Enclosure 

EPA Response to Petition for Reconsideration from Earthjustice 

By letter dated July 19, 2012, Earthjustice petitioned the EPA to reconsider the final 2012 ozone area 

designation for Uintah and Duchesne Counties in the Uinta Basin Unclassifiable Area. For the reasons 

discussed below, the EPA is denying the petition. For the sake of clarity, we have organized this 

response according to the structure of the July 19, 2012 petition. 

 

Background 

In a letter from the EPA Region 8 Regional Administrator James B. Martin to Utah Governor Gary R. 

Herbert dated December 8, 2011, the EPA notified the State of Utah how it intended to modify the 

state’s recommendation regarding designation of areas within the state for the 2008 ozone National 

Ambient Air Quality Standards (NAAQS). Among other things, the EPA stated that it intended to 

designate the Uinta Basin of Utah as an unclassifiable ozone area because, while existing monitors in the 

basin showed ozone concentrations above the level of the standard, the monitors were classified as nonregulatory. 

On December 20, 2011, the EPA published a notice in the Federal Register providing the public with an 

opportunity to comment on the EPA’s letters to the states setting forth whether and, if so, how it 

intended to modify state designation recommendations. The EPA received one public comment, from 

WildEarth Guardians, (one of the parties to this petition) regarding its intended designation of the Uinta 

Basin. The comment asserted that the term non-regulatory is not defined in either the Clean Air Act 

(hereinafter the Act) nor in the EPA regulations, and thus the EPA should designate the Uinta Basin as a 

nonattainment area based on the non-regulatory data in the EPA AQS air quality database. 

In response to this comment, the EPA prepared a detailed response [EPA Response to Comments 

(RTC), pp. 72-74] summarizing our concerns about using the data from the available monitors in the 

Uinta Basin for regulatory decisions, and specifically for designation purposes. The available data in the 

basin, from the first efforts to survey air quality in this remote area, was a combination of data collected 

by industry under enforcement consent decrees which could not comply completely with regulations 

intended for government monitoring operations, and research monitoring by the National Park Service 

using monitors which were not federal reference or equivalent methods. 

Petitioner’s Arguments 

I. The EPA did not provide an opportunity for comment on the EPA’s response to comments. 

Issue: The petitioner asserts that the EPA must reconsider the Uinta Basin unclassifiable designation 

because the EPA’s rationale for considering the Uinta Basin data non-regulatory appeared for the first 

time only in the EPA’s RTC document so that it was impracticable for petitioners to comment on that 

rationale. Petitioners also assert that publication of the RTC occurred after the date of the final rule. 

Response: The EPA submitted the RTC to the electronic docket on April 30, 2012, the date the 

Administrator issued the designations. The docket staff uploaded the RTC for public viewing on 

May 16, 2012. As a general matter, agencies are not required to provide an additional opportunity for 

public comment on RTCs or on information supporting an RTC. Such an approach would result in an 

unworkable, endless rulemaking process. 
With regard to the designation process, there is another reason that an additional opportunity for public 

comment is not warranted. Section 107(d)(2)(B) of the Act specifically waives the notice and public 

comment process of the Administrative Procedure Act for initial area designations for new or revised 

NAAQS. Although no public comment period is required, the EPA opted to provide such a comment 

period for the 2012 ozone designations. 

Moreover, we do not believe that any information provided in the RTC document establishes grounds 

for re-opening the designation pursuant to a petition for reconsideration. The information in the RTC 

merely provides further explanation of the EPA’s rationale for not relying on the non-regulatory 

monitors for purposes of establishing a nonattainment designations category for the area and does not 

create a new justification for the EPA’s decision. 

II. The EPA cannot disregard sound reliable data. 

Issue: The petitioner asserts that Congress intended in the Act that the EPA make attainment decisions 

based on “available data.” Since the Uinta Basin data are available and show a violation, the EPA must 

find the area to be in nonattainment, rather than unclassifiable. 

Response: The Petitioner could have raised this issue during the comment period and failed to do so; 

thus, this issue is not a proper basis for reconsideration. We disagree that Congress evidenced any 

specific intent regarding what data should be considered for designations. Most NAAQS, as defined by 

40 CFR Part 50, explicitly require that data used for comparison to the NAAQS come from ambient 

monitors operating in accordance with 40 CFR Part 58. For ozone, this requirement is not explicit in 

Part 50, but the EPA made clear in the rulemaking establishing the 2008 8-hour ozone NAAQS that such 

compliance was needed to allow monitored data to be used for NAAQS compliance. For example, see

73 FR 16502 regarding upgrading the EPA CASTNET ozone monitors to compliance with 40 CFR Part 

58, Appendix A: “EPA notes that the resulting O3 ambient data from the upgraded sites will meet 

Appendix A requirements as is presently the case for O3 data from State operated monitors and NPS 

monitors. These data will be deemed acceptable for NAAQS comparison objectives and available in the 

AQS database beginning in 2008” (emphasis added). 

The requirement that monitors used for NAAQS compliance be operated in accordance with Part 58 

derives from the Act, where Section 319 (42 USC § 7619) states that “the Administrator shall 

promulgate regulations establishing an air quality monitoring system throughout the United States which 

— (1) utilizes uniform air quality monitoring criteria and methodology” and further states that “Any air 

quality monitoring system required under any applicable implementation plan under section 7410 of this 

title shall, as soon as practicable following promulgation of regulations under this section, utilize the 

standard criteria and methodology . . . established under such regulations.” On May 10, 1979, the EPA 

published a final rule promulgating 40 CFR Part 58, stating (44 FR 27558) “Criteria to be followed 

when measuring air quality and provisions for daily air pollution index reporting are established in Part 

58 as required by Section 319 of the Act.” Thus Part 58 of the Code of Federal Regulations defines the 

regulatory methodology for ambient air monitoring required by the Act. 

Although we disagree that Congress required the EPA to rely on the non-regulatory monitors for 

purposes of determining whether these areas are violating the 2008 ozone NAAQS, the EPA did not 

disregard the non-regulatory data from the Uinta Basin; in fact, the data are the reason the EPA 

designated the Uinta Basin of Utah as unclassifiable for the 2008 ozone NAAQS. 
III. The EPA’s failure to approve the monitoring Quality Assurance Project Plan (QAPP) does 

not call into question the data validity. 

Issue: The petitioner asserts that the EPA does not identify any regulation requiring the EPA approval of 

QAPPs for the specific circumstances surrounding the operation of the monitors in question (that is, 

monitors run by industry under enforcement settlement agreements), and further that the EPA’s failure 

to approve the plan is merely a technicality and does not provide adequate justification for not using the 

data. 

Response: The EPA’s regulations for ambient air monitoring at 40 CFR Part 58 deal exclusively with 

regulatory monitoring by state and local governments or monitoring under governmental oversight for 

Prevention of Signification Deterioration purposes. For governmental agencies collecting regulatory 

data, the regulations specify how to gather and quality assure the data; the regulations include aspects 

difficult if not impossible to achieve without governmental involvement, and so cannot be implemented 

completely by private entities. A Quality Assurance Project Plan (QAPP) is a specific tool required by 

the EPA for governmental monitoring which documents the standard procedures, actions, personnel and 

methods used in a specific monitoring operation to ensure the day-to-day operations of the monitoring 

program result in data of quality sufficient to meet 40 CFR Part 58 requirements and withstand court 

challenge. The QAPP prepared for the non-regulatory Uinta Basin monitors (which neither the EPA nor 

the State of Utah approved) and the quality assurance data available at the time of designations 

(collected under the requirements of that QAPP) 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. 

IV. The EPA had the authority under the controlling consent decrees to oversee the Uinta 

Basin monitoring. 

Issue: The petitioner cites the data reporting requirements of the consent decrees pursuant to which the 

monitoring was established, and EPA’s ability to bring contempt proceedings in federal court should the 

EPA need to direct corrective action for monitoring errors or deficiencies, as evidence that the EPA had 

sufficient oversight of the monitors to ensure regulatory monitoring was conducted. 

Response: The EPA considered the monitoring required by the consent decrees to be non-regulatory 

from the outset. See page 320 of the appendix to the Earthjustice petition, consisting of page 22 of the 

Memorandum in Support of Motion to Enter Consent Decree, Attachment 1, United States v. Miller, 

Dyer & Co., LLC, Case 2:09-cv-00332-DAK (D. Utah) (filed Sept. 1, 2009): “The air monitoring under 

these consent decrees was not designed for a specific regulatory purpose such as determining 

compliance with the NAAQS. However, the data collected will be extremely useful to determine trends 

in emissions in the area. The EPA would have to re-negotiate this settlement and the Colorado Interstate 

Gas settlement to make the necessary changes to allow data collected to be used to determine NAAQS 

compliance.” Regulatory monitoring requires a higher level of oversight than was conducted for the 

non-regulatory monitoring required by consent decree. No after-the-fact activities can substitute for 

oversight which did not occur at the time. 
V. Quality Assurance of Monitoring Data 

Issue: The petitioner asserts that because raw data from August, 2009 through September, 2011, and 

quality assurance data from August 2009 through January 2010 are in the EPA’s air quality database, the 

data from the monitors are quality assured, even if the EPA has not approved the quality assurance 

project plan. The petitioner assumes that the EPA’s issue with considering the data quality assured is 

based on the date in 40 CFR Section 58.15(a) when state or local monitoring agencies are to certify data 

(May 1 of the year following data collection). 

 

Response: The petitioner’s statement that the presence of some limited quality assurance data indicates 

all the data are quality assured is contrary to monitoring quality assurance regulations. Quality assurance 

data consist, primarily, of biweekly single point quality control (QC) checks, used to assess the precision 

and bias a given instrument is displaying in its day-to-day measurements, and annual independent 

performance evaluations (audits) of equipment, which rely on independent staff and measuring systems 

to confirm that the monitors are operating as expected and required (see 40 CFR Part 58, Appendix A, 

cited in the RTC at pp. 72-73). For the Uinta Basin monitors, biweekly QC check data and daily span 

check data are available in AQS only for August 2009 through January 2010, and no independent multipoint audit data are available. Without complete records of both types of quality assurance data, the data 

cannot be considered quality assured. The petitioners’ assumption that the EPA did not use the data for 

designations because of a lack of certification of the 2011 data is incorrect; rather, the EPA does not 

consider the data appropriate for designation purposes because it does not meet the criteria for quality 

assurance. 

VI. The EPA's refusal to rely on information other than "regulatory monitoring" is 

inconsistent with EPA's own policies and past practice. 

Issue: The petitioner asserts that the EPA’s insistence that monitoring data be “regulatory” is 

inconsistent with 1) the EPA’s suggestion that it would use modeling for SO2 designations; 2) the EPA’s 

prior use of modeling data in designating Billings, Montana nonattainment for SO2; and 3) the EPA’s 

use of data other than from regulatory air quality monitors in establishing boundaries for nonattainment 

areas. 

Response: The Petitioner could have raised this issue during the comment period and failed to do so; 

thus, this issue is not a proper basis for reconsideration. Nevertheless, we disagree that the EPA’s 

proposed use of modeling for purposes of designations for the SO2 NAAQS is inconsistent with or 

relevant for the EPA’s decision to rely on air quality monitoring consistent with the EPA’s regulations 

for purposes of designations for the 2008 ozone NAAQS. The EPA has never relied on modeling data, 

or anything other than quality assured data from monitors that are part of an approved monitoring 

system for ozone designations.1

 

                                                           

1 See 77 FR 30091: “The final ozone designations are based primarily on certified air quality monitoring 

data from calendar years 2008–2010, which was the most recent certified data available to the EPA at 

the time the EPA notified the states of its intended modifications to their recommendations”; 69 FR 

23860: “Therefore, today’s designations and classifications are generally based on monitoring data 

collected in 2001–2003 although other relevant years of data may have been used in certain 

circumstances”; 56 FR 56697: “The primary years the EPA used for purposes of designations and 

classifications pursuant to this notice were 1987-1989 (3-year period for ozone and 1988-1989 (2-year 
In contrast to ozone, which is a regional secondary pollutant, elevated short-term SO2 data often results 

from direct impingement of plumes. Direct impingement is highly variable spatially, and thus can be 

difficult to detect only through monitoring. EPA has therefore historically relied on both monitoring and 

modeling to determine whether an area is violating the SO2 NAAQS. See 75 FR 35554: “For a shortterm 1-hour standard, dispersion modeling of stationary sources will generally be more technically 

appropriate, efficient, and effective because it takes into account fairly infrequent combinations of 

meteorological and source operating conditions that can contribute to peak ground-level concentrations 

of SO2. Even an expansive monitoring network could fail to identify all such locations.” 

Moreover, the EPA’s review of a wider variety of data to determine whether an area is contributing to a 

NAAQS violation (that is, in setting boundaries) is not inconsistent with its historic approach of relying 

solely on monitoring data to determine whether an area is violating a NAAQS. Setting boundaries 

around areas contributing emissions to a violating monitor must inherently use methods other than air 

quality monitoring, as the scientific questions involved are different. 

VII. New information demonstrates the need for a nonattainment designation.

Issue: The petitioner points to continued leasing of lands within the Uinta Basin for oil and gas 

development as a sign that the emissions leading to elevated ozone in the basin are likely to continue to 

increase in the absence of a nonattainment designation. 

Response: We disagree that these future and ongoing activities support reconsideration of the 

designation. The CAA provides for redesignation of areas as an appropriate mechanism to address 

changes that arise after the EPA has issued the initial designations. However, until the area has sufficient 

regulatory monitoring data, the EPA would not be able to consider redesignating the area from 

unclassifiable to either attainment or nonattainment. The EPA is working with the Ute Indian Tribe of 

the Uintah and Ouray Reservation, the Utah Department of Environmental Quality and with local 

industry to collect sufficient regulatory data in the basin to allow redesignation. 

                                                                                                                                                                                                             

period) for CO. In some cases, the EPA used complete 1988-1990 (ozone) or 1989-1990 (CO) data if 

they were quality assured and publicly available in the AIRS [Aerometric Information Retrieval System 

(EPA’s National Air Quality Database)] by February 13, 1991, and the state requested that EPA use it.”