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 of Environmental Quality 

P.O. Box 200901 

Helena, MT 59620-0901 

Dear Ms. Sensibaugh: 

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.] EPA is very reluctant to become involved with the 

actions of a State's legislature. However, this pending legislation has the potential of raising 

concerns about whether important parts of the State's Federally approved environmental 

programs meet the minimum Federal requirements for EPA approval. In the spirit of partnership 

we offer the following for your consideration, particularly in light ofEP A'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 for judicial review of air 

permitting actions in State court as would be available in Federal court. 

If our reading of the proposed legislation is correct, these bills contain provisions which 

require citizens and organizations to file for a preliminary injunction and then post a bond if such 

injunction is granted. The appealing party's bond must cover the perrnittee'.s costs of delay. 

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 of mutual interest to us 

both. To that end I would like to suggest that we work together to carefully consider the 

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ramificati()ns of the proposed legislation. As a first step, it may be helpful for MDEQ's Legal 

Counsel to discuss the issue with Bob Ward, Regional Counsel, EPA Region 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. 

Sincerely yours, 

/original signed by/ 

Stephen S. Tuber 

Acting Assistant Regional Administrator 

Office ofPartnerships and Regulatory Assi~tance 
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 

REGION 8 

Ref: 8P-AR 

Honorable Judy H. Martz 

Governor ofMontana 

State Capitol 

Helena, MT 59620 

Dear Governor Martz: 

999 18TH-STREET - SUITE 300 

DENVER, CO 80202-2466 

http://www.epa.gov/region08 

MAR 1 0 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, EPA Region 8 Montana 

Office has outlined our potential concerns with Jan Sensibaugh, Director, Montana Department of 

Environmental Quality. EPA is very reluctant to become involved with the actions of a State's 

legislature. However, this pending legislation has the potential of raising 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 of mutual interest to us 

both and to that end I would like to suggest that we work together to carefully consider the 

ramifications of the proposed legislation. Please call me if you 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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