23CA2143 Center Biological v Dept Public Health 05-22-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 23CA2143 City and County of Denver District Court Nos. 21CV30049 & 21CV30886 Honorable Sarah B. Wallace, Judge
Center for Biological Diversity, Colorado Latino Forum, and Sierra Club,
Plaintiffs-Appellants,
v.
Colorado Department of Public Health and Environment, Air Pollution Control Division, and American Petroleum Institute Colorado,
Defendants-Appellees.
JUDGMENT AFFIRMED
Division I Opinion by JUDGE BROWN J. Jones and Yun, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced May 22, 2025
Allison N. Henderson, Crested Butte, Colorado; Jeremy McKay, Denver, Colorado; Ryan Maher, Washington, D.C., for Plaintiffs-Appellants
Phillip J. Weiser, Attorney General, Laura Terlisner Mehew, Senior Assistant Attorney General, Julia La Manna, Assistant Attorney General, Denver, Colorado, for Defendant-Appellee Colorado Department of Public Health and Environment, Air Pollution Control Division
Williams Weese Pepple & Ferguson PC, Jennifer L. Biever, John H. Bernetich, Dale T. Ratliff, Denver, Colorado, for Defendant-Appellee American Petroleum Institute Colorado ¶1 Center for Biological Diversity, Colorado Latino Forum, and
Sierra Club (collectively, the Public Interest Groups) appeal the
district court’s judgment affirming the decision of the Colorado Air
Pollution Control Division (Division) to issue a general construction
permit, General Permit 11 (GP11), to regulate routine or predictable
emissions (ROPE) from oil and gas operations. The Public Interest
Groups contend that the Division’s decision to issue GP11 was
arbitrary or capricious or contrary to law because (1) GP11’s
conditions are not practically enforceable, and (2) GP11 allows
sources to exceed the national ambient air quality standards
(NAAQS) set by the Environmental Protection Agency (EPA). We
affirm.
I. Regulatory Framework
¶2 The Clean Air Act (CAA) “establishes a cooperative-federalism
framework” to prevent and control air pollution. WildEarth
Guardians v. Extraction Oil & Gas, Inc., 457 F. Supp. 3d 936, 941
(D. Colo. 2020); 42 U.S.C. § 7402. One of the CAA’s primary goals
is “to protect and enhance the quality of the [n]ation’s air resources
so as to promote the public health and welfare.” 42 U.S.C.
§ 7401(b)(1). To that end, the CAA directs the EPA to publish a list
1 of air pollutants with emissions that “cause or contribute to air
pollution which may reasonably be anticipated to endanger public
health or welfare.” 42 U.S.C. § 7408(a)(1)(A). The CAA then
requires the EPA to promulgate NAAQS for such pollutants in
designated air quality control regions across the country. 42 U.S.C.
§§ 7409(a), 7410(a)(1).
¶3 Each state is responsible for “assuring air quality” within its
geographic boundaries by developing and submitting to the EPA a
state implementation plan (SIP) to achieve, maintain, and enforce
the NAAQS in each air quality control region within the state. 42
U.S.C. §§ 7407(a), 7410(a)(1). Among other things, the SIP must
include “enforceable emission limitations and other control
measures, means, or techniques . . . as may be necessary or
appropriate” and regulations addressing “the modification and
construction of any stationary source . . . as necessary to assure
that [NAAQS] are achieved.” § 7410(a)(2)(A), (C).
¶4 Within the Colorado Department of Public Health and
Environment (CDPHE), two sub-departments administer Colorado’s
EPA-approved SIP: the Air Quality Control Commission
(Commission) and the Air Pollution Control Division (Division). See
2 §§ 25-7-103(2), (7), -104(a), -114.4(1), -114.5, C.R.S. 2024; Dep’t of
Pub. Health & Env’t Reg. 3, 5 Code Colo. Regs. 1001-5 (Regulation
3); WildEarth Guardians, 457 F. Supp. 3d at 941. The Commission
is responsible for developing rules and regulations regarding the
construction, operation, and permitting of stationary sources of air
pollutants. § 25-7-114.4(1) (“The commission shall promulgate . . .
regulations . . .for the orderly and effective administration of
construction permits.”). The Division then implements the rules
and regulations promulgated by the Commission. See
§§ 25-7-114.2, -114.4(1)-(2), -114.5, C.R.S. 2024. A “[s]tationary
source” is defined as “any building, structure, facility, or
installation which emits or may emit any air pollutant.”
§ 25-7-103(23); accord Regulation 3, pt. A, § I.B.52; § 7411(a)(3).
¶5 As detailed in CDPHE Regulation 3, Colorado’s New Source
Review (NSR) program governs the permitting of stationary sources
of air pollutants. See Regulation 3, pt. D; WildEarth Guardians,
457 F. Supp. 3d at 941. The program requires a stationary source1
1 Regulation 3 applies to any source that did not commence
construction or operation before February 1, 1972. Dep’t of Pub. Health & Env’t, 5 Code Colo. Regs. 1001-5, pt. B, § I.A.
3 to have or obtain a valid construction permit before (1) constructing
or substantially altering any building, facility, structure, or
installation (with exceptions not relevant here); (2) installing any
machine, equipment, or device; or (3) commencing the conduct,
performance, or operation of any such activity. § 25-7-114.2;
Regulation 3, pt. B, §§ II.A, III.I.2.
¶6 A stationary source can be classified as a “[m]ajor source,” a
“[m]inor source,” or a “[s]ynthetic minor source.” § 25-7-114(3), (6),
C.R.S. 2024; Regulation 3, pt. A, § I.B.30, I.B.31. A source’s
classification is determined by its potential to emit (PTE), defined as
“the maximum capacity of [the] stationary source to emit a
pollutant under its physical and operational design.” § 25-7-114(4);
Regulation 3, pt. A, § I.B.43; accord 40 C.F.R. § 51.166(b)(4) (2024).
¶7 A source is a “major source” if its PTE is above certain
thresholds. § 25-7-114(3)(a)-(c); Regulation 3, pt. A, § I.B.30;
accord 42 U.S.C. § 7479(1); 40 C.F.R. § 51.165(a)(1)(iv)(A) (2024). A
source is a “[m]inor source” if it “does not qualify as a major
source.” Regulation 3, pt. A, § I.B.31. Major sources are subject to
greater regulatory requirements, see generally 40 C.F.R. §§ 51.165,
51.166, while minor sources are subject to “only the barest of
4 requirements,” Sierra Club v. EPA, 964 F.3d 882, 886 (10th Cir.
2020) (citation omitted).
¶8 A “[s]ynthetic minor source” is “any source which would
otherwise meet the definition of major source for any pollutants but
for the existence of enforceable emission limitations contained in
the permit or regulation applicable to that source.” § 25-7-114(6).
In other words, a source may “voluntarily lower emissions to avoid
major-source requirements,” WildEarth Guardians, 457 F. Supp. 3d
at 942, by implementing physical or operational limitations on the
capacity of the source to emit pollutants, see 40 C.F.R.
§ 51.166(b)(4); Regulation 3, pt. B, § II.A.7. Such limitations can
include, for example, “air pollution control equipment and
restrictions on hours of operation or on the type or amount of
material combusted, stored, or processed.” Regulation 3, pt. A,
§ I.B.43; accord 40 C.F.R. § 51.166(b)(4).
¶9 The Division can issue two types of construction permits: an
individual construction permit, which is unique to a source and
requires analysis of that source’s particular operations and
emissions, or a general construction permit, which is issued to
cover numerous similar sources. § 25-7-114.2; Regulation 3, pt. A,
5 § I.B.16, I.B.27, pt. B, § III.B, III.I. The EPA has approved the use of
general permits as they “provide for emission limitations in a
one-time permitting process, and thus avoid the need to issue
separate permits for each source.” Off. of Enf’t & Compliance
Assurance, EPA, Guidance on Enforceability Requirements for
Limiting Potential to Emit through SIP and § 112 Rules and General
Permits 3 (1995) (1995 EPA Guidance).
II. Procedural History
¶ 10 In 2019, the Commission decided that routine or predictable
emissions (ROPE) associated with certain maintenance and
processing activities at oil and gas facilities should no longer be
exempt from permitting requirements. Instead, these emissions
should be subject to permitting under Colorado’s SIP. See
Regulation 3, pt. F, § I.DDD. The Commission also determined that
the new ROPE permitting requirements would apply to existing
sources, not just newly constructed or modified sources. Id.
¶ 11 In August 2020, the Division proposed GP11 to regulate ROPE
and initiated a public comment period. The Center for Biological
Diversity timely submitted comments raising the same concerns it
raises on appeal. In December 2020, the Division issued GP11.
6 ¶ 12 The following month, the Public Interest Groups filed a
complaint seeking judicial review of the Division’s decision to issue
GP11 under the State Administrative Procedure Act (APA). See
§§ 24-4-106(2), 25-7-120(1), C.R.S. 2024. The American Petroleum
Institute Colorado (API) intervened in the action as a defendant.
After a hearing, the district court issued a written order affirming
the Division’s decision to issue GP11.
III. Public Interest Groups’ Challenges to GP11
¶ 13 The Public Interest Groups contend that the Division’s
decision to issue GP11 was arbitrary or capricious or contrary to
law because (1) GP11’s conditions are not practically enforceable,
and (2) GP11 allows the construction of sources that cause an
exceedance of NAAQS. We conclude that the Division’s decision
was neither arbitrary or capricious nor contrary to law.
A. Standard of Review
¶ 14 “Our review of a district court’s decision in a proceeding under
the [APA] is de novo.” Farmer v. Colo. Parks & Wildlife Comm’n,
2016 COA 120, ¶ 12. We sit in the same position and apply the
same standard of review as the district court. Gessler v. Grossman,
2015 COA 62, ¶ 9, aff’d, 2018 CO 48. We must “hold unlawful and
7 set aside” an agency action if, as argued here, the action is arbitrary
or capricious or otherwise contrary to the law. § 24-4-106(7)(b)(I),
(VIII), (IX). If we perceive no such error, we must “affirm the agency
action.” § 24-4-106(7)(a).
¶ 15 “In applying this standard, we presume the validity and
regularity of administrative proceedings and resolve all reasonable
doubts as to the correctness of administrative rulings in favor of the
agency.” Grossman, ¶ 11. Ultimately, “[t]he burden is on the party
challenging the agency action to overcome the presumption that the
agency’s acts were proper.” Wildwood Child & Adult Care Program,
Inc. v. Colo. Dep’t of Pub. Health & Env’t, 985 P.2d 654, 655 (Colo.
App. 1999).
¶ 16 To conclude that an agency’s decision is arbitrary or
capricious, “we must determine that no substantial evidence exists
in the record to support the agency’s decision.” Grossman, ¶ 39.
“There must be a clear error of judgment, and we may not
substitute our judgment for that of the agency.” Id. Indeed, the
agency, not this court, “has the task of weighing the evidence and
resolving any conflicts.” Chostner v. Colo. Water Quality Control
Comm’n, 2013 COA 111, ¶ 24. “So long as the agency decision
8 reflects conscientious effort to reasonably apply legislative
standards to particular administrative proceedings, it is neither
arbitrary nor capricious.” Moya v. Colo. Ltd. Gaming Control
Comm’n, 870 P.2d 620, 624 (Colo. App. 1994).
¶ 17 We also review de novo the agency’s interpretations of law.
Citizens for Clean Air & Water in Pueblo & S. Colo. v. Colo. Dep’t of
Pub. Health & Env’t, 181 P.3d 393, 396 (Colo. App. 2008). But, “[a]s
part of our de novo review, ‘we may consider and defer to an
agency’s interpretation of its own enabling statute and [of]
regulations the agency has promulgated.’” Gessler v. Colo. Common
Cause, 2014 CO 44, ¶ 7 (quoting Bd. of Cnty. Comm’rs v. Colo. Pub.
Utils. Comm’n, 157 P.3d 1083, 1088 (Colo. 2007)); see Chostner,
¶ 24 (“[A]though we are not bound by an agency decision that
misapplies or misconstrues the law, we defer to an agency’s
interpretation of the statute or regulation it is charged with
administering.” (citing El Paso Cnty. Bd. of Equalization v. Craddock,
850 P.2d 702, 705 (Colo. 1993))). An agency’s interpretation is
“most useful to the court when the subject involved calls for the
exercise of technical expertise which the agency possesses.”
Craddock, 850 P.2d at 705.
9 B. General Permit 11 (GP11)
¶ 18 GP11 is a general minor source construction permit that
authorizes and regulates ROPE from discrete activities conducted at
certain oil and gas industry facilities. ROPE are only one
component of the entire set of emissions from oil and gas
operations. GP11 does not address non-ROPE emissions, which
must be permitted through other means. ROPE consist mostly of
volatile organic compounds (VOCs).
¶ 19 Because ROPE are produced by routine activities that are
generally short in duration, sources registered under GP11 need not
control ROPE. Instead, to comply with GP11’s emission limits,
operators can choose to minimize ROPE or reduce the frequency of
ROPE-producing activities. Still, a major source can register under
GP11 as a synthetic minor source by choosing to control ROPE —
that is, by reducing VOCs through air pollution control equipment
such as combustion devices (flares or enclosed combustion devices),
vapor recovery units, or catalysts. Either way, GP11 requires
sources to aggregate emissions from facility-wide ROPE activities to
determine whether they meet certain emission limits.
10 ¶ 20 If an operator chooses to control ROPE with a combustion
device, GP11 allows the operator to claim a destruction and removal
efficiency (DRE) of 95%. A DRE of 95% means that 95% of the
VOCs from ROPE will be destroyed by the device before being
released into the atmosphere. However, the combustion of VOCs
creates nitrogen oxides (NOx) as a byproduct. NOx emissions are
measured as nitrogen dioxide (NO2) in NAAQS. 40 C.F.R.
§ 50.11(a)-(b) (2024). To ensure that sources using combustion
devices to control ROPE achieve 95% DRE, GP11 imposes certain
design, operation, monitoring, and recordkeeping requirements on
operators.
¶ 21 For design, GP11 requires that any pollution control
equipment used to comply with the permit’s emission limits be
“adequately designed and sized to achieve the control efficiency
rates and to handle reasonably foreseeable fluctuations in gas
quantity and/or composition during emitting activities.”
Combustion devices used to control ROPE must also “have a design
destruction efficiency of at least 98%” and “be equipped with and
operate an auto-igniter.”
11 ¶ 22 For operations, GP11 requires that any pollution control
equipment “be operated and maintained consistent with
manufacturer specifications and good engineering and maintenance
practices.” It also requires that the manufacturer specifications be
kept on file for review by the Division.
¶ 23 For monitoring, GP11 requires that any combustion devices
“have no visible emissions during normal operation, and be
designed so that an observer can, by means of visual observation
from the outside of the enclosed combustion device, or by other
means approved by the [D]ivision, determine whether it is operating
properly.” It also requires the operator to “monitor proper operation
of the air pollution control equipment . . . at least once each day
that [such] equipment is in use to control the emitting activities
registered under” GP11 and identifies certain “[i]ndications of
improper operation.”
¶ 24 And for recordkeeping, GP11 requires that, “[f]or each separate
air pollution control equipment, the owner or operator must keep
an air pollution equipment maintenance log,” displaying the date,
time, and nature of any maintenance activity. It requires that any
“[i]mproper operation of air pollution control equipment” be
12 documented, including a description of the problem and its
resolution, the date range the equipment was inoperable, and the
“uncontrolled mass of emissions during the downtime.” GP11 also
requires operators to record “actual emissions from all emitting
activities” and, for synthetic minor sources that use equipment to
control emissions, to calculate such emissions on a “rolling twelve
(12) month” basis.
C. Practical Enforceability
¶ 25 The Public Interest Groups contend that the Division’s
decision to issue GP11 is arbitrary or capricious or contrary to law
because the conditions that allow a source to control ROPE through
combustion devices are not enforceable as a practical matter. In
particular, the Public Interest Groups argue that (1) GP11 allows
sources to assume 95% DRE despite evidence in the administrative
record showing that combustion control devices can have much
lower control efficiencies; (2) the Division did not account for
variables that affect control efficiency; (3) only testing can verify
that emissions remain below the permit’s limits; and (4) in crafting
GP11’s conditions, the Division relied on EPA guidance regarding
13 practical enforceability that has been undermined by recent EPA
decisions.
¶ 26 We begin by reviewing the requirement that permit conditions
allowing a source to limit PTE be “practically enforceable.” Next, we
conclude that substantial record evidence supports the Division’s
determination that GP11’s conditions — under which a major
source can elect to control ROPE through combustion devices in
order to register as a synthetic minor source — are practically
enforceable. See Grossman, ¶ 39. We then address and reject each
of the Public Interest Groups’ contentions because they effectively
ask us to reweigh the evidence and substitute our judgment for the
Division’s, something we cannot do. See id.
1. GP11’s Control Conditions Must Be Practically Enforceable
¶ 27 As an initial matter, the parties agree that permits allowing
sources to limit PTE must include “practically enforceable permit
conditions,” Regulation 3, pt. B, § II.A.4, that impose “physical or
operational limitation[s] on the capacity of the source to emit a
pollutant, including air pollution control equipment,” Regulation 3,
pt. A, § I.B.43. See also § 24-7-114(6) (defining synthetic minor
source as one constrained by “enforceable emission limitations
14 contained in the permit or regulation applicable to that source”);
WildEarth Guardians, 457 F. Supp. 3d at 959 (conditions must be
“legally and practicably enforceable by a state or local air pollution
control agency” (quoting EPA, Release of Interim Policy on Federal
Enforceability of Limitations on Potential to Emit 3 (1996))). Thus,
the conditions in GP11 that apply to “[c]ombustion devices, vapor
recovery units, catalysts, or other division-approved air pollution
control equipment used to reduce emissions (from the emitting
activities registered under this general permit) below” applicable
limits must be “practically enforceable.” Regulation 3, pt. B,
§ II.A.4.
¶ 28 Notably, “practically enforceable” is not defined by Regulation
3 or any relevant Colorado statute. To interpret the term, the
Division relies on the 1995 EPA Guidance regarding practical
enforceability. It provides that a general permit’s provisions must
“specify (1) a technically accurate limitation and the portions of the
source subject to the limitation; (2) the time period for the limitation
(hourly, daily, monthly, annually); and (3) the method to determine
compliance including appropriate monitoring, record keeping, and
reporting” and must “(4) identify the categories of sources that are
15 covered by the [permit]; (5) where coverage is optional, provide for
notice to the permitting authority of the source’s election to be
covered by the [permit]; and (6) recognize the enforcement
consequences relevant to the [permit].” 1995 EPA Guidance at 6.
¶ 29 The 1995 EPA Guidance clarifies that general permits must
identify and apply to categories of sources “specifically or narrowly
enough so that specific limits and compliance monitoring can be
identified and achieved by all sources.” Id. It further provides that
“monitoring” may refer to “many different types of data collection,
including continuous emission or opacity monitoring, and
measurements of various . . . [p]arameters of processes or control
devices (e.g. temperature, pressure drop, fuel usage) and record
keeping of parameters that [have] been limited.” Id. at 9. It notes
that “[c]ontinuous emissions monitoring, especially in the case of
smaller sources, is not required.” Id. And it provides that general
permits “can allow for generic control efficiencies where technically
sound and appropriate, depending on the extent of the application
and ability to monitor compliance with resultant emission limits.”
Id. at 6.
16 2. Division’s Determination that GP11’s Conditions are Practically Enforceable Was Not Arbitrary or Capricious or Contrary to Law
¶ 30 The Division’s determination that GP11’s conditions, allowing
sources to elect to control ROPE through combustion devices, are
practically enforceable is supported by the foregoing EPA guidance,
the unique characteristics of ROPE, and the technical evidence in
the administrative record.
¶ 31 Consistent with the 1995 EPA Guidance, GP11 identifies and
applies to a narrow category of sources, activities, and emissions; it
governs a limited number of specific ROPE-producing activities
conducted only at certain “oil and gas industry well production
facilit[ies] . . . and the associated . . . well(s).” GP11 also identifies a
narrower subcategory of sources that elect the permit’s option to
control ROPE through pollution control equipment such as
combustion devices. Only the latter subcategory must comply with
“practically enforceable” conditions to register as synthetic minor
sources under the permit.2
2 Because the focus of the Public Interest Groups’ arguments is on
GP11’s conditions related to combustion devices, ours is as well.
17 ¶ 32 Given the unique characteristics of ROPE as discrete episodic
or sporadic emissions that occur in connection with routine
maintenance and processing activities at oil and gas facilities, the
Division determined that operators are unlikely to opt to control
ROPE at all. The Division also considered the types of devices an
operator might use to control ROPE and how to ensure proper
operation of those devices. Due to the short-term, variable nature
of ROPE and the types of devices used to control it, the Division
determined that performance testing was not a feasible means of
monitoring control efficiency. See, e.g., 40 C.F.R. § 60.5413(d)(2)
(2024) (requiring testing for combustion devices in “three one-hour
(or longer) test runs”). The Division reasoned that if operators were
required to conduct performance tests on combustion devices used
to control ROPE, they would likely need to supplement the material
being combusted and run the devices for longer periods than
necessary, which would lead to increased pollution.
¶ 33 Instead, to ensure that operators choosing to control ROPE
through combustion devices would meet emission limits, the
Division implemented the design, operation, monitoring, and
recordkeeping conditions set forth in GP11 and detailed above. The
18 Division concluded that, when these combustion devices are
operated and maintained properly, as required by GP11’s
conditions, they achieve DRE of 95% or higher. Therefore, allowing
sources to claim 95% DRE was “technically sound and
appropriate.” 1995 EPA Guidance at 6. And the Division’s
conclusion is supported by substantial evidence in the
administrative record, including reports, control device
manufacturer specifications, and dozens of performance test
results. See Grossman, ¶ 39.
¶ 34 We perceive no clear error in the Division’s judgment. See id.
Rather, the Division’s decision “reflects conscientious effort to
reasonably apply” the practical enforceability standard to a narrow
category of sources that elect to control a unique type of emissions
through combustion devices. Moya, 870 P.2d at 624. And given
the Division’s technical expertise, its decision is entitled to
substantial deference. See Citizens for Clean Air, 181 P.3d at 397.
Thus, we conclude that the Division’s decision was neither arbitrary
or capricious nor contrary to law.
19 3. Public Interest Groups’ Arguments
a. Contrary Evidence in the Record
¶ 35 The Public Interest Groups contend that the Division’s
decision is arbitrary or capricious because GP11 allows sources to
assume 95% DRE, despite record evidence demonstrating that
combustion control devices can have significantly lower control
efficiencies. They argue that, without testing, GP11’s conditions are
not enforceable as a practical matter because there is no reliable
way to measure the pollution emitted by the permitted source.
¶ 36 To support this argument, the Public Interest Groups point to
a test of combustion flares at Bonanza Creek’s Wetco Farms A-4
well pad (hereinafter Wetco Farms Test). This test yielded DRE
results of 73.92%, 73.80%, and 73.85% for one flare and 91.21%,
90.06%, and 89.34% for another flare. The Division counters that it
is unclear whether the Wetco Farms Test involved ROPE or whether
the tested combustion devices were subject to GP11’s design,
operation, monitoring, or recordkeeping requirements. The Division
and the API also argue that the conditions of the Wetco Farms Test
were not representative of normal operating conditions. They point
20 to evidence that a follow-up test conducted at the same well pad
produced a DRE of over 99%.
¶ 37 The Public Interest Groups also emphasize findings from a
report involving EPA Region 8 and the Wyoming Department of
Environmental Quality (EPA-Wyoming Report), which found that
combustion flare efficiency varied dramatically “depending on the
operational setup.” Michael Stovern et al., EPA, Region 8,
Measuring Enclosed Combustion Device Emissions Using Portable
Analyzers – Phase 1: Test Summaries 9 (May 14, 2020),
https://perma.cc/RBT2-9547. But the Division notes that it is
unclear whether the emissions measured in the EPA-Wyoming
Report were ROPE or analogous to ROPE. The Division also argues
that some of the DRE results below 95% were due to insufficient or
variable gas flow rates and improper operation. The Division
explains that these issues are not relevant in this case because
ROPE are “manually-triggered bursts of gas over a short period of
time,” and GP11 requires that combustion devices be adequately
designed to handle fluctuations in gas and operated consistent with
manufacturer specifications.
21 ¶ 38 Still, the Public Interest Groups argue that the Division has
failed to account for variables such as weather, altitude, damage
during shipping, equipment installation, improper construction,
wear and tear over time, fluctuations in fuel and waste streams,
and different temperatures needed to destroy different VOCs. They
cite a technical comment on a different permit to support their
position. See Ranajit Sahu, Technical Comments on the Proposed
CDPHE Permit No.20AD0062 for Haugen #1-30,
https://perma.cc/8MSV-ALT3. But, as the Division points out,
that permit involved a permanent emissions-generating activity (a
separator); it did not involve ROPE or consider the conditions in
GP11 that allow sources to opt to control ROPE.
¶ 39 Even if the parts of the record the Public Interest Groups
highlight support their claim, they do not negate the other
substantial evidence on which the Division based its decision. The
Division provides a rational explanation for discounting the Wetco
Farms Test, the EPA-Wyoming Report, and the technical comments
and, instead, relying on the dozens of other tests that show
combustion devices operating at or above 98% DRE. See FCC v. Fox
Television Stations, Inc., 556 U.S. 502, 513 (2009) (Under the
22 “narrow” arbitrary or capricious standard of review, “we insist that
an agency ‘examine the relevant data and articulate a satisfactory
explanation for its action.’”) (citation omitted). And we decline to
reweigh the evidence, as the Public Interest Groups essentially ask
us to do. See Chostner, ¶ 24. In the end, the Public Interest
Groups have not persuaded us that the design, operation,
monitoring, and reporting requirements in GP11 are inadequate.
See Wildwood Child & Adult Care Program, Inc., 985 P.2d at 655.
b. Recent EPA Decisions
¶ 40 The Public Interest Groups also argue that the Division’s
reliance on the 1995 EPA Guidance to conclude that GP11’s
conditions are practically enforceable has been undermined by two
recent EPA orders granting objections to specific operating permits.
See Bonanza Creek Energy Operating Co., Petition No. VIII-2023-11
(EPA Jan. 30 2024) (final order on petition) (Bonanza Creek Order);
DCP Operating Co. LP, Platteville Nat. Gas Processing Plant, Petition
No. VIII-2023-14 (EPA Apr. 2, 2024) (final order on petition)
(Platteville Order). In both cases, the petitioners (including two of
the Public Interest Groups) challenged the Division’s issuance of
permits before the EPA in part because the permits “[u]njustifiably
23 [a]ssume” a 95% control efficiency for control devices, without
adequate testing, monitoring, and reporting “[d]espite [e]vidence to
the [c]ontrary.” Bonanza Creek Order at 9; see also Platteville
Order at 7. The petitioners made arguments similar to those raised
by the Public Interest Groups in this appeal, including that “only
site-specific, periodic testing” can ensure compliance. Bonanza
Creek Order at 9-10; see also Platteville Order at 8. The EPA
concluded that the existing permit records did not sufficiently
explain how the permit conditions “assure[d] compliance with the
requirements to achieve 95 percent VOC control efficiency”
applicable to the specific units, facilities, and activities at issue.
Bonanza Creek Order at 15; see also Platteville Order at 9. The EPA
directed CDPHE to revise the permit records to address the
petitioners’ arguments. Bonanza Creek Order at 15; see also
Platteville Order at 13.
¶ 41 The Division and the API argue that we should not consider
these EPA orders because they were not available to the Division
when it issued GP11 and are not part of the administrative record.
See Brighton Pharmacy, Inc. v. Colo. State Pharmacy Bd., 160 P.3d
412, 417 (Colo. App. 2007) (“Agency actions are to be reviewed
24 based solely upon the record made before the agency.”). But see
Sierra Club, 964 F.3d at 893 n.9 (taking judicial notice of
documents published on EPA’s website). To be sure, since the EPA
issued these two orders in 2024, the Division could not have been
aware of them or considered them when issuing GP11. They are
not part of the administrative record and were not available to the
district court when it affirmed the Division’s decision. For these
reasons, we hesitate to even review the EPA orders as part of this
APA judicial review proceeding. But even if we did consider them,
they fail to demonstrate how the Division’s reliance on the 1995
EPA Guidance is misguided or that the conditions in GP11 are not
practically enforceable to control ROPE generated from the limited
activities GP11 covers.
¶ 42 First, the Public Interest Groups have not established that the
standard the EPA applied to evaluate the major source permits in
those orders applies to evaluate the practical enforceability of
conditions in minor source permits like GP11. See Bonanza Creek
Order at 6-8 (identifying each source at issue as a “major source
under title V”); Platteville Order at 6 (same). As noted, major source
permits are subject to stricter regulation, while minor source
25 permits are not. See Sierra Club, 964 F.3d at 886; Luminant
Generation Co. v. EPA, 675 F.3d 917, 922 (5th Cir. 2012) (for minor
sources, the CAA requires only that the SIP regulate the
construction of a stationary source “as necessary to assure that
[NAAQS] are achieved” and “includes no specifics regarding the
structure or functioning of minor NSR programs” (first quoting
§ 7410(a)(2)(C); and then quoting Operating Permit Programs and
Flexible Air Permitting Rule, 74 Fed. Reg. 51418, 51421 (Oct. 6,
2009))). Indeed, the petitioners argued that “title V permits must
contain ‘sufficiently reliable’ procedures for determining compliance
and ‘periodic monitoring sufficient to yield reliable data from the
relevant time period that are representative of the source’s
compliance with the permit.’” Bonanza Creek Order at 10 (first
quoting 42 U.S.C. § 7661c(b); and then quoting 40 C.F.R.
§ 70.6(a)(3)(i)(B) (2024)); see also Platteville Order at 11. And part of
the EPA’s rationale for concluding that the permit records were
insufficient was that title V permits must “set forth . . .
monitoring . . . requirements to assure compliance with the permit
terms and conditions,” Bonanza Creek Order at 13 (first quoting
§ 7661c(c); and then citing 40 C.F.R. § 70.6(c)(1)), and that “[t]he
26 rationale for the selected monitoring requirements must be clear
and documented in the permit record,” id. (citing 40 C.F.R.
§ 70.7(a)(5) (2024)); see also Platteville Order at 11-12. It is not
clear how these standards relate to practical enforceability.
¶ 43 Second, in each case, the EPA did not conclude that the
permit conditions were not practically enforceable to “assure
compliance” with the presumed 95% control efficiency. Instead, the
EPA determined that the permit record was inadequate to explain
how the permit conditions assured compliance. See Bonanza Creek
Order at 14; see also Platteville Order at 12. In other words,
uncertainty remains about whether the conditions at issue in those
cases are, in fact, sufficient. And notably, the permit records are
not part of the administrative record before us, so we have no way
to compare what the EPA considered inadequate there with what
the Division relied on to issue GP11. Under these circumstances,
we are not persuaded that the EPA orders demonstrate that the
Division’s decision regarding the conditions in GP11 — a minor
source permit regulating limited ROPE-producing activities — is
arbitrary or capricious.
27 ¶ 44 Because there is competent evidence supporting the Division’s
decision, see Grossman, ¶ 39, and because we defer to the
Division’s interpretation of its own regulations based on its
technical expertise, see Craddock, 850 P.2d at 705, we conclude
that the Public Interest Groups have not met their burden to show
the Division’s issuance of GP11 was arbitrary or capricious or
contrary to law, see Wildwood Child & Adult Care Program, Inc., 985
P.2d at 655.
D. Exceedance of NO2 NAAQS
¶ 45 The Public Interest Groups contend that the Division’s
decision to issue GP11 is contrary to law because (1) the
self-executing nature of GP11 allows a source to begin construction
once it has submitted an application, but before the Division has
determined that it will not exceed NO2 NAAQS; (2) the Division failed
to explain how it would determine whether a source is exceeding
emission limits; and (3) the public is unable to submit comments or
obtain judicial review as required under state and federal law when
a permit goes into effect upon registration. We are not persuaded.
28 1. Applicable Law
¶ 46 The EPA has approved the use of general permits broadly, see
40 C.F.R. § 49.156 (2024); 1995 EPA Guidance, and specifically as
part of Colorado’s SIP, see Approval and Promulgation of Air Quality
Implementation Plans; Colorado; New Source Review and
Prevention of Significant Deterioration, 59 Fed. Reg. 42500 (Aug.
18, 1994) (approving modifications to Colorado’s SIP). The EPA has
explained that “[t]he purpose of a general permit is to simplify the
permit issuance process for similar facilities so that a reviewing
authority’s limited resources need not be expended for site-specific
permit development for such facilities.” Review of New Sources and
Modifications in Indian Country, 76 Fed. Reg. 38748, 38767 (July
1, 2011). According to the EPA, “general permits offer a
cost-effective means of issuing permits and provide a quicker and
simpler alternative mechanism for permitting minor sources than
the site-specific permitting process.” Id.; see also Approval and
Promulgation of Air Quality Implementation Plans; North Dakota;
Revisions to Air Pollution Control Rules, 84 Fed. Reg. 11646, 11647
(Mar. 28, 2019) (“The EPA has a well-established, longstanding
position that the use of general permits for construction of . . .
29 minor sources[, including synthetic minor sources,] is appropriate
under the CAA.”).
¶ 47 To implement general permitting in Colorado, the Commission
was charged with promulgating “[p]rocedures for issuing general
permits after notice and an opportunity for hearing, covering
numerous similar sources.” § 25-7-114.4(1)(p). The regulations
authorize the Division to “issue a general construction permit
covering numerous similar sources to a source that would
otherwise be required to obtain a construction permit.” Regulation
3, pt. B, § III.I.1. General construction permits “shall comply with
all applicable requirements, including notice and opportunity for
public participation where warranted for such sources.” Id. Such
permits “shall undergo statewide public notice.” Regulation 3, pt.
B, § III.I.7.
¶ 48 The Division must also “enforce compliance with the . . . terms
and conditions of any permit” issued under Colorado’s SIP.
§ 25-7-115(1)(a), C.R.S. 2024. Enforcement mechanisms include
cease-and-desist orders, injunctions, and civil penalties. See
§§ 25-7-112(1), -113, -115, -121, -122, C.R.S. 2024.
30 2. Registration and Certification under GP11
¶ 49 Under GP11’s terms, a source initially receives conditional
certification that takes effect on the date the source submits a
complete registration request. This means a source can commence
construction and operation of ROPE-emitting activities as soon as
the Division receives its completed registration.
¶ 50 GP11 provides that, within ninety days of the date the Division
receives the complete registration, it must approve or deny the
registration request in writing. See Regulation 3, pt. B, § III.I.4
(requiring the Division to review and certify or deny each application
for coverage under a general permit). The Division may also deny or
revoke registration and require a source to apply for an individual
construction permit if either of the following occurs: (1) “[a] change
has occurred in the availability of control technology or practices for
the control or abatement of air pollutants applicable to the source,”
or (2) “[c]ircumstances have changed since the time of the request,”
and “the source is no longer appropriately controlled under the
general construction permit.” Regulation 3, pt. B, § III.I.3.c.(i).
GP11 also provides that, if a source improperly registers under it,
the operator “accepts the liability of commencing” construction and
31 emitting activities, and the Division may take enforcement action
against the operator.
¶ 51 For minor sources permitted under GP11, compliance with
emission limits is determined on an annual calendar-year basis.
Minor sources must keep a compliance record on site or at a local
office. A synthetic minor source’s emission limits compliance is
determined on a rolling twelve-month basis. A synthetic minor
source is required to calculate actual emissions each month and
keep a record on site or at a local office.
3. Division’s Determination that GP11 Sources Will Not Cause an Exceedance of NAAQS
¶ 52 At the outset, we note that the Public Interest Groups argue
that the Division’s decision is contrary to law because “GP11 allows
the construction of sources of air pollution that cause or contribute
to violations of NAAQS set by EPA.” (Emphasis added.) But under
Regulation 3, the Division must grant a construction permit if it
finds that the “proposed source or activity will not cause an
exceedance of any [NAAQS].” Regulation 3, pt. B, § III.D.1.c
(emphasis added). That is the standard we apply. See
§ 25-7-114.5(7)(a)(III) (The Division shall grant a construction
32 permit if it finds that “the source or activity will meet any applicable
ambient air quality standards and all applicable regulations.”).
¶ 53 On the merits, the Public Interest Groups argue that, because
a source can begin construction and emitting activities once it
registers under GP11, the Division cannot determine whether the
source will cause an exceedance of NAAQS before construction
starts. They frame this issue as a “straightforward temporal
problem” resulting from the self-executing nature of GP11. And
they point to a computer modeling analysis of a well pad in
Bighorn, which they claim “is under the emission caps in GP11,
and yet the modeling demonstrates that the source will cause
violations of the NAAQS for nitrogen oxides.”
¶ 54 The Public Interest Groups’ argument overlooks the fact that
the Division already determined that the sources eligible to register
under GP11, categorically, will not exceed NAAQS by engaging in
the permitted emitting activities. The Division explains that,
because VOCs that occur from ROPE are intermittent and typically
of short duration and because operators are unlikely to opt to
control ROPE through combustion devices, it used a “qualitative
method” to analyze potential NO2 emissions rather than
33 quantitative “modeling.” Using its technical expertise and
judgment, the Division concluded,
While a small small amount of [NO2] may be periodically generated where an operator chooses to use a combustion device to control emissions, the amount generated by control of ROPE is currently expected to be well below the levels at which the [D]ivision would require a source to perform modeling to demonstrate compliance.
The Division has cited information from the administrative record
that supports each step in its reasoning. Thus, we conclude that
the Division’s decision to issue GP11 is not contrary to law because
registration under GP11 is available to only those sources that the
Division predetermined would not cause an exceedance of the NO2
NAAQS.
¶ 55 Admittedly, the significance of the Bighorn well pad modeling
remains unclear to us. The Division asserts that the modeling is
not representative of NOx emissions from controlling ROPE. The
Division points out that the constant emission rate from that well
pad was significantly higher than the emissions the Division would
normally expect from sources controlling ROPE. The Division also
notes that monitoring data from 2016 to 2020 showed no
34 exceedance of NO2 NAAQS across the state. Given this lack of
clarity in the record, we defer to the Division’s technical expertise.
See Craddock, 850 P.2d at 705.
4. Enforcement
¶ 56 The Public Interest Groups contend that the Division has not
explained how it will identify sources that violate GP11 or exceed
NAAQS, arguing that the Division is obligated to prevent the
construction of violating sources rather than applying a “retroactive
fix” through post hoc enforcement mechanisms. But the Public
Interest Groups provide no authority requiring that the Division
individually preapprove every source that registers under GP11.
Indeed, such a requirement would undermine the purpose of
general permitting to simplify the permitting process and avoid the
need for the Division to conduct site-specific approval.
¶ 57 GP11 authorizes sources to register only if they meet all the
permit conditions. It sets emission limitations and requires sources
to maintain compliance records for Division review. For sources
that elect to control ROPE, the permit requires additional
recordkeeping. If a source violates the permit, the Division has
access to all mechanisms of enforcement available under the law.
35 See §§ 25-7-112, -113 (cease and desist orders); § 25-7-115 (general
enforcement authority); § 25-7-121 (injunctions); § 25-7-122 (civil
penalties). We are not convinced that the Division’s reliance on
these enforcement methods undermines its initial determination
that sources authorized to register under GP11 will not cause an
exceedance of NO2 NAAQS.
5. Public Comment
¶ 58 Finally, the Public Interest Groups contend that a member of
the public cannot submit comments or obtain judicial review, even
if they have evidence that a source permitted under GP11 caused
an exceedance of NAAQS. But the applicable statutes and
regulations require notice and an opportunity for the public to
participate before general permits are issued. See
§ 25-7-114.4(1)(p); Regulation 3, pt. B, § III.I.1. Indeed, the Center
for Biological Diversity participated and submitted comments for
the Division’s consideration before GP11 was issued.
6. Concerns with General Permitting
¶ 59 Although the Public Interest Groups acknowledge that general
permits are part of Colorado’s SIP and insist they are not
challenging general permitting broadly, the Division and the API
36 argue, and we tend to agree, that the Public Interest Groups attack
features common to all general permits. The “temporal problem[s]”
the Public Interest Groups highlight regarding when the Division
determines a permitted source will not cause an exceedance of
NAAQS, when the Division will enforce permit violations, and when
the public can participate, exist with any general permit and are not
unique to GP11.
¶ 60 On this record, we conclude the Public Interest Groups have
not met their burden to show that the Division acted contrary to
law. See Wildwood Child & Adult Care Program, Inc., 985 P.2d at
655.
IV. Disposition
¶ 61 We affirm the district court’s judgment affirming the Division’s
issuance of General Permit 11.
JUDGE J. JONES and JUDGE YUN concur.