BEFORE THE ENVIRONMENTAL APPEALS BOARD UNITED STATES ENVIRONMENTAL PROTECTION AGENCY WASHINGTON, D.C.
) In re: ) ) BP America Production Company, ) Florida River Compression Facility, ) ) PermitNo. V-SU-0022-0S.00 ) ) PETITION FOR REVIEW I'T1 -<- .......

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### TABLE OF CONTENTS 

### INTR0 D UCTION..................."
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.....,................. "11
.... "'
...... II
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### 3 FACTUALAND STATUTORYBACKGROUND
...................................................3 THRESHOLDREQUIREMENTS
.......................................................................

### 8

...... "
................................................................ ................. ...... <II
.......................... <II ARGUMENT..""...... ...............,.. 'Ill. "'
........ II
...... " " II II ., ......9 I. 

### EPA Region 

### 8 Should HaveReopened the Public CommentPeriod in Light of"SubstantialNew Questions" ConcerningthePermit
...........................9 II. 

### TitleV Fails toAssure Compliancewith PSD and Title

### VPermitting 

### Requirements............................. "
...... It
.. "
.................................. "
.................... "
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...... " "
.. , ..... "
.. " ....

### 17 A.. Background......................................................................................................17 

### EPA's prior aggregation determinations, aswell as PSD TitleV Regulations do notrequirecomplete an interdependence between sources for aggregation
.............................................. . CONCLUSION.....................................................'"............................................................................31



### 2INTRODUCTION Pursuant to 40 

### §71.11

### (1), WildEarth hereby petitions Environmental Appeals Board ("EAB") to October 18, 2010 decision by Region 8 of the Environmental Protection ("EPA") to a renewed federal operating permit pursuantto Title V ofthe Clean Act and 40 C.F.R. 

### § 71 (hereafter "Title V Permit") BP Production Company (hereafter to operate the Florida Compression Facility. Title V Permit and associated Statement of are attached to this petition. Exhibit 1, PermitNumber V-SU-0022-0S.00, AirPollution Control Title V Permitto Operate, Production Company FloridaRiver Compression Facility (Oct. 18,2010); Statement ofBasis Title V PermitNo. V-SU-0022-0S.00 (Oct. 18,2010). Petitioner that the reviewtwo issues to the adequacy ofthe conditions 1. Whether Region 8 erred in notreopening the public commentperiod for V in to substantial new questions concerning the permitraised during thepublic commentperiod; and 2. Whether to define the major source subjectto permitting such V Permit assures compliance with Prevention

'5""""_""" Deteriorationand V 1J"",..,...."if.
FACTUAL AND STATUTORYBACKGROUND The Title V Permit authorizes BP to operate the FloridaRiver Compression Facility, which is located in LaPlataCounty southwestern Colorado within the AVt'''1"'" boundaries of Southern Ute 2 at 1. The facility pro'ces:ses natural produced and delivered viapipelines from coal-bedmethane wells in the Northern SanJuan Basin, a producing region in southwesternColorado. See Exh. Response to Comments on the FloridaRiver Compression Facility'sMarch28,2008 Draft V Permit to Operate (Oct.
318, 10)at6. Florida CompressionFacility removes dioxide ("COl') water from gas piped into the and compresses it for delivery into interstate pipelines. 

### See Exh. 2 at 2. The facility consists natural turbines, amine to remove CO2, a a diesel-fired units, and a number emission units." 

### See Exh. 2 at The potential to emit tons/year nitrogen ("NO.") , x 181.94 tons ofcarbon monoxide, 30.27 tons of organic compounds ("VOCs"), tons ofparticulate matter ("PM"), tons of dioxide ("S02"), and 14 tons hazardous pollutants. 

### See at 6. The facility is an existing source PreventionofSignificant Deterioration ("PSD"), although it never beenrequired to receive a permit to construct. 

### See id. at 10. to the "significantemission to modifications at facility could PSD permittingrequirements." 

### Id An initial Title V Permitwas issued Florida Compression on June 

### 5,2001. See 2 at On 1,2005,the received an application for a V
fJprrn,t renewal from BP. 

### id. application was deemed complete onJanuary 1 2006. 

### id. finally V for public commentonMarch 2008, more than two years applicationto complete. Exh. 3 at 1. Both and BP submitted comments on Title V the public comment 

### See id. comments focused on one issue: whether appropriately ",,,,,.•u,,.,,, source to permitting in to ensure compliance with PSD Title V permitting requirements Clean Petitioner specifically questioned whetherEPA was required to pollutant activities, interrelated oil and wells

4

### and potentially other compression together Florida Compression Facility
as a source. A Title V Permit must assure compliance with applicable requirements under the Clean Air Act. 42 § c(a); see 

### 40 § 

### .7(a)(iv) (a may only issued if"[t]he conditions of permit provide for compliance with all applicable and ...,AAJ,,",,U'''' 

### requirements ofthis part"). requirements include, other things, and Title V requirements Act as they apply to a source required to a V Permit tmder40 C.F.R. § 71. § 71.2 (definition ofapplicable requirement). accurate source U'-".VUUH1U.ClVH, 

### is an absolute prerequisite to adequately


### a V assures compliance with and Title V requirements. In this case, regulations at 40 § 51.21(b)(5) define a stationary source as,
or installation which emits or emit a regulated NSR pollutant." These regulations further structure, facility, or installation" as "all of pollutant emitting activities which belong to the same industrial grouping, are located on one or more contiguous or are control ofthe same person (or persons under common control)[.]"40 § 52.21(b)(6). These definitions are echoed in Title regulations. See 40 

### .R. §71.2 

### definition of"major source" and "stationary Thus, EPA must apply a three-parttestto determine whether multiplepollutant emitting activities should for PSD and V order to ensure accurate
source determinations: 1. Whether the sources V'-'HJU"," 

### to the same industrial 2. Whether sources are located on one or more or adjacentproperties; and 3. Whether the sources are tmder the control of sameperson. 540 

### §S1.21(b)(6). factors apply equally the context oil and gas operations. 

### See 4, Memo from McCarthy, Assistant Administrator for and Radiation to Regional 

### Withdrawal of Source Determinationsfor Oiland Industries (September 22,2009) (hereafter "McCarthy multiple pollutant emitting meet this then they are collectively considered to be a "building,
or installation" must aggregated together as one source" for and Title purposes, even the context ofoil and operations. Priorto Petitioner's comments, of no attention from The n ..n,nA,cAri the draftTitle V Permit without assessing whether pollutant activities should or should not be aggregated together with Florida Compression Facility with the definitions of source" "stationary source" both PSD and Title V. simply presumed that its source determination was accurate. EPA's presumption was erroneous. response to undertook the source determination analysis that ithad failed to complete in the first place. In doing so, EPA requested from BP additional which were 17, ,","',,",L>AU"" December 21,2009, and February 

### I 2010. 

### See S, Julie to Claudia Young Smith, Environmental U"'J,VB",,-""'. Air Radiation Program, U.S. EPA Region 8, in re: BP AmericaProduction Company FloridaRiver Compression Facility proposed Air Pollution Control 

### V to OperateNumber 

### V

-SU-0022-0S.00 17,2009); 6, Rebecca to Claudia Smith, Environmental Scientists, Air and Radiation Program, EPA Region 8, in re: BP Production Company Florida Facility nrcmo.sed Pollution Control 

## v to

60022-05.00 Clarification of 17, 2009 Flow Description and ProximityMap (Dec. 21, 2009); Letter from Charles to Young Environmental Scientists, Air Radiation U.S. EPA 8, in re: Supplemental A1">'1,rnp·n1"<o on Florida PlantRenewal Title V Operating Permit (Feb. 1 0). with its new source determination which relied heavily on additional "'VkUH.''''UL0 EPA issuedthe Title V on October 18,2010. Exh. 

### 1. Although finding that coalbed methane wells that the FloridaRiver Compression Facility, and potentially other '_"-'JH.JH facilities, belonged to same industrial and are under ofthe same person (or
...."'
...co"''' under common control), ultimately EPA asserted that any aggregation ofpollutant activities was inappropriate because a ofadjacency. Exh. 3 at 13. This**~"A~'''A''''** on a novel claimthat ",C'<'nt"" was not established due to a lack of"exclusiveor "'''',
....'''''''.'''''Y 

### " Id. Although has held onnumerous pollutantemitting should considered adjacent based on interrelatedness (see 

### , infra. 

### 8at 9), inthis case, the relationship between interdependency and adjacency to an absurdly extreme end. finding the Florida Facility is on coalbed wells, and likely other compression facilities, to provide natural to its operations, the because same wells and compression facilities also supply to other non-BP 3 at 9.
source determination defies priorEPA determinations indicate "exclusiveor dedicated interrelatedness" is not a determinative factor whether andto what extent pollutant emitting associated with oil and should be adjacent. Most significantly however, is that positionundermines duty to fH'f1CP('f<;l'tp based on



### 7the "common sense notion ofa plant[,] [t]hat is, pollutant emitting activities compnse or primary product or ofa company oroperation must part the
same stationary source." 

### See infra. Exh. 8 at 15 at 

### see also Fed. 52676, (Aug. 7, 1980) (EPA decisions must "approximate a common sense notion 'plant''').



### THRESHOLD REQUIREMENTS WildEarth Guardians the threshold requirements for filing a neIlIlc.n for under40 

### § 71.11(h). provide that, person who comments on draft orparticipated the may the Environmental ,rU.'U'-'U1J to any condition ofthe permit decision." 40 C.F.R. § .11(1). this case, Rocky Mountain Air an organizationthat formally rnp'NU'r1 with WildEarth Guardians 2008, with WildEarth Guardiansremaining the surviving organization, submitted comments on the Title Permit on 19,2008. 8, Comments from Rocky Mountain Clean Action, Draft 

## v rnn'rPQ<""n Facility (May 19, 2008). WildEarth Guardians assumed all liabilities, and responsibilities Rocky Mountain Air as a of 

### See Exh. Plan and Unanimous

VU.J''-'Lato Merge (2008). WildEarth Guardians the to this Furthermore, issues raised in this appeal were raised by Petitioner duringthe public comment and therefore were**nr~>QPFUF'rl** review. The raised this appeal were in fact sole s comments. Tothe extentthat argues that did not follow nrAn",,.procedures in to substantial new questions raised comments, grounds this argument arose after public comment

8

### ARGUMENT As Petitioners demonstrate below, decision to the 

## v was on
a fact or conclusion oflawwhich is erroneous" and/or was "an of discretion or animportantpolicy which Environmental Appeals Board should,
m discretion, review." 40 §§ 71.11(1)(1)(i) and (ii). I. 

### EPARegion 8 Should Reopened the "SubstantialNew Questions" Concerningthe Although Petitioner submitted comments that raised "substantial new questions" corlceI'mnlg the 

## v the issued V Permitwithout public comment contrary to 40 §71.11(h). In comments on the Title V Permit, raised significant concerns over of source over whether Title V Permit compliance with applicable requirements accordance with40 C.F.R. 

### §71. commentspointed out a fundamental In proposed permitting decision, that the failed to appropriately define the source subject to permitting. 

### comments clearly raisedsubstantialnewquestions overthe adequacy of thepermit. Indeed, these comments prompted EPA to solicit obtain voluminous new 

### including requestingsupplementalcomments from BP, from permittee and to concoct a brand new
source determination without allowing for further public comment. the reopening ofpublic comment provide "[i]f data, information, or during public comment 

### appearto raise substantialnewquestions concerning a permit," the may take one ormore



### 9actions. 40 C.P.R. § 71.11(h)(5) (emphasis added). These three actions include "[p]repar[ing] a
new draft pennit," "[p]repar[ing] a revised statement ofbasis, and reopen[ing] the comment period," or "[r]eopen[ing] or extend[ing] the commentperiod to give interested persons an opportunity to comment onthe information or arguments submitted." Id. at §§ 71.11(h)(5)(i)­ (iii). Although the EAB has held that a determination ofwhether a public commentperiod should be reopened "is generally left to the sound discretion ofthe permit issuer," this discretion is not without bounds. See In re Indeck-Elwood , LLC, 13 E
.A.D. 126, 146-147 (EAB 2006). The EAB is empowered to "determine whether reopening the public commentperiod is warranted in a given circumstance." Id. at 147. Although prior EAB rulings on reopening the public commentperiod have involved circumstances where permitting authorities added new conditions to a permit subsequent to a public comment period (see e.g. Indeck-Elwood ,In re Amoco, 4 E.A.D
. 954, 981 (EAB 1993), In
re Matter ofGSXServices of 

## s. Carolina, Inc
.,4 E.A.D. 451 , 467 (1992)), the requirements of40 C.P.R. § 71.11(h)(5) clearly contemplate that reopenings may be warranted even where no changes to a permit are made. 1 Indeed, in response to "substantial new questions," it may only be necessary to "[p]repare a revised statement ofbasis" or simply to "[r]eopen or extend the comment period[.]" 40 c'P
.R. §§ 71.11(h)(5)(ii) and (iii). Whether or not changes are made to a permit, the overlying intent ofreopening is to ensure that interested persons have an opportunity to comment on substantial new questions that have significant bearing both onthe EPA's permitting decision and onthe public.

1To this end, the regulation at issue in prior EAB rulings on this issue, namely 40 C.P.R. 

### § 124.14(b), also contemplates reopenings ofthe public comment period where no changes to a permit are made
. In fact, 40 C.P.R. § 124.14(b) is echoed almost verbatim by 40 C.P.R. § 71.11(h)(5).
10

### this case, ""'41n"

__,, 

### argue that reopening public commentperiod was priorto permit for one or both oftwo reasons: (1) ,-,...,au.",", 

### the EPA, in requesting and subsequently relying upon supplemental comments from in response to essentially reopened public comment period on a

### deJacto yet failed to formally reopen public commentperiod accordance with C.F.R. 

### §71.11(h); or comments clearly substantial new questions would to the of a public comment**,."'r·D·.':!~'11u** .... 

### as evidenced by EPA's subsequent ATTf,rT" 

### to gather significant additional new information from permittee and to ultimately present a
source determination analysis rationale for the that was unlike anything nrPQPl1ltpri 

### to the during for the draft 

## v In either or both cases, failure to reopen the comment was an inappropriate of and must reviewed by the EAB. With regards to 

### deJacto reopening, it is that EPA solicited additional comments from inresponse to Petitioner's comments, heavily on comments to its permitting decision. Despite its to and rely upon comments BP, never officially reopened public commentperiod accordance with C.F.R.§71.11 That requested BP submitted comments is supported on a number To with, BP's 17, 10 submission is entitled, 

### "Supplemental Comments ofBP Production Company Regarding Pending Title V Operating Permit Florida Plant" (emphasis added), indicating that additional comments were submitted. 

### See 7 at cover and title Although is allowed to request additional information from a permittee maybe to evaluate ortake action" on a



### 1 1V Permit Comments do not entirely (see 40 

### §71.S(a)(2), 

### s The Supplemental Comments express numerous opinions, including policy positions and arguments while relevant to this matter, do not represent information that was necessary EPA to evaluate or represent information to evaluate ortake final on a Title 

### V

action on the V Pem1it. Notably, in the introductionto supplemental BP states: (i) support of Company this and Environmental Protection ("EPA") pending ofa renewal 

### V operating permit for BP'sFlorida River Plant ("Florida orthe and (ii) opposition to Rocky Mountain Clean Action, to aggregate hundreds or Northern Juan Basin and BP's renewal for FloridaRiver. n/k/aWildEarth ("WEG"), comments urging**f1_n'T\Pl~<>l''''/1** wells across
7 at 1. Comments arejustthat: comments expressing company's onthe proposed ""',"",l;},'Vll, as well as regarding Petitioner'scomments.2 There are otherexamples showing that Supplemental are, EPA to ortake information was
on final Title

### V Forexample:
• BP "Facts" while certainly disclosing some is colored rhetoric. 7 at Forinstance, asserts that EPA 

### andlor ofColorado permitting decisions affirmatively /1p1rp,.,.,... that aggregation was notnel::essar understanding ofthe claims,**agencl'~S** had a nature and ofBP's ofthe sources permitting at [Florida

2 Similarly, s December 17, 2009 submission to proposed permitting EPA also oplmons company's position on the and Petitioner's comments. 

### See Exh. at Attachment
12Plant, as well as sources from the Plant but also by BP." 

### Id. at 6. BP is in no position to and/or ofColorado's state ofmind during prior
• BP nrp<:pnT<: a legal stating company'sposition regarding of pollutant emitting that is an ofopinion the type ofinformationthat is typically submitted during public comment See Exh. 7 at 15-29; 

### • presents a comment from Ute Tribal dated January 13,2010, expresses boththe permitting proposal and A; and 

### • presents an affidavit from Gordon Reid dated 17,201 states an opinion regarding the company'sposition onthe aggregation pollutant emitting and the company's ofthe ofprior decisions. 7 at C. Overall, BP's Supplemental Comments are more ofan to influence rather than infom1 Agency. comments can be during public comment More importantly is that explicitly on BP's Supplemental Comments, and in fact references portions of Supplemental throughout its Response to 3 at 6 ("BP information LLl
... .....**'~"'y** as part of for this ' 

### In/act, EPA'sResponse to Petitioner's Comments relies almostentirelyon

comment before nrr,nprl

13 3

### informationsubmittedbyBPsubsequentto thepublic commentperiod.4 nU/P,tf'r 

### and as will be further in this Petition, Response to Comments
.... OJI..'''
...... 

### of comments. Forexample, asserts that WildEarth requested that single oil gas well in southwestern with the FloridaRiver Compression Facility, an assertion posited by BP. See 

### 3 at 9 asserts that River Compression Facility, WolfPoint Compressor 

### andall _""_
..__ together



### the wells in the NSJB 

### field are and "interrelated" to one another, thus must be considered a source under both PSD andtitle 

### V." (emphasis added); compare 

### 7at 

### 15 with Florida 

### " asserts that 

### wells in La County should be added)). oil gas in the Petitionerdid not that North Juan Basin oil gas field be Florida River Station.5 

### To the extent that may have provided some that was for to evaluate and take action on the Title V Permit, it not appear that is simply to request and rely upon such information s Supplemental ,-,,-,,,<AU,,",,,



### its permitting decision without reopening public comment period. If additional information was so critical to the EPA's permitting decision, this

4 

### The only other relied upon by to Agency language. Thus, factual underpinning to Comments seems firmly hitched to BP's subsequent comment submissions. 5

### To the extent EPA takes issue with nature Petitioner's aggregation of interrelated pollutant activities, Petitioner's submit that there was extremely limited information provided by both EPA and the with which to prepare present detailed comments on the matter. EPA issue with the that Petitioner was not intimately with the Florida activities. Petitioner cannot be faulted providing the extremely limited information provided by EPA the and permittee.signals Title V Uo
.........**,~** and the basis proposingthe Title V were, at the ofthe public commentperiod, substantially, ifnot wholly, unjustified. cannot
a substantial of justification Issumg a 

### V Permitby simply paddingthe and

",,,'t.UUF, a final permit. the Agency is allowed to additional information from permittee in accordance with 40 

### §71 once such a is made to a deficiency the permit rationale thepermit, the Agency is conceding public comments in case did "substantial new questions." And this to the heart matter. of Supplemental Comments or any other submission ofinformation subsequent to the public commentperiod that the public commentperiod on a 

### defacto basis, failed to adhereto reopening under 40 

### §71.11(h), fact remains Petitioner's comments did "substantial new questions" and the EPA was unjustified in failing to the public comment m response. is notmerely an n",,'<lf'T dispute overproper Because EPA not the public commentperiod,
... ""ru", as well as members public, were denied the opportunity to commentonEPA'snewly articulated rationale analysis supporting its source as well as all the information submitted by permittee subsequentto the comment public commentperiod, no such rationale, information, or or evenhinted The adjacency, the adequacy source were only addressed public commentperiod. Although Title V Permitmay nothave vu<Uli'S"'
...., the EPA's rationale for the permit was And revision wasmaterial to final Indeed, an accurate source i1Plrprl"'Y\ is an prerequisite to a valid Title



### 15

### Permit. WildEarth Guardians, as well as other of public, had no opportunity to

is not comment on this revised or analysis supporting the rationale. public commentperiod time it Ul'-'\.AU,l"''' 

### its for proposing to issue a Title V Permit. n\"
..**"'~r** 

### whenever IS 

### so as to provide a newjustification including a new analysis, which was not articulated or presented at all to or during the public comment period which is material to of Title V Permitting decision, has a duty to exercise its discretion to reopen commentperiod.6 

### is especially true when the rationale and analysis directly results from "substantial new in public comments. The compel the find that a public comment reopening is warranted, and that decision to issue Title V Permit is to 40 C.F.R. § 

### is appropriate is typically left to the discretion 71.11(h). Although a determination as to whether discretion cannot come at the decision. this case, not only is it apparent inappropriately solicited, received, ofa sound**n",,~'rrol1M"1**


### considered comments from BP without to the reopening procedures set forth at 40 C.F.R. 

### §71.11(h), but it is apparent that Petitioner's comments did "substantial new



### It is informative that regulations regarding V Permit § 

### 71 embody same principle. These regulations provide that, determines that a Title V Permit or that statements were made in standards or other terms or conditions of " a V Permit 

### See 40 §71.7(f)(l)(ii). Title Permit "shall follow the
same as apply to initial permit issuance[.]" 

### Id. at § 

### 71.7(1)(2). FloridaRiver Compression Facility Title V Permit, it 

### does appear that impliedly, ifnot determined that the draft Title V Permit was either based on "material mistakes" or "inaccurate statements." the reopening regulations contemplate, public comment is necessary to properly address such mistakes or inaccurate statements.

16that rose to the level requiring a public commentreopening orderto properly address the ofthese questions.


### II. TheTitle PermitFails to Assure Compliance with PSD and Title V Permitting Requirements
s is a straightforward challenge to EPA's source determination. this case, EPA failed to appropriately assess rh",thA"pollutant activities interrelated with River Facility should together with Facility as a single stationary source, accordance with factors setforth under40 

### § 52.21(b)(5) and (6), as as the definitions "major and "stationary source" under40 § 71 In otherwords, to appropriately define the source subject to permitting, and n,,,,..,,,,..-,,..,,, to ensure that Title 

### V assures compliance with EPA's PSD Title 

### V**""~WVLL"** in accordance 40 § 71.1(a). See 40 

### § 71.6(a)(l).
source determinationdid not that existpollutant '"''''''''''UEl activities, including coalbed methane wells that Facility and potentially other "AIm
.... ,.""" facilities, which
.....",,",u,,- to the same industrial grouping and are under commoncontrol by See 3 at 13. Instead; EPA's determination hinged upon a finding that pollutant pollutant emitting are not adjacent to the Thus, pollutantemitting the River Compression as a source, as appropriate. will be explained, finding is unsupported. 

### Background That ofpollutant emitting activities associated with oil and gas operations

17under Title V be is not inconsistent the the PSD In

### AlabamaPower v. 

### Castle, F.2d the court described how the Air Act the terms "source" and court held the term source" for purposes, although not
.......,.u...."
... in the on defined as "any building, structure, or installation which ormay emit any pollutant," which is how "stationary other "',",,",UV<l,,, ofthe 

### See at 395-96. In ofthe statutory definition, court 1"11
..,,,,,1-",,,, EPAto its defining "source" the PSD program. JEu"nn:.rr 

### Power v. 

### Castle, Cir. 1979). doing so the courtcautioned that should not aggregate sources unless withinthe statutory terms " "building," " or "installation." at 397.**'UII~"F'r** the court thebreadth ofthe term "facility or installation" concluded intended" to "allowan plant

### orotherappropriategroupingof industrialactivity" to treated as a major source for purposes. (emphasis added),Followingthe Circuit'sdecision, EPA 1980promulgated a new regulatory definition "stationary source" PSD '1""'''''''''' as "any facility, or installation" that a regulated pollutant, a definition that continues in effect in present PSD regulations. EPA further established the three-part aggregation above, to determine when individual activities be as a major source, a test also continues in in today's regulations. The Preamble to the new regulations discussed policy considerations aggregation identified by D.C. Circuit 

### AlabamaPower:

1845 view, December opinion ofthe court AlabamaPower sets the following boundaries on the definition for purposes of componentterms of
. (1) it must outreasonably the purposes PSD; (2) it must approximate a common sense notion , and (3) itmustavoid pollutant-emitting that as a would not within ordinary

LU
...'
....UULF, of " "facility," or "installation." Reg. 52676, In the context ofoil operations, sources common control, connected by and operating interdependently readily fit the ordinary meaning of or "installation. Moreover, in cases, sources fit the "common
sense ofa " First, the**~~"""VH** sense notion ofa plant" has always extemlea beyondjusta In Power, Circuit that under "clearly intended" that not comprising a single but 

### ·'otherappropriategrouping/s}of industrialactivity, shouldbe aggregated ifthey fit UU.C4IUU

withinthe terms or .au,aLa.'ll " AlabamaPower 

### v. 636 323, (D.C. CiL 1979) (emphasis Second, considering common sense notion ofa "',",Aave,,,, explicitly suggests that an "oil be In the "plant" largely on activities shared a common code, to avoid "group[ing] activities that ordinarily would considered separate." See 52695. an separate the pointed to uranium 

### " Id. choice of however, suggests that componentunits in an oil the extent they share a single SIC be treated as a stationary source. 

### Itwould have little sense for the "''''AHU.'''' to discuss**_,..,.~** ....,.., an oil field with activity component ofthe oil field could nottnems,el be source.
19Third, while EPA 

### aperse against that are r.n"pr'tprl by a multistate pipeline or a similar connection in adopting the regulatory ofstationary source, was notcomplete barto appropriate aggregation ofoil and pollutant emitting activities. EPA thatit "would nottreat all ofthe pumping stations along a multistate pipeline as one 'source.'" Reg. Atthe same time, the
was \.U""'UL'- to say precisely at pointhow apart must in orderto treated " ld these a number ofprior permitting have concluded that**,",""HL~'H** is appropriate for oil and sources. have concluded was

for sources otherindustriesthat involved operations by long but connected pipelines or links. While case-specific, these determinations demonstrate that aggregation ofoil other sources, can be appropriate
111 

### a array of example, EPA has found aggregation to appropriate the following circumstances: 1. Oil gastank emitting wells, dehydration equipment, combustion equipment, tanks), in an oil twelve mile radius. 

### See 8 at Exhibit 17 from Region 8 Airand Radiation Program, to Ann Environmental Coordinator, Citation Oil Corp. 9, 1999)). 2. Pipeline stations and associated emittingunits compressor wells, pumps, dehydrators, storage and transmissiontanks, etc.). Exh. 

### 8 at Exhibit 

### 8 (Letter from Richard Long, DiL, Region 

### 8 and Radiation Program, to Jack Vaughn, EnerVest Juan Operating Co. (July 8,1999)). 3. distribution from William Bell,
4. processing plant connectedby 

### See 1 0, Director, and Radiation Division, EPA**"'","''''L~'U** 5 to Scott


### 20

### 8. Environmental Quality



### 1. Two unconnected Summit Petroleum Corporation (Oct. I 2010). 

### 5. 5. plant 21.5 miles connected by a dedicated


### 6. connected a forty-four R. Long, Director, 8 Construction Permit Leader, Colorado

(April 20, 1999)). 7. U.0.UV'.'" 

### oil and platform onshore production facility miles connected by pipelines. 

### See at 11, from Douglas and Delegated Air Programs, to Manager, Region 10 Kuterbach, Department Environmental Conservation (Aug. 21, 2001). 

### See Exh. 8 

### at Exhibit 15 (Letter 10 Office Air Quality, to Andy 1997)). 9. Two ofan oil 1.8 Exh. 8 at Exhibit 12 (Memorandum from Edward Source to Clyde B. 

### 10. Brewery and landfarm Division (May 

### 1 brewery disposed ofwaste water, connected by a Exh. 8 atExhibit 14 (Memorandum Region 8 Air V;:';'''UH 

### (Aug. 27, apart Robert Kellam, Acting Director, to Richard R. 1996)). 11. Two General Motors one apart, connected by a railroad Division Exhibit (Memorandum from Rothblatt, Region 5 to Edward Reich, Director, Stationary Source certain, has found aggregation to be inappropriate in certain situations, in the following circumstances: 

### In re Shell Offshore, Kulluk Drilling Unit and 13 

### E.A.D. 3 

### (E.A.B.2007).7 bulk gasoline terminals 0.9 miles not connected by any 

### See
7However, the EAB case did the EPA'spermitting onthe Region 10 "did not an adequate analysis and support conclusionthat each OCS [outer-continental shelf] source source." 

### In re Offshore, Kulluk Unit and 

### 13 357,3 (E.A.B. by more than 500 meters is a <!pn,';H'!ltp



### 21

apart and f"",
... nl"f"U'r1Letter Winston A. Dir., Region4 Air, Toxics Management Division, to Randy C. Poole, Hygienist Mecklenburg Department Environmental Protection (May 19, 1 However, in these '0«4UV'-''', it was clear that factor was whether the pollutant activities were such aswith pipelines. Importantly, these prior determinations provide**'AA~",",'H** with to the and prong of definition of source PSD and 

## v. Notably, prior determinations demonstrate that the distance between sources is not
a determinative factor or '>"1"""''''' but rather that are apartcommonly fit within "facility" "installation" aggregation sources are integrated and physically EPA 8explained one case that two are' is
on the 'common sense' notion ofa source and the functional ofthe facilities, is not simply a matter ofthe physical distance between two " Exh. 8at 11 at 1. Similarly, Region 8 the Department Environmental Quality that "[d]istance
....""rHlc>p
... the operations is not as important determining operations are part of same source as the possible support that one operation for another." 

### 8 at 9 at 1 where a station and a production are bya21.S mile channel, "the distance the is not an overriding factor would being 

### a source." ld. at 2. determinations by EPA are In 1998, Region 

### 8 provided Division Quality on Utah should \JV''''''<'UV< in its

"'F,<<<<'-'U analysis. Utah sought guidance recommendation on whethertwo Utility Trailer located approximately one apart should 8atExhibit 5 (Letter from Richard R. Director, 

### 8 Air Program, to Lynn Menlove, Manager, New Review Utah ofAirQuality (May 

### 21, 1998»). Region 

### 8 did not a way on aggregation two butprovided general guidance to how it shouldmakethe determination. 8 that a permitting authority assesses contiguous 

### or factor, it should examine whether sources are close enough to one another for them to
as a single source. 8 atExhibit 5 at 2. Region 8 then 1U
.....H1>.1
......... four -r<l"lCAr<o to considered in determining whether distance**n""-'''r~,pn** is small to allow operation as a single source. While they are relevant, EPAnoted that not all the four
are required to be**n"'~""""'''T** to contiguous oradjacent 1. transferred between the facilities? evidence for a physical link 

### or transportation link between the facilities, as a pipeline, railway, special-purpose or public road, channel orconduit. Willluul.•u.r;__ production line or 

### or administrative personnel. 3. Will productionprocess between the will one facility produce an productthat further processing at other facility, associated airpollutant**"'11.U"'~"V1** 4. Was location the new facility chosenprimarily because ofits proximity to the existing facility, to enable the operation two facilities to be integrated? In other words, ifthe two facilities were sited apart, wouldthat significantly degree to which may dependent on 

### Id. OtherEPAregional have applied Region 

### 8 guidance questions when making

QQI'eQ,llIcm determinations. 

### See, e.g., 

### 12 at 

### 5-6. In this case, EPAclearly**"'Of',~(Tn** that it could be UI;\."I;;'::''::'.:u to the Florida :orrmn;sslOn Facility together with interrelated pollutant emittingcoalbed un.,u"u". othercompression did not on " but recognized that adjacency could River Compression Facility and otherpollutant emitting activities were interrelated. Exh. 3 at 10 ("In examining two stationary sources that are not actually touching (i.e., non-contiguous) should be

, the determination been ona considering extent to which two sources are functionally interrelated."). Unfortunately, assessment of short a finding thatthere is no adjacency between Florida Facility and otherpollutant emitting activities. 

### EPA's aggregation determinations, as well as PSD and VRegulations do not require complete an exclusive interdependence between sources aggregation. does not dispute Florida Facility could not**An'~T'<l1r~** without being natural gas nearby coalbed methane wells. also not dispute that**np!~rl"l"** coalbed methane could not without the ability to pipe natural gas to processing What is the level required to support a ofadjacency in case. the fact that an interrelationship exists nPl"UT?>PYl the FloridaRiver Compression Facility the coalbed methane that rlt'P'cc{\r station likely compression facilities), EPA the concept ofinterrelationship to ultimately reject
a finding that the FloridaRiver Facility is adjacent to otherpollutant the EPA's aggregation is heavily, ifnot entirely, to beliefs the ofinterdependence for aggregation of gas activities. In particular, EPA asserts that two pollutant must completely exclusively on each for to be appropriate. EPA this

24concept in several ways-"dedicated 3 at 11 and 1 "exclusive dependency" (Jd. at 11), "exclusiveordedicated interrelatedness" (Jd. at 13), interdependence" at 1 the IS EPA that only time a finding ofadjacency be appropriate an interrelatedness standpoint is where complete exclusive interdependence. EPA's complete and interdependence theory underlies its analysis the Florida CompressionFacility. In particular, the onthis is improperbecause in some circumstances, wells Florida


### can gas to other processing 3 at 9 "while [BP's] WolfPoint station] and the wells 

### can supply to Florida they can also gas to other HVJlrLH and thus do not U-""UJlU have type dedicated interrelatedness that was III EPA statements on issue"). The asserts that "Florida can continue to operate ofwhether Wolf or two, four, or ofthe BP operated well sites were to shut down-and 3 at 13), and the BPpollutant are not interdependent. EPA notpreviously taken interdependence concept In the EPA applied a more sensible approachthat does not require complete and exclusive Forexample, the 1980 Preamble noted that a boilerproviding steam
sources should with whichever source is the

### primary recipientof boiler's output. Reg. (Aug. 7, 1980). would III boiler with another source the that boiler also provides steam to a
source.number prior determinations reinforce approach, a that to acknowledge its Response to Comments, eventhough Petitionerpresented agency with the relevant guidance. example, EPA "'-""';;'H.H 1 0 found that two metal castingplants should be one plant sent its to See 8 at Exhibit 15. Thus, the plant was not dependent on otherplant, sincethe main would coat, and package castings ofthe at the 10 that two sources
even though there was not and exclusive interdependence between them. 10 determined that the two plants would approximate common sense notion of"plant," as the production both plants comprised and primary activity the company: producing coated metal castings. See at 2. Moreover, a number oil and sources mentioning or dedicated interrelatedness" standard. 

### e.g., Exh. 

### 8 at Exhibits 13 and 17. Ifcomplete and were required, and was 

### a factor in an assessment of one would ov".,,,,,,t EPA determinationsto have findings were. did even context ofoil and operations. Rather a and exclusive**nte:rdt~De:nd,em~e** test,
more broadly on whether one source regularly supports operation ofthe thus approximating a common sense notion "plant. As noted 8 identified
.",{'.enr" for determining whether are contiguous or adjacent. that analysis, which the EPA did not even address the FloridaRiver Compression Facility, 

### 8 looked to activities "routinely," or "frequently" enough to conclude thatthey areoperated in effect as a source. Exh. 8 at 5 at 1 Other determinations similar: focus onwhether two ';1"'1,,,
..,:>,1", are functionally interdependent normal operations, whether one produces anintermediate product the other. They notrequire that both sources

### solely andexclusively support other under all operating conditions. See 

### 8 at 

### 15 at 

### 2 (explaining that onekey factor in sources is whetherone source "theprimaryproduct or activity
a or operation" at another source) (emphasis added); 8 at Exhibit 11 at 1; see also, Exh. 8 at Exhibit 8 (aggregating pipeline compressor station with associated wells, storage etc.). Furthermore, the policy goals underlying the three-part aggregation test also do not require complete and exclusive Where an ",n,,.
..,,,,, routinely from a set wells that are intended to supply a particular "'''1',''''''0<0 facility, operation fits within the ordinary

... of"installation" and "plant." Moreover, the wells u,",u
... " " produce an intermediateproductthat is**or()CeSSe~C1** wells and equipment continue to the ordinary l'-'UHUJ'I". ofan "installation" or " even gas from wells elsewhere when compressor '""
..... "vu for maintenance or reasons. EPA does not this III Haw. The Haws in complete and**nte:rat~pena,en(;e** requirement can also
seen by considering a "plant"that buildings separated by only a public road. the two plant buildings operate several emlSSlOns all responsible for differentphases ofproducingthe plant'send product, it is indisputablethatthe should as court AlabamaPower 636 at

27(stating "Congress envisioned that entire could be considered to single

LJLL,au;:"" the statute statesthat plants, as iron and plants, would Different units in plant, may not meet the EPA's complete and exclusive For example, an emissions in one may
an intermediate product**UU~'L,",LL"''''** to the otherbuilding for production the shut down ",-,'eLM""''"' orrepairs, the company will commonly obtain the "-.t,,,,.,-y,,,,-i product elsewhereto ensure that the production is not interrupted. Underthe reasoning, however, reasonable operational
measures would prevent intermediate source with sources, as would be a 

### chancethat some sources in plant

### might on outside sources or at times. Clearly, these """-"-J measures do not prevent hypothetical plant from
common sense notion ofa "plant" and aggregationtest. disconnect between the support analysis, and the complete and exclusive interdependence theory, a majorgap EPA's it never analyzes how much gas flows to Florida Compression Facility from particular wells under operations. This omission is because it aDt)ears that regular the
numerous wells flows to the Florida CompressionFacility. forthrightly that 63% of gas processed by Florida CompressionFacility
comes from "BP-operated production" 7 at 11), indicating that is a substantial not a high level interdependency, between facility and wellsthat provide 63% supply ofnatural for rrlrt,rp<1<1Ar station. 8 lennolre based on could 's Supplemental Comments to EPA, it appears as 

### ifan assessment that the movement ofgas to identification very producing at particularpoint time." within a of Exh. 7 at 12. IS BP asserts that the flow gas in the "dynamic," 

### it appears not possible to quantify the amount of flowing to the Florida River CompressionFacility from wells, butpossible to identifY the producing this gas. Florida River Although argue nature Facility and s in the 

### vicinity,fundamentally, a relationship of interdependence exists. Simply U"'-'U'''''' EPA made no reasonable to discern bounds this tenler)enaellcy such as an assessment normal that could be used to identifY the wells are most likely to provide to the Florida Compression to ensure an accurate source upholding the EPA's failure to perfonn the analysis to nature interdependence does not support a finding that no interdependency whatsoever exists, as the Division claims, when the lil case H1\.11'-'<1<'-' some level interdependency clearly It is instructive to see EPA has tackled issue interrelatedness the contextof supportfacilities. must and 

### V, pollutant
are adjacent orcontiguous, under common control, and belongto the same
8There is interdependence with other wells that the Florida Compression Facility are under common control, rather ownership, by Unfortunately, the EPA did not assess whether a commoncontrol relationship between the FloridaRiver CompressionFacility third-party wells station.9 

### We understand this Draft that it "does not represent final Preamble only as illustrative ofa reasonable and informative interpretation of to matter EPA's source Facility. positions." for contains a disclaimer from cite this V and regulations that whetherpollutant belong to the same industrial grouping, EPA normally relies on Standard Industrial Classification ("SIC") industrial grouping. 40 § 

### 1(b)(6). When HUAUAI:S


### situations arisen where a primary pollutant emitting that supports activity to a different pollutant operations of primary activity. these cases, an to a primary provides 50% or more its output (in terms of exists, and expects activity, it "expects permitting authorities to conclude SIC Exh.13, these activities to be with theprimary activity," Preamble to Revised Part 51 

### Part 70 

### at 28, 

### (Feb. 1 1998)9; see 

### Exh. Memorandum John Seitz, of Quality Planning and Standards, Source Determinationsfor Military Installations under Review, and Taxies, New OperatingPermits of the AirAct 

### (Aug. 1996) (stating support usually would aggregated with primary activity to which it contributes 50 cent or more of output. As EPA's regulations, intent is to ensure that that "convey, or assist in the production principal are appropriately grouped together. 45 

### 1980). to wells, and potentially other compressionfacilities, that the Florida CompressionFacility, it relationship with in this case a support

to this In 

### context its adjacency 

### 3 at 8-9 

### " is no reason to analyze IS 

### a facility relationship between these various emissionpoints."). While it is true that 

# v

### supportfacilities have typically a ofadjacency or contiguousness, also that, "In factors comprising major
source definition (adjacency/contiguity, common control, and SIC code/support) are interrelated and cannot be evaluated in

.... 

### fashion." Exh. 13 

### at 29. 

### In "''-'
... u 

### words, IS 

### to indicate that the ""r\l"\,,rr 

### facility where a secondary pollutant activity dedicates 50% ofits output, whether in terms ofmaterials and/or services, it should be with pnmary as a source-cannot equally, or at least substantively, inform an assessment adjacency or standpoint of To this end, there is no merit to assertion that the facility principle has no relevance the context ofthe Florida River Compression In sum, aggregating oil and gas sources does notrequire that sources meet the "exclusivedependency"test as prior guidance on the as
as the common sense ...JVUH.,uby 

### PSD demonstrates oil and sources should be if 

### regularly one another in production of quality The EPA's on a standard ordedicated unsupported. The Title V 

### Permit ",r",,.tA>'''' 

### fails to ensure compliance with applicable requirements and cannot be allowed to stand.
CONCLUSION The V 

### Permit the Florida River Compression suffers procedural and substantive Petitioner the review whether the erred in not reopenmg public conunentperiod Title V resPol1se to substantial new questions permit during the conunentperiod and whether failed to appropriately the source to permitting suchthat

31 VPermit assures compliance with Prevention ofSignificant Deterioration and Title V Permitting requirements. Petitioner further requests thatthe EAB either remand the Title V Permitto address the aforementioned deficiencies and/or vacate the issuance ofthe Title V Permit.

Respectfully submitted this 1

### i hday ofNovember 2010


## J

dyrl1y icH Is dimate andEnergy Program Director WildEarth Guardians 1536 Wynkoop, Suite 301 Denver, CO 80202 (303) 573-4898 

### x 1303 jnichols@wildcmihguardians.org

32

### OFEXHIBITS 1. PennitNumber V-SU-0022-05.00, Pollution Control V Pennit to Operate, BP Production Company Florida Facility (Oct. \8, 2010); 2. Statement of for V PennitNo. V-SU-0022-0S.00 (Oct. 18,2010). 3. Response to Comments on River Compression Facility's 28,2008 DraftTitle V to Operate (Oct. 18,2010). 4. Memo from McCarthy, EPA Administrator for and to Regional Administrators, 

### Withdrawal of Source Determinations for Oil Industries 2009). 5. from Young Environmental Radiation Region 8, in re: BP Production FloridaRiver Compression Facility proposed Pollution Title V Pennitto Operate NumberV-SU-0022-05.00 (Dec. 17, 6. from Tanory to Claudia Smith, Radiation Program, .S. Region 8, in re: America Production Company Florida River Compression proposed AirPollution Control Title V Permit to Operate NumberV-SU-0022-0S.00 Clarification December 17,2009Flow Description and Map 21, 2009). 7. from Kaiser to ClaudiaYoung Smith, Environmental Scientists, and Radiation Program, EPA 8, in re: Supplemental Comments on Florida Plant Renewal Title V Operating (Feb. 

### 1 2010). 8. Commentsfrom Mountain Clean Draft V River Compression Facility (May 19, 2008). 9. Plan of and Unanimous to (2008). 10. CherylNewton, Air Radiation Division, Region Sto Petroleum Corporation (Oct. 18, 10). 11. Letter from Douglas Manager, Region 10 Federal and Delegated Air Programs, to John Kuterbach, Alaska Department ofEnvironmental (Aug. 21,2001). 12. from Winston A. DiL, Division, to Randy C. Air '-HffTlpnl Department Environmental Protection (May 113. Preamble to Part 51 70 at 28, 18, 1 14. Memorandum from Office Quality and 

### Major Determinationsfor Military Installations the Air Taxies, New 1996). 

### Review, and Title VOperatingPermitsPrograms of the CleanAir (Aug.

### CERTIFICATE OF SERVICE I certify that onNovember 17,2010, I served this Petition for Review by overnight delivery upon: 

### u.S. Environmental Protection Agency Clerk ofthe Board, Environmental Appeals Board 1341 G Street, N.W., Suite 600 Washington, D.C. 20005 I also certify that onNovember 17, 2010, I served this Petitionfor Reviewby certified mail, return receipt requested, upon: John D. Lowe Deputy Florida Operations Site 2906 County Road 307 Durango, CO 81303 James B. Martin Region 8 Administrator U.S
.Environmental Protection Agency 1595 Wynkoop Denver, CO 80202

35