### BEFORE THE UNITED STATES **ENVIRONMENTAL PROTECTION AGENCY**

**TREASU RE STATE RESOURCE**  **INDUSTRY ASSOCIATION and**  **YELLOWSTONE COUNTY , A**  **POLITICAL SUBDIVISION OF THE STATE OF MONTANA**  **Petitioners, In the Matter of: Air Quality**  **Designations for the 2010 Sulfur Dioxide (SO**  **2** 

### ) Primary National **Ambient Air Quality Standard 78 Fed. Reg. 47,191 (Aug. 5, 2013)**  **EPA Dock et #: EPA** 

**– HQ** 

**– OAR** 

**– 2012** 

**– 0233** 

**PETITION FOR RECONSIDERATION OR REPEAL OF A PORTION OF**  **THE FINAL RULE AND REQUEST FOR AN ADMINISTRATIVE STAY**

**PENDING AGENCY PROCEEDINGS**

William W . Mercer Em ily C. Schilling Marie Bradshaw Durrant HOLLAND & HART, LLP 222 South Main, Suite 2200 Salt Lake City, UT 84101 wwm ercer@hollandhart.com ecschilling@hollandhart.com mb durrant@hollandhart.com Counsel for 

### the Treasure State Resource Industry Association Daniel L. Schwarz YELLOWSTONE COUNTY ATTORNEY’S OFFICE 217 N. 27 th 

### Street, Room 207 P.O. Box 35025 Billings, MT 59107
- 5025

Yellowstone County Chief Civil Deputy County Attorneyi **TABLE OF CONTENTS** Introduction
................................ ................................ ................................ ................................ ..... 1 Factual Background
................................ ................................ ................................ ......................... 2 Argument
................................ ................................ ................................ ................................ ......... 4 I. This Petition is Based on New Information that is of Central Relevance to the Outcome of the Rule.
................................ ................................ ......................... 4 II. Newl y Available Air Quality Data for Yellowstone County Clearl y Demonstrate Attainment for Yellowstone Count y. ................................ ................. 6 **a.** The most recent block of three
- ye ar monitoring data after the effective date of the SO 2 NAAQS demonstrate design values well below 75 ppb.
................................ ................................ .............................. 6 **b.** The New Data underscore the arbitrary nature of EPA’s conclusion that 2010 data are representative of the air quality in Yellowstone County
. ................................ ................................ ................................ ........ 8 III. The Nonattainment Process I s Unnecessary to Achieve the 2010 SO 2 NAAQS or Protect Public Health.
................................ ................................ ........... 9 IV
. The New Data Further Call into Question the Pre
- Effective Date Data from the Coburn Road Monitor.
................................ ................................ ............ 12 **a.** The 1996 MDEQ QAPP was inadequate and inappropriate to ensure the collection of reliable, high
- quality measurements for the more stringent 2010 SO 2 NAAQS.
................................ ............................ 14 **b.** The Coburn Road monitor did not meet strict quality assurance requirements for the 2009
- 2011 data set.
................................ .................. 17 **c.** The New Data were collected after the operating range for the Coburn Road monitor was adjusted to more reliably collect data for the 2010 SO 2 NAAQS.
................................ ................................ ........ 21 **d.** Similarly , the New Data were collected after the 2010 SO 2 NAAQS was in effect, allowing for more appropriate attention to outliers and transient monitoring malfunctions for the 75 ppb standard.
................................ ................................ ................................ ..... 22 **e.** The New Data provide additional evidence that 2010 data do not represent the air quality

in Yellowstone County
. ................................ ...... 23 V. The New Data Were Gathered with the 2010 SO 2 NAAQS Appropriately In Effect.
................................ ................................ ................................ ................ 25 VI
. EPA Should Stay

the Yellowstone County

Portion of the Rule
............................ 28 VII. Conclusion
................................ ................................ ................................ ............. 311 

### I **NTRODUCTION** On August 5, 2013, the Environmental Protection Agency (EPA) issued the final rule titled “Air Quality

Designations for the 2010 Sulfur Dioxide (SO 2 ) Primary National Ambient Air Quality

Standard,” (National Nonattainment Designations or Rule), 1 which designated as nonattainment a portion of Yellowstone County , Montana (Yellowstone SO 2 Designation). Treasure State Resource Industry Association (TSRI A), a Montana trade association whose mission is to promote and advocate for responsible natural resource development and reasonable environmental regulation in Montana, 2 and Yellowstone County , MT, a political subdivision of the State of Montana (together, Petitioners), submit this petition to EPA pursuant to section 307(d)(7)(B) of the Clean Air Act (CAA) 3 and section 553(e) of the Administrative Procedure Act (APA) (the Petition). 4 The Petition focuses narrowly on the Yellowstone SO 2 Designation and requests that EPA (1) reconsider and repeal the Yellow stone SO 2 Designation based on new data demonstrating that no portion of Yellowstone County should have been designated nonattainment for the 2010 SO 2 NAAQS; and (2) stay the Yellowstone SO 2 Designation pending completion of EPA’s administrative proceeding s. 5 This petition incorporates by reference, and supplements, the petition for reconsideration submitted to EPA by Montana Sulphur & Chemical Company (MSCC) on October 4, 2013. 6

1 78 Fed. Reg. 47,191 (Aug. 5, 2013). 2 TSRIA’s member companies in Yellowstone County include PPL Montana, LLC, which owns and operates the J.E. Corette coal
- fired pow er plant, as well a s Phillips 66 and ExxonMobil, which own and operate petroleum refineries, Yellowstone Energy Limited Partnership, which owns and operates a petroleum coke
- fired pow er plant, and Montana Sulphur & Chemical Company, which owns and operates a gas processing a nd fertilizer plant. 3 42 U.S.C. § 7607(d)(7)(B). 4 5 U.S.C. § 553(e). 5 TSRIA also has filed a petition for review of EPA’s Yellowstone SO 2 Designation in the U.S. Court of Appeals for the District of Columbia Circuit, which was consolidated w ith other pe titions for review as Sierra Club v. EPA (D.C. Cir. No. 13
- 1262, 13
- 1263, 13
- 1264). 6 MSCC, Petition for Reconsideration: Air Quality Designations for the 2010 Sulfur Dioxide (SO 2 ) Primary National Ambient Air Quality Standard, Yellowstone County, Montana (Oct. 4, 2013), EPA
- HQ
- OAR
- 2012
- 0233
- 0356.2 

### F **ACTUAL** 

### B **ACKGROUND** On June 22, 2010, EPA promulgated a primary SO 2 NAAQS of a one - hour SO 2 concentration of 75 ppb, based on the three
- ye ar average of the 99th percentile (or annual fourth highest) one
- hour daily

maximum concentrations (2010 SO 2 NAAQS). 7 The secondary SO 2 standard of a three
- hour concentration of 500 ppb remained in place and provides the closest comparable federal standard to the new 75 ppb standard for purposes of measuring ambient SO 2 concentrations over short averaging times. Pursuant to Section 107(d) of the CAA, no later than one y ear from promulgation of a new standard, states are required to submit initial designations of all areas of the state to EPA as either attainment, nonattainment, or unclassifiable. 8 On May 27, 2011, the state of Montana (State) timel y submitted its initial designations to EPA, inc luding a designation of unclassifiable for the entiret y of Yellowstone County. 9 In August 2012, EPA exercised its conditional authority under the CAA to extend by one ye ar the final promulgation of initial area designations for the 2010 SO 2 NAAQS on grounds the Agency had “insufficient information to promulgate the designations.” 10 EPA published notice of its proposed designations on February 15, 2013, and requested comment on those designations. 11 EPA proposed to designate as nonattainment 30 areas where available monitoring data from 2009 through 2011 indicated violations of the one
- hour SO 2 NAAQS. 12

7 EPA, Primary National Ambient Air Quality Standard for Sulfur Dioxide, 75 Fed. Reg. 35520 (June 22, 2010). 8 42 U.S.C. § 7407(d)(1)(A). 9 Montana State
- Wide Sulfur Dioxide (S0 2 ) NAAQS Designations, Letter f rom Richard H. Opper, Director MDEQ on behalf of Governor Brian Schweitzer to EPA Region 8 (May 27, 2011). 10 42 U.S.C. § 7407(d)(1)(B)(i). EPA, Extension of Deadline for Promulgating Designations for the 2010 Primary Sulfur Dioxide National. Ambient Air Q uality Standard, 77 Fed. Reg. 46,295 (Aug. 3, 2012); 11 EPA, EPA Responses to State and Tribal 2010 Sulfur Dioxide Designation Recommendations: Notice of Availability and Public Comment Period, 78 Fed. Reg. 11,124 (Feb. 15, 2013). 12 Id . at 11,126.3

One of those areas was the entiret y of Yellowstone County, Montana. 13 EPA stated that it was not prepared to designate the remainder of the country , or seek related comment thereon, and would “address those areas in a subsequent round or multiple rounds of responses and designations.” 14 A coalition of interested parties, including TSRIA, submitted comments to EPA opposing the Yellowstone County

designation o n grounds that: (1) EPA relied on non
- representative data that do not accuratel y portray the air quality in Yellowstone County ; (2) EPA used data that do not strictly

compl y with EPA regulatory requirements; and (3) EPA relied on air quality data obtained before the new SO 2 NAAQS became effective (TSRIA Comments). 15 The State also submitted comments reasserting that the entiret y of Yellowstone County should be designated unclassifiable and that the SO 2 monitoring data collected in the Billings area during 2010 should not be used to designate Yellowstone County as nonattainment. 16 The statutory deadline of June 22, 2013 17 for EPA to promulgate all initial designations passed without EPA action. 18 On August 5, 2013, EPA published the Rule, which designates as nonattainment a portion of Yellowstone County

surrounding PPLMontana’s J.E. Corette coal
- fired power plant (Corette). 19

13 EPA excluded areas of Indian country associated with the Crow reservation from the proposed Yellow stone County nonattainment area. Jim Martin, EPA Region 8 Administrator letter to Steve Bullock, Governor of Montana, regarding EPA’s proposed designation o f Yellowstone County as nonattainment, Ref: 8P
- AR (Feb. 6, 2013), Docket EPA
- HQ
- OAR
- 2012
- 0233
- 0198. 14 78 Fed. Reg. at 11,124. 15 See Comments from Montana Petroleum Association, Treasure State Resource Industry Association, and Billings Laurel Air Quality T echnical Committee to EPA (Apr. 8, 2013), Docket EPA
- HQ
- OAR
- 2012
- 0233
- 0285. 16 Steve Bullock, Governor of Montana, Letter to EPA Region 8 Regarding EPA’s Proposed Montana Sulfur Dioxide (S02) NAAQS Designations, April 3, 2013. Under threat of EPA’s propose d county
- wide designation, and registering due protest, the State also submitted an alternative five
- factor analysis in case EPA again rejected its proposed unclassifiable designation. 17 See CAA § 107(d)(1)(B)(i); 42 U.S.C. § 7407(d)(1)(B)(i ) (“the Administrator shall promulgate the designations of all areas . . . in no case later than 2 years from the date of promulgation of the new or revised national ambient air quality standard. Such period may be extended for up to one year in the event the Administrator has insufficient information to promulgate the designations.”). 18 Because EPA did not act by this deadline, technically the area should have retained the unclassifiable designation made by the State. 19 78 Fed. Reg. at 47,202.4

The majority

of the United States, however, remained undesignated; EPA stated that it was “not ye t prepared to issue designations” and would address these designations in “separate future actions . . .” 20 

### A **RGUMENT I.**  **This Petition is Based on New Information that is of Central Relevance to the Outcome of the Rule.**  Petitioners request that EPA reconsider and repeal the Yellowstone SO 2 Designation based on new information that became available after the close of the public comment period, is of central relevance to the outcome of the Rule, and supports a repeal of the Designation. 21 Specificall y, Yellowstone County, Montana, presents a unique case, and the new data demonstrate that it should not have been included in the National Nonattainment Designations for the following reasons: (1) the air qualit y in Yellowstone County does not exceed the 2010 SO 2 NAAQS; (2) sufficient permanent and enforceable controls are in place to assure continued attainment, making the requirements for a nonattainment State Implementation Plan (SI P) and a redesignation process unnecessary ; (3) EPA’s design value alleging exceedance of the 2010 SO 2 NAAQS falls within the measurement margin of error and was based on unrepresentative and unreliable data; and (4) by rely ing on data gathered after the effective date of the 2010 SO 2 NAAQS Rule, EPA can avoid problems associated with retroactive application of the Ru le. These new data and information, set forth in greater detail below, arose after the close of the public comment period and before the deadline for judicial review and therefore appropriatel y form the basis for reconsideration under section 307(d)(7)(B) of the CAA and a proceeding to repeal the Yellowstone Designation under section 553(e) of the APA.

20 Id . at 47 ,193. 21 42 U.S.C. § 7607(d)(7)(B). See also 5 U.S.C. § 553(e).5

Pursuant to section 307(d)(7)(B) of the CAA, reconsideration is appropriate where it was “impracticable to raise” a particular objection within the comment period, or “if the grounds for such objection arose after the period for public comment (but within the time specified for judicial review) and if such objection is of central relevance to the outcome of the rule . . . .” 22 The statute does not specify a deadline by

which such a petition must be submitted, as long as the grounds for the objection arose (1) after the conclusion of the public comment period, but (2) within the 60
- day

period specified for judicial review. 23 Inthis case, the Petition is base d on monitoring data and related information that are central to the outcome of the Yellowstone SO 2 Designation and occurred after the close of the public comment period but prior to the October 4, 2013 deadline for judicial review of the Rule. Furthermo re, EPA has a duty to respond to this Petition pursuant to general principles of administrative law. As set forth in Oljato , “the public’s right to petition the Administrator . . . and the Administrator’s duty to respond substantively

to such requests exi st completely independentl y of Section 307 . . .” 24 Section 553(e) of the APA requires an agency to provide “an interested person the right to petition for the issuance, amendment, or repeal of a rule.” 25 When presented with a petition under section 553(e) of the APA, “an agency is required to at least definitel y respond . . .” 26 This petition raises substantive new data and information that form compelling grounds for repeal of the Yellowstone SO 2 Designation. The Clean Air Act directs the Administrator to base NAAQS designations on the State’s initial designation as well as “air qualit y data, planning and control considerations, or an y other

22 42 U.S.C. § 7607(d)(7)(B). 23 Id
. See also Oljato Chapter of the Navajo Tribe v. Train , 515 F.2d 654, 660 (D.C. Cir. 1975) (“new inform ation” that comes to light in the period after the en d of the comment period may “dictate a revision or modification of any promulgated standard or regulation established under the act.”) (citing S. Rep. No. 91
- 1196, 91st Cong., 2d Sess., 41
- 42 (1970)). 24 Oljato v. Train , 515 F.2d at 667. 25 5 U.S.C. § 55 3(e). 26 Friends of the Earth v. EPA , 934 F. Supp.2d 40, 54 (D.D.C. 2013) (citations omitted).6

air quality
- related considerations the Administrator deems appropriate . . . .” 27 The information outlined below pro vides EPA with compelling air quality data, planning and control considerations, and other air quality
- related considerations to reconsider and repeal the Yellowstone SO 2 Designation. **II. Newly Available Air Quality Data for Yellowstone County Clearly Demonstr**  **ate Attainment for Yellowstone County.**  The results of monitoring gathered after the effective date of the Rule verify that the air quality in Yellowstone County

complies with the 2010 SO 2 NAAQS (New Data). 28 These air quality data demonstrate attainment pursuant to CAA § 107(d)(1)(A)(ii) and demonstrate that EPA’s Yellowstone SO 2 Designation was in error and should be reconsidered and repealed. EPA therefore should provide the same procedural rights and consideration of the New Data as would have been gran ted had the information been available at the time the rule was proposed and initiate administrative proceedings to reconsider and repeal the Yellowstone SO 2 Designation. 29
**a. The most recent block of three**  **- year monitoring data after the effective date**  **of the SO**  **2 NAAQS demonstrate design values well below 75 ppb.**  The New Data provide the first three
- year block of monitoring data since August 23, 2010, the effective date of the 2010 SO 2 NAAQS. 30 This full three
- ye ar data set, on which Petitioners base this Peti tion, was not complete until after the close of the comment period on

27 See CAA § 107(d)(3)(A); 42 U.S.C. § 7407(d)(3)(A). While this sub
- section of the CAA pertains to redesignation, these considerations apply equally to promu lgation of initial designations under Section (d)(1)(A) and (B), which require that an area “meets the national primary . . . ambient air quality standard for the pollutant” and allows the Administrator discretion as “necessary” and as long as it is not “i nappropriate.” CAA § 107(d)(1)(B)(ii); 42 U.S.C. § 7407(d)(1)(B)(ii). 28 The new

results will be validated early next year. EPA has traditionally used full calendar years of validated data for comparison with the NAAQS. Validation will verify the signifi cance of the Ne w Data and can only decrease the final concentration values by eliminating invalid high readings. No increase in the magnitude of the readings is possible w ith validation. 29 42 U.S.C. § 7607(d)(7)(B); 5 U.S.C. § 553(e). 30 See 75 Fed. Reg. 3 5520, 35520.7

April 8, 2013, and therefore Petitioners could not raise the data during the comment period. 31 The first three
- ye ar block of New Data after the effective date (September 1, 2010 through August 31, 2012) was gathered prior to the October 4, 2013 deadline for judicial review and demonstrates attainment of the 2010 SO 2 NAAQS. 32 The chart below illustrates the latest data available from the Montana Department of Environmental Quality (MDEQ), with the 99th percentile value for 2013 based on data through November 3, 2013. 33 Petitioners plan to submit monthly data updates to EPA as they become available through the end of the 2013 calendar ye ar, including final validated data.

31 See EPA, EPA Responses to State and Tribal 2010 Sulfur Dioxide Designation Recommendations: Notice of Availability and Public Comment Period, 78 Fed. Reg. 17,915, 17,916 (Mar. 25, 2013). 32 Data w as obtained from EPA, Air Data, available at www.epa.gov/airdata
. 33 Data after September 30, 2013, w ere obtained from an MDEQ email from Stephen Coe to James Parker regarding Coburn Info (Nov. 6, 2013) (included in Attachment A).8

In addition to dem onstrating attainment, the New Data confirm State and stakeholder assertions that the 2009
- 2011 data that EPA relied on to make the nonattainment designation were unreliable, nonrepresentative, and not in accordance with the law. 34 Inaddition, the New Dat a verify

the State’s conclusion that the air quality in Yellowstone County

complies with the 2010 SO 2 NAAQS and a nonattainment designation is unnecessary. Expert anal ys is of these data, performed b y consultants for TSRI A, 35 establishes that Yellowstone County is attaining the 2010 SO 2 NAAQS and provides further evidence that a nonattainment designation was improperly

applied to Yellowstone County
. A more detailed presentation of the monitoring results and associated analys es are included as Attachment A. The New Data provide EPA with compelling and lawful grounds to reconsider and repeal the Yellowstone SO 2 Designation. **b. The New Data underscore the arbitrary nature of EPA’s conclusion that**  **2010 data are representative of th e air quality in Yellowstone County.**  In addition, the New Data are of central relevance to the outcome of the Rule because they provide further evidence that EPA’s reliance on 2010 data to make the Yellowstone SO 2 Designation resulted in the erroneous designation of a portion of Yellowstone County as nonattainment. In the Technical Support Document (TSD), EPA reached the flawed and unreasonable conclusion that “the 2009 and 2011 emissions appear to be below past emissions levels, while 2010 data appear more representative of emissions.” 36 EPA reached this conclusion by comparing 2010 emissions to 2008 emissions (which reflect a time period prior to implementation of federally enforceable controls discussed in the State and TSRI A Comments)

34 See, e.g. , TSRIA Comments, Docket EPA
- HQ
- OAR
- 2012
- 0233
- 0285. 35 Bison Engineering, Inc. provided the analyses in Attachments A and B. 36 EPA, Technical Support Document: Montana Area Designations for the 2010 SO 2 Primary National Ambient Air Quality Standard, July 25, 20 13, at 10.9

and ignoring 2012 data presented b y the State and other commenters, even though EPA acknowledged possessing and anal yz ing 2012 data. 37 EPA also failed to consider 2010 in isolation from surrounding ye ars, as requested b y the State and industry , and chose instead to consider onl y consecutive three
- year averages, which extend the unrepresentative effects of 2010 from 2008 through 2011. 38 Inessence, EPA’s TSD and Response to Comments (RTC) ignore the State’s request to take account o f additional data showing that 2010 data do not represent the air quality

of Yellowstone County

based on fault y reasoning and incomplete comparisons. Rather than using unrepresentative data, EPA should evaluate Yellowstone County ’s designation based on the New Data, which are more current, representative, and reliable, and appropriatel y reflect air quality during a time period after the effective date of the 2010 SO 2 NAAQS. **III. The Nonattainment Process Is Unnecessary to Achieve the 2010 SO**  **2 NAAQS or**  **Protect Public Health.**  The New Data confirm that the requirements for a nonattainment area in Yellowstone County are unnecessary

to protect public health. Furthermore, an unnecessary nonattainment designation would waste valuable time and divert essential personn el resources of MEDQ and EPA, entail superfluous and expensive control technologies for industry in Yellowstone County , and subject sources within Yellowstone County to costly and overl y predictive modeling requirements. 39 Even taking into consideration th e provisions outlined in EPA’s recently released draft “Clean Data” policy , 40 the processes to demonstrate attainment as well as the

37 See, e.g. , EPA, Responses to Significant Comments on the State and Tribal Designation Recommendations for the 2010 Sulfur Dioxide National Ambient Air Quality Standards, July 2013, Docket No. EPA
- HQ
- OAR
- 2012
- 0233, at 52
- 53
. 38 See, e.g. , EPA T SD at 8
- 9. 39 See, e.g. , Dana Wood and Doug Blewitt, Are EPA Regulatory Models Capable of Providing Accurate Estimates of Future Air Quality? at 6, presented at EPA 10th Conference on Air Quality Modeling (Mar. 13
- 15, 2012), available at http://www.epa.gov/ttn/scram/10thmodconfpres.htm (last visited Nov. 25, 2013). 40 See EPA, Draft Guidance for 1
- Hour SO 2 Nonattainment Area SIP Submissions, at 45
- 52 (Oct. 28, 2013).10

requirements for redesignation and maintenance plans involve the same concerns of “over
regulation,” costs, and modeling. T hese planning and control considerations are relevant to EPA’s designation process, as set forth in Section 107(d)(3)(A) of the CAA, and weigh in favor of a finding that the Yellowstone SO 2 Designation should be reconsidered and repealed. Based on the Yel lowstone SO 2 Designation, MDEQ is now required to develop a nonattainment SI P and may be required to develop costly and controversial modeling before the nonattainment sanction can be removed. 41 As EPA itself recognizes, “There are serious political,
econo mic and health consequences of making . . . decision errors [for a NAAQS designation].” 42 The New Data provide further evidence of the documented downward trend of SO 2 emissions and concentrations over the past several years and the effectiveness of the numerous enforceable controls that are having, and will continue to have, a substantial effect on SO 2 levels in Yellowstone County . As argued extensivel y in the State’s initial designation and subsequent comments, a nonattainment designation is “inappropriate” and “not necessary .” 43 The NAAQS are designed with an adequate margin of safet y to protect public health. 44 The concept of a nonattainment area, and the stringent requirements tied to a nonattainment designation, are onl y intended to address the publi c health concerns for an area “that does not meet . . . the national primary . . . ambient air quality

standard for the pollutant.” 45 If an area is in compliance with the NAAQS, as Yellowstone County is, control requirements designed to

41 See id. 42 EPA, Quality Ass urance Handbook for Air Pollution Measurement Systems, Vol. II (Ambient Air Quality Monitoring Program) § 3.0, EPA
- 454/B
- 08
- 003 (Dec. 2008) (hereinafter “EPA QA Handbook”). 43 See, e.g. , Montana State
- Wide Sulfur Dioxide (S0 2 ) NAAQS Designations, Letter fro m Richard H. Opper, Director MDEQ on behalf of Governor Brian Schweitzer to EPA Region 8, at 24
- 25, May 27, 2011; see also Steve Bullock, Governor of Montana, Letter to EPA Region 8 regarding EPA’s Proposed Montana Sulfur Dioxide (S0 2 ) NAAQS Designations, April 3, 2013. 44 See, e.g. , 42 U.S.C. § 7409(b)(1); Whitman v. Am. Trucking Associations , 531 U.S. 457, 476 (2001). 45 CAA § 107(d)(1)(A)(i); 42 U.S.C. § 107(d)(1)(A)(i).11

surpass the NAAQS “ would be both costly and unnecessary .” 46 Requiring MDEQ to develop a nonattainment SI P and reduce Yellowstone County ’s SO 2 emissions, create on
- going maintenance plans, and apply for redesignation (which may require expensive and controversial modeling) ar e meaningless y et costl y procedural hurdles for an area alread y attaining the NAAQS. Moreover, existing and future planning and control considerations support the reconsideration and repeal of the Yellowstone SO 2 Designation. 47 SO 2 emissions have decline d dramaticall y in Yellowstone County over the past three decades. 48 The control requirements alread y in place for SO 2 emission sources in Yellowstone County , as well as several required future federal controls that will be implemented over the next several ye ars, ensure that the air quality in Yellowstone County

will only continue to improve. 49 As the New Data demonstrate, Yellowstone County

is already

achieving the 2010 SO 2 NAAQS with the emission controls currentl y in place, providing far more certainty f or public health than other areas of the U.S. where EPA has postponed designations with no reliable basis for assessing attainment. EPA identified Corette as the “key contributor” to past high readings at the Coburn Road monitor. 50 However, PPL has demonstrated its commitment to SO 2 reductions in the future. PPLhas announced that it will mothball Corette in 2015, 51 and an y reopening is contingent upon

46 Sierra Club v. U.S. E.P.A ., 99 F.3d 1551, 1556 (10th Cir. 1996). 47 42 U.S.C. § 7407(d)(3)(A). 48 See TSRIA Comments at 2, Docket EPA
- HQ
- OAR
- 2012
- 0233
- 0285. 49 See State Initial Designation at 19
- 24 for a full treatment of existing and projected future control requirements that will continue to bring down SO 2 em issions in Yellowstone County; see also TSRIA Comments at 4
- 8. 50 See EPA, Technical Support Document: Montana Area Designations For the 2010 SO 2 Primary National Ambient Air Quality Standard, July 25, 2013, at 13
- 14. 51 See, e.g., PPL Montana News, http://www.pplmontana.com/news/archived+news/2013/September/PPL+Montana+reaches+agreement+to+sell+hyd roe lectric+facilities.htm?WBCMODE=Pre (last visited Nov. 21, 2013).12

compliance with the federal Mercury and Air Toxic Standard (MATS) 52 and may decrease SO 2 emissions by

a further 10%. 53 PPLalso entered into a consent decree with MDEQ in 2013 to reduce SO 2 emissions by

60%. 54 The consent decree was finalized just after the close of public comments for the Yellowstone SO 2 Designation but before promulgation o f the Rule. The consent decree becomes effective upon designation of Yellowstone County as unclassifiable for the 2010 SO 2 NAAQS and based on Corette’s continued operation as an “electric utility steam generating unit” as defined under 40 C.F.R. § 63.1004 2 on or after the MATS compliance deadline of April 16, 2015. 55 Thus, if Yellowstone County is ultimately

designated unclassifiable, the Corette plant will contribute further SO 2 reductions for an area already achieving the 2010 SO 2 NAAQS
. The combinatio n of demonstrated attainment and the promise of further dramatic future SO 2 reductions highlight the futility of the Yellowstone SO 2 Designation. Because no health protections are gained b y the nonattainment designation

— which introduces real and substanti al economic harm

—reconsideration and repeal of the Yellowstone SO 2 Designation is in the public interest. **IV. The New Data Further Call into Question the Pre**  **- Effective Date Data from the**  **Coburn Road Monitor.** The New Data also are of central relevance to the outcome of the Rule because they confirm stakeholder concerns about the qualit y and reliability of pre
- effective date data from the Coburn Road monitor. EPA relied on data from a monitor that did not meet EPA’s high

52 EPA, National Emission Standards for Hazardous Air Pollutants From Coal
- and Oil
- Fired Electric Utility Steam Generating Units and Standards of Performance for Fossil
- Fuel
- Fired Electric Ut ility, Industrial
- Commercial
Institutional, and Small Industrial
- Commercial
- Institutional Steam Generating Units77 Fed. Reg. 9304 (Feb. 16, 2012). 53 See TSRIA Comments at 8. 54 Montana v. PPL Montana , No. DV 12
- 1546 (Mont. 13th Jud. Dist. May 31, 2013) (con sent decree). 55 Id
.13

standards for comparison with the NAAQ S. 56 EPA also failed to respond to comments documenting that the monitoring organization did not strictly compl y with its own and EPA’s quality assurance requirements during this period. 57 Because Yellowstone County is in a unique situation, even minor de viations and quality lapses call the data into question and could impact the designation outcome. The quality and technical accuracy

of the Coburn Road monitor before the Rule’s effective date did not meet public and stakeholder expectations to ensure the monitoring results accurately reflect the ambient air quality

in Yellowstone County
. 58 EPA’s design value (79 ppb) for the Yellowstone SO 2 Designation is only

4 ppb above the 2010 SO 2 NAAQS, meaning the difference between attainment and nonattainment fall s within the uncertainty range of the Coburn Road monitor. 59 Because the magnitude of the Coburn Road monitor’s alleged exceedance of the 2010 SO 2 NAAQS falls within the margin of error for the monitor

— meaning the difference between attainment/unclassifiab le and nonattainment is within the margin of error

— strict compliance with quality

control and monitoring standards becomes even more important to ensure reasonable public and stakeholder confidence in the final designation. Thus, EPA should reconsider and repeal the nonattainment designation, taking into account the New Data and

56 See, e.g. , 40 C.F.R. §§ 50, 53, and 58 (outlining EPA monitoring requirements); Lisa Jackson, EPA Ad ministrator, EPA Response to Petition for Reconsideration from Earthjustice, Dec. 14, 2012, available at http://www.epa.gov/airquali ty/ozonepollution/designations/2008standards/petition/respEarthJustice.pdf (hereinafter EPA WEG Response) (rejecting a request to use monitoring data to make a nonattainment designation because the mo nitors did not meet EPA regulatory standards); EPA, Draf t Technical Support Document: Iow a Area Designations for the 2010 SO 2 Primary National Ambient Air Quality Standard, at 3 (detailing how data collected while the “regulatory” monitor w as experiencing calibration problems cannot be used for nonattainment d esignation purposes), available at http://www.epa.gov/so2designations/region7r.html (last accessed Nov. 21, 2013) ; General Motors Corp. v. Costle , 631 F.2d 466, 468 (6th Cir. 1980) (upholding EPA’s rejection of third party monitoring data because of inadequate quality assurance). 57 See Attachment to Comments from Montana Chemical & Sulphur Company at 14
- 25 (May 13, 2013), Docket EPA
- HQ
- OAR
- 2012
- 0233
- 0298; TSRIA Comments at 13
- 16, Docket EPA
- HQ
- OAR
- 2012
- 0233
- 0285. 58 40 C.F.R. § 58, App. A § 2.1. 59 The margin of

error for the Coburn Road monitor has been calculated to range from
- 10 ppb to +7 ppb. See Attachment to Comments from Montana Chemical & Sulphur Company at 22 (May 13, 2013), Docket EPA
- HQ
OAR
- 2012
- 0233
- 0298; TSRIA Comments, at 18, n. 56 (citing Billings Laurel Air Quality Technical Committee (BLAQTC), SO 2 Designation: Analysis and Recommendation For Billings/Laurel, Montana, April 5, 2011, at 22).14

giving adequate consideration to the impact of existing and future emission controls on continued attainment of the SO 2 NAAQS. The New Data provide assurance that public health wi ll not be jeopardized while EPA completes a designation based on more reliable data that is representative of air quality in Yellowstone County
. **a. The 1996 MDEQ QAPP**  **60 was inadequate and inappropriate to ensure the**  **collection of reliable, high -**  **quality measu rements for the more stringent 2010**  **SO 2**  **NAAQS.** The 1996 MDEQ Quality Assurance Project Plan (1996 QAPP), the governing State
level document for the Coburn Road monitor when the 2009
- 2011 data were collected, was not sufficient to meet EPA’s requirements for “regulatory ” monitors for the 2010 SO 2 NAAQS. The QAPP requirements themselves

– even if precisely adhered to

– were developed for the 500 ppb 3
- hour standard. Draft QAPP updates were prepared in 2005 and 2009, but were never issued as formal documen ts. The more recent draft quality requirements do not differ greatl y from the 1996 QAPP, as discussed in Attachment B. In the EPA RTC, EPA did not address TSRI A arguments that the 1996 QAPP governing Coburn Road was inadequate for determining nonattainme nt of the 2010 SO 2 NAAQS. 61 Although EPA provided audit levels for the Coburn Road monitor in the RTC, EPA did not respond to the specific deficiencies identified in the QAPP. EPA claims that the Coburn Road monitor meets the necessary requirements to be a “regulatory ” monitor that can measure compliance with the 2010 SO 2 NAAQS:

Montana DEQ has an approved Qualit y Management Program and EPA routinely

conducts Technical S ys tems Audits of Montana’s monitoring program. The State has provided all the necessar y information to show that the data that has been reported, including

60 MDEQ, Quality Assurance Project Plan: Montana Ambient Air Monitori ng Program (Nov. 1, 1996). 61 See EPA RTC , at 49
- 50, Docket No. EPA
- HQ
- OAR
- 2012
- 0233.15 the data it decided to invalidate, follows the guidelines specified above. 62 And y et, EPA also defines monitors that do not have an adequate QAPP as “non
- regulatory ”:

Since the Ray onier monitoring data was not collected using an EPA approved Quality

Assurance Project Plan, the data do not meet the quality

assurance requirements of 40 CFR Part 58. 63 EPA appears to assume that, once approved b y EPA, a QAPP is adequate to make a monitor “reg ulatory ” regardless of its contents or the monitoring organization’s compliance with the QAPP. However, this does not satisfy EPA’s own regulations. The QAPP “ **must** ”: ensure that the monitoring results: (a) Meet a well
- defined need, use, or purpose; (b) Provide d ata of adequate quality for the intended monitoring objectives; (c) Satisfy

stakeholder expectations; (d) Comply

with applicable standards specifications; (e) Comply

with statutory

(and other) requirements of society ; and (f) Reflect consideration of cost and economics. 64 The MDEQ QAPP in place when the Coburn Road data were gathered was approved by EPA in 1996. 65 Draft updates were prepared in 2005 and 2009, but neither was ever finalized and issued as a formal, EPA
- approved document. 66 Therefore the 1996 QAPP was legally in effect when the 2009
- 2011 data were gathered b y the Coburn Road monitor. At the federal level, the December 2008 version of EPA’s Quality Assurance Handbook (EPA QA Handbook) 67 was in effect at the time the 2009
- 2011 Coburn Road data were collected. O bviously the 1996 QAPP

62 Id . at 44. 63 Id . at 18; see also id. at 34
- 36 (rejecting results from the Valero monitor because it does not meet Part 58 standards), 50 (explaining that ozone monitors f rom the Uinta Basin in Utah lacked an adequate QAPP and thus could not be considered “regulatory” monitors). See also EPA WEG Response. 64 40 C.F.R § 58, App. A, § 2.1. 65 MDEQ confirms that “[t]he 2013 QAPP [currently under review] is the first revision si nce the issuance of the Montana QAPP in 1996.” MDEQ, Montana Ambient Air Monitoring Program Quality Assurance Project Plan, Vol. 1: Continuous Monitor, Filter
- Based Sampler, and Meteorological Sensor Requirements for Monitoring Ambient Air § 4.4, April 1 5, 2013. 66 MDEQ, Quality Assurance Project Plan, Montana Ambient Air Monitoring Program, Draft, Vol. 1, April 2005 (MDEQ QAPP 2005); MDEQ , Montana Ambient Air Monitoring Program, Quality Assurance Project Plan, Volume 1, Draft, March 2009 (MDEQ QAPP 2009). 67 EPA, Quality Assurance Handbook for Air Pollution Measurement Systems, Vol. II (Ambient Air Quality Monitoring Program), EPA
- 454/B
- 08
- 003, December, 2008.16

did not contain updated information reflecting either the December 2008 EPA QA Handbook requirements or the 2010 SO 2 NAAQS. The 1996 QAPP utilized by MDEQ for the Coburn Road monitor does not meet EPA’s requirements in relation to me asuring the 2010 SO 2 NAAQS. The 1996 QAPP contains standards, suggested range levels, and monitoring guidance specific to the less stringent 500 ppb measurement goal. 68 The 1996 QAPP obviously does not address the new 75 ppb standard. However, the 1996 Q APP, despite its flaws and irrelevance to the 75 ppb standard, does contain definitive data collection requirements. As discussed in sub
- section IV.b below, these definitive requirements were not consistently complied with by

MDEQ. It is arbitrary and ca pricious for EPA to justify

using data from the Coburn Road monitor while rejecting other monitors, such as the Ray onier monitor, based on the assumption that the 1996 QAPP provided better qualit y assurance for the Coburn Road monitor. While an outdated Q APP may be sufficient when readings do not surpass a standard (given the fact that quality assurance only

serves to invalidate high readings rather than to add missed high readings), in a close call such as the Yellowstone SO 2 Designation, an outdated QAPP is unacceptable. The 1996 QAPP is not sufficient to make the Coburn Road monitor “regulatory ” for purposes of a nonattainment designation for the 2010 SO 2 NAAQS of 75 ppb. EPA itself emphasizes that the QAPP should include standard procedures and monit oring methods: The QAPP is a formal document describing, in sufficient detail, the

quality s ys tem that must be implemented to ensure that the results of work performed will satisfy the stated objectives. 69

68 See, e.g. , MDEQ QAPP § 12.2.1 (outlining audit range levels); § 9.5.4 (zero/span/precision check levels); § 15.3 (operational control limits). 69 40 C.F.R. Part 58, App. A § 2.1.2; see also EPA WEG Response § III.17

The 1996 QAPP, like other “non
- regulatory ” QAPPs, i s insufficient to meet the standards outlined in Part 58 in relation to the 2010 SO 2 NAAQS. 70 **b. The Coburn Road monitor did not meet strict quality assurance**  **requirements for the 2009 -**  **2011 data set.** In addition to the inadequacies of the MDEQ QAPP , the Coburn Road Monitor was not operated in strict accordance with the QAPP and failed to meet quality assurance requirements for the 2009
- 2011 data. In addition, corrective action was not taken as required to address certain monitoring deficiencies. E PA failed to address concerns about MDEQ quality assurance practices documented in comments submitted to EPA. 71 EPA requires both adherence to the QAPP and corrective action when monitoring deficiencies are identified before data may be used for a NAAQS de signation. 72 The MDEQ QAPP requires both immediate corrective action and reports to document that action. 73 The MDEQ QAPP identifies minimum data quality requirements for all ambient monitoring conducted by MDEQ. The State requirements must be at least as stringent as federal requirements. 74 As noted above, the 1996 MDEQ QAPP

– even if strictly observed

– did not address compliance with the 2010 SO 2 NAAQS. A third
- party examination of Coburn Road data disclosed numerous instances of non
- compliance with the 1996 QAPP requirements. 75 In support of this petition, the Coburn Road data was examined in depth with an emphasis on data quality indicators associated with the fifteen high ( ≥ 75 ppb) SO 2 readings observed from 2009

–
70 See EPA WEG Response § III (“The QAPP prepared for the nonregulatory Uinta Basin monitors . . . are not complete enough to allow the EPA to determine that the data are appropriate for determining that a violation of the NAAQS has occurred for designations purposes.”). 71 See, e.g. , Attachment to Comments from Montana Chemical & Sulphur Company at 14
- 25 (May 13, 2013), Docket EPA
- HQ
- OAR
- 2012
- 0233
- 0298; TSRIA Comments, at 13
- 16, Docket EPA
- HQ
- OAR
- 2012
- 0233
- 0285. 72 40 C.F.R. § 58, App. A § 1.2; see also 40 C.F.R. § 58, App. C, §§ 1.0 and 2.1; EPA, QA Handbook §§ 1.3.2 and 10.0. 73 See, e.g. , MDEQ QAPP §§ 4.0(B), 15.2 and 15.3(A). 74 40 C.F.R. § 5 8, App. A § 1 (outlining federal requirements as “minimum quality system requirements” and encouraging states “to develop and maintain quality systems more extensive than the required minimums.”). 75 See, e.g. , Attachment to Comments from Montana Chemical & Sulphur Company at 14
- 25 (May 13, 2013), Docket EPA
- HQ
- OAR
- 2012
- 0233
- 0298.18

2011. 76 Nine of these readings occurred in 2010 alone and constitute the entire justification for the Yellowstone SO 2 Designation. While numerous factors affect data quality , the expert evaluation presented here focuses on quantitative, numerical indicators that can be easily compared to un ambiguous requirements and performance specifications given in the 1996 MDEQ QAPP and EPA guidance documents relied on b y MDEQ to guide data collection activities. Three primary data quality assurance activities were anal yz ed, representing the foundation of an y regulatory ambient data collection program: 1. **Performance Checks** , often referred to as zero/span/precision (ZSP) checks. They involve challenging the SO 2 analyzer with zero air and two non
- zero known gas concentrations and evaluating the instrument’s response. If one or more responses fall outside prescribed limits, immediate corrective action is required to bring analyzer responses back to within designated acceptable limits. These checks must be performed successfull y once every

two weeks. 77 2. **Multip oint Calibrations**  , which involve adjusting the anal yz er response to obtain accurate responses to clean (or “zero”) air, plus at least four known gas concentrations in specified ranges. The QAPP requires these calibrations once every 90 day s at a minimum. 78 3. **Quality Assurance Audits** are independent checks of instrument performance b y a person not involved in operation of the anal yz er, using separate calibration standards. They are similar to multipoint calibrations, except that no adjustments are made. The

76 See Attachment B with analysis from Bison Engineering, Inc. 77 MDEQ QAPP 1996 §§ 9.8.4 (A) and 15.3(B); see also EPA QA Handbook, SO 2 Validation Template, App. D at 9. 78 MDEQ QAPP 1996 § 9.8.7.19

anal yz er is challenged at a “zero” concentration, plus at least three known gas concentrations in specified ranges. If an y result exceeds specific performance limits, immediate investigation into the causes and subsequent corrective action are required. 79 Table 1 summarizes and briefl y describes the eight data quality issues identified among the fifteen high SO 2 readings occurring from 2009

– 2011. A more in
- depth discussion of the data quality

evaluation, including specific references for each evaluation criterion, is presented in Attachment B to this document. For each high reading shown in the leftmost column, an “X” is used to identify

each data quality

lapse associated with that reading. Each “X” indicates that a particular data quality

indicator (on e or both activities bracketing the high reading) did not comply with one or more specific QAPP requirements. For example, on July 8, 2010 the “X” in the column labeled “Performance Check Results” indicates that one or both of the surrounding performance checks (which were conducted on June 28 and July 12, as shown in Attachment B) produced results exceeding a control limit or warning limit, and that no subsequent corrective action was taken (which should have occurred, per the QAPP 80 ). Similarly , the “X” in the column labeled “Calibration Gas Ranges” indicates that one or both of the calibrations (conducted on April 15 and August 23) did not include all four of the non
- zero gas concentration ranges prescribed b y the QAPP. When such quality assurance lapse s occur at an industry continuous emission monitor, an enforcement action may result, including fines and invalidation or substitution of the data. 81 Attachment B provides specific information regarding the exact results constituting non
- compliance with th e QAPP.

79 MDEQ QAPP 1996 § 12.2.1(B) 80 MDEQ QAPP 1996 §§ 4.0(B), 15.2 and 15.3(A). 81 See, e.g. , Montana v. PPL Montana , No. DV 12
- 1546 (Mont. 13th Jud. Dist. May 31, 2013) (consent decree), (asserting that a failure to ensure the appropriate review s of the QAPP jeopardized data meant to demonstrate compliance with SO 2 em ission limits).20

**TABLE 1**

**– SUMMARY OF COBURN ROAD DATA QUALITY ISSUES DURING HIGH**  **( ≥ 75 ppb) SO**  **2 READINGS**  **82 Date**  **SO 2** 

**Conc. (ppb)**  **Perform .** 

**Check Interval**  **(1) Perform**  **. Check**  **Results (2)**  **Calibrat. Interval**  **(3) Calibrat.** 

**Gas Ranges**  **(4) Calibrat.**  **Results (5)**  **Audit**

**Gas Ranges**  **(6) Audit**  **Results (7)**  **Audit**

**Gas Cylinder**  **(8) 2009**  Feb 5 83 X X Sep 22 107 X X Sep 25 83 X X **2010** Feb 10 91 X X July 8 111 X X X X X July 9 92 X X X X X Sep 26 78 X Sep 28 83 X Oct 2 75 X Oct 3 87 X Oct 22 89 X X Dec 24 101 X **2011** Sep 5 142 X X Sep 11 113 X X Oct 30 85 X X

**Key to Data Quality Issues Associated with Reading in Question** (1) Performance checks not conducted at required 2
- week interval (2) Performance check result(s) exceeding warning limit or control limit, with no subsequent corrective action (3) Calibrations not performed at required 90
- day interval (4) Calibration not performed at required number of non
- zero concentrations (5) Calibration results exceeded acceptance limit, with no subsequent corrective action (6) Performance audit not conducted at required gas concentrations (7) Performance audit result exceeded acceptance limit, with no subsequent corrective action (8) Audit gas cylinder certification was expired at time of audit From Table 1 and supporting information presented in Attachment B, it is evident that each of the fifteen dail y maximum SO 2 readings at or above 75 ppb has at least one data quality
non - conformanc e issue associated with it. In general, at least one of the following occurred: 1. At least one of the data quality assurance activities occurring before or after the high reading produced results exceeding QAPP
- specified limits, with no subsequent correctiv e action;

82 The information in Table 1 is the result of Bison Engineering’s review and analysis of ambient and quality assurance data from MDEQ, obtained from various comments a nd appendices in MDEQ’s general records.21

2. At least one of the quality assurance activities was not performed as specified in the QAPP; or 3. At least one of the quality assurance activities was not performed at the frequency specified b y the QAPP. The MDEQ QAPP contains very specific minim um requirements, frequencies and acceptance ranges for each qualit y assurance activity. Because the data are the sole basis for the Yellowstone SO 2 Designation and fall within the margin of error, and because the Designation has such sweeping, long
- term i mpacts, it is reasonable to demand that the data quality assurance strictly compl y with QAPP specifications.
**c. The New Data were collected after the operating range for the Coburn Road**  **monitor was adjusted to more reliably collect data for the 2010 SO 2**  **NAAQS .**  The New Data were all gathered after the operating range of the Coburn Road monitor was adjusted from a setting intended to measure the old 3
- hour 500 ppb standard to one more appropriate for the 2010 SO 2 1
- hour 75 ppb standard. The range settings in pl ace on the Coburn Road monitor were not appropriatel y configured for the 2010 SO 2 NAAQS until mid
- August 2010. The inappropriate operating range introduced a higher potential for precision problems for measurements at or near the 2010 SO 2 NAAQS for the 200 9
- 2011 data, particularly data gathered prior to the August 2010 adjustment. As documented in the TSRIA Comments and Attachment B, the higher span range introduced significant concern about the accuracy of the 2009
- 2011 data. 83 The New Data are not subjec t to these same concerns.

83 See TSRIA Comments at 14
- 16.22

**d. Similarly, the New Data were collected after the 2010 SO**  **2 NAAQS was in**  **effect, allowing for more appropriate attention to outliers and transient monitoring malfunctions for the 75 ppb standard.**  Concerns about outlier data, as expr essed in the TSRI A Comments, 84 are considerabl y lessened for the New Data. EPA regulations appropriately require monitoring organizations to ensure monitors “[m]eet a well
- defined need, use, or purpose” and “[s]atisfy stakeholder expectations.” 85 Stakehold ers expressed considerable concerns about how outliers from the 75 ppb standard could be properly addressed before the standard was even in place. 86 The New Data were collected after the 75 ppb standard was in place, when readings above 75 ppb would attrac t appropriate attention, allowing more timel y and thorough anal ys is. With the tight margins for the Yellowstone SO 2 Designation, even one mistaken high concentration outlier could lead to a fault y nonattainment designation if unnoticed and uncorrected. Several cases of transient problems were detected by MDEQ itself before 2011. However, the QAPP guidance in place at the Coburn Road monitor through 2010 were not designed to routinely

detect, identify , and correct possible outlier events in relation to the 2010 SO 2 NAAQS of 75 ppb. Thus invalid data around 75 ppb, such as high concentration outliers, would likely

go unnoticed and appear valid in the record because the QAPP and standard practices did not require specific checks for readings near the 75 pp b level. Situational occurrences that might contribute to outliers, such as someone burning weeds nearb y, would be nearl y impossible to identify ye ars after the fact. EPA failed to address stakeholder concerns about outlier data in the EPA RTC. 87

84 See id . at 15
- 16; see also MDEQ 2005 QAPP, Vol. 1, § 21.2. 85 40 C.F.R. § 58, App. A § 2.1(a) and (c). 86 See TSRIA Comments at 15
- 16. 87 EPA RTC, at 50, Docket No. EPA
- HQ
- OAR
- 2012
- 02 33.23

**e. The New**  **Data provide additional evidence that 2010 data do not represent the air quality in Yellowstone County.**  The 99 th percentile daily maximum 2010 value of 91 ppb at Coburn Road is the only value that pulls EPA’s 2009
- 2011 design value above the 2010 SO 2 NAAQS . The New Data further support the State’s conclusions that the extreme 2010 readings from the Coburn Road monitor do not represent the air quality in Yellowstone County . The higher 2010 readings from Coburn Road are inconsistent with both 1) readings fr om the Coburn Road monitor in adjacent ye ars, and 2) maximum readings from surrounding monitors during 2010. The 1996 QAPP identifies several techniques for screening air quality and meteorological data, including “Comparison with Existing Spatial or Temp oral Fields:”

Screening data b y comparison with fields of similar or related data is commonly

done when large amounts of data are taken and when assumptions of the spatial continuity of the meteorological or pollutant variable are phy sicall y reasonable. F ields of data in time, rather than space, are also used to check data points. 88 The 2010 maximum daily concentration data from the Coburn Road monitor differ substantially

from data in preceding and subsequent y ears. As reported above, the most recently
av ailable data from the Coburn Road monitor through November 3, 2013, clearl y demonstrate attainment of the 2010 SO 2 NAAQS. This supports the downward trend asserted b y the State and illustrated in the chart below. The 99th percentile SO 2 readings from 201 0 differ significantl y from the surrounding ye ars, which show compliance with the 2010 SO 2 NAAQS. SO 2 emissions have declined dramatically since 2008, in part due to federally enforceable controls that have and will continue to be implemented. 89

88 1996 QAPP § 15.4(B)(3). 89 See State Initial Designation at 19
- 24 for a full treatment of existing and projected future control requirements that will continue to bring down SO 2 em issions in Yellowstone County; see also TSRIA Comments at 4
- 8.24

Yellowstone County

is a highl y monitored area and has several air qualit y monitors in the same general area as the Coburn Road monitor. As shown in the chart below, the Coburn Road monitor is the only

monitor in Yellowstone County with averaged 1
- hour pea k readings for 2010 even slightl y above the 2010 SO 2 NAAQS. Coburn Road is generally recognized as the “high concentration” monitor for Yellowstone County based on y ears of past results and empirical evidence. 90 Itis a source
- oriented monitor placed near stack
- height for nearby upwind sources. Other monitors presentl y operating in the county are also source
- oriented.

90 See, e .g. , A Summary of Historical Ambient SO 2 Monitoring in the Billings Area, a report prepared for Billings
Laurel Air Quality Technical Committee (BLAQTC) by Bison Engineering, Inc. (Feb. 9, 2013).25

A qualified third
- party

inspection questioned use of the 2010 data from the Coburn Road monitor as the sole basis for the Yellowstone SO 2 Designation:

The Coburn readings for 2010 climbed inexplicably in the same ye ar as other monitors continued to decline. This occurs under the same emissions and climatic conditions. All other monitors in the county show unequivocal compliance with the s tandard. This unexpected behavior at only one monitor is unexplained by emissions or meteorology, and therefore begs further study before a reasonable determination (other than unclassifiable) can be made. 91 The New Data are more representative of the air quality in Yellowstone County

and confirm that the 2010 data should not form the basis for the Yellowstone SO 2 Designation. **V. The New Data Were Gathered with the 2010 SO**  **2 NAAQS Appropriately In Effect.**  Finally , the New Data were gathered after the effective d ate of the 2010 SO 2 NAAQS and therefore do not suffer from the same defects as 2009
- 2011 data set, the use of which result in retroactive application of the standard.

91 Billings Laurel Air Quality Technical Committee. SO 2 Designation: Analysis and Recommendation for Billings/Laurel, Montana, April 5, 2011, at 3.

78 70
50 67 63 62

0 10 20 30 40 50 60 70 80 90

Coburn Rd Johnson Lane Brickyard Lockwood (2008-2010) Laurel Pines Hills (2008-3Q10)**S O** **2 P** **P B**  **Billings Ar**  **ea SO 2**  **Monitors 3 -**  **yr A**  **verage Design V**

**alue 2010 -**  **2012**26

E PA has decided not to make 2010 SO 2 NAAQS designations for an y areas other than nonatt ainment areas at this time. 92 Because of the unique nature of Yellowstone County , with a design value that falls within the margin of error for the monitor and comparable temporal and spatial data showing attainment, EPA’s identified need for more time to make effective and accurate 2010 SO 2 NAAQS designations 93 should apply equally to Yellowstone County
. Instead, EPA relies on data from before the 2010 SO 2 NAAQS was even effective and gives no weight to information provided by the State and industry

that the 2009
- 2011 data, especially 2010, are not adequatel y reliable and do not represent the air qualit y in Yellowstone County
. EPA should reconsider and repeal the Yellowstone SO 2 Designation and allow Yellowstone County time to assemble appropriate data, ju st as it has for other potentiall y unclassifiable areas under the Next Steps plan. This approach would avoid the problems of retroactive application of the 2010 SO 2 NAAQS as described in the TSRIA Comments and others. 94 Again, EPA’s draft Clean Data polic y 95 will not ameliorate the harms of a nonattainment designation. Merel y allowing the State to demonstrate attainment using 2011
- 2013 data will not undo the damage caused b y an erroneous nonattainment designation. In the EPA RTC, EPA simultaneously claims that it must apply the 2010 SO 2 NAAQS retroactively

in order to meet required deadlines and that because actual control requirements will not be determined until the State develops a SI P, the rule does not operate retroactivel y. 96 This is similar to a defe nse EPA initially raised against charges of retroactive rulemaking when it

92 EPA, Air Quality Designations for the 2010 Sulfur Dioxide (SO 2 ) Primary National Ambient Air Quality Standard, 78 Fed. Reg. 47,191 (Aug. 5, 2013). 93 EPA, Next Steps for Area Designations and Implementation of the Sulfur Dioxide National Ambient Air Quality Standard, at 4
- 5 (Feb. 6, 2013) (proposing additional time to gather the necessary data to make subsequent designations for areas not designated nonattainment ). 94 TSRIA Comments at 16
- 17, Docket EPA
- HQ
- OAR
- 2012
- 0233
- 0285; MSCC Comments at 39
- 41, Docket EPA
HQ
- OAR
- 2012
- 0233
- 0286. 95 See EPA, Draft Guidance for 1
- Hour SO 2 Nonattainment Area SIP Submissions (Oct. 28, 2013). 96 EPA, RTC, at 49
- 50, July 2013, Docket N o. EPA
- HQ
- OAR
- 2012
- 0233.27

retroactively

applied a fuel additive standard under the Energy I ndependence and Security Act (EI SA). However, EPA abandoned this argument and relied instead upon explicit language in the EI SA that allowed EPA to apply the new fuel additive standards to portions of the y ear before the standard was issued to obtain an “annual average” outcome “regardless of the date of promulgation.” 97 While the EI SA explicitly allowed a form of retr oactive application, there is no such language in the CAA regarding a NAAQS designation. In contrast, when retroactive application of a standard is contemplated in other parts of the CAA, it is explicitly

set forth in the statute. For example, the CAA e xplicitly requires retroactive application of a New Source Performance Standard (NSPS) to all new sources constructed, reconstructed, or modified after the publication date of the proposed rule rather than the final rule. 98 Inthe case of the NAAQS, howeve r, the CAA anticipates that conclusive designations may

not be possible or appropriate before a deadline and provides the unclassifiable designation as a means to avoid retroactive application of the standard. The CAA requires EPA to designate as unclassi fiable “an y area that cannot be classified on the basis of available information as meeting or not meeting the national primary or secondary

ambient air quality standard for the pollutant.” 99 EPA has used the unclassifiable designation for other NAAQS designations where either no ambient air quality

data or data of questionable quality existed. Such situations often coincide with a substantial change to the NAAQS which requires re
- configuration of the monitoring network or other regulatory changes tha t can take multiple y ears to implement. In its 2012 initial designations for the NO 2 NAAQS, for example, EPA designated the entire country as “unclassifiable/attainment” in anticipation of the deploy ment of a near
- roadway

monitoring

97 National Petrochemical & Refiners Assoc. v. EPA , 630 F.3d 145, 158
- 59 (D.C. Cir. 2010). 98 See 42 U.S.C. § 7411(a)(2). 99 42 U.S.C. 7407(d)(1)(a)(iii).28

network, concluding that “EPA anticipates that sufficient data to conduct redesignations would be available after 2015.” 100 Rather than using unreliable and unrepresentative data gathered before the effective date of the standard to impose an unnecessary regulatory

burden on Ye llowstone County , EPA should use a similar approach to previous rulemakings and await complete, representative, and more accurate SO 2 monitoring results. The New Data, along with the margin of safet y in the standard itself, provide added assurance that th e public health will not be jeopardized if EPA repeals the Yellowstone County SO 2 Designation. Yellowstone County is achieving and will continue to achieve the 2010 SO 2 NAAQS. Yellowstone County should not be subject to nonattainment requirements based o n retroactive application of the standard, which will cause serious economic harm to the entire State and industry

stakeholders in Yellowstone County . Thus, EPA should reconsider and repeal the Yellowstone SO 2 Designation and either (1) designate Yellowsto ne County as attainment based on the New Data, (2) accept the State’s designation of Yellowstone County as unclassifiable, or, (3) at a minimum, group Yellowstone County with other areas that will be initially designated in the future based on more comple te and reliable data. **VI. EPA Should Stay the Yellowstone County Portion of the Rule**  EPA should stay

the Yellowstone SO 2 Designation pursuant to section 307(d)(7)(B) of the CAA and section 705 of the APA to avoid the unnecessary development of a nonattainmen t SI P and alleviate the attendant costs and regulatory burdens on both the State and other affected parties. 101

100 77 Fed. Reg. 9532, 9535 (Feb. 17, 2012). 101 EPA regularly issues partial stays of final rules and therefore can stay only the Yellowstone SO 2 Designation, as opposed to the entire Rule. See e.g. 77 Fed. Reg. 45967 (Aug. 2, 2012) (partial stay of NESHAP provisions).29

Section 307(d)(7)(B) of the CAA limits a stay of a rule’s effectiveness to a three month period pending reconsideration. 102 The limited stay prov isions recognize the tight deadlines imposed by

the CAA and the fact that a pending petition for reconsideration does not circumscribe a party ’s ability to simultaneousl y seek judicial review. 103 EPA, however, has supplemental authority

under the APA to “po stpone the effective date” of a rule, pending judicial review, where “justice so requires . . .” 104 The authority granted EPA pursuant to section 705 of the APA is in addition to its statutory authorit y under CAA § 307(d)(7)(B) and is not otherwise limited by

the more specific provisions of the CAA. 105 In this case, the demands of justice and fairness require EPA to stay the Yellowstone SO 2 Designation until such time as EPA repeals the Designation or judicial review is complete. The four
- part test employ ed by EPA when assessing whether to grant a stay under APA § 705 weighs (1) the likelihood of success on the merits; (2) the possibility of irreparable harm to the petitioner; (3) harm to other parties; and (4) the ultimate public interest. 106 The D.C. Circuit has summarized this test as follows:

(1) Has the petitioner made a strong showing that it is likely to prevail on the merits of its appeal? Without such a substantial indication of probable success, there would be no justification for the court’s intrusion into the ordinary processes of administration and judicial review. (2) Has the petitioner shown that without such relief, it will be irreparably injured? . . . (3) Would the issuance of

102 42 U.S.C. § 7607(d)(7)(B); NRDC v Reilly , 976 F.2d 36, 41 (D.C. C ir. 1992) (“EPA had no authority to stay the effectiveness of a promulgated standard except for a the single, three
- mo nth period authorized by section 307(d)(7)(B) of the CAA”). 103 42 U.S.C. § 7607(d)(7)(B). 104 5 U.S.C. § 705. 105 Sierra Club v. Jackson , 833 F. Supp. 2d 11, 25 (D.D.C. 2012) (“Without clearer evidence of congressional intent that that suggested by Sierra Club, the Court is unwilling to infer a congressional policy that w ould deprive both an agency and the federal courts of their traditional aut hority to stay rules pending judicial review as codified in Section 705 of the APA.”). 106 Id . at 31
- 32 (finding that EPA must apply the four
- part injunctive relief test when weighing a stay under APA § 705). See also 76 Fed. Reg. 28,318, 28,326 (May 17, 20 11) (applying four
- factor test).30 a stay substantially

harm other partie s interested in the proceedings? . . . (4) Where lies the public interest? 107 In this case, the consideration of these factors works in favor of a stay of the Yellowstone SO 2 Designation. First, as discussed at length in this petition, the October 4, 2013, petition filed by MSCC, and comments on the proposed Rule submitted by the State, TSRI A and the Montana Petroleum Association, MSCC, PPL Montana, and others, the Yellowstone SO 2 Designation is based on
non - representative data that fail to meet EPA regulat ory requirements, and the area is, in fact, meeting the NAAQS. In light of these deficiencies and the arbitrary nature of EPA’s decision
making, Petitioners are likely to prevail on the merits of an appeal. Moreover, TSRIA members, Yellowstone County

res idents and businesses, and numerous other affected parties, including the State, will be irreparabl y harmed b y the costl y and fruitless processes of developing a nonattainment SI P and seeking redesignation for an area already in attainment with the SO 2 NAA QS. 108 Finally , public health will not be placed in jeopardy and thus the public interest weighs in favor of a stay
. EPA’s issuance of the National Designations triggers deadline clocks for the State to undertake the complex, time
- intensive, and costl y proc ess of developing a nonattainment SI P for the 2010 SO 2 NAAQS by 2015. 109 Part D of the CAA enumerates requirements specific to nonattainment areas that States must include in their SI Ps, including requirements for (1) comprehensive inventories of all source s; (2) adoption of “reasonably available control technology ”; (3) provisions assuring reasonable further progress towards attainment; and (4) comprehensive revisions to permitting programs for the construction and operation of new and

107 Washington Metropolitan Transit Comm’n v. Holiday Tours, Inc. , 559 F.2d 841, 843 (D.C. Cir. 1977) (citations omitted). 108 See supra Section III. 109 42 U.S.C. § 7410.31

modified sources with in the nonattainment area. 110 Both the State and industry stakeholders will be irreparabl y harmed b y the commitment of resources to design and implement the nonattainment SI P. Placing this process on hold during the pendency of an agency reconsideration pr ocess would avoid unnecessary allocation of resources by the State and affected parties to a process that ultimately is unnecessary
. Finally , as set forth in Section III of this petition, public health will not be harmed by a stay of the Yellowstone SO 2 Designation. Indeed, the New Data that form the basis of this petition demonstrate that Yellowstone County has achieved the 2010 SO 2 NAAQS with existing controls

— and the planned mothballing of PPLCorette, the largest SO 2 emitter in the county , will lead to further reductions in the near future. Where the NAAQS is alread y being achieved, the complex and time
- intensive process of developing a nonattainment SI P and the concomitant costs that will be shouldered b y industry stakeholders in Yellowstone County confirm that a stay is in the public interest. **VII. Conclusion**  Based on the foregoing air quality data, planning and control considerations, and other air quality
- related considerations, Petitioners respectfully request that EPA reconsider and repeal the Yel lowstone SO 2 Designation. Attached to this petition as Attachments A and B are technical documents that provide additional information about the New Data as well as details of quality assurance requirements and practices for the Coburn Road monitor. Peti tioners also request an opportunity

to discuss these matters with EPA and to address an y questions or concerns.

110 Id . § 7502(c)(1)
- (9).