## 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, 2016McElmo Creek Unit Oil Production Facility (PSD No. NU 05

- 01) Responses to Public Comments for PSD Permit Amendment

S eptember 30, 2016 Page 2 

### This page left intentionally blank.McElmo Creek Unit Oil Production Facility (PSD No. NU 05

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### T ABLE OF 

### C ONTENTS

ABBREVIATIONS & ACRO NYMS

................................ ................................ ........................... 4

1. INTRODUCTION

................................ ................................ ................................ ................. 6

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

... 11

3. COMMENTS ON COMPLIAN CE

................................ ................................ ................... 27

4. COMMENTS ON PUBLIC P ARTICIPATION & OUTRE ACH

................................ .. 34

5. COMMENTS ON GENERAL ENVIRONMENTAL & HEAL TH CONCERNS

....... 38

6. SUPPLEMENTAL BACT ANALYSIS FOR FL ARE MINIMIZATION PRA CTICES

FOR SO 2 , CO, NO X , AND VOC EMISSIONS AT THE MAIN FLARE

...................... 45McElmo Creek Unit Oil Production Facility (PSD No. NU 05

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S eptember 30, 2016 Page 4 

### 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/hr 2 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

CO 2 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

H 2 S 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

NHV dil Net heating value air assist dilution

NHV vg Net heating value of flare vent gas

NHPA National Historic Preservation Act

NNEPA Navajo Nation Environmental Protection AgencyMcElmo Creek Unit Oil Production Facility (PSD No. NU 05

- 01) Responses to Public Comments for PSD Permit Amendment

S eptember 30, 2016 Page 5 NO 2 Nitrogen Dioxide

NO
x Nitrogen Oxides or Oxides of Nitrogen (NO + NO 2 )

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

PM 2.5 Particulate Matter less than 2.5 micrometers (μm) in diameter

PM 10 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 s tandard cubic feet per hour

scfm standard cubic f eet per minute

SHPO State Historic Preservation Officer

SO 2 Sulfur Dioxide

SO
x 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 CompoundsMcElmo Creek Unit Oil Production Facility (PSD No. NU 05

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S eptember 30, 2016 Page 6 

### 1. I NTRODUCTION

On December 5, 2005, Mobil submitted a n 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 D ecree 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 application s were submitted to meet t he 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 ha d 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 C FR 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 O ffice. 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.McElmo Creek Unit Oil Production Facility (PSD No. NU 05

- 01) Responses to Public Comments for PSD Permit Amendment

S eptember 30, 2016 Page 7 UT; Blanding Library, Blanding, UT; Montez uma 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, U tah, to receive oral and written comments on the proposed PSD permit

amendment. A court re porter 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 a dditional

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 avai lable 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 for mally 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 eff ect upon historic properties within the area of potential effects which consisted of an area within a 2

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

Historic Preservation Officers (SHPO) or Trib al 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 rec eive an y 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 /s triketh r ough version of the final PSD permit amendment in the Administrative Record ( See docket # 7.5, Final MCU PSD Permit Amendment (Redline/Strikethru Version) ).McElmo Creek Unit Oil Production Facility (PSD No. NU 05

- 01) Responses to Public Comments for PSD Permit Amendment

S eptember 30, 2016 Page 8 • Signature page

– M inor wording changes

.

• Abbreviations and Acronyms section

– M inor changes by adding applicable acronyms and deleting inapplicable acronyms.

• Project Description

– Minor wording changes and clarifications.

• Equipment List

– (1) C larified description of the G lycol Dehydrat or ; 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 C ondition IV.A

. (General Malfunction Reporting)

– Minor wording changes

.

• P ermit Condition I X. A

. ( Special Condi tions 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 t he emission limitation s 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 (NHV dil ) parameter equation; (3) changed the NHV dil parameter from

24.4 to 24 ; (4) changed to clarify that the NHV dil parameter is to b e 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/ft 2 for the NHV dil parameter.

• P ermit 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 ga s 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

.

• P ermit Condition IX.E.2

. ( Speci al 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 ofMcElmo Creek Unit Oil Production Facility (PSD No. NU 05

- 01) Responses to Public Comments for PSD Permit Amendment

S eptember 30, 2016 Page 9 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 l east once every fifteen minutes; (5) for determining the net heating value of flare

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

concentration of ind ividual components in the vent gas on a monthly basis, measuring NHV vg 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 NHV dil parameter from 60

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

minor wordi ng changes.

• P ermit Condition IX.E.3

. ( Special Conditions for the Main Flare; Monitoring, Testing, and

Emissions Calculatio n )

– Minor wording changes and clarifications regarding monitoring of the pilot flame.

• P ermit 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 C ondition 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

th e PSD Permit and resubmi ssion of the O&M P lan to the EPA. ; and (2) made oth er minor wording changes.

• Permit Condition IX.G

. (Special Conditions for the Main Flare; Flare Minimization for the

Main Flare )

– (1) Combined root c ause 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 M inimization 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 requirem ent for periodically updating the Root Cause Failure Analysis Program in Appendix B of th e 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 Rep orting )

– (1)

R enumbered 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 NHV dil parameters in BTU/ft 2
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; Recordkeep ing Requirements )

– (1) R enumbered this Condition from “ IX.J ” to “ IX.I ”; (2) added aMcElmo Creek Unit Oil Production Facility (PSD No. NU 05

- 01) Responses to Public Comments for PSD Permit Amendment

S eptember 30, 2016 Page 10 requirement in Condition IX.I.2 for retaining the records of the daily calculations of the

NHV dil parameter in BTU/ft 2 ; 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 th e PSD Permit )

– R evised this document

based upon Resolute’s operation of the Facility b ecause 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)

– M inor wording changes

. (A redline/strikeout version of this document is not available.)McElmo Creek Unit Oil Production Facility (PSD No. NU 05

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S eptember 30, 2016 Page 11 

### 2. C OMMENTS ON THE 

### PSD P ERMIT 

### A MENDMENT 

### & 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 th e Consent Decree, which required Resolute to apply for the PSD p ermit 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 description s of the equipment and operations in th e 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 incl ude (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 c omment 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 th e 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, Resol ute 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 unauthoriz ed 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 vi olations 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 Resol ute spent approximately $5 million on additional compressionMcElmo Creek Unit Oil Production Facility (PSD No. NU 05

- 01) Responses to Public Comments for PSD Permit Amendment

S eptember 30, 2016 Page 12 resulting in reduced flaring), the Facility must still apply for and obtain a PSD permit that

includes BACT for the Main Flare

.

P aragraph 14.a of the Consent Decree require s the submittal of an application for a PSD permit for the Main Flare that includ es a BACT analysis for SO 2 , NO
x , CO, and VOC for

the Main Flare. Although t he 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 a uthority 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 , fe derally

- 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

BA CT 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 Comme nt: Resolute request s 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

Facil ity throughput may increase or decrease without directly impacting emissions from the equipment covered by the permit , and r emoval of this reference would not impact the basis or substance of any draft Permit condition. Additionally, Resolute requests tha t the project description reflect a fifth electrically

- driven compressor in use at the Facility. (Patrick Flynn, Resolute Natural Resources Compa ny)

Response: The EPA has removed references to plant inlet gas volume in the Project Description of t he PSD permit amendment

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

. Th ese change s are administrative in nature and do not significantly change the permit amendment or the EPA’s analysis.

2.4 Comment : Resolute request s 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 remov ed from the draft P ermit ( see the permit

conditions li sted in Table 2

- 1 below )

. Resolute argues that t he Consent Decree does not require that the se 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

conclude d that the R oot C ause and C orrective A ction requirements for F laring I ncidents are BACT for the Main Flare, but d id not specifically analyze these requirements or explain why they are necessary and feasible control requirements for the Facility. F inally,McElmo Creek Unit Oil Production Facility (PSD No. NU 05

- 01) Responses to Public Comments for PSD Permit Amendment

S eptember 30, 2016 Page 13 Resolute states that the Facility is subject to an annual emissions limitation for SO 2 , required to record and report annual SO 2 emissions, and also subject to the general obligation to “maintain and operate the Facility, including associated air p ollution 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 c omment in Section 2.2 above, Paragraph

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

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

the PSD permit application include terms and conditions that are at least as stringen t 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 iss uing 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 deter mining 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 Co nsent Decree be included in the

PSD permit application, the Consent Decree does not bar the permitting autho rity 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

pote ntial 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 SO 2 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 th e 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 a s 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.McElmo Creek Unit Oil Production Facility (PSD No. NU 05

- 01) Responses to Public Comments for PSD Permit Amendment

S eptember 30, 2016 Page 14 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 economi c impacts. In fact, as referenced in the AAQIR/Fact Sheet

, the Facility is already implementing th ese control techniques as part of the Consent Decree

.

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

detail , includ i ng 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 SO 2 emission limitation. Therefore, the EPA is retaining the proposed PSD per mit

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

amendment

.

I n addition

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

also includes requirements for developing a flare minimization plan (FM P) 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

,

w hich 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.McElmo Creek Unit Oil Production Facility (PSD No. NU 05

- 01) Responses to Public Comments for PSD Permit Amendment

S eptember 30, 2016 Page 15 • Detailed description of the manufacturer’s specifications, including, but not limited to, make, model, type, range, precision, accuracy, calibration, maintenance and quality a ssurance 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, ac curacy, 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 th ese 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 F lare, such as new connections to the Main F lare, 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 request s that C onditions IX.B.2 and IX.D.4.(a) requir ing installation and operation of a variable speed fan for the Main Flare be removed from the draft PSD permit amendment

. According to Resolute, i n 2006, per paragraph 11.b. of the Consent Decree, ExxonMobil retrofitted the Main Flare with an automatic air

- assisted flar e tip to significantly improve combustion efficiency. Resolute argues that t he Consent Decree

d oes 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 , andMcElmo Creek Unit Oil Production Facility (PSD No. NU 05

- 01) Responses to Public Comments for PSD Permit Amendment

S eptember 30, 2016 Page 16 c ompliance with this permit condition would req uire 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 t he proposed requirement for a variable speed fan, as well as t he continu ous monitoring requirements in

C ondition IX.E.2.(a)

- (e) of the draft p ermit, are based solely on new and potential requirements for refineries and are therefore not appropriate BACT for this particular Facility : (i) p etroleum refinery

- level inst rumentation and control on a flare is not practical to maintain and operate at an upstream oil and gas production facility ; (ii) r efineries 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

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

fou nd at a typical refinery. Therefore, Resolute concludes, proper operation and maintenance of the flare monitoring and control equipment included in the draft p ermit would likely require a number of readily

- available contract craftsmen and specialists,

whi ch may not be available in the Facility’s rural location. Resolute also argues that the BACT analysis support ing the proposed monitoring and control provisions is deficient

because t he documentation and studies underlying the BACT analysis lists only

sugg estions as to how potential low heating value and flame quenching issues can be addressed; the literature cited is not prescriptive. According to Resolute, a lthough a high level of monitoring and control may be warranted on a steam

- assist refinery flare s erving 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 th ose 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 base s for the draft p ermit requirements, indicates that steam

- assist flares generally require tighter control than air

assist flares to maintain control efficiency greater than 98 percent ) . Resolute states that it is willing to consider alternative control me thods (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 p ermit 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 i t is highly unlikely that any of the id entified sources are subject to the same level of control required by the draft p ermit provisions

– from cost

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

for the F acility.

Resolute argues that t he F acility is only required to obtain a PSD permit by virtue of the

Consent D ecree. According to Resolute, (i) t he emissions from the F acility itself are notMcElmo Creek Unit Oil Production Facility (PSD No. NU 05

- 01) Responses to Public Comments for PSD Permit Amendment

S eptember 30, 2016 Page 17 over any applicable major source threshold ; (ii) n early every petroleum refinery in the

countr y 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 moni toring and control requirements being considered by this PSD p ermit review. Resolute states that i f these requirements were to be established as BACT for upstream oil and gas production facility flares, literally tens of thousands of flares across the cou ntry 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, the ir application to the Main Flare cannot be required as BACT. ( Patrick Flynn, Resolute Natural Resources Company)

Response: This comment request s the removal of the permit amendment requirement that the Main Flare be operated with a variable speed fan. F irst, the EPA would like to clarify

that the commenter’s claim that the emission s 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 cond itions 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 sourc e. 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 P S D permit that includes requirements that differ from or are more stringent than the requirements of

th e 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 cru de 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 hydrocarbon s. 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 c ombustion occurs, is needed to prevent over

aeration 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.McElmo Creek Unit Oil Production Facility (PSD No. NU 05

- 01) Responses to Public Comments for PSD Permit Amendment

S eptember 30, 2016 Page 18 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 addre ss over

- aeration of air

assist 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 Produc ts 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

- CV

00207

- PPS

- APR 5/23/ 2012 5
(Date Filed) S ee 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

- CV

11544

- 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

- CV

02009 7/10 /2013 (Date Filed) See paragraphs 50 through 63 in section V.H. of the Consent decree (“Compliance Requirements”)

Third, w e also received additional information by email on June 15, 2015

, from Resolute that the Facility is able to comply with the NHV dil parameter of 24.4 BTU/ft 2 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 C onditions 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 C onditions 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 Con sent 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 D ecree for BP Products

N orth 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 NHV dil parameter has been changed from 24.4 to 24 BTU/ ft 2

.McElmo Creek Unit Oil Production Facility (PSD No. NU 05

- 01) Responses to Public Comments for PSD Permit Amendment

S eptember 30, 2016 Page 19 not an appropriate basi s 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 p er mit 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. Th e EPA did not specifically evaluate the costs at the Facility resulting from these requirements. Moreover, for the same reasons as discussed in response to
C ondition IX.B.2 of the draft p ermit (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,

Reso lute requests that these conditions be removed from the draft p ermit. 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

C onditions 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 a re a starting point for purposes of deter mining

BACT for the Main Flare. T he 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 thi s 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) specif y that the net heating value of the gases to be

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

300 B TU /scf or greater for air

- assist flares. However, th is NSPS minimum NHV vg limit

do es not include specific monitoring requirements to ensure that the NHV vg 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 th e 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 dilut ion (NHV dil ) value that is greater than or equal to 22 BTU/ft 2

. 7

C onditions 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 NHV dil

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.McElmo Creek Unit Oil Production Facility (PSD No. NU 05

- 01) Responses to Public Comments for PSD Permit Amendment

S eptember 30, 2016 Page 20 parameter of 24.4 BTU/ft 2

. 8 According to additional information the EPA r eceived from

Resolute b y email on June 15, 2015

, the Faci lity informed us that it is able to comply with

this NHV dil parameter.

We understand the commenter’s concern that there are differences betwee n 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 pe troleum refinery

flares. See the EPA’s Enforcement Alert

– EPA Enforcement Targets Flaring Efficiency

Violations , August 2012. W e 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 fo cused on the petroleum refining industry, the commenter has not provided any evidence that t he 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 NHV dil parameter.

I n 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 permit t ee wit h more compliance options while at the same time ensuring proper operation of the Main Flare.

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

the 15

- minute compliance time

- frame applicable to refineries

. S ee 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 a s practicable to address noncompliance with the NHV dil 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 ra te in lieu of the volumetric

flow rate of a ssist air. Fifth , for determining NHV vg , 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 NHV vg on a monthly basis using a calorimeter, or (iii) selecting a different monitoring method consistent w ith good engineering practices. As compared to the requirements applicable to refineries, N HV vg at

8 We note that in Permit Condition IX.D.4. of the final PSD permi t amendment, the NHV dil parameter has been changed from 24.4 to 24 BTU/ft 2

. 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.McElmo Creek Unit Oil Production Facility (PSD No. NU 05

- 01) Responses to Public Comments for PSD Permit Amendment

S eptember 30, 2016 Page 21 the Facility is determined on a monthly basis rather than the continuous monitoring or once every 8

- hour grab sampling at refineries

. S ee 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 NHV dil parameter is determined based on flare vent gas flow rate, the air assist flow rate, and the NHV vg . We provided more precise requirements for measuring these parameters. A summar y 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 Fla re. 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 requ irements are not available or should be eliminated because of energy, environmental, or economic impacts.

Table 2

- 2 : Summary of Compliance Options for Determining NHV dil

Parameter Measurement Options Permit Condition in

F inal PSD P ermit

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

• Opera te 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)

NHV vg • Measure concentration monthly and calculate NHV vg on a month ly basis; or

• Measure NHV vg on a monthly basis; or

• Use a different monitoring method for measuring vent gas

composition or NHV vg consistent with good engineering practices on a monthly basis. IX.E.2(b) and (c)

2.7 Comment: Resolute believes that draft permit C ondition 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 “mayMcElmo Creek Unit Oil Production Facility (PSD No. NU 05

- 01) Responses to Public Comments for PSD Permit Amendment

S eptember 30, 2016 Page 22 assert, as an affirmative defense to a dema nd 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 malfuncti on 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 reaso ning 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 pol icy 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 NES HAPs 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 p ermit is the Consent Decree; the Facility does not exceed applica ble PSD thresholds. Thus, inclusion of an affirmative defense for excess emissions during

malfunction events in the draft p ermit would not encroach upon the federal court’s authority, as the federal court has already specifically approved the defense.

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

from the draft p ermit, as the EPA’ s proposal to eliminate malf unction affirmative defenses is not final, and the EPA is still considering public comment on the propo sal. 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 E PA include in the draft P ermit 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, Re solute Natural Resou rces Company)McElmo Creek Unit Oil Production Facility (PSD No. NU 05

- 01) Responses to Public Comments for PSD Permit Amendment

S eptember 30, 2016 Page 23 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 cond itions 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 sourc e. Second, t he 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 Dec ree. In National Resources Defense Council v. EPA, 749 F.3d 1055 (D.C. Cir. 2014)

, the U nited States Court of Appeals for the District of Columbia (D.C. Circuit) vaca ted the affirmative defense in one of the the EPA’s NESHAPs on the basis

that the authori ty 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 pert ain 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 enforc ement 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 fol lowing the NRDC v. EPA case.” See 81 FR at 38649, June 14, 2016. In light of th e NRDC v. EPA decision and the EPA’s subsequent rulemakings

, The EPA is not following the commenter’s suggestion to includ e the affirmative defense in

P aragraph 9.b. of the Co nsent Decree in the final PSD permit amendment

.

2.8 Comment: Compliance with Co ndition 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 byMcElmo Creek Unit Oil Production Facility (PSD No. NU 05

- 01) Responses to Public Comments for PSD Permit Amendment

S eptember 30, 2016 Page 24 the Consent Decree and exceeds current requirements in 40 CFR 60.18 or 63.11. Furthermore, Resolute believes the propos ed requirement is unnecessary. T he 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; howev er, the Main Flare manufacturer’s data are available, which document the pilot gas consumption rate of 65 s tandard cubic feet per hour . Finally, emissions from pilot gas combustion are insignificant (approximately 250 lbs per year of

CO and 40 lbs per yea r of NO
x ), and therefore do not warrant such monitoring and recordkeeping. Accordingly, Resolute requests that [the] EPA eliminate this provision

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

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

conditions cited in the Consent Decree are a starting point for purposes of deter mining 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.

W e 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

C ondition IX.E.1.c as the commenter requested a nd made minor changes to C ondition

IX.E.1.b.

2.9 C omment: C ondition IX.F of the draft p ermit requires that Resolute comply with the provisions of the O&M Plan included in Appendix A of the draft p ermit. The existing

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

wh ich was devel oped 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 sp ecific 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

ma de since Resolute’ s acquisitio n 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 be lieves its proposed approach is consistent with the Consent Decree. P aragraph 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 maintena nce provision], and 25(i)

- (ix).” This does not mean that the O&M Plan included within the

p ermit must be identical to the O&M Plan included in the Consent Decree, onl y that the operation and maintenance provisions in the P ermit 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 s tringent as) theMcElmo Creek Unit Oil Production Facility (PSD No. NU 05

- 01) Responses to Public Comments for PSD Permit Amendment

S eptember 30, 2016 Page 25 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 Pla n more effective and transparent.

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

Resolute ’ s proposal. Inste ad, Resolute proposes that the p ermit include a new provision that would allow Resolute to replace the ex isting 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 p ermit. (Patrick Flynn, Resolute Natural Resources Company)

Response: We agree with the commenter that t he previous O&M Plan was tailored to ExxonMobil’s operation of the Facility. Re solute submitted a revised O&M Plan on April 23, 2015

, based on current ope ration 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 p ermit amendment . The O&M P lan should be updated periodically to account for changes in the operation of the Main F lare, but the plan will need to be

re submitted 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 amendme nt. The owner or operator must comply with the updated O&M

P lan 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, P aragraph 52 of the Consent Decree p rovides that the Consent Decree shall terminate, among several other things, when

the final T itle V (i.e., 40 CFR Part 71) permit is issued , as defined by P aragraph 4.p of the

Consent Decree . Included in the Consent Decree’s definition of “Final Title V P ermit” 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 theMcElmo Creek Unit Oil Production Facility (PSD No. NU 05

- 01) Responses to Public Comments for PSD Permit Amendment

S eptember 30, 2016 Page 26 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 alrea dy occurred at the Facility. H owever, 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 p otential for over

- aeration while flaring . In addition, the EPA does not agree tha t 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 amen dment ensure s that BACT is applied to the Main Flare.McElmo Creek Unit Oil Production Facility (PSD No. NU 05

- 01) Responses to Public Comments for PSD Permit Amendment

S eptember 30, 2016 Page 27 

### 3. C OMMENTS ON 

### C OMPLIANCE

3.1 Comment: The question I have is that, yes, this is a modificat ion 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 cert ain equipment and the permit requirements associated with such equipment because this equipment has been shut down

and removed from the site

. T his 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

SO 2 , NO
x , CO

, and VOC for the already existing Main Flare . It includes operational requirements for ensuing proper operation and maintenance of the Main Flar e. It requires monthly measurement of H 2 S and continuous measurement of the volume of gas

combusted in the Main Flare for calculating SO 2 emissions , and continuous monitor ing 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 SO 2 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 T itle V operati ng permit for the MCU Facility (which has not yet been issued) . The T itle V operati ng 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 enforcement

related 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 havi n g 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)McElmo Creek Unit Oil Production Facility (PSD No. NU 05

- 01) Responses to Public Comments for PSD Permit Amendment

S eptember 30, 2016 Page 28 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 bel ow for other federal regulatory

activities related to the site. The comment is not requesting any clarification s 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 lik e 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 C apitan, 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 T itle V operati ng permit for the MCU Facility (which has not yet been issued). The

T itle V operati ng permit must assure compliance with all applicable requirements under

the C AA , which includes any applicable fede ral 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 enforcement

related 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 H 2 S, 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 SO 2 in any 24

- hour period) in ac cordance 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 per mit

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 rep ort 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)McElmo Creek Unit Oil Production Facility (PSD No. NU 05

- 01) Responses to Public Comments for PSD Permit Amendment

S eptember 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

C ondition 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 H 2 S, 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)

.

SO 2 NO x 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 T itle V operati ng permit for the MCU Facility. The NNEPA is the permitting authority for the T itle V operati ng permit for the MCU Facility (which has not yet been issued). The T itle V operati ng per mit must assure compliance with all applicable requirements under the C AA , 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 plac e 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 C AA 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 SO 2 , CO, NO
x , 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 s ection 8 of the AAQIR/Fact Sheet

, the emission limits in the PSD permit amendment for the Main Flare will protect the NAAQS for SO 2 , CO, NO 2 , and ozone (VOC is a precursor in the formation of ground level ozone); will not cause or contr ibute 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 T itle V operati ng permit for the MCU Facility (which has not yet been issued). The T itle VMcElmo Creek Unit Oil Production Facility (PSD No. NU 05

- 01) Responses to Public Comments for PSD Permit Amendment

S eptember 30, 2016 Page 30 operati ng permit must assure compliance with all applicable requirements under the C AA

, which includes any applicabl e 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 enforcement

related activities (e.g., issuance of n otices, 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? Wh o does that enforce ment ? 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 H 2 S concentration in the field gas , continuous meas urement of the volume of gas combusted in

the Main Flare , and daily calculation of emissions of SO 2 , NO
x , 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 a t the Main Flare that results in the emissions of greater than or equal to 500 lbs of SO 2 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 r eport 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 T itle V operati ng permit for the MCU Facility (which has not yet been issued). The T itle V operati ng permit must assure compliance with all applicable requirements under the C AA

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

related 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.McElmo Creek Unit Oil Production Facility (PSD No. NU 05

- 01) Responses to Public Comments for PSD Permit Amendment

S eptember 30, 2016 Page 31 3.7 Comment: A re there going to be any reports being submitted back to us, or is this one

way 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 include s 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 , t he 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/ft 2 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 acti vities 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 s ystem sitting out there, we don’t know how often it’s checked, how often it’ s cleaned, how o ften been updated, how

often it’ s been maintenanced. We have no idea. (Ryan Bean)

Resp onse: 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. W e really need is go deeper instead of justMcElmo Creek Unit Oil Production Facility (PSD No. NU 05

- 01) Responses to Public Comments for PSD Permit Amendment

S eptember 30, 2016 Page 32 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, C ondition 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 requ ired 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 P lan is required to b e reviewed and, when necessary, updated by Resolute every five years.

Furthermore

, i n December 2008, the EPA granted approval for the NN EPA to administer the Class II Underground Injection Control (UIC) Program , under the authority of the

federal Safe Dr inking Water Act, for Class II injection wells throughout Navajo Nation

Lands. On October 25, 2010, the NN EPA issued an UIC permit for th e MCU site. 10 The

UIC permit contains specific conditions for allowing underground injection of water and

CO 2 , includi ng 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 e nsure the injection well maintains integrity and that injected

materi als 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 addre ssing 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 Co unty, U tah

. 11 See https://www3.epa.gov/region9/air/navajo/index.html

. 12 See https://www3.epa.gov/region9/superfund/navajo

- nation/index.html

.McElmo Creek Unit Oil Production Facility (PSD No. NU 05

- 01) Responses to Public Comments for PSD Permit Amendment

S eptember 30, 2016 Page 33 to help and get some of the Clean Ai r 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 re porter 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 H 2 S, 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 5 00 lbs of SO 2 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 i n 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 t he 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 T itle V operati ng permit for the MCU Facility (which has not yet been issued). The T itle V operati ng permit must assure compliance with all applicable requirements under the C AA

, which includes any applicable federal standards (e.g., NSPS or NESHAP) and the requirements in the PSD permit. For any reports submi tted directly to the NNEPA, members of the public interested in this information must contact the NNEPA directly.McElmo Creek Unit Oil Production Facility (PSD No. NU 05

- 01) Responses to Public Comments for PSD Permit Amendment

S eptember 30, 2016 Page 34 

### 4. C OMMENTS ON 

### P UBLIC 

### P ARTICIPATION 

### & O UTREACH

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 b een] 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 . I f any concerns and the major things come up keep me informed, plea se. (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 avail able on the EPA Region 9

website at http://www.epa.gov/caa

- permitting/prevention

- significant

- deterioration

- psd

permits

- 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 (41 5) 947

- 4156 or r9airpermits@epa.gov ) to answer questions related to our permit action. We note that we work year around with the NN EPA and support its clean air program with

federal funds. You can contact us fo r further information on that, or the director of

NN EPA 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)McElmo Creek Unit Oil Production Facility (PSD No. NU 05

- 01) Responses to Public Comments for PSD Permit Amendment

S eptember 30, 2016 Page 35 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

am endment

.

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 ou r 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

pr o vide additional public p a rticip a t i on o p portuni ties to the c om m uni t y for the pr o posed

PS D p e rmit d ec is i on f o r 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 qu estions 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 pr o posed PS D p e rmit 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 her e. 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 IMcElmo Creek Unit Oil Production Facility (PSD No. NU 05

- 01) Responses to Public Comments for PSD Permit Amendment

S eptember 30, 2016 Page 36 think we sho uld 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 amendme nt. 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 notif ying the appli cant 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 20 th . When you were going through the limitations on when we can respond to certain things, through

the m ail, 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 meet ing 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

commu nity. 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 seenMcElmo Creek Unit Oil Production Facility (PSD No. NU 05

- 01) Responses to Public Comments for PSD Permit Amendment

S eptember 30, 2016 Page 37 you guys before. So a little more information to the community is all that I’m as king 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

a ny of this, but they really don’ t know what ’ s written as a legal language. They don’t

understand it. S ome 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 righ t 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.McElmo Creek Unit Oil Production Facility (PSD No. NU 05

- 01) Responses to Public Comments for PSD Permit Amendment

S eptember 30, 2016 Page 38 

### 5. C OMMENTS ON 

### G ENERAL 

### E NVIRONMENTAL 

### & H EALTH 

### C ONCERNS

5.1 Comment: The community is concerned about particulate matter from th e 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 require s 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 i t 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

hu rt 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 Me xican 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 NN EPA have worked together on s ome recommendations to reduce air pollution from home heating sources such as wood and coal

heaters that are available on the NN EPA’s webpage

. 13

5.3 Comment: The other thing that I bring up is, like I said, we need more educational outreach, community awarene ss. Have we been affected the last 50 years? Is it acute, o r 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 pollutant s associated with th e 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?optio n=com_content&view=article&id=59&catid=14 ( Navajo

Nation’s “B urn the Right F uel” webpage)McElmo Creek Unit Oil Production Facility (PSD No. NU 05

- 01) Responses to Public Comments for PSD Permit Amendment

S eptember 30, 2016 Page 39 human health or environmental effects with respect to th ese air pollutant s 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 addres ses air emissions from the Main Flare, and other equipment (e.g., the compressors) as they rela te 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 pr ohibit 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 H 2 S concentration in the field gas for calcu lati ng SO 2 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 SO 2 in any 24

- hour period) in

a ccordance 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

sev en 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 th ere day and n ight, 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 E PA’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

involv e regulating toxic air emissions (i.e., hazardous air pollutants). Only the following criteria pollutants are considered in this PSD permit action : SO 2 , NO
x , CO, and VOC.McElmo Creek Unit Oil Production Facility (PSD No. NU 05

- 01) Responses to Public Comments for PSD Permit Amendment

S eptember 30, 2016 Page 40 Toxic air emissions (i.e., hazardous air pollutants) will be addressed in the T itl e V permit.

The NNEPA is the permitting authority for issuing the T itle 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 substan ces 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 a ssociated 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 th e F acility 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 a nd Wildlife Service. This consultation is done to ensure that any

a ction 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 MC U 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 speci es or any designated critical habitat in the area

. Our consultation under S ection 7 of the ESA is

discussed in S ection 9 of the AAQIR/Fact Sheet for the PSD p ermit amendment

.

Additionally, p ursuant 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.McElmo Creek Unit Oil Production Facility (PSD No. NU 05

- 01) Responses to Public Comments for PSD Permit Amendment

S eptember 30, 2016 Page 41 The NAAQS were designed to protect human health and the environment. The EPA set NAAQS for six principal pollutants, called “ criteria ” pollutants, for SO 2 , N O 2 , ozone (precursors NO
x and VOC), particulate pollution (PM, PM 10 , and PM 2.5 ), CO, and lead. The CAA identifies two types of NAAQS : primary standards and secondary standards. Primary standards provide public health protection, incl uding 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 eva luated this permit

action ’s impact with respect to the NAAQS for SO 2 , NO 2 , ozone (precursors NO
x 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 violat ion of any NAAQS. Our evaluation of these pollutants is discussed in Section 8 of the AAQIR/Fact Sheet for

the PSD p ermit 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

burn ing 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 f rom 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 U nited S tates

, including on the Navajo Nation Reservation

. The re 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 ast hma 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 C AA

, incl uding, 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 T itle V operati ng permit forMcElmo Creek Unit Oil Production Facility (PSD No. NU 05

- 01) Responses to Public Comments for PSD Permit Amendment

S eptember 30, 2016 Page 42 the MCU Facility (which has not yet been issued). The T itle 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 E PA’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 th e Coastal Zone Management Act of 1972. We also considered environmental justice impacts as part of this PSD permit action. Our eval uation of these regulatory and statutory requirements, as well as the environmental justice considerations, are discussed i n the AAQIR/Fact Sheet for the PSD p ermit 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 CO 2

. 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 a n UIC permit contain ing specific conditions for regulating underground injection of water and CO 2 at the site (see

our response to the comment in Secti on 3.1 0 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 requirement s for monthly

measurement of H 2 S (due to uncombusted gas which may be the cause of odors),

continuous monitor ing 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 t he 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 SO 2 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.McElmo Creek Unit Oil Production Facility (PSD No. NU 05

- 01) Responses to Public Comments for PSD Permit Amendment

S eptember 30, 2016 Page 43 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

enviro nment 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 C AA involves SO 2 , NO
x , VOC , and CO

. Our permit action als o 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 environment al actions occurring in the vicinity of the MCU site that the EPA has

been undertaking on the Navajo Nation Reservation include the A gency ’ s CAA actions involving the Navajo Generating Station and the Four Corners power plants

, 14 and CERCLA (also know n 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 he re, 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 measur ing H 2 S 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

.McElmo Creek Unit Oil Production Facility (PSD No. NU 05

- 01) Responses to Public Comments for PSD Permit Amendment

S eptember 30, 2016 Page 44 primary s ource 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 loca lly to the NN EPA. Com plaints may be reported online at http://navajonationepa.org/main/index.php?option=com_rsform&view=rsform&formId=3

. Those with no intern et 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 e nvironmental complaint online at https://www.epa.gov/enforcement/report

- environmental

- violations , or by phone at (415) 947

- 4510McElmo Creek Unit Oil Production Facility (PSD No. NU 05

- 01) Responses to Public Comments for PSD Permit Amendment

S eptember 30, 2016 Page 45 

### 6. S UPPLEMENTAL 

### BACT A NALYSIS FOR 

### F LARE 

### M INIMIZATION 

### P RACTICES FOR


### SO 2 

### , CO, NO X 

### , AND 

### VOC E MISSIONS AT THE 

### M AIN 

### F LARE

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 correc tive 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 pr oduction 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 flar ing 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 descr iption and technical info rmation 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 preventi ve measures to address flaring that

ha s 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 u sed 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

minimi zation 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.McElmo Creek Unit Oil Production Facility (PSD No. NU 05

- 01) Responses to Public Comments for PSD Permit Amendment

S eptember 30, 2016 Page 46 Table 6

- 1 : General Information

Name Rule or Permit Agency or Facility

Location Description FMP Required? Root Cause

an d

Corrective

Action? Flare i s 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 Yes 16

Rule 4311 State Rule San Joaquin Valley

Air Pollution Control District (California) Flares Yes Yes Yes 17

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

.McElmo Creek Unit Oil Production Facility (PSD No. NU 05

- 01) Responses to Public Comments for PSD Permit Amendment

S eptember 30, 2016 Page 47 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 preventio n measures in the FMP is a violation of the

rule

South Coast Rule

1118 State Rule Flare SO 2 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 o f 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 requirementsMcElmo Creek Unit Oil Production Facility (PSD No. NU 05

- 01) Responses to Public Comments for PSD Permit Amendment

S eptember 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 SO 2 were discharged

South Coast Rule 1118 State Rule for Refinery

Flares • 100 lb of VOC

• 500 lb of SO 2

• 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 SO 2 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 SO 2 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 th e 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 SO 2 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 SO 2 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 SO 2 in any 24

- hour periodMcElmo Creek Unit Oil Production Facility (PSD No. NU 05

- 01) Responses to Public Comments for PSD Permit Amendment

S eptember 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 i n 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 SO 2 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 p ractices for SO 2 , CO, NO
x , and

VOC emissions from the Main Flare are the following re quirements.

6.5.1 Flare M inimization Plan

BACT includes d evelop ment and implement ation 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 regardin g 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., hi gh, 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

S eptember 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 whet her 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 f lare

incident has started.

Resolute must d evelop 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 desi gn 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 c onduct a root cause analysis and corrective action for flaring incidents resulting in more than or equ al to 500 lb per day of SO 2

.McElmo Creek Unit Oil Production Facility (PSD No. NU 05

- 01) Responses to Public Comments for PSD Permit Amendment

S eptember 30, 2016 Page 51 

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