### UNITED STATES ENVIRONMENTAL PROTECTION AGENCY REGION 8

Ref: 8P-AR Jan Sensibaugh, Director 999 18TH STREET - SUITE 300 DENVER, CO 80202-2466 http://www.epa.gov/region08

MEMORANDUM

March 11, 2003

Montana Department ofEnvironmental Quality P.O. Box 200901 Helena, MT 59620-0901 DearMs. Sensibaugh: I am writing to indicate that legislation pending inthe 2003 MontanaLegislature is of potential concern to the U.S. Environmental Protection Agency (EPA). [House Bill No. 437, House Bill No. 700, and Senate Bill No. 410.] EPAis very reluctant to become involved with the actions ofa State's legislature. However, this pending legislation has the potential ofraising concerns about whether important parts ofthe State's Federally approved environmental programs meet the minimum Federal requirements for EPA approval. In the spirit ofpartnership we offer the following for your consideration, particularly in light ofEPA's experience with similar legislative actions and court decisions in the states ofVirginia and Oregon. I have been advised by EPA's attorneys that the Montana proposed legislation may.create major impediments to the public's ability to challenge air permits in State court as required by the Clean Air Act. As you know, an important consideration before EPA approves programs under the Clean Air Act is that the State must provide the same opportunity forjudicial review ofair permitting actions in State court as would be available in Federal court. Ifour reading ofthe proposed legislation is correct, these bills contain provisions which require citizens and organizations to file for a preliminary injunction and then post a bond ifsuch injunction is granted. The appealing party's bond must cover the perrnittee'.s costs ofdelay. Another provision requires the person challenging the permit to indemnify the perrnitee for the same items covered in the bond. The noted bond requirements could be impediments which deter or discourage individuals and organizations from appealing permit decisions by the MDEQ. This, in turn, may result in significant impacts to the State's program approvals. Montana's implementation ofthe Federal environmental laws is ofmutual interest to us both. To that end I would like to suggest that we work together to carefully consider the 

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### 2 ramificati()ns ofthe proposed legislation. As a first step, it may be helpful for MDEQ's Legal Counsel to discuss the issue with Bob Ward, Regional Counsel, EPARegion 8. Bob may be reached at (303) 312-7100. Please do not hesitate to call John Wardell at (406) 457-5001 or me (303) 312-6241. Sincerelyyours, /original signed by/ Stephen S. Tuber ActingAssistant Regional Administrator Office ofPartnerships and Regulatory**Assi~tance**

### UNITED STATES ENVIRONMENTAL PROTECTION AGE NCY REGION 8

Ref: 8P-AR Honorable Judy H. Martz Governor ofMontana State Capitol Helena, MT 59620 Dear GovernorMartz: 999 18TH-STREET - SUITE 300 DENVER, CO 80202-2466 http://www.epa.gov/region08 

## MAR 10 2003

I am writing to indicate that legislation pending in the 2003 Montana Legislature is of potential concern to the U.S . Environmental Protection Agency (EPA). [House Bill No. 437, House Bill No. 700, and Senate Bill No. 410.] John Wardell, Director, EPARegion 8 Montana Office has outlined our potential concerns with Jan Sensibaugh, Director, MontanaDepartment of Environmental Quality. EPAis very reluctant to become involved with the actions ofa State's legislature. However, this pending legislation has the potential ofraising concerns about whether important parts ofthe State's Federally approved environmental programs meet the minimum " Federal requirements for EPA approvaL Montana's implementation ofthe Federal environmental laws is ofmutual interest to us both and to that end I would like to suggest that we work together to carefully consider the ramifications ofthe proposed legislation. Please call me ifyou have any questions at (303) 312-6308.

cc: Jan Sensibaugh, Director Sincerely yours,

Robert E. Roberts Regional Administrator Montana Department ofEnvironmental Quality



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