the PSD Permit. Regarding reporting, the PSD permit 

amendment requires Resolute to report flaring incidents to the EPA within 72 hours, 

followed by a detailed written notification within seven working days, and then submit a 

detailed report within 60 days of the flaring incident. Resolute must also report and keep 

records all of the above information to the EPA for each calendar semiannual period.

3.4 Comment: What are the emissions from the wellhead, to the pipeline, to the satellite, to 

the tanks, to the headers, and to the main flare? We would like to see some detailed 

readings. How will air toxics like benzene, toluene, ethylbenzene, and xylene be 

minimized? (Melvin Capitan, Aneth Chapter House, Red Mesa Chapter House, and 

Mexican Water Chapter House)
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Responses to Public Comments for PSD Permit Amendment

September 30, 2016

Page 29

Response: The EPA’s permit action only concerns the Main Flare, and the compressors 

and field flares as they relate to the operation of the Main Flare. It does not directly 

involve the wellhead, pipeline, satellite, or tank operations. 

The emissions regulated in the PSD permit amendment for the Main Flare are provided in 

Condition IX.C.1 of the PSD permit amendment, and are listed below (limits are based on 

a cumulative, 365-day rolling total). The PSD permit amendment requires monthly 

monitoring of H2S, continuous monitoring of the volume of gas combusted in the Main 

Flare, and continuous monitoring for the presence of a flare pilot flame, as well as other 

related compliance reporting and recordkeeping requirements (see our response to the 

comment in Section 3.3 above). 

SO2 NOx CO VOC

60.0 tpy 13.4 tpy 73.0 tpy 95.4 tpy

The PSD permit amendment does not directly regulate air toxics (i.e., benzene, toluene, 

ethylbenzene, and xylene). Air toxics are regulated under the NESHAP requirements

which must be considered in the process for issuing the Title V operating permit for the 

MCU Facility. The NNEPA is the permitting authority for the Title V operating permit for 

the MCU Facility (which has not yet been issued). The Title V operating permit must 

assure compliance with all applicable requirements under the CAA, which includes any 

applicable federal standards (e.g., NSPS or NESHAP) and the requirements in the PSD 

permit amendment.

3.5 Comment: It said using air quality index to determine and make a recommendation of air 

quality control and enforcement. Where are all the stations? Who is going to control it? 

Is the U. S. EPA Region 9 going to enforce that for us? Nothing has been set in place 

since 1960 here in the communities of Aneth, Red Mesa, and Mexican Water. We would 

like to see some changes. (Melvin Capitan, Aneth Chapter House, Red Mesa Chapter 

House, and Mexican Water Chapter House)

Response: Under CAA section 165 and the EPA’s PSD regulations at 40 CFR 52.21, 

Resolute must demonstrate, using air quality models, that the Facility’s emissions of SO2, 

CO, NOx, and VOC will not cause or contribute to a violation of the applicable NAAQS or 

the applicable PSD increments. As discussed in more detail in section 8 of the 

AAQIR/Fact Sheet, the emission limits in the PSD permit amendment for the Main Flare

will protect the NAAQS for SO2, CO, NO2, and ozone (VOC is a precursor in the 

formation of ground level ozone); will not cause or contribute to an exceedance of the 

applicable PSD increments; and is otherwise consistent with PSD requirements governing 

air quality. 

The EPA is the permitting authority for the PSD permit and has the authority to enforce the 

requirements in the PSD permit. The NNEPA is the permitting authority for the Title V 

operating permit for the MCU Facility (which has not yet been issued). The Title V 
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Responses to Public Comments for PSD Permit Amendment

September 30, 2016

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operating permit must assure compliance with all applicable requirements under the CAA, 

which includes any applicable federal standards (e.g., NSPS or NESHAP) and the 

requirements in the PSD permit. In accordance with the delegation of the Title V 

permitting program, the NNEPA will have the authority to pursue various enforcementrelated activities (e.g., issuance of notices, findings, and letters of violation) with regard to 

the requirements in the PSD permit once those requirements are made part of the Title V 

operating permit.

3.6 Comment: [The] EPA reviews the computer analyzing the prediction of the effects of the 

proposal on the PSD. I’m not really sure what it means, but I think what it is saying is that 

the damage that they may do, and that it’s been mentioned, who is going to be doing the 

monitoring? Who is going to enforce these things? Who does that enforcement? And 

how is it going to be? (Bill Todachennie)

Response: The EPA evaluated computer modeling completed by Resolute for the project. 

This was part of the ambient air quality analysis to determine whether the BACT emission 

limitations being proposed for the project would cause or contribute to a violation of the 

applicable NAAQS or PSD increments. The EPA’s evaluation of the air quality analysis is 

in section 8 of the AAQIR/Fact Sheet. We concluded that the project will not cause or 

contribute to a violation of the applicable NAAQS or PSD increments. Ambient air quality 

monitoring is not required for this permit action.

The PSD permit amendment contains requirements for monthly measurement of the H2S

concentration in the field gas, continuous measurement of the volume of gas combusted in 

the Main Flare, and daily calculation of emissions of SO2, NOx, VOC, and CO from the 

Main Flare. It also requires a root cause analysis and, when necessary, corrective action 

for flaring incidents (i.e., flaring at the Main Flare that results in the emissions of greater 

than or equal to 500 lbs of SO2 in any 24-hour period) in accordance with the Root Cause 

Failure Analysis Program in Appendix B of the PSD Permit. The permit amendment also 

requires that Resolute report flaring incidents to the EPA within seventy-two (72) hours, 

followed by a detailed written notification within seven working days, and then submit a 

detailed report within sixty (60) days of the flaring incident. Resolute must also keep 

records of this information, and submit a report to the EPA each calendar semiannual 

period. 

The EPA is the permitting authority for the PSD permit and has the authority to enforce the 

requirements in the PSD permit. The NNEPA is the permitting authority for the Title V 

operating permit for the MCU Facility (which has not yet been issued). The Title V 

operating permit must assure compliance with all applicable requirements under the CAA, 

which includes any applicable federal standards (e.g., NSPS or NESHAP) and the 

requirements in the PSD permit. In accordance with the delegation of the Title V 

permitting program, the NNEPA will have the authority to pursue various enforcementrelated activities (e.g., issuance of notices, findings, and letters of violation) with regard to 

the requirements in the PSD permit once those requirements are made part of the Title V 

operating permit.
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September 30, 2016

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3.7 Comment: Are there going to be any reports being submitted back to us, or is this oneway street? (Bill Todachennie)

Response: It is not clear exactly what reports the commenter is referring to. In reference 

to our final action on the PSD permit amendment, the EPA will notify persons who 

commented on the permit amendment of the final permit decision, which includes sending 

them the final permit amendment and the response to comments document as well as 

instructions for submitting a petition for review pursuant to 40 CFR 124.19. In reference 

to the requirements in the PSD permit amendment, the PSD permit amendment requires 

that Resolute report flaring incidents to the EPA within seventy-two (72) hours, followed 

by a detailed written notification within seven working days, and then submit a detailed 

report within sixty (60) days of the flaring incident. Resolute must also submit a report of 

emissions activities to the EPA for each calendar semiannual period. All this information 

is publicly available, and available upon request.

3.8 Comment: How are the BTUs (measurement) kept track of? When will the public be 

made aware of the levels exceeding the permissible levels? (Ryan Bean)

Response: The PSD permit amendment requires that Resolute operate and maintain the 

Main Flare in accordance with the flare requirements in 40 CFR 60.18, which requires 

flare gases contain at least 300 BTU/scf being combusted in the air-assist Main Flare. The 

PSD permit amendment also requires Resolute to comply with a net heating value air assist 

dilution parameter of greater than or equal to 24 BTU/ft2 to ensure complete combustion in 

the flare. Resolute is required to continuously measure and record the volume of gas 

combusted in the Main Flare, and determine the net heating value of the flare vent gas. 

Resolute must submit a report of emissions activities to the EPA for each calendar 

semiannual period. All this information is publicly available, and available upon request

through the Freedom of Information Act process.

3.9 Comment: If this goes into effect and you go ahead and give them the permit, who’s going 

to monitor it? The monitoring of the flare is probably the main concern with people. Who 

is going to monitor this stuff? Who’s going to look after it? The community members 

come up here and they say they have a fear of what might happen, what can happen, 

because we can’t see it being measured. We have a monitoring system sitting out there, we 

don’t know how often it’s checked, how often it’s cleaned, how often been updated, how 

often it’s been maintenanced. We have no idea. (Ryan Bean)

Response: See our response to the comment in Section 3.3 above.

3.10 Comment: So a lot of these fumes come up with the air, that oil spill, salt water spill. You 

can smell it. So we’re talking about only a flare. Is that the only one you guys going to be 

monitor[ed]? We need to look deeper into it. We really need is go deeper instead of just 
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Responses to Public Comments for PSD Permit Amendment

September 30, 2016

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talking about flare. Because we have a problem, it’s affecting the human life and plant life 

and animal life. (Calvin Thomas)

Response: The EPA’s federal CAA PSD permit action for the MCU Facility addresses air 

emissions from the Main Flare, and other equipment as they relate to the operation of the 

Main Flare (e.g., the compressors, field flares). For example, Condition IX.C.3 of the PSD 

permit amendment requires that Resolute not use the field flares to circumvent the Main 

Flare emission limitations in Condition IX.C.1.

For oil spills, Resolute currently has a Spill Prevention, Control, and Countermeasure 

(SPCC) Plan, dated July 6, 2012, for the MCU site as required by section 311 of the

federal Clean Water Act, as amended by the Oil Pollution Act of 1990, and the federal 

regulations in 40 CFR Part 112. The SPCC regulations require facilities with the potential 

to impact navigable waters and with an aboveground aggregate storage capacity of 1,320 

gallons or more (exclusive of exempt containers) to prepare and implement an SPCC Plan. 

The SPCC Plan contains information for prevention, response, and cleanup of oil spills at 

the site. The SPCC Plan is required to be reviewed and, when necessary, updated by 

Resolute every five years. 

Furthermore, in December 2008, the EPA granted approval for the NNEPA to administer 

the Class II Underground Injection Control (UIC) Program, under the authority of the 

federal Safe Drinking Water Act, for Class II injection wells throughout Navajo Nation 

Lands. On October 25, 2010, the NNEPA issued an UIC permit for the MCU site.10 The 

UIC permit contains specific conditions for allowing underground injection of water and 

CO2, including specific ranges of injection pressures and volumes allowed of injected 

materials. The UIC permit also spells out specific monitoring and testing intervals and 

procedures designed to ensure the injection well maintains integrity and that injected 

materials are only injected into the permitted subsurface zones. The UIC permit regulates 

the construction, operation, monitoring, and eventual closure of the injection wells.

Other environmental actions that the EPA is undertaking on the Navajo Nation Reservation 

include CAA actions involving the Navajo Generating Station and the Four Corners power 

plants,

11 and the Comprehensive Environmental Response, Compensation and Liability 

Act (CERCLA, better known as “Superfund”) action addressing uranium contamination.

12 

The EPA Region 9’s Tribal Program provides additional information on other EPA 

environmental actions that may occur in the vicinity of the MCU site.

3.11 Comment: So, I mean, everybody can do something about it. You can monitor it, you 

know. But my, that’s the way I understand it, because it’s part of my job to help that 

community. That everybody mentioned it. We’re trying to work with the Navajo Nation, 

but nothing happens. Who’s going to help us? Who’s going to help out and straighten out 

this problem that we live in? That’s what I have to make a comment on. If you really try 

 10 See UIC Area Permit – Class IIR –NN24 (October 25, 2010), McElmo Creek Unit, San Juan County, Utah. 11 See https://www3.epa.gov/region9/air/navajo/index.html. 12 See https://www3.epa.gov/region9/superfund/navajo-nation/index.html. 
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to help and get some of the Clean Air Act to affect in this area, I’d sure like to see it. I just 

don’t want this, what we said here, and that reporter over there, and nothing, no response 

back to us. No report back to us. (Calvin Thomas)

Response: The PSD permit amendment requires monthly monitoring of H2S, continuous 

monitoring of the volume of gas combusted in the Main Flare, and continuous monitoring 

for the presence of a flare pilot flame. It also requires a root cause analysis and, when 

necessary, corrective action for flaring incidents (i.e., flaring at the Main Flare that results 

in the emissions of greater than or equal to 500 lbs of SO2 in any 24-hour period) in 

accordance with the Root Cause Failure Analysis Program in Appendix B of the PSD 

Permit. Resolute is also required to operate the Main Flare in accordance with the 

provisions of the Operations and Maintenance Plan in Appendix A of the PSD Permit. 

Regarding reporting, the PSD permit amendment requires Resolute to report flaring 

incidents to the EPA within seventy-two (72) hours, followed by a detailed written 

notification within seven working days, and then submit a detailed report within sixty (60)

days of the flaring incident. Resolute must also keep records of this information, and 

submit a report to the EPA each calendar semiannual period.

The EPA is the permitting authority for the PSD permit and has the authority to enforce the 

requirements in the permit. Any monitoring data and reports submitted to the EPA are 

available to the public upon request. The NNEPA is the permitting authority for the Title 

V operating permit for the MCU Facility (which has not yet been issued). The Title V 

operating permit must assure compliance with all applicable requirements under the CAA, 

which includes any applicable federal standards (e.g., NSPS or NESHAP) and the 

requirements in the PSD permit. For any reports submitted directly to the NNEPA, 

members of the public interested in this information must contact the NNEPA directly.
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4. COMMENTS ON PUBLIC PARTICIPATION & OUTREACH

4.1 Comment: I [would] like more information on that air and flare quality. I’ve been living 

around it and even work around and inside the plant, even under the flare, for a very long 

time. I worked with different contractors in the Aneth and Montezuma Creek, Utah area. I 

lived in Montezuma Creek, Utah area, and [have been] always outside, so much of the 

work place around there is oil-field. Please keep me informed on all the information on the 

main things what I should need or to expect in the future. I, as a citizen of the community, 

am concerned about the air quality solution for myself and family for a better system to 

work as clean air quality that works best for the whole community. If any concerns and 

the major things come up keep me informed, please. (Luven Whitehorse)

Response: The commenter’s name and mailing address has been added to the mailing list 

for this PSD permit project. The proposed PSD permit amendment, AAQIR/Fact Sheet,

permit application, and other supporting information are available on the EPA Region 9 

website at http://www.epa.gov/caa-permitting/prevention-significant-deterioration-psdpermits-issued-region-9. Hard copies of the permit documents or any other documents in 

the administrative record can be mailed to individuals upon request in accordance with 

Freedom of Information Act requirements as described on the EPA Region 9 website at 

http://www.epa.gov/foia.

4.2 Comment: We’d like to see more of your trainers or instructors to come out and teach the 

Navajo what this is all about. I know it’s hard to translate technical terms, but it’s better 

for them to understand where all this is coming from and where’s it going to, leading to. 

(Melvin Capitan, Aneth Chapter House, Red Mesa Chapter House, and Mexican Water 

Chapter House)

Response: Our permit action is to amend the PSD permit to incorporate BACT

requirements for the Main Flare. We held a public hearing and public information meeting 

on November 20, 2014, to allow members of the public to discuss the permit action with 

the agency. We are also available by phone and email (i.e., contact Shaheerah Kelly at 

(415) 947-4156 or r9airpermits@epa.gov) to answer questions related to our permit action. 

We note that we work year around with the NNEPA and support its clean air program with 

federal funds. You can contact us for further information on that, or the director of 

NNEPA air programs, Eugenia Quintana, at (928) 871-7800.

4.3 Comment: What plans are in place for us? We don’t hear anything until some [public] 

hearing like this. We hear it from the upper echelon that this is what’s going to happen. 

They need to continue informing the community in this greater Aneth oilfield and 

surrounding area with all the information, all the studies, all the results so we understand 

here for the people to, to grasp that information and make it understandable for them, all 

the technical terms, you know. (Melvin Capitan, Aneth Chapter House, Red Mesa Chapter 

House, and Mexican Water Chapter House)
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Response: Beyond what we are required to do for public notification as provided in 40 

CFR part 124, we considered other ways for reaching out to the public concerning this 

permit action. These methods are provided in our Environmental Justice Analysis for the 

PSD permit amendment, and in section 16 of the AAQIR/Fact Sheet for the PSD permit

amendment. 

Pursuant to 40 CFR part 124, we followed through on the following actions:

• Published a public notice notifying the public about the public comment period and 

public hearing in four newspapers; 

• Held a public hearing on November 20, 2014, to provide the public with an 

additional opportunity to provide oral and/or written comments on the proposed 

PSD permit decision; and

• Mailed a copy of the public notice informing the public of the public comment 

period and public hearing to those people on our mailing list who either requested 

to be notified of the project or expressed interest in projects in the area. 

In addition to the above required methods, we followed through on the following actions to 

provide additional public participation opportunities to the community for the proposed

PSD permit decision for the MCU Facility:

• Held a public information meeting immediately before the public hearing and at the 

same location of the hearing on November 20, 2014, to allow members of the 

public to ask questions about the project to EPA staff; 

• Provided English-Diné translation services at the public information meeting and 

public hearing;

• Made the permit documents available at the NNEPA Office, six Navajo Nation 

chapter houses (including the Aneth Chapter House where the public informational 

meeting and public hearing was held), and five libraries in the area;

• Posting the proposed PSD permit amendment and related documents on the EPA 

Region 9 website;

• Issued a public service announcement to notify affected communities of our 

proposed PSD permit decision through the KTNN AM-660® commercial radio 

station that provides information and local news to the Four Corners Region 

(Arizona, New Mexico, Utah, and Colorado); and

• Sent the public notice by electronic mail (e-mail) to the addresses of those people 

who either requested to be notified of the project or expressed interest in projects in 

the area. 

4.4 Comment: I was hoping to see more of this community that live within the area, within 

the facility area to be here. But I sure appreciate for you guys being here and what you’re 

doing. It will probably be, if you give us more heads up, and heads up for the oil company 

of what’s going on and what people’s concerns. It would be nice to have more. And I 
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think we should have more of this later on in the future for, to be more, like hearing some 

more comments out of these residential people. (Lambert Sandoval, Jr.) 

Response: See our response to the comment in Section 4.3 above.

4.5 Comment: I appreciate your being here tonight [at the public hearing]. The only thing I’m 

wondering is, are we going to have some kind of a follow-up with this meeting tonight, or 

are we just going to have one time and there’s nothing going to happen afterwards? (Bill 

Todachennie)

Response: Following the public comment period (which started October 15, 2014, and 

ended November 20, 2014) and the public hearing (held on November 20, 2014), we 

considered all comments provided during the public comment period for the proposed PSD 

permit amendment. Based on these considerations, we are issuing the final PSD permit 

decision which includes the final PSD permit amendment and our responses to comments 

(this document) we received from the public. Pursuant to 40 CFR 124.15, we are notifying

the applicant and each person who had submitted written comments or requested notice of 

the final PSD permit decision. The final PSD permit decision becomes effective within 30 

days unless there is a petition for review pursuant to 40 CFR 124.19.

4.6 Comment: As you can see, there’s only three or four members here from the community. 

We did not get the information saying, oh, there’s going to be a meeting on the 20th. When 

you were going through the limitations on when we can respond to certain things, through 

the mail, through e-mail, I think we passed that time by the time you said that. (Ryan 

Bean)

Response: Our public outreach efforts are discussed in the response to the comment in 

Section 4.3 above. Regarding responding to “certain things,” we believe the commenter is 

referring to the deadline for submitting public comments as stated in the EPA’s public 

notice and related materials for the permit, which state that “[a]ll written comments must 

be received or postmarked by November 20, 2014.” We believe the commenter is noting 

that the date on which the public hearing was held (i.e., November 20, 2014) is the last day 

for submitting comments on the proposed PSD permit action. The EPA accepted 

comments from the members of the community at the public information meeting and 

public hearing. 

4.7 Comment: If you had come, and anyone who knows about this, had come to community 

and said, hey, we have a meeting on this date a month ago, then I think this room would be 

filled. But with the conditions today, everything was done really, really quick. It’s just on 

the board, and I said, hey, let’s go over there. And we only have four people here from the 

community. So when we talk, you’re not hearing the full story from the whole 

community. You’re hearing four people. And if you’re going to base your decision on 

that, I really don’t think that when the EPA comes out here, whether it’s Navajo Nation, 

whether it’s the state, whether it’s the federal, whoever, when they come out here we have 

no trust in them because we don’t see you guys. I don’t see none of you. I’ve never seen 
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you guys before. So a little more information to the community is all that I’m asking for. 

(Ryan Bean)

Response: Our public outreach efforts are provided in our response to the comment in 

Section 4.3 above.

4.8 Comment: So the people, a lot of this community, you know, they don’t really understand 

any of this, but they really don’t know what’s written as a legal language. They don’t 

understand it. Some of the hard words, they don’t understand it. We did -- good thing you 

have [a translator] here, but we like to see more community, how they affected. A lot of 

them, they’re living right near it, like Sandoval said, he lives right next to it. He lives in it.

But he stays there because there’s nowhere else to move to. We’re just in a corner of the 

reservation. (Calvin Thomas)

Response: Our public outreach efforts are provided in our response to the comment in 

Section 4.3 above.
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5. COMMENTS ON GENERAL ENVIRONMENTAL & HEALTH CONCERNS

5.1 Comment: The community is concerned about particulate matter from the Main Flare. 

(Melvin Capitan, Aneth Chapter House, Red Mesa Chapter House, and Mexican Water 

Chapter House)

Response: Flares may produce particulate matter (soot) if combustion conditions are not 

adequate. Condition IX.E.4 of the PSD permit amendment requires Resolute to operate the 

Main Flare with no visible emissions. It requires Resolute to perform visible emissions 

observations and mitigation of visible emissions to ensure proper operation and 

maintenance of the flare. 

5.2 Comment: The other thing is, like I said, combine oil and gas and the coal [fired] plant up 

river, combine it together, we’re living in a really delicate, low-lying area that the 

community is getting more worried and worried every day. The older, elderly folks, kids 

with bronchitis, and so forth, you know, those are the least individuals that are going to be 

hurt by it. Then us, us young kids, young, young men that have the healthy body 

compared to the old body, the young body, you know. Those are things that the 

community is worrying about. (Melvin Capitan, Aneth Chapter House, Red Mesa Chapter 

House, and Mexican Water Chapter House)

Response: The EPA is also concerned about the impacts of air pollution on children, the 

elderly, and other individuals who may be especially impacted by air pollutants. The EPA 

established air quality standards (the National Ambient Air Quality Standards, or 

“NAAQS”) to be protective of health effects in these groups that are especially sensitive to 

air pollution. We have evaluated this PSD permit action to ensure that this action will not 

cause air pollution levels that would exceed these health-based air quality standards (see 

our evaluation in Section 8 of the AAQIR/Fact Sheet for the proposed PSD permit

amendment). In addition, the EPA and NNEPA have worked together on some 

recommendations to reduce air pollution from home heating sources such as wood and coal 

heaters that are available on the NNEPA’s webpage.

13

5.3 Comment: The other thing that I bring up is, like I said, we need more educational 

outreach, community awareness. Have we been affected the last 50 years? Is it acute, or is 

it a chronic thing that we’re looking at? Will this reduce that? I don’t know, you know. 

(Melvin Capitan, Aneth Chapter House, Red Mesa Chapter House, and Mexican Water 

Chapter House)

Response: See the response to the comment in Section 5.2 above. Our analysis indicates 

that the emissions of the pollutants associated with the this MCU Facility project and 

regulated under the PSD permit amendment will not result in adverse human health 

impacts to any population, and that there will not be disproportionately high and adverse 

 13 See http://navajonationepa.org/main/index.php?option=com_content&view=article&id=59&catid=14 (Navajo 

Nation’s “Burn the Right Fuel” webpage)
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human health or environmental effects with respect to these air pollutants on populations 

residing near the proposed Project or the community as a whole.

5.4 Comment: I’m residing here within the Aneth Unit, living there next to the facility area. 

And I got a comment, and my concern is talking about [the] EPA. Not just the flare that it 

is, but satellites. There are some satellites within the area and some tank batteries. They 

release some of those pop-offs with some hydrogen sulfide fumes, things like that. It 

would be nice if that, if those are being monitored annually or monthly or quarterly to 

inform our community that lives within the area. (Lambert Sandoval, Jr.)

Response: The EPA’s permit action addresses air emissions from the Main Flare, and 

other equipment (e.g., the compressors) as they relate to the operation of the Main Flare. It 

does not directly address the tank batteries and satellites (there are eleven satellites that 

function as testing facilities for producing wells and four tank batteries). However, the 

PSD permit amendment does prohibit Resolute from using field flares (i.e., flares at the 

tank batteries and satellites) to circumvent the Main Flare emission limits. The PSD 

permit amendment includes requirements for monthly monitoring of H2S concentration in 

the field gas for calculating SO2 emissions. It also requires a root cause analysis and, when 

necessary, corrective action for flaring incidents (i.e., flaring at the Main Flare that results 

in the emissions of greater than or equal to 500 lbs of SO2 in any 24-hour period) in 

accordance with the Root Cause Failure Analysis Program in Appendix B of the PSD 

Permit. The PSD permit amendment requires Resolute to report flaring incidents to the 

EPA within seventy-two (72) hours, followed by a detailed written notification within 

seven working days, and submit a detailed report within sixty (60) days of the flaring 

incident. Resolute must also report this information to the EPA for each calendar 

semiannual period, and keep records of all of this information. Since the EPA is the 

permitting authority for the PSD permit and for the enforcement of the requirements in the 

permit, any monitoring data and reports submitted to the EPA are publicly available upon 

request.

5.5 Comment: It would be nice, not just there, but there’s some flow lines or transfer lines 

that are deemed pretty well corroded and pretty well worn out and some of those are broke 

loose, or break apart, and those fumes, they can come up just like that, unexpectedly. And 

so living within this oilfield, being there day and night, now, it’s kind of like it’s hazardous 

and be more like aware oftenly. Sometimes you don’t get to sleep more nights because 

we’re kind of like being more aware of the hazardous side of our areas. (Lambert 

Sandoval, Jr.)

Response: The EPA’s permit action addresses air emissions from the Main Flare, and 

other equipment (e.g., the compressors) as they relate to the operation of the Main Flare. It 

does not address flow lines and transfer lines. The EPA’s permit action also does not 

involve regulating toxic air emissions (i.e., hazardous air pollutants). Only the following 

criteria pollutants are considered in this PSD permit action: SO2, NOx, CO, and VOC. 
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Toxic air emissions (i.e., hazardous air pollutants) will be addressed in the Title V permit. 

The NNEPA is the permitting authority for issuing the Title V operation permit. This 

includes evaluation of applicability of any air toxics standards under 40 CFR part 63, and 

evaluation of the applicability to the requirement to submit a risk management plan under 

the EPA’s Chemical Accident Prevention regulations at 40 CFR part 68. In general, if a 

tank, drum, container, pipe, or other “process” at a facility contains any of the extremely 

hazardous toxic and flammable substances listed in 40 CFR 68.130 in an amount above the 

“threshold quantity” specified for that substance, the facility is required to develop and 

implement a risk management program, which includes development and submission of a 

risk management plan to the EPA. These plans must be revised and resubmitted to the 

EPA every five years. 40 CFR part 68 and the risk management program is intended to 

prevent accidental releases of substances that can cause serious harm to the public and the 

environment from short-term exposures and to mitigate the severity of releases that do 

occur. 

Additionally, the PSD permit amendment requires Resolute to maintain and operate the 

Facility, including associated air pollution control equipment, in a manner consistent with 

good air pollution control practice for minimizing emissions. It also requires that the 

operating staff with management authority at the Facility be advised of and be familiar 

with all the conditions of this PSD permit amendment. Resolute must operate and 

maintain the Main Flare and associated equipment to minimize emissions releases.

5.6 Comment: The thing that I’m beginning to worry about is that, how much of the impact 

does it have on vegetation on all this flare. Unfortunately, there was no study that was 

done before these were, been fired up and this is biggest impact that I would think so in the 

community. (Bill Todachennie)

Response: The EPA’s permit action involves incorporating BACT requirements into the 

PSD permit amendment for the Main Flare and equipment (e.g., the compressors) related 

to the operation of the Main Flare. 

Pursuant to section 7 of the Endangered Species Act (ESA), 16 U.S.C. 1536, and its 

implementing regulations at 50 CFR Part 402, the EPA is required to consult with the 

United States Fish and Wildlife Service. This consultation is done to ensure that any 

action authorized, funded, or carried out by the EPA is not likely to jeopardize the 

continued existence of any endangered or threatened species or result in the destruction or 

adverse modification of such species’ designated critical habitat. Since the MCU Facility 

is an existing operation and the EPA’s action does not authorize any new construction or 

modification of existing equipment at the MCU Facility, the EPA determined that this 

permit action will have no effect on any endangered or threatened species or any 

designated critical habitat in the area. Our consultation under Section 7 of the ESA is 

discussed in Section 9 of the AAQIR/Fact Sheet for the PSD permit amendment.

Additionally, pursuant to 40 CFR 52.21(k) and section 165 of the CAA, the EPA is 

required ensure that PSD projects do not cause or contribute to a violation of the NAAQS. 
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The NAAQS were designed to protect human health and the environment. The EPA set 

NAAQS for six principal pollutants, called “criteria” pollutants, for SO2, NO2, ozone 

(precursors NOx and VOC), particulate pollution (PM, PM10, and PM2.5), CO, and lead. 

The CAA identifies two types of NAAQS: primary standards and secondary standards. 

Primary standards provide public health protection, including protecting the health of 

“sensitive” populations such as asthmatics, children, and the elderly. Secondary standards

provide public welfare protection, including protection against decreased visibility and 

damage to animals, crops, vegetation, and buildings. The EPA evaluated this permit

action’s impact with respect to the NAAQS for SO2, NO2, ozone (precursors NOx and 

VOC), and CO. The EPA concluded that the Main Flare’s emissions, along with emissions 

from other nearby sources, would not cause or contribute to a violation of any NAAQS. 

Our evaluation of these pollutants is discussed in Section 8 of the AAQIR/Fact Sheet for 

the PSD permit amendment. 

5.7 Comment: Clarify whether you are talking about burning of gas or burning of oil? (Bill 

Todachennie)

Response: The EPA’s permit action concerns direct emissions from the combustion of 

field gas in the Main Flare. It does not concern burning of oil at the MCU Facility site. 

Specifically, for this PSD permit action, we are not aware of any activities which involve 

burning oil at the site.

5.8 Comment: The other only thing I want to bring out is that the impact that it has on the 

community members. The majority, hopefully not a majority, the younger generation has 

a higher asthma problem. Whether that has any contribute from this, I have no idea. They 

seem to be having more problem, have problems. (Bill Todachennie)

Response: The EPA is also concerned about the high rates of asthma among children 

across the United States, including on the Navajo Nation Reservation. There are many 

things in the environment that can trigger an asthma attack. Please visit 

http://www.epa.gov/asthma for tips on asthma, and contact a healthcare provider for help 

identifying what may be triggering asthma attacks. We also have a public service 

announcement regarding asthma, available in the Diné language, on our website at 

http://epapsa.com/campaigns/nativeamerican/.

5.9 Comment: The Public Information Sheet for the proposed PSD permit amendment states 

“Environmental requirements from other federal, tribal, or local laws are not included in 

[the] EPA’s proposed PSD permit amendment unless they are also part of the Clean Air 

Act PSD program.” Why isn’t Navajo Nation’s tribal law included? (Bill Todachennie)

Response: The PSD permit amendment is a federal action. For this type of permit action, 

the EPA is not required to include, nor consider, laws outside of the federal CAA, 

including, state or tribal laws. Also, the EPA does not have the authority to implement and 

enforce state or tribal laws, nor is the agency required to include them in the PSD permit

amendment. The NNEPA is the permitting authority for the Title V operating permit for 
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the MCU Facility (which has not yet been issued). The Title V operating permit can 

include applicable state or tribal laws addressing air pollution.

5.10 Comment: Why would we trust you as a people when you come over and you tell us this 

is safe? This is going to help with the business. [A representative from Resolute] said 

they employ a lot of people here which, in actuality, is not true. Forty percent of the 

people in this area are unemployed. That’s another issue. (Ryan Bean)

Response: The EPA’s permit action involves incorporating BACT requirements into the 

PSD permit amendment for the Main Flare and equipment (e.g., the compressors) related 

to the operation of the Main Flare. Our permit action involves evaluating the project with 

respect to 40 CFR 52.21 and the CAA, as well as fulfilling the consultation 

responsibilities, where applicable, under section 7 of the ESA, section 106 of the National 

Historic Preservation Act, the Magnuson-Stevens Fishery Conservation and Management 

Act, and the Coastal Zone Management Act of 1972. We also considered environmental 

justice impacts as part of this PSD permit action. Our evaluation of these regulatory and 

statutory requirements, as well as the environmental justice considerations, are discussed in 

the AAQIR/Fact Sheet for the PSD permit amendment. The comment goes beyond the 

scope of our permit action; thus, we do not have the information necessary to respond to it.

5.11 Comment: We have no fresh water here. We can’t even grow anything out here. So air is 

everywhere. If you have an oil spill during the summer, it seeps back out, you can smell it. 

It gets into the air. Not only that, also they’re injecting the CO2. I’ve seen it, it’s bleeding 

up in the air. You can smell it miles away when they do that. (Calvin Thomas)

Response: In addition to this PSD permit action, which addresses air emissions from the 

Main Flare and other equipment (e.g., the compressors and the field flares) as they relate to 

the operation of the Main Flare, Resolute also has a SPCC Plan containing criteria for 

prevention, response, and cleanup of oil spills at the site and an UIC permit containing

specific conditions for regulating underground injection of water and CO2 at the site (see 

our response to the comment in Section 3.10 for more information about Resolute’s SPCC 

Plan and UIC permit for the MCU site). 

Although the PSD permit does not regulate odor, it contains requirements for monthly

measurement of H2S (due to uncombusted gas which may be the cause of odors), 

continuous monitoring of the presence of a flare pilot flame using a thermocouple or 

equivalent device to detect the presence of a flame to ensure the flare is operating when 

gases are routed to the flare, and root cause analysis and corrective action for flaring 

incidents (i.e., flaring at the Main Flare that results in the emissions of greater than or equal 

to 500 lbs of SO2 in any 24-hour period).

5.12 Comment: Some people trying to get higher area so they can breathe some fresh air. But 

nothing’s fresh anymore. Nothing’s clean anymore. It’s affecting everything. I’m telling 

you, it’s affecting everything. We have no vegetation. Even when it starts to rain, you can 

see the cloud just around us. There’s an open hole right here, a chimney. That’s how it is. 
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You have to live here to know what’s going on. You have to sleep here to know what’s 

going on. In the morning it will affect you, your breathing and your stuffy nose, 

sometimes itchy eyes. That’s how it’s affecting these people here. So, you’re only talking 

about flare, I mean, you can do more than that. That’s what I like to make a comment on. 

Hopefully, you guys can do something for us to help us out, to protect the air and the 

environment here where we live in. That’s what I like to make a comment on, and I thank 

you. (Calvin Thomas)

Response: The EPA’s evaluation of the project’s impact with respect to 40 CFR 52.21 and 

the CAA involves SO2, NOx, VOC, and CO. Our permit action also involves fulfilling the 

consultation responsibilities, where applicable, under section 7 of the ESA, section 106 of 

the National Historic Preservation Act, the Magnuson-Stevens Fishery Conservation and 

Management Act, and the Coastal Zone Management Act of 1972. We also considered 

environmental justice impacts as part of this permit action. Our evaluation of these 

regulatory and statutory requirements, as well as the environmental justice considerations, 

are discussed in the AAQIR/Fact Sheet for the PSD permit amendment. This is essentially 

the scope of our evaluation for the project.

The EPA provides a tool for assessing the various environmental media, including air, and 

health data at https://www3.epa.gov/enviro/myenviro/ by entering the city, or nearby city, 

to find out the current environmental conditions for the area. We encourage the 

commenter to use this tool to learn more about current conditions in the area. 

Other environmental actions occurring in the vicinity of the MCU site that the EPA has 

been undertaking on the Navajo Nation Reservation include the Agency’s CAA actions 

involving the Navajo Generating Station and the Four Corners power plants,

14 and 

CERCLA (also known as “Superfund”) action addressing uranium contamination.15 The 

EPA Region 9’s Tribal Program provides additional information on other EPA 

environmental actions occurring in the vicinity of the MCU site.

5.13 Comment: I live a few hundred yards under the flare. It’s right next to the Resolute 

facility. And my main concern is the odor and the fumes that comes from the flare. And 

you can really smell it, and when there’s a breeze or windy, the tower gives off some kind 

of grease-type of chemicals and we can see it on the vehicles that are parked in the 

residential area. And we have lights up, too, so it affects that also. So I am wondering if 

later on if there is going to be some kind of a health issue for people that live here. And 

like some people that spoke here, no one tells us anything like what the chemical really 

does to, to the people and in the health area. So we need more information on that. (Daisy 

Todacheene)

Response: The scope of our evaluation for the PSD permit action is provided in the 

response to the comment in Section 5.12 above. Although the permit amendment includes 

requirements for measuring H2S in the gases burned in the Main Flare, which may be the 

 14 See https://www3.epa.gov/region9/air/navajo/index.html. 15 See https://www3.epa.gov/region9/superfund/navajo-nation/index.html. 
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primary source of odors from the flare, the PSD permit amendment does not specifically 

include requirements for odor. Additionally, the EPA’s regulations do not require that 

odor be addressed in our PSD permit action. 

We recommend reporting odor complaints locally to the NNEPA. Complaints may be 

reported online at 

http://navajonationepa.org/main/index.php?option=com_rsform&view=rsform&formId=3. 

Those with no internet access can go to a local Chapter house where they can print and fill 

in the forms and fax it back. The printable form is located at 

http://navajonationepa.org/main/images/NNEPA_ComplaintForm.pdf. The number to call 

that is provided on these forms is (928) 871-7692 or fax to (928) 871-7996.

Persons who wish to submit a complaint to the EPA may submit an environmental 

complaint online at https://www.epa.gov/enforcement/report-environmental-violations, or 

by phone at (415) 947-4510
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6. SUPPLEMENTAL BACT ANALYSIS FOR FLARE MINIMIZATION PRACTICES FOR 

SO2, CO, NOX, AND VOC EMISSIONS AT THE MAIN FLARE

6.1 Step 1 - Identify All Control Technologies for Flare Minimization Practices

Flare minimization practices include:

• Process changes to reduce flaring

• Flare minimization plan (FMP)

• Root cause and corrective action

6.2 Step 2 - Eliminate Technically Infeasible Options for Flare Minimization Practices 

The flare, in and of itself, is used primarily to control VOC emissions. However, the owner or 

operator may use certain practices to minimize gas that may be flared. 

The owner or operator may control the process that minimizes the gas being sent to the flare. 

Since the MCU site is an oil and gas production operation, Resolute does not have a process that 

can be used to prevent gas from being sent to the flare other than ensuring proper operation and 

maintenance of compressors associated with the Main Flare. Therefore, process changes to 

reduce flaring is not a feasible control option.

In general, a FMP is a written plan that contains measures and activities that are performed to 

reduce emissions from of one or more flares by minimizing the frequency and magnitude of 

flaring. It may include a description and technical information for each flare; a description of 

equipment, processes, and procedures installed or implemented within the last five years to 

reduce flaring; and a description and evaluation of preventive measures to address flaring that 

has occurred or is reasonably expected to occur. A FMP is a feasible control alternative.

In general, a root cause analysis is an investigation to determine the primary cause and 

contributing factors for a flaring event and may include implementing one or more corrective 

actions to prevent recurrence. The root cause analysis may be part of an FMP. The Consent 

Decree for the MCU Facility requires Resolute to conduct root cause analyses and corrective 

actions as needed, and this control technique has been used by Resolute since 2007. Therefore, 

root cause analysis is a feasible control alternative.

6.3 Step 3 - Rank Control Technologies for Flare Minimization Practices

FMP and root cause and corrective action are the remaining control options for flare 

minimization practices. These control options were not specifically found in the 

RACT/BACT/LAER Clearinghouse (RBLC). Thus, the EPA reviewed various PSD permits and 

federal and state rules that contained FMP and root cause and corrective action requirements for 

comparison. They are summarized in Tables 6-1 through 6-3 as follows.
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Table 6-1: General Information

Name Rule or Permit Agency or Facility 

Location Description FMP Required?

Root Cause 

and 

Corrective 

Action?

Flare is 

Subject to 

Emission 

Limit(s)?

Rule 12-12 State Rule

Bay Area Air Quality 

Management District 

(California)

Flares at Petroleum Refineries Yes Yes No

Rule 1118 State Rule

South Coast Air 

Quality Management 

District (California)

Control of Emissions from 

Refinery Flares Yes Yes Yes16

Rule 4311 State Rule

San Joaquin Valley 

Air Pollution Control 

District (California)

Flares Yes Yes Yes17

40 CFR Part 60, 

Subpart Ja Federal Rule EPA (Federal)

Standard of Performance for

Petroleum Refineries for which 

construction, reconstruction or 

modification commenced after 

May 14, 2007 (flare requirements)

Yes Yes No

40 CFR Part 63, 

Subpart CC Federal Rule EPA (Federal) Standard of Performance for Petroleum Refineries Yes Yes No

40 CFR Part 63, 

Subpart HH Federal Rule EPA (Federal)

National Emission Standards for 

Hazardous Air Pollutants from 

Oil and Natural Gas Production 

Facilities (flare requirements)

No Yes No

Artesia Refinery

Final PSD Permit 

Issued 5/14/2008; 

RBLC NM-0050

Artesia, New Mexico Petroleum Refinery

(Flare FL-404) No Yes No

Cash Creek 

Generation 

Station

Final PSD issued 

5/5/2010

Henderson County, 

Kentucky

IGCC Power Plant

(Gasification flare) Yes Yes Yes

Cronus Chemicals Final PSD permit 

issued 9/5/2014 Tuscola, Illinois

Urea and Ammonia Production 

Facility

(Ammonia storage flare)

Yes Yes Yes

Hydrogen Energy 

California

Final PSD permit 

issued7/8/2013

Kern County, 

California

IGCC Power Plant

(Gasification flare; SRU flare; 

Rectisol AGR flare)

Yes Yes Yes

Hyperion Energy 

Center; Hyperion 

Refining LLC

Final PSD permit 

issued on 

8/20/2009

Union County, South 

Dakota

Greenfield Petroleum Refinery 

and IGCC Power Plant (Refinery 

flares (5); IGCC flare)

Yes Yes Yes

Indiana 

Gasification LLC

Final PSD Permit 

Issued 6/27/2012

RBLC # *IN-0166

Rockport, Indiana Synthetic Natural Gas Plant 

(Gasification flare; AGR flare) Yes Yes No

Power Holdings 

of Illinois LLC

Final PSD Permit 

Issued 6/27/2012

RBLC # *IN-0166

Waltonville, Illinois Synthetic Natural Gas Plant 

(Gasification flare; AGR flare) Yes Yes Yes

Sun Company 

Inc.

Final PSD Permit 

Issued 2/23/2009

RBLC # OH-0308

Toledo, Ohio Petroleum Refinery

(Refinery flares; Acid Gas flares) No Yes Yes

 16 “Performance Targets” expressed as tons of emissions per million barrels of crude processing capacity. 17 Id.
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Table 6-2: Flare Minimization Plan Requirements

Rule or Permit Type Required for.... General Requirements

Bay Area Rule 12-12 State Rule

Any owner or operator of 

a petroleum refinery with 

one or more flares

• Include description and technical information about flares and 

flare, process flow diagrams, etc

• Reviewed and updated annually to incorporate new prevention 

measures; 

• Flaring is prohibited unless it is consistent with the approved FMP

• Failure to implement and maintain any equipment, processes, 

procedures or prevention measures in the FMP is a violation of the 

rule

South Coast Rule 

1118 State Rule

Flare SO2 emissions at or 

above 0.5 tons per 

million barrels of crude 

processing capacity, 

calculated as an average 

over one calendar year

• Include description and technical information about flares, process 

flow diagrams, policies and procedures, planned turnarounds and 

other scheduled maintenance, etc

• Due no later than 90 days from the end of a calendar year with 

emissions exceeding the annual performance target

• Violation of any of the terms of the plan is a violation of this rule.

SJV Rule 4311 State Rule

Applies to a petroleum 

refinery flare or any flare 

that has a flaring capacity 

of greater than or equal 

to 5.0 MMBtu/hr

• Include description and technical information about flares, process 

flow diagrams, policies and procedures, planned turnarounds and 

other scheduled maintenance, etc

• Flaring is prohibited unless it is consistent with an approved FMP

• Submit an updated FMP every five years

40 CFR 60, 

subpart Ja 

(See 60.103a(a)-(b))

Federal 

Rule

Refineries flares for 

which construction, 

reconstruction or 

modification commenced 

after May 14, 2007

• Include description and technical information about flares, process 

flow diagrams, policies and procedures, planned turnarounds and 

other scheduled maintenance, etc

40 CFR Part 63, 

Subpart CC 

(See 63.670(o)(1)-(2))

Federal 

Rule EPA (Federal)

• Include description and technical information about flares, process 

flow diagrams, policies and procedures, planned turnarounds and 

other scheduled maintenance, etc

40 CFR Part 63, 

Subpart HH

Federal 

Rule EPA (Federal) • None

Artesia Refinery PSD Permit None • None

Cash Creek 

Generation Station PSD Permit

Gasification process, acid 

gas recovery unit, sulfur 

recovery unit, and 

pollution control devices

• Include description and technical information about flares, process 

flow diagrams, policies and procedures, planned turnarounds and 

other scheduled maintenance, etc

Cronus Chemicals PSD Permit Ammonia plant

• Include description and technical information about flares, process 

flow diagrams, policies and procedures, planned turnarounds and 

other scheduled maintenance, etc

Hydrogen Energy 

California PSD Permit Same as SJV Rule 4311 listed above • Same as SJV Rule 4311 listed above

Hyperion Energy 

Center; Hyperion 

Refining LLC

PSD Permit

Flaring is only allowed 

during startup, shutdown, 

or a malfunction

• Include description and technical information about flares, process 

flow diagrams, policies and procedures, planned turnarounds and 

other scheduled maintenance, etc

Indiana Gasification 

LLC PSD Permit

During startups, 

shutdowns and other 

flaring events

• Include description and technical information about flares, process 

flow diagrams, policies and procedures, planned turnarounds and 

other scheduled maintenance, etc

Power Holdings of 

Illinois LLC PSD Permit Gasification block

• Include description and technical information about flares, 

process flow diagrams, policies and procedures, planned 

turnarounds and other scheduled maintenance, etc.

• Reviewed annually

Sun Company Inc. PSD Permit

Hydrocarbon Flaring 

Incidents in accordance 

with Consent Decree 

entered March 14, 2006

• General flare monitoring and/or recordkeeping requirements
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September 30, 2016

Page 48

Table 6-3: Root Cause Analysis / Corrective Action Requirements

Rule or Permit Type Flaring events triggering root cause analysis / 

corrective action requirements

Bay Area Rule 12-12

State Rule for 

Refinery 

Flares

• 500,000 scf per calendar day of vent gas is 

flared

• 500 lb per day of SO2 were discharged

South Coast Rule 1118

State Rule for 

Refinery 

Flares

• 100 lb of VOC

• 500 lb of SO2

• 500,000 scf of vent gas combusted

SJV Rule 4311 State Rule for 

Flares

• 500,000 scf per calendar day of vent gas is 

flared

• 500 lb per day of SO2 were discharged

40 CFR 60, subpart Ja

(See 60.103a(c))

EPA Rule for 

Refinery 

Flares

• 500,000 scf above the baseline in any 24-hour 

period 

• 500 lb SO2 in any 24-hour period

40 CFR Part 63, Subpart CC 

(See 63.670(o)(3)-(6))

EPA Rule for 

Refinery

Flares

• Vent gas flow rate exceeds the smokeless 

capacity of the flare and visible emissions are 

present from the flare for more than 5 minutes 

during any 2 consecutive hours during the release 

event.

• Vent gas flow rate exceeds the smokeless 

capacity of the flare and the 15-minute block 

average flare tip velocity exceeds the maximum 

flare tip velocity 

40 CFR 63, subpart HH

(See 63.762(d)(1)(ix))

EPA Rule for 

Oil and Gas 

Production

• Malfunction events 

Artesia Refinery PSD Permit • 500 pounds of SO2 in a 24-hour period

Cash Creek Generation Station PSD Permit

• Any process upset or malfunction that causes a 

discharge to the flare in excess of 500,000 scf 

per calendar day of vent gas

• 500 pounds of SO2 in a 24-hour period

Cronus Chemicals PSD Permit

• Flaring events that results in an unscheduled 

shutdown of the plant or flaring for more than 

six hours.

• Flaring that results in more than 500 lb of 

ammonia.

Hydrogen Energy California PSD Permit • See SJV Rule 4311 listed above

Hyperion Energy Center; 

Hyperion Refining LLC PSD Permit • Malfunctions that exceeds 5,000 scf of vent gas

Indiana Gasification LLC PSD Permit • Malfunction events

Power Holdings of Illinois LLC PSD Permit • Any flaring event that accompanies the 

unscheduled shutdown of a gas processing train.

Sun Company Inc. PSD Permit • 500 lb of SO2 in any 24-hour period
McElmo Creek Unit Oil Production Facility (PSD No. NU 05-01)

Responses to Public Comments for PSD Permit Amendment

September 30, 2016

Page 49

The Main Flare is used primarily for emergencies, upsets, and malfunctions, and does not have a 

continuous gas stream. Based on Tables 6-2 and 6-3, a summary of the potential requirements 

for FMP and root cause analysis and correction action is provided in Table 6-4. 

Table 6-4: Root Cause Analysis / Corrective Action Requirements

Action Requirement 

FMP

• Develop a FMP containing information about the operation of the flare to minimize 

flaring events (e.g., description and technical information about flare, process flow 

diagrams, policies and procedures, etc)

• FMP should be reviewed and updated as needed, but not more than every five (5) 

years since the previous update of the plan

Root Cause Analysis / 

Corrective Action • 500 lb per day of SO2 were discharged

6.4 Step 4 – Economic, Energy and Environmental Impacts for Flare Minimization 

Practices

No significant economic, energy, or environmental impacts are expected from a FMP and root 

cause and corrective action of the Main Flare.

6.5 Step 5 – Select BACT for Flare Minimization Practices

Based on the above analysis, BACT for flare minimization practices for SO2, CO, NOx, and 

VOC emissions from the Main Flare are the following requirements.

6.5.1 Flare Minimization Plan

BACT includes development and implementation of a written FMP for the Main Flare that 

contains information about the operation of the flare to minimize flaring events. The FMP must 

include the following minimum information:

• A listing of all process units and ancillary equipment connected to the flare.

• Flare design parameters including:

o A general description of the flare, including whether it is a ground flare or 

elevated (including height);

o Information regarding design capacity;

o General description of flare tip (date installed, manufacturer, nominal and 

effective tip diameter, tip drawing);

o A description of the assist system and an indication of whether the fan/blower is 

single speed, multi-fixed speed (e.g., high, medium, and low speeds), or variable 

speeds; and

o The flame detection system and pilot ignition system.
McElmo Creek Unit Oil Production Facility (PSD No. NU 05-01)

Responses to Public Comments for PSD Permit Amendment

September 30, 2016

Page 50

• Detailed description of the manufacturer’s specifications, including, but not limited to, 

make, model, type, range, precision, accuracy, calibration, maintenance and quality 

assurance procedures.

• A simple process flow diagram of the flare system illustrating all connections to the flare 

including all pipelines, process units, compressors and other ancillary equipment that 

vent to the flare.

• A description of the locations of all associated monitoring and of the methods for 

monitoring flow rate to the flare (including a detailed description of the manufacturer’s 

specifications for each flow monitoring system including but not limited to make, model, 

type, range, precision, accuracy, calibration, maintenance, and quality assurance 

procedures for flare gas monitoring devices).

• A description of the data recording, collection and management for the flare monitoring 

system.

• An assessment of whether discharges to the flare from these process units and ancillary 

equipment can be minimized or prevented during periods of upsets, malfunctions, or 

emergency releases.

• A description of the method to alert personnel designated to collect samples that a flare 

incident has started.

Resolute must develop and implement a written FMP no later than three (3) years after the final 

PSD permit amendment becomes effective pursuant to 40 CFR 124.15(b).

The FMP should be updated periodically to account for changes in the operation of the flare, 

such as new connections to the flare, at least once every five (5) years since the previous update 

of the plan. The owner or operator need not resubmit the plan to the EPA unless the owner or 

operator alters the design capacity of the flare. The owner or operator must comply with the 

updated plan as submitted.

6.5.2 Root Cause Analysis / Corrective Action

Resolute must conduct a root cause analysis and corrective action for flaring incidents resulting 

in more than or equal to 500 lb per day of SO2.
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Responses to Public Comments for PSD Permit Amendment

September 30, 2016

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