JurisdictionUnited States
Midstream Oil & Gas from the Upstream Perspective
(Apr 2018)


John R. Jacus
Davis Graham & Stubbs
Denver, CO
Julia Jones
Anadarko Petroleum Corporation
Denver, CO
Christopher L. Rimkus
Managing Counsel
MarkWest Energy Partners, LP
Denver, CO

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JOHN R. JACUS is a Partner at Davis Graham & Stubbs LLP, Denver, CO. represents clients under all major federal and state environmental laws and regulatory programs, including the Clean Air Act, Resource Conservation and Recovery Act (RCRA), Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), Clean Water Act, and National Environmental Policy Act (NEPA). His practice includes environmental litigation, administrative proceedings and representation in complex business transactions. He is experienced in rulemaking and adjudicatory proceedings, permitting, litigation for cost recovery, citizen suits, environmental insurance coverage, and the judicial appeal of adverse agency actions, among other matters.

JULIA A. JONES is in-house counsel for Anadarko where she practices environmental and natural resources law. Prior to joining Anadarko, Julia practiced in Washington, D.C. where she worked in both the private sector and the Federal Government. In Washington, D.C., Julia served as a trial attorney for the U.S. Department of Justice's Environment and Natural Resources Division focusing on the defense of suits brought against the U.S. Government to challenge environmental and conservation issues. She also worked for the U.S. Department of Interior, Office of the Secretary, where she worked on natural resources legal and policy matters. In the private sector, Julia has represented clients, including utilities, coal companies, and oil and gas companies in environmental regulatory and compliance matters, permitting, natural resources regulation, and litigation. Julia is a proud graduate of Indiana University of Law, Bloomington, with a joint degree in Environmental Sciences from Indiana University School of Public and Environmental Affairs.

CHRISTOPHER L. RIMKUS is currently Managing Counsel at MarkWest Energy Partners, L.P., a leading provider of midstream services in the natural gas industry, located in Denver, Colorado with operations in the Northeast and Southwest. Chris has focused his career on the energy industry, spending 9 years with ExxonMobil Corporation before joining MarkWest in 2009. His responsibilities range from managing land acquisitions and operations to the oversight of permitting and environmental compliance. Chris enjoys a healthy negotiation and works to develop relationships with the landowners and the communities where MarkWest operates. Chris, his wife Christy and their children reside in Denver, Colorado.

EPA has begun to focus more intently on emissions from oil and gas gathering and gas processing operations in recent years, raising legal and practical concerns for operators.1 EPA has also been aggressively using its Clean Air Act 114 information gathering authority in the review of gathering and processing facilities for their compliance with existing Leak Detection and Repair (LDAR) and other air quality compliance requirements. More recent enforcement efforts aimed at the midstream sector have included a focus on pipeline pigging emissions, possible aggregation of pigging emissions, and the asserted applicability of chemical manufacturing standards of performance to gas processing plants more broadly. Some midstream operators are also finding EPA insistent upon the use of low-emitting valve technology in their settlement negotiations, and are being directed by EPA to engage in "drill and tap" repair of leaking valves in active natural gas service, despite concerns about the safety of such repairs. Finally, the issues of source determination for midstream facilities and potential new source review (NSR) circumvention as it relates to the expansion of gathering infrastructure once reserves are proved and leased acreage is nominated in gathering and processing agreements are examined. These issues are addressed following some basic Clean Air Act orientation for readers and attendees of the program with little or no air quality experience,2 immediately below.

I. CAA Basics: NAAQS, SIPs, Pre-Construction Permitting, NSPS, NESHAPs and More3

The modern Clean Air Act is codified at 42 U.S.C. §§ 7401 to 7671q (CAA or the Act). The strategies included in today's Clean Air Act find their origins (for the most part) in the 1970 Clean Air Act, Pub. L. 91-604. This statute was a part of the revolution in American environmental law that began with the passage of the National Environmental Policy Act (NEPA) and included the Clean Water Act, the Resource Conservation and Recovery Act (RCRA), the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), and others major statutes.4

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The 1970 Clean Air Act established National Ambient Air Quality Standards (NAAQS) as the principal means for ensuring healthy air; the federalism inherent in a split of authority between the states and the federal government and the state implementation plan process; and the specific control of new sources with technology-forcing New Source Performance Standards. The 1970 Act is also notable for first-of-its-kind enforcement of environmental protections by the federal government.

The 1977 Amendments to the Clean Act, Pub. L. 95-95, August 7, 1977, 91 Stat 685, were the next major change in air quality control laws. This statute nearly doubled the size of the 1970 law. The 1977 Amendments are particularly notable for their inclusion of the nascent Prevention of Significant Deterioration and Nonattainment programs in the federal statute. These "new" programs built upon litigation brought by environmental groups that reached the U.S. Supreme Court, and regulations created by the U.S. Environmental Protection Agency (EPA).

In 1990, Congress again amended the Clean Air Act in significant ways in Pub. L. 101-549, November 15, 1990, 104 Stat 2399. The 1990 Amendments again nearly doubled the size of the Clean Air Act. The 1990 Amendments injected great statutory detail into the process of bringing nonattainment areas of the United States into compliance with the National Ambient Air Quality Standards. The 1990 Amendments also established the Title V operating permit program in the Clean Air Act, and new programs to control acid rain and stratospheric ozone depletion.

The 1990 Amendments also "corrected" a dysfunctional program to control hazardous air pollutants included in earlier statutes. It changed this program to one dependent upon technological standards (use the of "best" controls available), rather than standards based upon findings concerning the effect of a pollutant on health ("risk-based" standards). EPA had been stymied by the implications of setting standards based upon risk, and the program was widely regarded as a failure.


National Ambient Air Quality Standards (NAAQS) are the most fundamental standards in the Clean Air Act. Primary NAAQS are established at a level that will protect public health with a margin of safety.5 Secondary standards protect public welfare (things like soiling, visibility, climate).6 Technical documents called "air quality criteria" document the scientific and medical effects of air pollutants that are considered in setting ambient air quality standards.7 That is why the pollutants subject to NAAQS standards are commonly called "criteria pollutants." The national ambient air quality standards are collected at 40 C.F.R. pt. 50.

The current national ambient air quality standard (criteria) pollutants are as follows:

1. Sulfur dioxide
2. Particulate matter of small aerodynamic diameter, less than 10 microns and less than 2.5 microns. (Particulate matter is anything caught and weighed on a filter after representative air in the atmosphere is pulled through it. Particulate matter is made up of liquids or solids suspended in the atmosphere.)

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3. Nitrogen dioxide
4. Lead
5. Ozone. (Ozone is a secondary pollutant, formed in the atmosphere in the presence of sunlight. Precursors of ozone include volatile organic compounds and nitrogen oxides.)
6. Carbon monoxide.

Each national ambient air quality standard includes a number (representing a concentration of the pollutant in the atmosphere, often measured in micrograms per cubic meter of atmosphere), an averaging time over which the standard is measured (an hour, a day, or a year, for example), and a very precise technical protocol for sampling and measurement. Each aspect of a standard is equally important to define the standard and its stringency.

Perhaps most importantly, national ambient air quality standards are set without regard to the economic cost of the standard and the technical feasibility of meeting the standard. NAAQS are pegged solely to the protection of public health and welfare.

The NAAQS are the principal standards of the Clean Air Act. They define, in law and practice, the difference between "clean and healthy" air as distinct from "dirty and unhealthy" air. Consequently, a host of disparate and important strategies in the Clean Air Act are marshalled to attain and maintain the national ambient air quality standards in the atmosphere over every part of the United States.

B. Attainment and Nonattainment of the NAAQS

Air quality control regions, or "AQCRs," are the fundamental administrative and geographic boundaries used in the Clean Air Act.8 AQCRs are geographical areas selected by the states and set forth in state implementation plans. They usually are defined by joining existing political lines within states, such as county boundaries or other district lines. AQCRs are the areas in which air quality programs are applied as an administrative matter...

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