BEFORE THE ENVIRONMENTAL APPEALS BOARD 


UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 


WASHINGTON, D.C. 


) 

In re: ) 

) 

BP America Production Company, ) 

Florida River Compression Facility, ) 

) 

Permit No. V-SU-0022-0S.00 ) 

) 

PETITION FOR REVIEW 

I'T1 

-<- ......., 
 -< = a 

;:0 ;z 

<: :t> CJ ;::::0

en rri -0 

('"") -0 

I'T1 co 111~ :t> 

r -u ~< (fJ ::;.:: > 111 

OJ .0

0 W 

:t> 

:::0 

0 
TABLE OF CONTENTS 


INTR 0 D U CTI ON ............. ...... ".. ".... ., ................. "11 .... "' ...... II ........ II ...... II ................... " ............. III " " ........ If .................. " II> .......... " "' .......3 


FACTUAL AND STATUTORY BACKGROUND...................................................3 


THRESHOLD REQUIREMENTS.......................................................................8 


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


I. 	 EPA Region 8 Should Have Reopened the Public Comment Period in Light 


of "Substantial New Questions" Concerning the Permit...........................9 


II. 	 Title V Fails to Assure Compliance with PSD and Title V Permitting 


Req uirem ents ................. ............ "...... It .. " .................................. " .................... " ................. " ...... " " .. , ..... " .. " .... 17 


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


EPA's prior aggregation determinations, as well as PSD Title V 


Regulations do not require complete an interdependence 


between sources for aggregation............................................... 


CONCLUSION..................................................... '" ............................................................................31 


2 

INTRODUCTION 

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 

pursuant to Title V of the 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, Permit Number V-SU-0022-0S.00, Air Pollution Control Title V Permit to Operate, 

Production Company Florida River Compression Facility (Oct. 18,2010); 

Statement of Basis Title V Permit No. V-SU-0022-0S.00 (Oct. 18,2010). 

Petitioner that the review two issues to the adequacy 

of the conditions 

1. Whether Region 8 erred in not reopening the public comment period for 

V in to substantial new questions concerning the permit raised 

during the public comment period; and 

2. Whether 	 to define the major source subject to 

permitting such 	 V Permit assures compliance with Prevention 

'5""""_""" Deterioration and V 1J"",..,...."if. 

FACTUAL AND STATUTORY BACKGROUND 

The Title V Permit authorizes BP to operate the Florida River Compression Facility, 

which is located in La Plata County southwestern Colorado within the AVt'''1"'" boundaries of 

Southern Ute 2 at 1. The facility pro'ces:ses natural 

produced and delivered via pipelines from coal-bed methane wells in the Northern San Juan 

Basin, a producing region in southwestern Colorado. See Exh. Response to Comments on 

the Florida River Compression Facility's March 28,2008 Draft V Permit to Operate (Oct. 

3 

18, 10)at6. Florida Compression Facility 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 of carbon monoxide, 30.27 tons of organic compounds ("VOCs"), tons 

of particulate matter ("PM"), tons of dioxide ("S02"), and 14 tons hazardous 

pollutants. See at 6. The facility is an existing source Prevention of Significant 

Deterioration ("PSD"), although it never been required to receive a permit to construct. 

See id. at 10. to the "significant emission to modifications at 

facility could PSD permitting requirements." Id 

An initial Title V Permit was 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 on January 1 2006. 

id. finally V for public comment on March 2008, more 

than two years application to 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 whether EPA 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 ...,AAJ,,",,U'''' and

requirements of this part"). requirements include, other things, and Title 

V requirements Act as they apply to a source required to a V 

Permit tmder 40 C.F.R. § 71. § 71.2 (definition of applicable 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 of the 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-part test to determine whether multiple pollutant 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 adjacent properties; and 

3. Whether the sources are tmder the control of same person. 

5 

40 § 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 ofSource Determinationsfor Oil and 

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 of oil and operations. 

Prior to Petitioner's comments, of no attention from 

The n ..n,nA,cAri the draft Title 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 it had failed to complete in the first place. In 

doing so, EPA requested from BP additional which were ,","',,",L>AU"" 17,

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 America Production Company Florida River Compression Facility proposed Air Pollution 

Control V to Operate Number 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 

6 

0022-05.00 Clarification of 17, 2009 Flow Description and Proximity Map (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 

Plant Renewal Title V Operating Permit (Feb. 1 0). 

with its new source determination which relied heavily on 

additional "'VkUH.''''UL0 EPA issued the Title V on October 18,2010. Exh. 1. Although 

finding that coalbed methane wells that the Florida River Compression Facility, and 

potentially other '_"-'JH.JH facilities, belonged to same industrial and are under 

of the same person (or ...."'...co"''' under common control), ultimately EPA asserted that 

any aggregation of pollutant activities was inappropriate because a of adjacency. 

Exh. 3 at 13. This ~"A~'''A'''' on a novel claim that ",C'<'nt"" was not established due to a 

lack of "exclusive or "'''',....'''''''.'''''Y " Id. 

Although has held on numerous pollutant emitting should 

considered adjacent based on interrelatedness (see , infra. 8 at 9), in this 

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 prior EPA determinations indicate "exclusive or 

dedicated interrelatedness" is not a determinative factor whether and to what extent 

pollutant emitting associated with oil and should be adjacent. 

Most significantly however, is that position undermines duty to fH'f1CP('f<;l'tp based on 

7 

the "common sense notion of a plant[,] [t]hat is, pollutant emitting activities compnse or 

primary product or of a company or operation 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 

under 40 § 71.11(h). provide that, person who comments on 

draft or participated the may the Environmental ,rU.'U'-'U1J 

to any condition of the permit decision." 40 C.F.R. § .11 (1). this case, Rocky 

Mountain Air an organization that formally rnp'NU'r1 with WildEarth Guardians 

2008, with WildEarth Guardians remaining 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''-'La to Merge (2008). WildEarth Guardians the to this 

Furthermore, issues raised in this appeal were raised by Petitioner during the public 

comment and therefore were nr~>QPFUF'rl review. The raised this appeal were 

in fact sole s comments. To the extent that 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 of law which is erroneous" and/or was "an of 

discretion or an important policy which Environmental Appeals Board should, 

m discretion, review." 40 §§ 71.11(1)(1)(i) and (ii). 

I. 	 EPA Region 8 Should Reopened the 


"Substantial New Questions" Concerning the 


Although Petitioner submitted comments that raised "substantial new questions" 

corlceI'mnlg the v the issued V Permit without 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 with 40 C.F.R. § 71. 

comments pointed out a fundamental In proposed permitting decision, that 

the failed to appropriately define the source subject to permitting. comments 

clearly raised substantial new questions over the adequacy ofthe permit. Indeed, these 

comments prompted EPA to solicit obtain voluminous new including 

requesting supplemental comments from BP, from permittee and to concoct a brand new 

source determination without allowing for further public comment. 

the reopening of public comment provide "[i]f 

data, information, or during public comment appear to raise 

substantial new questions concerning a permit," the may take one or more 

9 

actions. 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 of basis, and reopen[ing] the comment 

period," or "[r]eopen[ing] or extend[ing] the comment period to give interested persons an 

opportunity to comment on the information or arguments submitted." Id. at §§ 71.11 (h)(5)(i)­

(iii). Although the EAB has held that a determination of whether a public comment period 

should be reopened "is generally left to the sound discretion of the 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 comment period is 

warranted in a given circumstance." Id. at 147. 

Although prior EAB rulings on reopening the public comment period 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 ofs. Carolina, Inc., 4 E.A.D. 451 , 467 (1992)), the requirements of 40 

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 of basis" 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 of reopening is to ensure that interested persons have an opportunity 

to comment on substantial new questions that have significant bearing both on the EPA's 

permitting decision and on the public. 

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

124.14(b), also contemplates reopenings of the 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 comment period was 

prior to permit for one or both of two reasons: (1) ,-,...,au.",", the EPA, 

in requesting and subsequently relying upon supplemental comments from in response to 

essentially reopened public comment period on a de Jacto yet 

failed to formally reopen public comment period 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 de Jacto reopening, it is that EPA solicited additional comments 

from in response to Petitioner's comments, heavily on 

comments to its permitting decision. Despite its to and rely upon 

comments BP, never officially reopened public comment period 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 or take action" on a 

1 1 

V Permit (see 40 § 71.S(a)(2), s Comments do not entirely 

The 

Supplemental Comments express numerous opinions, including policy positions and 

arguments while relevant to this matter, do not represent information that was necessary 

EP A to evaluate or 

represent information to evaluate or take final on a Title V 

action on the V Pem1it. Notably, in the introduction to 

supplemental BP states: 

(i) support of 

Company this and 

Environmental Protection ("EPA") 

pending of a renewal V operating permit for BP's Florida River Plant 

("Florida or the and (ii) opposition to Rocky Mountain Clean Action, 

to aggregate hundreds or 

Northern Juan Basin and BP's 

renewal for Florida River. 

n/k/a WildEarth ("WEG"), comments urging 

f1_n'T\Pl~<>l''''/1 wells across 

7 at 1. Comments are just that: comments expressing 

company's on the proposed ""',"",l;},'Vll, as well as 

regarding Petitioner's comments.2 


There are other examples showing that Supplemental are, 


information was EPA to or take 

on final Title V For example: 

• BP "Facts" while certainly disclosing some is colored rhetoric. 

7 at For instance, asserts that EPA andlor of Colorado 

permitting decisions affirmatively /1p1rp,.,.,... that aggregation was not nel::essar 

claims, agencl'~S had a understanding of the

nature and ofBP's of the 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 

12 
Plant, as well as sources from the Plant but also by BP." Id. at 6. BP is 

in no position to and/or of Colorado's state of mind 

during prior 

• 	 BP nrp<:pnT<: a legal stating company's position regarding of 

pollutant emitting that is an of opinion 

the type of information that is typically submitted during public comment See 

Exh. 7 at 15-29; 

• 	 presents a comment from Ute Tribal 

dated January 13,2010, 	 expresses both the 

permitting proposal and A; and 

• 	 presents an affidavit from Gordon Reid dated 17,201 states an 

opinion regarding the company's position on the aggregation pollutant emitting 

and the company's ofthe of prior decisions. 

7 at C. 

Overall, BP's Supplemental Comments are more of an 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's Response to Petitioner's Comments relies almost entirely on 

comment before nrr,nprl 

13 

3 
information submitted by BP subsequent to the public comment period. 4 nU/P,tf'r and as will 

be further in this Petition, Response to Comments .... OJI..'''...... 

of comments. For example, asserts that WildEarth 

requested that single oil gas well in southwestern 

with the Florida River Compression Facility, an assertion posited by BP. See 3 at 9 

asserts that River Compression Facility, Wolf Point Compressor and all 

_""_..__ together 

the wells in the NSJB field are and "interrelated" to one another, thus must be 

considered a source under both PSD and title V." (emphasis added); compare 7 at 15 

asserts that wells in La County should be with Florida "

added)). Petitioner did not that oil gas in the 

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 proposing the Title V were, at the 


ofthe public comment period, substantially, if not wholly, unjustified. cannot 

a substantial ofjustification Issumg a V Permit by simply padding the 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 the permit, 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 of information subsequent to the public comment period 

that the public comment period on a de facto basis, failed to adhere to 

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 not merely an n",,'<lf'T dispute over proper Because EPA not 

the public comment period, ...""ru", as well as members public, were 

denied the opportunity to comment on EPA's newly articulated rationale analysis supporting 

its source as well as all the information submitted by permittee 

subsequent to the comment public comment period, no such 

rationale, information, or or even hinted The 

adjacency, the adequacy source were only 

addressed public comment period. Although Title V Permit may not have vu<Uli'S"'...., 

the EPA's rationale for the permit was And revision was material 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 comment period time it Ul'-'\.AU,l"''' 

its for proposing to issue a Title V Permit. n\".."'~r whenever IS so as to 

provide a new justification 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 

comment period.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, 


of a 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). 

Florida River Compression Facility Title V Permit, it does appear that impliedly, if not 

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. 

16 
that rose to the level requiring a public comment reopening order to properly 

address the of these questions. 

II. 	 The Title Permit Fails 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 set forth under 40 § 

52.21(b)(5) and (6), as as the definitions "major and "stationary source" under 40 

§ 71 In other words, 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 determination did not that exist pollutant '"''''''''''UEl activities, 

including coal bed methane wells that Facility and 

potentially other "AIm....,.""" facilities, which .....",,",u,,- to the same industrial grouping and are 

under common control by See 3 at 13. Instead; EPA's determination hinged upon a 

finding that pollutant pollutant emitting are not adjacent to the 

Thus, pollutant emitting 

the River Compression as a source, as appropriate. will be explained, 

finding is unsupported. 

Background 

That of pollutant emitting activities associated with oil and gas operations 

17 

under Title V be is not inconsistent the the PSD 

In Alabama Power 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 or may 

emit any pollutant," which is how "stationary other "',",,",UV<l,,, of the 

See at 395-96. 

In ofthe statutory definition, court 1"11 ..,,,,,1-",,,, EPA to its defining 

"source" the PSD program. JEu"nn:.rr Power v. Castle, Cir. 

1979). doing so the court cautioned that should not aggregate sources unless 

within the statutory terms " "building," " or "installation." at 397. 

'UII~"F'r the court the breadth of the term "facility or installation" concluded 

intended" to "allow an plant or other appropriate grouping of 

industrial activity" to treated as a major source for purposes. (emphasis 

added), 

Following the Circuit's decision, EPA 1980 promulgated 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 

Alabama Power: 

18 

45 

view, December opinion of the court Alabama Power sets the 

following boundaries on the definition for purposes of component terms 

of . (1) it must out reasonably the purposes PSD; (2) it must 

approximate a common sense notion , and (3) it must avoid 

pollutant-emitting that as a would not within ordinary 

LU...' ....UULF, of " "facility," or "installation." 

Reg. 52676, 

In the context of oil 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 of a plant" has always extemlea 

beyond just a In Power, Circuit that under 

"clearly intended" that not comprising a single but 

·'other appropriate grouping/s} ofindustrial activity, should be aggregated if they fit 

UU.C4IUU 

within the terms or .au,aLa.'ll " Alabama Power v. 636 

323, (D.C. CiL 1979) (emphasis 

Second, considering common sense notion of a "',",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 component units in an oil the extent 

they share a single SIC be treated as a stationary source. It would have 

little sense for the "''''AHU.'''' to discuss _,..,.~ ....,.., an oil field with activity 

component of the oil field could not tnems,el be source. 

19 

Third, while EPA 	 aper se against 

that are r.n"pr'tprl by a multistate pipeline or a similar connection in adopting the regulatory 

of stationary source, was not complete bar to appropriate aggregation of oil and 

pollutant emitting activities. EPA that it "would not treat all of the pumping stations 

along a multistate pipeline as one 'source.'" Reg. 	 At the same time, the 

was \.U""'UL'- to say precisely at point how apart must in order to 

treated " ld 

these a number of prior permitting 	 have concluded that 

,",""HL~'H is appropriate for oil and sources. have concluded 	 was 

for sources other industries that involved operations by long 

but connected pipelines or links. While case-specific, these determinations 

demonstrate that aggregation of oil 	 other sources, can be appropriate 

111 a array of 	 example, EPA has found aggregation to appropriate 

the following circumstances: 

1. 	 Oil gas tank emitting wells, 

dehydration equipment, combustion equipment, tanks), in an oil 

twelve mile radius. See 8 at Exhibit 17 from Region 

8 Air and Radiation Program, to Ann Environmental Coordinator, Citation 

Oil Corp. 9, 1999)). 

2. 	 Pipeline stations and associated emitting units compressor 

wells, pumps, dehydrators, storage and transmission tanks, 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 connected by 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 of an oil 1.8 


Exh. 8 at Exhibit 12 (Memorandum from Edward 


Source to Clyde B. 


10. Brewery and landfarm 

Division (May 1 


brewery disposed of waste water, 

connected by a Exh. 8 at Exhibit 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 

7 However, the EAB case did the EPA's permitting on the 

Region 10 "did not an adequate analysis and support conclusion that 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'r1 
Letter Winston A. Dir., Region 4 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 as with 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 apart commonly fit within 

"facility" "installation" aggregation sources are integrated and physically 

EPA 8 explained one case that two are' is 

on the 'common sense' notion of a source and the functional of the 

facilities, is not simply a matter of the physical distance between two " Exh. 8 at 

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 whether two Utility 

Trailer located approximately one apart should 8 at 
Exhibit 5 (Letter from Richard R. Director, 8 Air Program, to Lynn Menlove, 

Manager, New Review Utah of Air Quality (May 21, 1998»). Region 8 

did not a way on aggregation two but provided 

general guidance to how it should make the 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 at Exhibit 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, EPA noted that not all the four 

are required to be n"'~""""'''T to contiguous or adjacent 

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 or conduit. 

Willluul.• u.r;__ 


production line 


or or administrative personnel. 


3. 	 Will production process between the will one 

facility produce an product that further processing at other 

facility, associated air pollutant "'11.U"'~"V1 

4. 	 Was location the new facility chosen primarily because of its proximity to the 

existing facility, to enable the operation two facilities to be integrated? In other 

words, ifthe two facilities were sited apart, would that significantly 

degree to which may dependent on 

Id. 	 Other EPA regional have applied Region 8 guidance questions when making 

QQI'eQ,llIcm determinations. See, e.g., 12 at 5-6. 


In this case, EPA clearly "'Of',~(Tn that it could be UI;\."I;;'::''::'.:u to the Florida 


:orrmn;sslOn Facility together with interrelated pollutant emitting 

coal bed un.,u"u". other compression did not on " but 

recognized that adjacency could River Compression Facility and 

other pollutant 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 that there is no adjacency between Florida 

Facility and other pollutant emitting activities. 

EPA's aggregation determinations, as well as PSD and V Regulations 

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 coal bed 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 of adjacency in case. 

the fact that an interrelationship exists nPl"UT?>PYl the Florida River 

Compression Facility the coal bed methane that rlt'P'cc{\r station likely 

compression facilities), EPA the concept of interrelationship to ultimately reject 

a finding that the Florida River Facility is adjacent to other pollutant 

the EPA's aggregation is heavily, if not entirely, to 

beliefs the of interdependence for aggregation of gas 

activities. In particular, EP A asserts that two pollutant must completely 

exclusively on each for to be appropriate. EPA this 

24 
concept in several ways-"dedicated 3 at 11 and 1 "exclusive 

dependency" (Jd. at 11), "exclusive or dedicated interrelatedness" (Jd. at 13), 


interdependence" at 1 the IS EPA that only time a finding 


of adjacency be appropriate an interrelatedness standpoint is where 


complete exclusive interdependence. 


EPA's complete and interdependence theory underlies its analysis 

the Florida Compression Facility. In particular, the on this 

is improper because in some circumstances, wells Florida 

can gas to other processing 3 at 9 

"while [BP's] Wolf Point station] and the wells can supply to 

Florida they can also gas to other HVJlrLH U-""UJlU and thus do not 

have type dedicated interrelatedness that was III EP A statements on 

issue"). The asserts that "Florida can continue to operate of whether 

Wolf or two, four, or of the BP operated well sites were to shut down-and 

3 at 13), and the BP pollutant are not 

interdependent. 

EPA not previously taken interdependence concept In the EPA 

applied a more sensible approach that does not require complete and exclusive 

For example, the 1980 Preamble noted that a boiler providing steam 

sources should with whichever source is the primary recipient of 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, even though Petitioner presented agency with 

the relevant guidance. example, EPA "'-""';;'H.H 1 0 found that two metal casting plants should 

be one plant sent its to 

See 8 at Exhibit 15. Thus, the plant was not 

dependent on other plant, since the main would coat, and package 

castings of the 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. If complete and were required, and was a 

factor in an assessment of one would ov".,,,,,,t EP A determinations to 

have findings were. did even context of oil 

and operations. 

Rather a and exclusive nte:rdt~De:nd,em~e test, 

more broadly on whether one source regularly supports operation of the thus 

approximating a common sense notion "plant. As noted 8 identified 

.",{'.enr" for determining whether are contiguous or adjacent. that analysis, which the 

EP A did not even address the Florida River Compression Facility, 8 looked 

to activities "routinely," or "frequently" enough to conclude that they are 
operated in effect as a source. Exh. 8 at 5 at 1 

Other determinations similar: focus on whether two ';1"'1,,,..,:>,1", are 

functionally interdependent normal operations, whether one produces an intermediate 

product the other. They not require that both sources solely and exclusively support 

other under all operating conditions. See 8 at 15 at 2 (explaining that one key 

factor in sources is whether one source "the primary product 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 u,",u..." " ... of "installation" and "plant." Moreover, the wells 

produce an intermediate product that is or()CeSSe~C1 

wells and equipment continue to the ordinary l'-'UHUJ'I". of an 

"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 different phases of producing the plant's end product, it is indisputable that the 

should as court Alabama Power 636 at 

27 

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

LJLL,au;:"" the statute states that 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 other building for 

production the shut down ",-,'eLM""''"' or repairs, the 

company will commonly obtain the "-.t,,,,.,-y,,,,-i product elsewhere to ensure that the production 

is not interrupted. Under the reasoning, however, reasonable operational 

measures would prevent intermediate source with sources, as 

would be a chance that some sources in plant might on outside sources or at 

times. Clearly, these """-"-J measures do not prevent hypothetical plant from 

common sense notion of a "plant" and aggregation test. 

disconnect between the support analysis, and the complete and exclusive 

interdependence theory, a major gap 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 Compression Facility. 

forthrightly that 63% of gas processed by Florida Compression Facility 

comes from "BP-operated production" 7 at 11), indicating that is a substantial 

not a high level interdependency, between facility and wells 
that provide 63% supply of natural for rrlrt,rp<1<1Ar station. 8 lennolre based on 

's Supplemental Comments to EPA, it appears as if an assessment could

to identification very producing that the movement of gas

within a of at particular point time."

Exh. 7 at 12. BP asserts that the flow gas in the IS

"dynamic," it appears not possible to quantify the amount of flowing to the Florida 

River Compression Facility from wells, but possible to identifY the producing this 

gas. 

Although argue nature Florida River 

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 EP A has tackled issue interrelatedness the context of 

support facilities. and V, pollutant must

are adjacent or contiguous, under common control, and belong to the same 

8 There 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 common control relationship between the Florida River 

Compression Facility third-party wells station. 
9 We understand this Draft that it "does not 

represent final Preamble only as illustrative of a reasonable 

and informative interpretation of to matter 

EPA's source Facility. 

positions." 

for 

contains a disclaimer from 

cite this 

V and regulations that 

whether pollutant 

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 

activity to a different pollutant that supports 

operations of primary activity. these cases, an 

provides 50% or more its output (in terms of to a primary 

activity, it "expects permitting authorities to conclude exists, and expects 

these activities to be with the primary activity," SIC Exh.13,

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 Taxies, New Review, and

Operating Permits ofthe Air Act (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 compression facilities, that the Florida 

Compression Facility, 

it in this case a support relationship with

to this In context its adjacency 

3 at 8-9 " is no reason to analyze IS a 

facility relationship between these various emission points."). While it is true that 

v 
support facilities have typically a of adjacency 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 "''-'...u .... fashion." Exh. 13 at 29. In

words, IS to indicate that the ""r\l"\,,rr facility where a secondary 

pollutant activity dedicates 50% of its output, whether in terms of materials 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 of the Florida River Compression 

In sum, aggregating oil and gas sources does not require that sources meet the 

"exclusive dependency" 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 or dedicated 

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 conunent period Title V resPol1se to substantial new 

questions permit during the conunent period and whether 

failed to appropriately the source to permitting such that 

31 


V 
Permit assures compliance with Prevention of Significant Deterioration and Title V Permitting 

requirements. Petitioner further requests that the EAB either remand the Title V Permit to 

address the aforementioned deficiencies and/or vacate the issuance of the Title V Permit. 

Respectfully submitted this 1 i h day of November 2010 

Jdyrl1y icH Is 


dimate and Energy Program Director 


WildEarth Guardians 


1536 Wynkoop, Suite 301 


Denver, CO 80202 


(303) 573-4898 x 1303 


j nichols@wildcmihguardians.org 


32 

OF EXHIBITS 


1. 	 Pennit Number 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 

Draft Title V to Operate (Oct. 18,2010). 

4. 	 Memo from McCarthy, EPA Administrator for and to 

Regional Administrators, Withdrawal ofSource Determinations for Oil 

Industries 2009). 

5. 	 from Young Environmental 

Radiation Region 8, in re: BP Production 

Florida River Compression Facility proposed Pollution Title V Pennit to 

Operate Number V-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 Air Pollution Control Title V Permit to 

Operate Number V-SU-0022-0S.00 Clarification December 17,2009 Flow 

Description and Map 21, 2009). 

7. 	 from Kaiser to Claudia Young Smith, Environmental Scientists, 

and Radiation Program, EPA 8, in re: Supplemental Comments on 

Florida Plant Renewal Title V Operating (Feb. 1 2010). 

8. 	 Comments from Mountain Clean Draft V 

River Compression Facility (May 19, 2008). 

9. 	 Plan of and Unanimous to (2008). 

10. 	 Cheryl Newton, Air Radiation Division, Region S to 

Petroleum Corporation (Oct. 18, 10). 

11. Letter from Douglas Manager, Region 10 Federal and Delegated Air 

Programs, to John Kuterbach, 	 Alaska Department of Environmental 


(Aug. 21,2001). 


12. from Winston A. DiL, 

Division, to Randy C. Air '-HffTlpnl 


Department Environmental Protection (May 1 

13. Preamble to Part 51 70 at 28, 18, 1 

14. Memorandum from Office Quality and 

Major Determinations for Military Installations the Air Taxies, New 

1996). 

Review, and Title V Operating Permits Programs ofthe Clean Air (Aug. 
CERTIFICATE OF SERVICE 

I certify that on November 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 on November 17, 2010, I served this Petition for Review by 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