Case 1:20-cv-01931-MEH Document 1 Filed 07/01/20 USDC Colorado Page 1 of 37
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF COLORADO
`
`_________________________________________
`
`UNITED STATES OF AMERICA and
`STATE OF COLORADO,
`
`Plaintiffs,
`
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`Defendant.
`_________________________________________ )
`
`
`
`v.
`
`
`
`Case No. 1:20-cv-01931
`
`KERR-McGEE GATHERING LLC,
`
`COMPLAINT
`
`Plaintiffs, the United States of America, by authority of the Attorney General of the
`
`United States, and the State of Colorado, by authority of the Attorney General of Colorado, and
`
`through the undersigned attorneys, acting at the request of the Administrator of the United States
`
`Environmental Protection Agency (“EPA”) and the Colorado Department of Public Health and
`
`Environment, Division of Administration (“CDPHE”), file this Complaint and allege as follows:
`
`STATEMENT OF THE CASE
`
`1.
`
`This is a civil action against Defendant Kerr-McGee Gathering LLC pursuant to
`
`Section 113(b) of the Clean Air Act (the “Act”), 42 U.S.C. § 7413(b), and Sections 121 and 122
`
`of the Colorado Air Pollution Prevention and Control Act (the “Colorado Act”), C.R.S. §§ 25-7-
`
`121 and 122, in connection with unlawful air emissions from three contiguous natural gas
`
`processing plants owned and operated by Defendant near Fort Lupton, Weld County, Colorado
`
`(the “Fort Lupton Complex”). The United States and CDPHE seek permanent injunctive relief
`
`
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF COLORADO
`
`_________________________________________
`
`UNITED STATES OF AMERICA and
`STATE OF COLORADO,
`
`Plaintiffs,
`
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`Defendant.
`_________________________________________ )
`
`
`
`v.
`
`
`
`Case No. 1:20-cv-01931
`
`KERR-McGEE GATHERING LLC,
`
`COMPLAINT
`
`Plaintiffs, the United States of America, by authority of the Attorney General of the
`
`United States, and the State of Colorado, by authority of the Attorney General of Colorado, and
`
`through the undersigned attorneys, acting at the request of the Administrator of the United States
`
`Environmental Protection Agency (“EPA”) and the Colorado Department of Public Health and
`
`Environment, Division of Administration (“CDPHE”), file this Complaint and allege as follows:
`
`STATEMENT OF THE CASE
`
`1.
`
`This is a civil action against Defendant Kerr-McGee Gathering LLC pursuant to
`
`Section 113(b) of the Clean Air Act (the “Act”), 42 U.S.C. § 7413(b), and Sections 121 and 122
`
`of the Colorado Air Pollution Prevention and Control Act (the “Colorado Act”), C.R.S. §§ 25-7-
`
`121 and 122, in connection with unlawful air emissions from three contiguous natural gas
`
`processing plants owned and operated by Defendant near Fort Lupton, Weld County, Colorado
`
`(the “Fort Lupton Complex”). The United States and CDPHE seek permanent injunctive relief
`
`
`
`Case 1:20-cv-01931-MEH Document 1 Filed 07/01/20 USDC Colorado Page 2 of 37
`
`and civil penalties for Defendant’s violations of Sections 111 and 112 of the Act, 42 U.S.C. §§
`
`7411 and 7412, and regulations promulgated under the Clean Air Act and the Colorado Act
`
`pertaining to leak detection and repair requirements for air pollutants emitted from onshore
`
`natural gas processing plants.
`
`2.
`
`Defendant’s failure to comply with leak detection and repair requirements has
`
`resulted in excess emissions of volatile organic compounds (“VOCs”), a precursor to ground-
`
`level ozone, often referred to as “smog.” Exposure to ground-level ozone can cause lung
`
`function diminution, pulmonary inflammation, and other symptoms. Children, people with
`
`respiratory illness, the elderly, and those working or exercising outdoors have a higher risk of
`
`adverse health effects from ozone exposure.
`
`3.
`
`VOCs form ground-level ozone by reacting with sources of oxygen molecules,
`
`e.g., nitrogen oxides and carbon monoxide, in the atmosphere in the presence of sunlight.
`
`Ground-level ozone is one of six criteria pollutants for which the EPA has promulgated National
`
`Ambient Air Quality Standards (“NAAQS”) due to its adverse effects on human health and the
`
`environment.
`
`4.
`
`The Fort Lupton Complex is located in an area of Colorado where air quality is so
`
`degraded that it exceeds the relevant standards for ground-level ozone and thus is considered to
`
`be in “serious nonattainment” with the ozone NAAQS. Unlawful excess emissions of VOCs
`
`from Defendant’s natural gas processing plants potentially contribute to this exceedance of the
`
`ozone NAAQS.
`
`5.
`
`In addition, the Fort Lupton Complex is located approximately 60 miles from
`
`Rocky Mountain National Park, which has been designated as a Federal Class I area under
`
`
`
`2
`
`
`
`Case 1:20-cv-01931-MEH Document 1 Filed 07/01/20 USDC Colorado Page 3 of 37
`
`Section 169A of the Act. 42 U.S.C. § 7491(a)(1). Portions of Rocky Mountain National Park
`
`are located within the Denver Nonattainment Area. Excess ground-level ozone can result in haze
`
`that degrades visibility and causes other environmental problems within the confines of the Park
`
`and neighboring national forest areas.
`
`6.
`
`The Fort Lupton Complex also emits benzene and other hazardous air pollutants
`
`(“HAPs”) listed under Section 112(b) of the Act. 42 U.S.C. § 7412(b). Regulation of HAPs is
`
`separate from VOC regulation under the Act because HAPs can cause cancer and other serious
`
`diseases.
`
`JURISDICTION AND VENUE
`
`7.
`
`This Court has jurisdiction over the subject matter of this action pursuant to
`
`Section 113(b) of the Act, 42 U.S.C. § 7413(b), and 28 U.S.C. §§ 1331, 1345, and 1355.
`
`8.
`
`This Court has supplemental jurisdiction over the state law claims asserted by
`
`Colorado pursuant to 28 U.S.C. § 1367.
`
`9.
`
`Venue is proper in this judicial district pursuant to Section 113(b) of the Act, 42
`
`U.S.C. § 7413(b), and 28 U.S.C. §§ 1391(b), 1391(c), and 1395(a), because the violations that
`
`constitute the basis of this complaint occurred in, and Defendant conducts business in, this
`
`judicial district.
`
`AUTHORITY AND NOTICE
`
`10.
`
`The United States has authority to bring this action on behalf of the Administrator
`
`of the EPA under 28 U.S.C. §§ 516, 519 and Section 305 of the Act, 42 U.S.C. § 7605.
`
`11.
`
`Colorado has authority to bring this action on behalf of CDPHE under C.R.S. §§
`
`25-7-121 and 122.
`
`
`
`3
`
`
`
`Case 1:20-cv-01931-MEH Document 1 Filed 07/01/20 USDC Colorado Page 4 of 37
`
`12.
`
`Notice of the commencement of this action has been given to the appropriate air
`
`pollution control agency in the state of Colorado as required by Section 113(b) of the Act, 42
`
`U.S.C. § 7413(b).
`
`DEFENDANT
`
`13.
`
`Defendant is a Colorado limited liability company with its corporate headquarters
`
`in The Woodlands, Texas. It is a wholly owned subsidiary of Western Midstream Partners, LP,
`
`and its ultimate corporate parent is Occidental Petroleum Corporation.
`
`14.
`
`Defendant is a “person” within the meaning of Section 302(e) of the Act, 42
`
`U.S.C. § 7602(e).
`
`15.
`
`Defendant owns and operates three contiguous onshore natural gas processing
`
`plants at the Fort Lupton Complex in Weld County, Colorado, known as the “Lancaster Plant,”
`
`the “Fort Lupton Plant,” and the “Platte Valley Plant.”
`
`STATUTORY AND REGULATORY BACKGROUND
`
`National Ambient Air Quality Standards for Ozone
`
`Section 108 of the Act, 42 U.S.C. § 7408, directs the Administrator of the EPA to
`
`A.
`
`16.
`
`identify those air pollutants which “may reasonably be anticipated to endanger public health or
`
`welfare” and to issue air quality criteria for those pollutants based on “the latest scientific
`
`knowledge” about the effects of the pollutants on public health and the environment. The
`
`pollutants identified as such are called “criteria pollutants.”
`
`17.
`
`Section 109 of the Act, 42 U.S.C. § 7409, requires the Administrator of the EPA
`
`to promulgate regulations establishing NAAQS for criteria pollutants. The primary NAAQS
`
`must be set at the level “requisite to protect the public health” with an adequate margin of safety,
`
`
`
`4
`
`
`
`Case 1:20-cv-01931-MEH Document 1 Filed 07/01/20 USDC Colorado Page 5 of 37
`
`and the secondary standard is intended to protect “the public welfare.” According to Section
`
`302(h) of the Act, 42 U.S.C. § 7602(h), public welfare effects are “effects on soils, water, crops,
`
`vegetation” and other environmental impacts including, but not limited to, effects on animals,
`
`wildlife, property, and “effects on economic values.”
`
`18.
`
`NAAQS are implemented within air quality control regions (or “areas”)
`
`throughout individual states. An area with an ambient air concentration that meets the NAAQS
`
`for a particular criteria pollutant is an “attainment” area. An area with ambient air concentrations
`
`that exceed the NAAQS is a “nonattainment” area. And an area that cannot be classified due to
`
`insufficient data is “unclassifiable.”
`
`19.
`
`In 2008, the EPA established a primary and secondary NAAQS for ozone of
`
`0.075 parts-per-million (“ppm”) (measured as an 8-hour average). 73 Fed. Reg. 16,436 (Mar. 27,
`
`2008). In 2015, the EPA lowered the primary and secondary NAAQS for ozone to 0.070 ppm
`
`(measured as an 8-hour average). 80 Fed. Reg. 65,292 (Oct. 26, 2015).
`
`20.
`
`The EPA designated the following counties in Colorado as being in nonattainment
`
`with the 2008 and 2015 ozone NAAQS: Adams, Arapahoe, Boulder, Broomfield, Denver,
`
`Douglas, Jefferson, and portions of Larimer and Weld Counties (“Denver Nonattainment Area”).
`
`See 77 Fed. Reg. 30,088 (May 21, 2012); 83 Fed. Reg. 25,792 (June 4, 2018).
`
`21.
`
`Over three million people live in the Denver Nonattainment Area and are
`
`potentially affected by exposure to ground-level ozone.
`
`22.
`
`The potential adverse effects on human health of ozone pollution are well known.
`
`Epidemiological studies reviewed by the EPA in setting the ozone NAAQS indicate that
`
`potential adverse effects on human health of short-term exposures to ground-level ozone include
`
`
`
`5
`
`
`
`Case 1:20-cv-01931-MEH Document 1 Filed 07/01/20 USDC Colorado Page 6 of 37
`
`lung function diminution, respiratory symptoms, and pulmonary inflammation. 73 Fed. Reg. at
`
`16,445. The American Thoracic Society has noted that individuals uniquely at much higher risk
`
`for adverse health effects from ozone exposure include children, people with respiratory illness,
`
`the elderly, outdoor workers, and healthy children and adults who exercise outdoors. Id. at
`
`16,462.
`
`B.
`
`23.
`
`New Source Performance Standards
`
`Section 111(b) of the Act authorizes the Administrator of the EPA to promulgate
`
`standards of performance applicable to “new sources” within categories of sources that cause
`
`“air pollution which may reasonably be anticipated to endanger public health or welfare.” 42
`
`U.S.C. § 7411(b).
`
`24.
`
`A “new source” under Section 111 is any stationary source, the construction or
`
`modification of which is commenced after the promulgation of the standards of performance that
`
`will be applicable to such source. 42 U.S.C. § 7411(a)(2).
`
`25.
`
`A “stationary source” is a building, structure, facility, or installation that emits or
`
`may emit any air pollutant. 42 U.S.C. § 7411(a)(3).
`
`26.
`
`A “modification” is “any physical change in . . . a stationary source which
`
`increases the amount of any air pollutant emitted by such source.” 42 U.S.C. § 7411(a)(4).
`
`27.
`
`In 1979, the EPA listed “Crude Oil and Natural Gas Production” as a source
`
`category that contributes significantly to air pollution and for which standards of performance
`
`would be established. 44 Fed. Reg. 49,222 (Aug. 21, 1979).
`
`
`
`6
`
`
`
`Case 1:20-cv-01931-MEH Document 1 Filed 07/01/20 USDC Colorado Page 7 of 37
`
`28.
`
`It is unlawful for owners and operators of any new source to operate in violation
`
`of applicable standards of performance after the standards have gone into effect. 42 U.S.C.
`
`§ 7411(e).
`
`
`
`1.
`
`Subpart KKK
`
`29.
`
`In 1985, based on the determination that emissions from crude oil and natural gas
`
`production cause or significantly contribute to air pollution that may reasonably be anticipated to
`
`endanger public health or welfare, the EPA promulgated “Standards of Performance for
`
`Equipment Leaks of VOC from Onshore Natural Gas Processing Plants” under Section 111 of
`
`the Act. 50 Fed. Reg. 26,124 (June 24, 1985).
`
`30.
`
`Each of these standards is a “standard of performance” within the meaning of
`
`Section 111(a)(1) of the Act, 42 U.S.C. § 7411(a)(1), or a “design, equipment, work practice, or
`
`operational standard, or combination thereof” under Section 111(h) of the Act, 42 U.S.C.
`
`§ 7411(h). These standards are set forth in 40 C.F.R part 60, subpart KKK (“Subpart KKK”),
`
`§§ 60.630–36.
`
`31.
`
`Subpart KKK incorporates certain provisions of 40 C.F.R. part 60, subpart VV
`
`(“Subpart VV”), by reference. See 40 C.F.R. §§ 60.632(a), 60.482-1(a), (b) and (d), and 60.482-
`
`2 through 60.482-10. These Subpart VV provisions require owners and operators of regulated
`
`facilities to monitor equipment such as pumps and valves for leaks of air pollutants, and to repair
`
`leaks.
`
`32.
`
`Owners or operators of onshore natural gas processing plants subject to Subpart
`
`KKK must monitor equipment using “Method 21,” a test method that entails, inter alia, using a
`
`calibrated meter with a probe to carefully measure around equipment for leaks. 40 C.F.R.
`
`
`
`7
`
`
`
`Case 1:20-cv-01931-MEH Document 1 Filed 07/01/20 USDC Colorado Page 8 of 37
`
`§§ 60.632(d) and 60.485. For purposes of Subpart KKK, a leak is detected from pumps and
`
`valves in natural gas processing plants if the detection instrument reading is 10,000 ppm or
`
`greater. 40 C.F.R. §§ 60.482-2 and 60.482-7.
`
`33.
`
`Pursuant to its authority under the Colorado Act, C.R.S. §§ 25-7-105(1)(b),
`
`106(6), and 109, CDPHE adopted Subparts VV and KKK, including all amendments, into its
`
`Colorado Air Quality Control Commission Regulation 6, Part A. 5 Colo. Code Regs. § 1001-8
`
`(“Regulation 6”).
`
`
`
`2.
`
`Subpart OOOO
`
`34.
`
`In 2012, EPA promulgated under Section 111 of the Act “Standards of
`
`Performance for Crude Oil and Natural Gas Production, Transmission and Distribution.” 77 Fed.
`
`Reg. 49,490, 49,542 (Aug. 16, 2012).
`
`35.
`
`Each of these standards is a “standard of performance” within the meaning of
`
`Section 111(a)(1) of the Act, 42 U.S.C. § 7411(a)(1), or a “design, equipment, work practice, or
`
`operational standard, or combination thereof” under Section 111(h) of the Act, 42 U.S.C.
`
`§ 7411(h). These standards are set forth in 40 C.F.R part 60, subpart OOOO (“Subpart OOOO”),
`
`§§ 60.5360–5430.
`
`36.
`
`Subpart OOOO applies to “affected facilities” for which owners or operators
`
`commence construction, modification or reconstruction after August 23, 2011, and on or before
`
`September 18, 2015. 40 C.F.R. § 60.5365.
`
`37.
`
`Affected facilities are required to be in compliance with the standards of Subpart
`
`OOOO by October 15, 2012 or upon startup, whichever is later. 40 C.F.R. § 60.5370.
`
`
`
`8
`
`
`
`Case 1:20-cv-01931-MEH Document 1 Filed 07/01/20 USDC Colorado Page 9 of 37
`
`38.
`
`A “modification” that triggers the applicability of Subpart OOOO includes the
`
`addition or replacement of equipment for the purpose of process improvement which increases
`
`emissions, unless the equipment addition or replacement is accomplished without a “capital
`
`expenditure.” 42 U.S.C. § 7411(a)(4), 40 C.F.R. §§ 60.2 and 60.5365(f)(1).
`
`39.
`
`Subpart OOOO incorporates certain provisions of 40 C.F.R. part 60, subpart VVa
`
`(“Subpart VVa”) by reference. See 40 C.F.R. § 60.5400, 60.482-1a(a), (b) and (d), 60.482-2a,
`
`and 60.482-4a through 60.482-11a. These Subpart VVa provisions require owners and operators
`
`of “affected facilities” to monitor equipment such as pumps and valves for leaks of air pollutants,
`
`and to repair leaks.
`
`40.
`
`Owners or operators of onshore natural gas processing plants subject to Subpart
`
`OOOO must comply with 40 C.F.R. § 60.485a, which requires owners and operator to use
`
`Method 21 in monitoring leaks from equipment. 40 C.F.R. § 60.5400(d). For purposes of
`
`Subpart OOOO, a leak is detected from pumps in natural gas processing plants if the detection
`
`instrument reading is 2,000 ppm or greater, and from valves and connectors if the detection
`
`instrument reading is 500 ppm or greater. 40 C.F.R. §§ 60.482-2a, 60.487-7a, and 60.482-11a.
`
`41.
`
`Pursuant to its authority under the Colorado Act, C.R.S. §§ 25-7-105(1)(b),
`
`106(6), and 109, CDPHE adopted relevant portions of Subpart OOOO, including all
`
`amendments, into its Regulation 6, Part A on October 18, 2012, effective as of December 15,
`
`2012. 5 Colo. Code Regs. § 1001-8:A. CDPHE fully adopted Subpart OOOO on February 20,
`
`2014, effective as of April 14, 2014.
`
`
`
`9
`
`
`
`Case 1:20-cv-01931-MEH Document 1 Filed 07/01/20 USDC Colorado Page 10 of 37
`
`42.
`
`Pursuant to its authority under the Colorado Act, C.R.S. §§ 25-7-105(1)(b),
`
`106(6), and 109, CDPHE adopted Subpart VVa, including all amendments, into its Regulation 6,
`
`Part A on July 21, 2011, effective as of September 15, 2011. 5 Colo. Code Regs. § 1001-8.
`
`
`
`C.
`43.
`
`National Emission Standards for Hazardous Air Pollutants
`Section 112(d) of the Act authorizes the Administrator of the EPA to promulgate
`
`regulations establishing emission standards for, inter alia, “major sources” of HAPs. 42 U.S.C.
`
`§ 7412(d).
`
`44.
`
`A “major source” under Section 112 includes any stationary source or group of
`
`stationary sources located within a contiguous area and under common control that emits or has
`
`the potential to emit considering controls, in the aggregate, 10 tons per year or more of any HAP.
`
`42 U.S.C. § 7412(a)(1).
`
`45.
`
`HAPs are chemical compounds listed in Section 112(b) of the Act that present or
`
`may present a threat of adverse human health effects or adverse environmental effects. 42
`
`U.S.C. § 7412(b).
`
`46.
`
`No person is permitted to operate a major source in violation of an applicable
`
`emission standard after the standard has gone into effect. 42 U.S.C. § 7412(i)(3).
`
`47.
`
`In 1999, EPA promulgated under Section 112 of the Act “National Emission
`
`Standards for Hazardous Air Pollutants from Oil and Natural Gas Production Facilities.” 64 Fed.
`
`Reg. 32,628 (June 17, 1999). EPA amended these standards in 2012. 77 Fed. Reg. at 49,568.
`
`These standards are set forth in 40 C.F.R. part 63, subpart HH (“Subpart HH”), 40 C.F.R. §§
`
`63.760–77.
`
`
`
`10
`
`
`
`Case 1:20-cv-01931-MEH Document 1 Filed 07/01/20 USDC Colorado Page 11 of 37
`
`48.
`
`Each of these standards is an “emission standard” within the meaning of Section
`
`112(d) of the Act, 42 U.S.C. § 7412(d), or a “design, equipment, work practice, or operational
`
`standard, or combination thereof” under Section 112(h) of the Act, 42 U.S.C. § 7412(h).
`
`49.
`
`Subpart HH incorporates certain provisions of 40 C.F.R. part 61, subpart V
`
`(“Subpart V”), by reference. See 40 C.F.R. §§ 63.769(c), 61.241–247. These Subpart V
`
`provisions require owners and operators of regulated facilities to monitor equipment intended to
`
`operate in volatile hazardous air pollutant (“VHAP”) service, such as pumps and valves, for
`
`leaks of air pollutants, and to repair leaks.
`
`50.
`
`Subpart HH requires owners and operators of natural gas processing plants to use
`
`Method 21 in monitoring leaks from equipment. 40 C.F.R. §§ 63.769(c) and 61.245(b). For
`
`purposes of Subpart HH, a leak is detected from valves in natural gas processing plants if the
`
`detection instrument reading is 500 ppm or greater. 40 C.F.R. § 63.769(c).
`
`51.
`
`Pursuant to its authority under the Colorado Act, C.R.S. §§ 25-7-105(1)(b) and
`
`109, CDPHE adopted Subpart HH, including all amendments, into its Colorado Air Quality
`
`Control Commission Regulation 8, Part E. 5 Colo. Code Regs. § 1001-110:E (“Regulation 8, Pt.
`
`E”).
`
`52.
`
`Pursuant to its authority under the Colorado Act, C.R.S. §§ 25-7-105(1)(b) and
`
`109, CDPHE adopted Subpart V, including all amendments, into its Colorado Air Quality
`
`Control Commission Regulation 8, Part A. 5 Colo. Code Regs. § 1001-110:A (“Regulation 8, Pt.
`
`
`
`
`
`A”).
`
`
`
`11
`
`
`
`Case 1:20-cv-01931-MEH Document 1 Filed 07/01/20 USDC Colorado Page 12 of 37
`
`
`
`D.
`
`53.
`
`Fort Lupton Complex Permits
`
`Defendant has operated the Fort Lupton Plant pursuant to Operating Permit No.
`
`95OPWE013 issued by CDPHE on October 1, 1998, and last revised July 3, 2002.
`
`54.
`
`CDPHE issued construction permit 12WE1492 on June 14, 2013, pertaining to
`
`Train 1 of the Lancaster Plant.
`
`55.
`
`Since acquiring the Platte Valley Plant in March 2011, Defendant has operated
`
`the facility pursuant to Operating Permit 99OPWE207 issued by CDPHE to the facility’s former
`
`owner on October 1, 1999.
`
`56.
`
`Operating Permit 99OPWE207 refers to the Platte Valley Plant as the “Ft. Lupton
`
`Plant.” This complaint refers to the plant operating under Permit 99OPWE207 as the “Platte
`
`Valley Plant,” and the plant operating under Permit 95OPWE013 as the “Fort Lupton Plant.”
`
`57.
`
`By application dated April 16, 2015, Defendant requested that CDPHE modify
`
`Operating Permit No. 95OPWE013 (which only applied to the Fort Lupton Plant) and “issue an
`
`Operating Permit reflecting all equipment at the Fort Lupton Complex comprised of the Fort
`
`Lupton Gas Plant, the Platte Valley Gas Plant, and the recently commissioned Train 1 of the
`
`Lancaster Plant.”
`
`GENERAL ALLEGATIONS
`
`The Fort Lupton Complex
`
`Defendant is the “owner and operator” of the Fort Lupton Plant, the Lancaster
`
`
`
`A.
`
`58.
`
`Plant, and the Platte Valley Plant within the meaning of Sections 111(a)(5) and 112(a)(9) of the
`
`Act, 42 U.S.C. §§ 7411(a)(5) and 7412(a)(9) and § 25-7-103(18.4), C.R.S.
`
`
`
`12
`
`
`
`Case 1:20-cv-01931-MEH Document 1 Filed 07/01/20 USDC Colorado Page 13 of 37
`
`59.
`
`The Fort Lupton Plant, the Lancaster Plant, and the Platte Valley Plant are each a
`
`“new source” and a “stationary source” within the meaning of Sections 111(a)(2) and (a)(3) of
`
`the Act, 42 U.S.C. § 7411(a)(2), (a)(3) and § 25-7-103(23), C.R.S. Also, see 5 CCR §§ 1001-5:
`
`I.B.29, 43
`
`60.
`
`The Fort Lupton Plant, Lancaster Plant, and Platte Valley Plant are stationary
`
`sources located within a contiguous area and under common control. 40 C.F.R. §§ 63.761 and
`
`63.2.
`
`61. When pumps, valves, connectors, or other equipment used at the Fort Lupton
`
`Complex leak, they can release VOCs and HAPs into the atmosphere within the Denver
`
`Nonattainment Area.
`
`B.
`
`62.
`
`Subpart KKK: Applicability to Fort Lupton and Platte Valley Plants
`
`A “natural gas processing plant” is “any processing site engaged in the extraction
`
`of natural gas liquids from field gas, fractionation of mixed natural gas liquids to natural gas
`
`products, or both.” 40 C.F.R. § 60.631. “Onshore” means all facilities except those that are
`
`located in the territorial seas or on the outer continental shelf. Id.
`
`63.
`
`The Fort Lupton Plant and the Platte Valley Plant are each an “onshore natural
`
`gas processing plant” within the meaning of 40 C.F.R. § 60.630.
`
`64.
`
`An “affected facility” in an onshore natural gas processing plant is “[t]he group of
`
`all equipment except compressors within a process unit.” 40 C.F.R. § 60.630(a)(3).
`
`65.
`
`A “process unit” is “equipment assembled for the extraction of natural gas liquids
`
`from field gas, the fractionation of the liquids into natural gas products, or other operations
`
`associated with the processing of natural gas products. A process unit can operate independently
`
`
`
`13
`
`
`
`Case 1:20-cv-01931-MEH Document 1 Filed 07/01/20 USDC Colorado Page 14 of 37
`
`if supplied with sufficient feed or raw materials and sufficient storage facilities for the products.”
`
`40 C.F.R. § 60.631.
`
`66.
`
`The Fort Lupton Plant and the Platte Valley Plant contain multiple “process units”
`
`within the meaning of 40 C.F.R. § 60.631.
`
`67.
`
`Subpart KKK defines “equipment” as each pump, pressure relief device, open-
`
`ended valve or line, valve, compressor, and flange or other connector that is in VOC service or in
`
`wet gas service, and any device or system required by Subpart KKK. Id.
`
`68.
`
`The Fort Lupton Plant and the Platte Valley Plant each use “equipment” within
`
`the meaning of 40 C.F.R. § 60.631.
`
`69.
`
`Defendant was subject to the requirements of Subpart KKK with respect to the
`
`Fort Lupton Plant from the time it acquired the facility in 1999 until approximately June 2013.
`
`70.
`
`Defendant was subject to the requirements of Subpart KKK as to equipment in
`
`VOC service or wet gas service in all process units at the Platte Valley Plant beginning with its
`
`acquisition in March 2011. The Train 2, Regen, and Inlet process units of the Platte Valley Plant
`
`became subject to Subpart OOOO when equipment installation projects were implemented in
`
`November 2011 and in March and August 2013, respectively.
`
`C.
`
`
`71.
`
`Subpart OOOO: Applicability to Fort Lupton, Lancaster, and
`Platte Valley Plants
`
`A “natural gas processing plant” is “any processing site engaged in the extraction
`
`of natural gas liquids from field gas, fractionation of mixed natural gas liquids to natural gas
`
`products, or both.” 40 C.F.R. § 60.5430. “Onshore” means all facilities except those that are
`
`located in the territorial seas or on the outer continental shelf. Id.
`
`
`
`14
`
`
`
`Case 1:20-cv-01931-MEH Document 1 Filed 07/01/20 USDC Colorado Page 15 of 37
`
`72.
`
`The Fort Lupton Plant, the Lancaster Plant, and the Platte Valley Plant are each an
`
`“onshore natural gas processing plant” within the meaning of 40 C.F.R. § 60.5430.
`
`73.
`
`An “affected facility” in an onshore natural gas processing plant for purposes of
`
`Subpart OOOO is “the group of all equipment, except compressors, within a process unit.” 40
`
`C.F.R. § 60.5365(f).
`
`74.
`
`Subpart OOOO defines “process unit” as “components assembled for the
`
`extraction of natural gas liquids from field gas, the fractionation of the liquids into natural gas
`
`products, or other operations associated with the processing of natural gas products. A process
`
`unit can operate independently if supplied with sufficient feed or raw materials and sufficient
`
`storage facilities for the products.” 40 C.F.R. § 60.5430.
`
`75.
`
`The Fort Lupton Plant, the Lancaster Plant, and the Platte Valley Plant each
`
`contain multiple “process units” within the meaning of 40 C.F.R. § 60.5430.
`
`76.
`
`Subpart OOOO defines “equipment” as each pump, pressure relief device, open-
`
`ended valve or line, valve, and flange or other connector that is in VOC service or in wet gas
`
`service, and any device or system required by Subpart OOOO. Id.
`
`77.
`
`The Fort Lupton Plant, the Lancaster Plant, and the Platte Valley Plant each use
`
`“equipment” within the meaning of 40 C.F.R. § 60.5430.
`
`78.
`
`Defendant has been subject to the requirements of Subpart OOOO with respect to
`
`the Fort Lupton Plant since at least approximately July 2013, after it completed various
`
`construction projects and process modifications.
`
`79.
`
`Defendant has been subject to the requirements of Subpart OOOO with respect to
`
`the Lancaster Plant since it began operating the facility in April 2014.
`
`
`
`15
`
`
`
`Case 1:20-cv-01931-MEH Document 1 Filed 07/01/20 USDC Colorado Page 16 of 37
`
`80.
`
`In 2011, Defendant undertook an equipment installation project at the Train 2
`
`process unit of the Platte Valley Plant, adding pressure relief devices and 57 new valves by no
`
`later than November 3, 2011.
`
`81.
`
`Defendant has been subject to Subpart OOOO at the Train 2 process unit at the
`
`Platte Valley Plant from approximately November 2011 to the present.
`
`82.
`
`In 2013, Defendant undertook an equipment installation project at the Regen
`
`process unit of the Platte Valley Plant, adding 52 new valves by no later than March 31, 2013.
`
`83.
`
` Defendant has been subject to Subpart OOOO at the Regen process unit at the
`
`Platte Valley Plant from approximately March 2013 to the present.
`
`84.
`
`In 2013, Defendant undertook an equipment installation project at the Inlet
`
`process unit of the Platte Valley Plant, adding pressure relief devices and 58 new valves by no
`
`later than August 15, 2013.
`
`85.
`
`Defendant has been subject to Subpart OOOO at the Inlet process unit at the
`
`Platte Valley Plant from approximately August 2013 to the present.
`
`D.
`
`Subpart HH: Applicability to Platte Valley Plant
`
`86.
`
`Subpart HH applies, inter alia, to owners and operators of “affected sources” at
`
`oil and natural gas production facilities that are “major sources” of HAPs. 40 C.F.R. §§ 63.2 and
`
`63.760(a). For major sources, the “affected source” includes the group of all ancillary
`
`equipment, except compressors, intended to operate in VHAP service located at natural gas
`
`processing plants. 40 C.F.R. § 63.760(b)(1)(iii).
`
`87.
`
`For the purpose of major source determination, facility (including a building,
`
`structure, or installation) means “oil and natural gas production and processing equipment that is
`
`
`
`16
`
`
`
`Case 1:20-cv-01931-MEH Document 1 Filed 07/01/20 USDC Colorado Page 17 of 37
`
`located within the boundaries of an individual surface site . . . . Examples of facilities in the oil
`
`and natural gas production source category include . . . natural gas processing plants.” 40 C.F.R.
`
`§ 63.761.
`
`88.
`
`A “natural gas processing plant” is “any processing site engaged in the extraction
`
`of natural gas liquids from field gas, or the fractionation of mixed N[atural] G[as] L[iquids] to
`
`natural gas products, or a combination of both.” Id.
`
`89.
`
`The Platte Valley Plant is a “natural gas processing plant” within the meaning of
`
`40 C.F.R. § 63.761.
`
`90.
`
`The Platte Valley Plant has been a “major source,” within the meaning of Section
`
`112(a)(1) of the Act, 42 U.S.C. § 7412(a)(1), and of 40 C.F.R. §§ 63.2 and 63.761, and therefore
`
`certain ancillary equipment, except compressors, intended to operate in VHAP service at the
`
`facility has been subject to the equipment leak standards of Subpart HH.
`
`FIRST CLAIM
`(Platte Valley Plant – Train 2 Process Unit)
`Failure to Comply with Subpart OOOO Requirements
`
`The United States and Colorado reallege and incorporate the previous Paragraphs
`
`91.
`
`as if fully set forth within.
`
`92.
`
`The equipment installation project completed at the Train 2 process unit of the
`
`Platte Valley Plant on or around November 3, 2011 constituted a “modification” pursuant to
`
`Section 111 of the Act. 42 U.S.C. § 7411(a)(4); 40 C.F.R. § 60.14.
`
`93.
`
`The equipment installation project completed at the Train 2 process unit has
`
`subjected Defendant to the federal requirements of Subpart OOOO with respect to this process
`
`
`
`17
`
`
`
`Case 1:20-cv-01931-MEH Document 1 Filed 07/01/20 USDC Colorado Page 18 of 37
`
`unit since approximately October 15, 2012, 40 C.F.R. § 60.5370(a), and to Colorado’s
`
`Regulation 6, Pt. A, since December 15, 2012. 5 Colo. Code Regs. § 1001-8:A.
`
`94. With certain exceptions not relevant here, pursuant to Subpart OOOO and
`
`Colorado’s Regulation 6, Pt. A, Defendant is required to monitor pumps, valves, and connectors
`
`in gas/vapor or light liquid service at the Train 2 process unit initially and at specified
`
`frequencies thereafter. 40 C.F.R. §§ 60.5400(a), 60.482-2a(a), 60.482-7a(a) and (c), and 60.482-
`
`11a(a) and (b)(3); 5 Colo. Code Regs. 1001-8:A. If any such equipment is found leaking above
`
`the applicable regulatory threshold, Defendant is required to make a first attempt at repair within
`
`five days after each leak is detected, and in any event to repair each leak as soon as practicable,
`
`but not later than 15 days after detection. 40 C.F.R. §§ 60.5400(a), 60.482-2a(b)(1) and (c),
`
`60.482-7a(b) and (d), and 60.482-11a(b)(2) and (d); 5 Colo. Code Regs. 1001-8:A.
`
`95.
`
`From approximately October 15, 2012 until at least December 8, 2015, Defendant
`
`failed to make a first attempt at repair of leaks above the applicable regulatory threshold in
`
`approximately 159 pumps and valves at the Train 2 process unit within five days after each leak
`
`was detected, in violation of 40 C.F.R. §§ 60.5400(a), 60.482-2a(b)(1) and (c)(2), 60.482-7a(b)
`
`and (d)(2), and 5 Colo. Code Regs. 1001-8:A (for violations on or after December 15, 2012).
`
`96.
`
`From approximately October 15, 2012 until at least December 8, 2015, Defendant
`
`failed to repair approximately 158 pumps and valves at the Train 2 process unit within 15 days of
`
`identifying them to have been leaking above the applicable regulatory threshold, in violation of
`
`40 C.F.R. §§ 60.5400(a), 60.482-2a(b)(1) and (c)(1),60.482-7a(b) and (d)(1), and 5 Colo. Code
`
`Regs. 1001-8:A (for violations on or after December 15, 2012).
`
`
`
`18
`
`
`
`Case 1:20-cv-01931-MEH Document 1 Filed 07/01/20 USDC Colorado Page 19 of 37
`
`97.
`
`From approximately October 15, 2012 until at least December 8, 2015 Defendant
`
`failed to monitor connectors for leaks above the applicable regulatory threshold at the Train 2
`
`process unit, in violation of 40 C.F.R. §§ 60.5400(a),60.482-11a(a) and (b), and 5 Colo. Code
`
`Regs. 1001-8:A (for violations on or after December 15, 2012).
`
`98.
`
`For 146 valves found leaking above 500 ppm from approximately October 15,
`
`2012 until at least December 8, 2015, Defendant failed to monitor monthly until a leak is not
`
`detected for two successive months, in violation of 40 C.F.R. § 60.482-7a(c) and 5 Colo. Code
`
`Regs. 1001-8:A (for violations on or after December 15, 2012).
`
`99.
`
`Each failure by Defendant to monitor monthly; to make a first attempt to repair of
`
`pumps and valves found to have been leaking above the applicable regulatory threshold within
`
`five days after each leak was detected; to repair them within 15 days; and to monitor connectors,
`
`constitutes a separate
Accessing this document will incur an additional charge of $.
After purchase, you can access this document again without charge.
Accept $ Charge
Still Working On It
This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.
Give it another minute or two to complete, and then try the refresh button.
A few More Minutes ... Still Working
It can take up to 5 minutes for us to download a document if the court servers are running slowly.
Thank you for your continued patience.
This document could not be displayed.
We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.
Your account does not support viewing this document.
You need a Paid Account to view this document. Click here to change your account type.
Your account does not support viewing this document.
Set your membership
status to view this document.
With a Docket Alarm membership, you'll
get a whole lot more, including:
- Up-to-date information for this case.
- Email alerts whenever there is an update.
- Full text search for other cases.
- Get email alerts whenever a new case matches your search.
One Moment Please
The filing “” is large (MB) and is being downloaded.
Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.
Your document is on its way!
If you do not receive the document in five minutes, contact support at support@docketalarm.com.
Sealed Document
We are unable to display this document, it may be under a court ordered seal.
If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.
Access Government Site
