1
Environmental
Defense
Montana
Environmental
Information
Center
Natural
Resources
Defense
Council
Powder
River
Basin
Resource
Council
Wyoming
Outdoor
Council
September
1,
2004
Michael
Leavitt
Administrator
U.
S.
Environmental
Protection
Agency
Ariel
Rios
Building
1200
Pennsylvania
Avenue,
NW
(
1101A)
Washington,
DC
20460
Ann
Klee
General
Counsel
U.
S.
Environmental
Protection
Agency
Ariel
Rios
Building
1200
Pennsylvania
Avenue,
NW
(
2310A)
Washington,
DC
20460
Robert
Roberts
Regional
Administrator
U.
S.
Environmental
Protection
Agency,
Region
8
999
18th
St.,
Suite
500
Denver,
CO
80202­
2466
Dear
Administrator
Leavitt,
General
Counsel
Klee
and
Regional
Administrator
Roberts:

The
undersigned
public
health
and
environmental
organizations
are
writing
to
convey
our
serious
concerns
about
recommendations
that
several
western
states
have
made
to
designate
unreasonably
small
areas
as
attainment/
unclassifiable
areas
for
PM2.5.
In
their
PM2.5
area
designation
requests,
the
states
of
Montana,
Utah
and
Wyoming
recommended
dividing
the
portions
of
their
states
that
were
not
designated
as
nonattainment
for
PM2.5
into
numerous
attainment/
unclassifiable
areas.
1
1
Montana
proposed
splitting
its
PM2.5
attainment
areas
into
thousands
of
10
kilometer
by
10
kilometer
square
areas,
Utah
proposed
township­
wide
attainment
areas,
and
Wyoming
proposed
city­
wide
and
county­
wide
attainment
areas.
2
On
July
20,
2004,
EPA
indicated
to
Utah
and
Wyoming
that
it
agrees
with
their
boundary
recommendations,
but
advised
Montana
that
it
intends
to
identify
the
entire
state,
except
for
Lincoln
County,
as
a
single
attainment
area.
Because
these
state
proposals
could
severely
undermine
the
Clean
Air
Act's
prevention
of
significant
deterioration
of
air
quality
program,
we
support
your
position
on
Montana's
proposal
and
respectfully
urge
you
to
reconsider
your
responses
to
Utah
and
Wyoming.
All
three
states
must
be
required
to
designate
attainment/
unclassifiable
areas
that
conform
to
the
requirements
of
the
Clean
Air
Act.

As
discussed
below,
EPA
action
approving
the
states'
request
is
premature
and
arbitrary
and
capricious
when
EPA
has
failed
to
fulfill
its
basic
responsibility
of
promulgating
a
program
to
prevent
significant
deterioration
of
air
quality
for
PM2.5
as
required
by
the
Clean
Air
Act.
Section
166
of
the
Clean
Air
Act
requires
the
Administrator
to
promulgate
PSD
regulations
within
two
years
of
the
date
of
promulgation
of
a
new
NAAQS.
2
And
PSD
regulations
for
PM2.5
are
urgently
needed
to
protect
human
health
and
the
premier
vistas
and
ecosystems
of
the
West
from
the
impacts
of
increased
PM2.5
levels.

Congress
pointedly
required
EPA
to
issue
regulations
to
prevent
significant
deterioration
of
air
quality
for
PM2.5
in
tandem
with
or
prior
to
the
air
quality
status
designations
under
section
107.
This
reflects
the
obvious
interlocking
statutory
linkages
between
the
PSD
program
and
the
107
designations.
But
EPA
has
turned
the
statute
on
its
head
by
putting
off
the
PSD
regulations
that
would
illuminate
the
consequences
of
its
proposed
action.
The
failure
of
EPA
to
timely
issue
the
PSD
regulations
for
PM2.5
therefore
thwarts
meaningful
and
informed
public
input
into
the
full
consequences
of
EPA's
action
on
the
air
quality
designations.
We
respectfully
request
that
EPA
swiftly
carry
out
its
long
overdue
statutory
responsibility
to
issue
PSD
regulations
for
PM2.5
and
reject
or
at
the
very
least
hold
in
abeyance
any
final
action
on
Utah
and
Wyoming
as
well
as
Montana's
recommendations
until
it
has
promulgated
the
framework
regulations
required
to
prevent
significant
deterioration
with
respect
to
PM2.5,
so
that
the
implications
of
the
proposed
boundaries
can
be
meaningfully
assessed.

Attainment
area
boundaries
have
historically
been
critical
to
the
PSD
program.
Under
federal
regulations,
PSD
baseline
areas,
i.
e.,
those
areas
in
which
the
"
minor
source
baseline
date"
is
triggered,
are
tied
to
areas
designated
as
attainment
or
unclassifiable
under
section
107(
d)(
1)
of
the
Clean
Air
Act.
3
Growth
in
minor,
area,
and
mobile
source
emissions
does
not
consume
a
PSD
increment
until
after
the
minor
source
baseline
date
is
triggered
for
an
area.
The
baseline
date
is
not
triggered
until
the
first
complete
PSD
permit
application
is
submitted
for
a
proposed
major
source
or
major
modification
of
the
pollutant
in
question,
and
the
date
is
only
triggered
in
those
areas
where
the
proposed
source
would
locate
or
would
have
a
"
significant"
ambient
impact.
4
The
designations
proposed
by
Montana,
Utah
and
Wyoming
could
potentially
create
a
large
number
of
attainment
and
unclassifiable
areas
where
the
minor
source
baseline
date
would
not
have
been
triggered
and
where
minor
pollution
sources
will
be
able
to
locate
and
degrade
air
quality
for
years
to
come
without
affecting
PSD
increment
consumption.

2
42
U.
S.
C.
§
7476(
a).
3
40
C.
F.
R.
52.21(
b)(
15)(
i).
4
For
PM10,
this
has
been
measured
as
a
1
µ
g
m­
3
impact.
3
The
balkanization
of
the
attainment
portions
of
Montana,
Utah
and
Wyoming
into
small
areas
is
unsupportable
when
air
quality
in
some
of
the
most
treasured
areas
of
the
West
is
already
threatened
by
ongoing
degradation.
National
parks
and
wilderness
areas
from
Yellowstone
to
Bryce
Canyon
are
facing
an
onslaught
of
air
pollution,
with
increasing
ozone
levels
throughout
the
Intermountain
West
and
worsening
visibility
in
the
Colorado
Plateau.
5
PM2.5
is
the
primary
cause
of
visibility
problems
and
it
shares
a
common
precursor,
nitrogen
oxides
emissions,
with
ozone.
Moreover,
the
three
states
that
are
requesting
this
special
treatment
by
EPA
are
the
focus
of
the
Intermountain
West's
latest
fossil
fuel­
based
energy
boom,
including
massive
coal­
bed
methane
development
(
see
attachments
A
and
B)
and
rapidly
burgeoning
coal­
fired
power
plant
proposals
(
see
attachment
C).
Consequently,
these
states
stand
in
the
greatest
need
of
the
protections
that
the
Clean
Air
Act's
PSD
program
was
intended
to
provide.

The
analysis
presented
below
demonstrates
that
EPA
has
the
statutory
duty
to
revise
proposed
boundaries
for
attainment
and
unclassifiable
areas
when
these
boundaries
fail
to
uphold
the
requirements,
goals
and
purposes
of
the
Clean
Air
Act.
It
also
shows
that
the
statutory
purposes
of
the
PSD
program
necessitate
the
use
of
functionally
based
attainment
area
boundaries,
not
arbitrarily
small
ones.
The
undersigned
groups
respectfully
urge
EPA
to
carry
out
its
statutory
responsibilities
by
designating
attainment
and
unclassifiable
area
boundaries
for
Montana,
Wyoming,
and
Utah
that
meet
the
requirements
of
the
Clean
Air
Act.
All
documents
attached
and
cited
in
this
letter
are
hereby
incorporated
as
part
of
these
comments.

EPA
Has
Explicit
Statutory
Authority
to
Revise
States'
Proposed
Boundaries
for
Nonattainment,
Attainment,
and
Unclassifiable
Areas
The
1990
Clean
Air
Act
Amendments
eliminated
any
possible
doubt
about
EPA's
authority
to
revise
designations
and
boundaries
for
nonattainment,
attainment
and
unclassifiable
areas.
Section
107
empowers
the
EPA
Administrator
to
"
make
such
modifications
as
the
Administrator
deems
necessary
to
the
designations
of
the
areas
(
or
portions
thereof)
submitted
under
subparagraph
(
A)
(
including
to
the
boundaries
of
such
areas
or
portions
thereof)."
6
This
language
marks
a
deliberate
and
significant
shift
from
the
corresponding
section
in
the
previous
version
of
the
Clean
Air
Act.
The
Clean
Air
Act
Amendments
of
1977
simply
authorized
the
Administrator
to
promulgate
lists
of
nonattainment,
attainment,
and
unclassifiable
areas
submitted
by
the
States
"
with
such
modifications
as
he
deems
necessary."
7
The
inclusion
of
language
on
boundary
designations
plainly
gives
EPA
the
authority
to
modify
the
boundaries
of
the
states'
designated
areas,
and
makes
it
clear
that
EPA's
authority
is
not
simply
limited
to
reclassifying
the
status
of
specified
areas.

Even
before
the
1990
Amendments
made
this
authority
express,
the
courts
confirmed
that
EPA
had
the
power
to
revise
area
boundaries.
In
Western
Oil
&
Gas
Ass'n
v.
EPA,
the
Ninth
Circuit
Court
of
Appeals
noted
that
the
Clean
Air
Act
provides
"
considerable
EPA
discretion
in
5
National
Park
Service,
Air
Quality
in
the
National
Parks,
2002;
http://
www2.
nature.
nps.
gov/
air/
Pubs/
index.
htm
see
Presentation
on
current
GPRA
Trends
from
1993­
2002
(
power
point
presentation).
6
42
U.
S.
C.
§
7407(
d)(
1)(
B)(
ii)
(
emphasis
added).
7
95
Cong.
Public
Law
95.
4
designating
area
boundaries
large
enough
to
achieve
the
purposes
which
underlie
the
classification
scheme."
8,9
EPA
Revision
of
Montana's,
Utah's,
and
Wyoming's
Attainment/
Unclassifiable
Area
Boundaries
Is
"
Necessary"
to
Fulfill
the
Statutory
Requirements,
Purposes
and
Goals
of
the
PSD
Program
Not
only
does
EPA
have
the
authority
to
revise
boundaries
of
attainment/
unclassifiable
areas,
in
the
cases
at
issue
it
must
do
so
to
achieve
the
statutory
goals
of
the
PSD
program.
The
D.
C.
Circuit
Court
of
Appeals
has
instructed
EPA
to
implement
the
Clean
Air
Act's
PSD
program
in
a
manner
consistent
with
PSD
program
goals.
10
As
examined
below,
the
states'
recommendations
are
so
manifestly
damaging
to
the
interwoven
fabric
of
the
PSD
program
that
it
is
"
necessary"
for
EPA
to
reject
their
recommendations,
as
called
for
under
section
107.

The
PSD
program
limits
the
deterioration
of
air
quality
in
attainment
and
unclassifiable
areas.
A
principal
means
for
ensuring
that
air
quality
does
not
worsen
significantly
is
the
establishment
of
baseline
areas
and
application
of
PSD
increment
requirements.
11
For
example,
section
163(
a)
of
the
Clean
Air
Act
provides
that:
"
In
the
case
of 
particulate
matter,
each
applicable
implementation
plan
shall
contain
measures
assuring
that
maximum
allowable
increases
over
baseline
concentrations
of,
and
maximum
allowable
concentrations
of,
such
pollutant
shall
not
be
exceeded."
12
As
noted
above,
since
EPA
has
promulgated
a
new
NAAQS
for
PM2.5,
it
has
an
affirmative
duty
under
Section
166
to
promulgate
accompanying
regulations,
including
increments
or
other
equally
effective
measures,
to
prevent
significant
deterioration
of
air
quality.
13
Under
EPA's
current
PSD
increment
scheme,
establishing
small,
arbitrary
attainment/
unclassifiable
areas,
as
Montana,
Wyoming,
and
Utah
proposed
to
do,
would
contravene
the
PSD
program
goals
of
protecting
public
health,
preserving
air
quality
in
areas
of
special
scenic
and
natural
value,
assuring
economic
fairness
among
states,
and
preserving
program
administrability.
Unreasonably
small
areas
frustrate
the
statutory
goal
of
the
PSD
program
"
to
protect
public
health
and
welfare
from
any
actual
or
potential
adverse
effect
which
in
[
EPA's]
judgment
may
reasonably
be
anticipated
to
occur
from
air
pollution 
notwithstanding
attainment
and
maintenance
of
all
national
ambient
air
quality
standards."
14
By
creating
small
baseline
areas,
states
reduce
the
likelihood
that
a
major
pollution
8
767
F.
2d
603,
606
(
9th
Cir.
1985).
9
It
is
also
important
to
note
that
the
recent
Ninth
Circuit
decision
in
Reno­
Sparks
Indian
Colony
v.
EPA
pertaining
to
Nevada's
baseline
areas
does
not
limit
the
EPA's
authority
to
revise
states'
boundary
designations.
This
case
did
not
dispute
EPA's
ability
to
revise
area
boundaries.
Rather,
it
merely
addressed
the
factual
questions
of
whether
EPA
intended
in
1978
to
adopt
the
areas
that
Nevada
had
proposed
and
whether
EPA
had
subsequently
taken
action
to
revise
the
boundary
designations.
In
other
words,
this
case
did
not
resolve
on
the
merits
the
question
of
whether
EPA
can
properly
approve
finely
subdivided
attainment
areas.
10
Envtl.
Defense
Fund,
Inc.
v.
EPA,
898
F.
2d
183
(
D.
C.
Cir.
1990).
11
Alabama
Power
Co.
v.
Costle,
636
F.
2d.
323,
374
(
D.
C.
Cir.
1979).
12
42
U.
S.
C.
§
7473(
a).
13
42
U.
S.
C.
§
7476(
a).
See
also
52
Fed.
Reg.
24672
(
July
1,
1987);
54
Fed.
Reg.
41218
(
Oct.
5,
1989);
58
Fed.
Reg.
31622
(
June
3,
1993)
(
recognizing
the
requirement
that
EPA
promulgate
PSD
regulations
for
PM10
after
it
established
a
NAAQS
for
this
size
range
of
particulate
matter).
14
42
U.
S.
C.
§
7470(
1).
5
source
has
triggered
the
baseline
date
by
applying
for
a
permit
in
any
given
area.
Therefore,
states
would
have
many
attainment
areas
in
which
minor
pollution
sources
could
locate
without
consuming
PSD
increment.

The
proposed
area
designations
would
also
thwart
the
federal
government's
responsibility
to
protect
Class
I
areas
and
undermine
the
purpose
of
the
PSD
program
"
to
preserve,
protect,
and
enhance
the
air
quality
in
national
parks,
national
wilderness
areas,
national
monuments,
national
seashores,
and
other
areas
of
special
national
or
regional
natural,
recreational,
scenic
or
historic
value."
15
If
states
can
subdivide
their
attainment
areas
too
finely,
Class
I
areas
could
be
left
without
the
protection
of
PSD
increments
at
all.

Third,
the
creation
of
unreasonably
small
areas
frustrates
Congress'
goal
of
economic
equity
and
fairness.
As
the
Supreme
Court
recently
noted
in
Alaska
v.
EPA,
the
House
Report
on
the
1977
Amendments
to
the
Clean
Air
Act
stated
that
national
guidelines
help
prevent
a
state
from
becoming
"
the
target
of
`
economic­
environmental
blackmail'
from
new
industrial
plants
that
will
play
one
state
off
against
another
with
threats
to
locate
in
whichever
state
adopts
the
most
permissive
pollution
controls."
16
In
Alaska,
the
Supreme
Court
found
that
EPA
surveillance
of
state
BACT
designations
under
the
PSD
program
could
help
prevent
such
"
interjurisdictional
pressures."
17
State
boundary
designations
present
parallel
concerns.
Historically,
most
states
have
requested
designation
of
a
single
attainment/
unclassifiable
area
 
the
"
rest
of
the
state"
that
was
not
nonattainment
­­
or
of
relatively
large
attainment
areas
that
correspond
to
natural
topographic
airsheds.
Allowing
some
states
to
establish
excessively
small
attainment/
unclassifiable
areas
defeats
the
goal
of
evenhandedness
among
states
because
it
allows
industry
to
operate
in
more
locations
in
a
particular
state
without
being
subject
to
important
PSD
program
requirements.
This
incentive
for
industry
is
unfair
to
other
states
that
carry
out
their
PSD
responsibilities
in
a
manner
that
is
consistent
with
the
spirit
of
the
law
and
that
is
designed
to
provide
meaningful
protection
for
air
quality.

Finally,
the
creation
of
numerous
attainment/
unclassifiable
areas
runs
counter
to
the
goal
of
administrability
of
the
PSD
program.
For
the
PSD
program
in
particular,
the
1980
EPA
rules
recognized
that
"`
postage
stamp'
baseline
areas
would
be
difficult
to
administer."
18
Different
baseline
dates
might
be
triggered
in
many
different
attainment
areas
within
a
state,
so
that
assessment
of
new
source
impacts
would
require
use
of
multiple
inventories
and
consideration
of
completely
different
sets
of
sources
to
evaluate
cumulative
increment
consumption.

Montana,
Utah
and
Wyoming's
Proposed
Attainment/
Unclassifiable
Boundaries
are
Unsupportable
in
the
Face
of
EPA's
Failure
to
Promulgate
PSD
Requirements
for
PM2.5
The
attainment
area
boundary
requests
made
by
Montana,
Utah
and
Wyoming
shine
a
bright
light
on
EPA's
own
failure
to
promulgate
PSD
provisions
for
PM2.5.
While
EPA
should
have
15
42
U.
S.
C.
§
7470(
2).
16
Alaska
Dep't
of
Envtl.
Conservation
v.
EPA,
124
S.
Ct.
983,
995
(
2004);
H.
R.
Rep.
No.
95­
294,
p.
134
(
1977).
17
Alaska,
124
S.
Ct.
at
995.
18
45
Fed.
Reg.
52,716
(
Aug.
7,
1980).
6
promulgated
PSD
regulations
for
PM2.5
within
two
years
after
it
established
the
new
NAAQS,
the
Agency
is
still
operating
under
an
interim
policy
that
unjustifiably
equates
PM2.5
with
PM10.19
PM2.5
and
PM10
cannot
rationally
be
equated
for
purposes
of
the
PSD
program,
because
they
have
distinct
sources,
different
chemical
composition,
different
behavior
in
the
atmosphere,
different
exposure
patterns
and
significantly
different
effects
on
human
health,
ecosystems
and
visibility.
20
It
defies
logic
that
EPA
would
consider
the
attainment
area
subdivisions
proposed
by
Montana,
Utah
and
Wyoming
before
first
establishing
PSD
requirements
for
this
pollutant.
EPA's
own
regulations
has
historically
presumed
that
PSD
baseline
areas
would
cover
the
entire
state,
outside
of
designated
nonattainment
areas.
21
At
the
very
least,
EPA's
existing
PSD
regulations
require
that
"
Area
redesignations
under
section
107(
d)(
1)(
D)
or
(
E)
of
the
Act
cannot
intersect
or
be
smaller
than
the
area
of
impact
of
any
major
stationary
source
or
major
modification
which
establishes
a
minor
source
baseline
date
 "
22
For
PM2.5,
EPA
has
not
yet
even
determined
how
the
area
of
impact
for
major
stationary
sources
or
modifications
would
be
measured.

Due
to
the
well­
recognized
potential
for
long
distance
transport
of
PM2.5
and
its
precursors,
designation
of
sufficiently
large
PSD
baseline
areas
is
especially
important
for
this
pollutant.
Because
pollutant
impacts
do
not
respect
state
political
subdivisions
or
standardized
grids,
setting
area
boundaries
along
these
lines
is
arbitrary
and
capricious
and
does
not
support
the
functional
purposes
that
baseline
area
boundaries
must
serve
under
the
PSD
program.
To
be
consistent
with
its
long­
standing
interpretive
requirements
and
policy,
EPA
should
not
even
consider
approving
Utah,
Wyoming
or
Montana's
proposed
designations
until
it
first
adopts
framework
PSD
regulations
for
PM2.5
so
that
it
can
rationally
assess
their
implications.
Once
EPA
has
done
so,
it
should
further
require,
consistent
with
its
own
regulations,
attainment
area
boundaries
that
satisfy
the
functional
requirements
and
purposes
of
baseline
areas
under
the
PSD
provisions
of
the
Clean
Air
Act.
In
the
absence
of
these
steps,
EPA
should
require
that
the
states
adhere
to
the
default
assumption
that
the
attainment
portion
of
each
of
these
states
comprises
a
single
attainment/
unclassifiable
area
for
PSD
baseline
purposes.

Conclusion
In
summary,
it
is
critical
to
the
protection
of
air
quality
that
EPA
not
allow
Montana,
Utah
or
Wyoming
to
designate
unreasonably
small
boundaries
for
their
attainment
and
unclassifiable
areas
for
PM2.5.
If
EPA
fails
to
do
so,
it
will
be
disregarding
Congress's
intent
to
protect
existing
air
quality
that
is
better
than
the
NAAQS
through
the
PSD
program,
since
failing
to
trigger
PSD
increment
protections
in
significant
portions
of
these
states
would
result
in
those
areas
simply
being
governed
by
the
NAAQS.
Designation
of
PM
2.5
areas
based
on
arbitrary
grid
or
jurisdictional
boundaries
within
a
state
would
also
constitute
arbitrary
and
capricious
19
Seitz,
J.
S.
"
Interim
use
of
PM10
as
a
surrogate
for
PM2.5
in
meeting
NSR",
memorandum,
U.
S.
Environmental
Protection
Agency,
Office
of
Air
Quality
Planning
and
Standards,
Oct.
24,
1997.
20
Fourth
External
Review
Draft
of
Air
Quality
Criteria
for
Particulate
Matter,
EPA/
600/
P­
99/
002AD,
June
2003;
Air
Quality
Criteria
for
Particulate
Matter,
May
1,
1996;
Review
of
National
Ambient
Air
Quality
Standards
for
Particulate
Matter:
Policy
Assessment
of
Scientific
and
Technical
Information,
Office
of
Air
Quality
Planning
and
Standards
Staff
Paper,
EPA­
452\
R­
96­
013,
July
1996.
21
40
CFR
81.300.
22
40
CFR
§
52.21(
b)(
15)(
ii).
7
agency
action,
because
such
boundaries
bear
no
conceivable
relationship
to
any
of
the
relevant
requirements
or
purposes
of
the
Act.
Finally,
to
make
PSD
protections
meaningful,
EPA
is
also
obligated
to
promulgate
PSD
regulations
for
PM2.5,
as
required
under
Section
166
of
the
Clean
Air
Act.

Thank
you
for
your
consideration
of
our
concerns.

Sincerely,

Jana
Milford
Senior
Scientist
Environmental
Defense
2334
North
Broadway
Boulder,
CO
80304
(
303)
440­
4901
James
D.
Jensen
Executive
Director
Montana
Environmental
Information
Center
P.
O.
Box
1184
Helena,
MT
59624
(
406)
443­
2520
John
D.
Walke
Director,
Clean
Air
Program
Natural
Resources
Defense
Council
1200
New
York
Ave.,
NW,
Suite
400
Washington,
DC
20009
(
202)
289­
6868
Jill
Morrison
Sheridan
Organizer
Powder
River
Basin
Resource
Council
23
N.
Scott
Sheridan,
WY
82801
(
307)
672­
5809
Dan
Heilig
Executive
Director
Wyoming
Outdoor
Council
262
Lincoln
Street
Lander,
Wyoming
82520
(
307)
332­
7031
ex
12
Attachments:

A.
Environmental
Defense
v.
Norton,
Complaint
filed
in
the
United
States
District
Court
for
The
District
Of
Montana,
Billings
Division.

B.
Technical
Support
Document,
Air
Quality
Impact
Assessment
for
the
Montana
Statewide
Final
Oil
and
Gas
EIS
and
Proposed
Amendment
of
the
Powder
River
and
Billings
Resource
Management
Plans
and
the
Wyoming
Final
EIS
and
Planning
Amendment
for
the
Powder
River
Basin
Oil
and
Gas
Development
Project,
Argonne
National
Laboratory,
December
2002.

C.
Argus,
U.
S.
New
Power
Projects,
spreadsheet,
July
2004.
