September 25, 2020

State Environmental Improvement Board hears air quality permits appeal

Tanks (CC BY-NC-ND 2.0) by blake.thornberry

An oil pump jack in Eddy County, NM.

The state Environmental Improvement Board heard arguments during a hearing on Thursday about air quality permits issued by the New Mexico Environment Department that an environmental group alleges are illegal. 

WildEarth Guardians appealed four permits issued by NMED for oil and gas facilities in Eddy and Lea counties, where ozone levels now exceed the U.S. Environmental Protection Agency’s (EPA) National Ambient Air Quality Standards (NAAQS). 

Ozone is the only pollutant under the NAAQS that is not directly emitted from any source. Instead, ozone is formed when volatile organic compounds (VOCs) and nitrous oxides (NOx) are exposed to sunlight and warmer temperatures. Summer months are usually when ozone levels reach their highest point. In addition to Lea and Eddy counties, ozone levels in five other counties in the state are at 95 percent of the NAAQ standard.

Source: New Mexico Environment Department

NMED recently released draft rules targeting reductions in VOCs and NOx emissions at oil and gas facilities. The state also launched an Ozone Attainment Initiative to help address ozone levels in the seven counties  currently experiencing high ozone levels.

WildEarth Guardians’ appeals point to a state law that holds that NMED “shall deny any application for a permit or permit revision” if, when considering emissions after controls, the permit activity “will cause or contribute to air contaminant levels in excess of any National Ambient Air Quality Standard or New Mexico ambient air quality standard.”

WildEarth Guardians argued that NMED violated state law by approving permits for new oil and gas facilities while the air monitors in Eddy and Lea counties show non-compliance, also called nonattainment, of the federal NAAQS. It claimed that NMED approved those four permits “without considering the cumulative impacts on air quality, and the subsequent impact on public health.”

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“Boiled down, this case is a simple one,” said Daniel Timmons, staff attorney at WildEarth Guardians during the hearing. “Ozone pollution levels in the southeastern corner of New Mexico violate the public health standards set by the EPA. The monitoring data for Carlsbad, Hobbs, and Carlsbad Caverns is all very clear on this point, and neither the Department nor any of the intervenors dispute this.” 

Timmons added that, by continuing to permit new oil and gas facilities which will result in more emissions, NMED “has and continues to exacerbate the problem of ozone pollution in the region.”

“We simply ask that the Board uphold the law and the Department’s permitting regulations and put a stop to this untenable situation,” Timmons said. 

Nonattainment designation 

NMED’s counsel Lara Katz told the Board that WildEarth Guardians was proposing “a novel and extreme interpretation” of the Board’s permitting regulations “to argue for a regulatory approach to ozone that goes against clear and well established regulatory processes for addressing ozone pollution under federal and state law.”

Katz added that NMED “has not been able to find a single other Western state that regulates ozone in the manner that WildEarth Guardians’ argues the Department should.”

She also argued that, even though the air monitors in those two counties are now recording ozone levels that exceed the federal standards, the areas are not technically considered “nonattainment” areas until the EPA designates them as nonattainment. 

The EPA only updates its NAAQS attainment designations when the standards themselves are updated or when new standards are promulgated. The last update to the regulations occurred in 2015, so both Eddy and Lea counties are currently federally designated as attainment areas for the national ozone standard. 

RELATED: NMED says it cannot deny oil and gas permits due to ozone concerns

“Neither the Clean Air Act nor the Board’s regulations provide that a state can consider areas designated by EPA as attainment to be actual nonattainment areas based solely on monitoring readings,” Katz said. 

WildEarth Guardians’ expert witness Ranajit Sahu, an engineer and air pollution expert, noted in his testimony that the state’s definition of nonattainment area is “an area that is shown by monitoring data” to exceed NAAQS, and said the state definitions do not mention a federal designation of nonattainment. 

Andrew Torrant, counsel for XTO Energy, whose permits are being challenged by the appeal, also brought up issues with the state’s definitions. Torrant said the state’s regulatory definition of a nonattainment area is “in conflict with the federal Clean Air Act’s definition.” 

But Elizabeth Bisbey-Keuhn, NMED’s Air Quality Bureau Chief, argued that the term “nonattainment” denotes an area that has gone through a process of formally being designated as in nonattainment by EPA.

“Nonattainment is always a formal regulatory process, and it is never used to describe the actual state of an area,” she said. 

‘Cause and contribute’

Katz also called into question the assumption that oil and gas facilities in Eddy and Lea counties contribute to ozone levels, even though these facilities do in fact emit ozone precursor pollutants. 

“Due to the complexities of ozone formation, it is not the case that simply because a source emits ozone precursors, it will necessarily contribute to ozone concentrations,” Katz said. 

Kyle Tisdel, an attorney and climate and energy director at the Western Environmental Law Center, which participated in the hearing as an interested party, disputed Katz’s claims that oil and gas facilities may not contribute to ozone levels in the area. 

“The record demonstrably shows that air quality in Southeast New Mexico has been deteriorating for years,” Tisdel said. “The record also unequivocally shows that oil, gas operations emit VOCs and NOx, and that these pollutants are ozone precursors, thus there is no dispute that oil and gas operations cause and contribute to dangerous levels of ozone.”

Sahu also disputed that claim. He pointed to three studies he reviewed that showed projected increases in ozone levels in the area as a result of oil and gas activities. 

“I looked at several prior studies that had looked at the same problem,” Sahu said. He pointed to a 2013 photochemical modeling report, done on behalf of the U.S. Bureau of Land Management. 

“That study showed projected exceedances of the NAAQS by 2017,” Sahu said.  

A separate EPA analysis from 2008 “showed oil and gas emissions and their contributions in that area,” as did a southern New Mexico ozone study conducted in 2016. 

“They specifically highlighted the impacts of oil and gas precursor emissions on the Carlsbad monitor, they were the highest New Mexico contributors to that monitor,” Sahu said. 

Katz also argued the permits being challenged by WildEarth Guardians are for “minor sources” of emissions, which means they do not cause or contribute to ozone levels and therefore are not subject to air quality impact modeling before approval. 

“WildEarth Guardians’ argument ignores EPA’s and NMED’s well known and long-standing interpretation of the phrase ‘cause and contribute,’ which establishes that a source’s increased emissions must have a significant or meaningful impact on ambient air quality, in order to be considered to cause or contribute to concentrations in violation of the NAAQS,” Katz said. 

She said that WildEarth Guardians’ interpretation of the statutes would “upend the Department’s air quality permitting program and leave New Mexico alone and in uncharted waters when it comes to determining what constitutes an nonattainment area.”

Katz said if the Board sides with WildEarth Guardians, the Department would be subjected to “extensive litigation from permittees seeking to construct new minor sources and throw into question the status of permits for untold numbers of existing sources across the state.”

She also stated that NMED “urges the Board to keep in mind that it is the Board that will be the named party against whom any appeals from the decision in these cases will be taken, and it is the Board that will have to defend its decision.”

“At core, there’s no dispute that ozone pollution is a serious problem and public health threat in southeastern New Mexico, and the Department’s continued issuance of new permits and registrations is making this problem worse,” Timmons said. “Instead of addressing this problem head-on, the Department points to scientific complexities, legal technicalities, and possible future rules that are not yet on the books. But what we are asking for is really quite simple. As quoted in our expert’s report, Roy Rogers: ‘When you’re in a hole, stop digging.’ ”

A decision from the EIB is not expected until November.