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Results of Sierra Club's Investigation into the Removal of the Konza Prairie CASTNET Ozone Monitor on April 5, 2013 by Craig Volland, Chair of the Air Quality Committee of the Kansas Chapter, Sierra Club Executive Summary Introduction Background. Without prior public notice the US Environmental Protection Agency authorized the discontinuance of the Konza Prairie ozone air quality monitor near Manhattan, Kansas on April 5, 2013. This monitor, which was part of USEPA's CASTNET national monitoring network, had been collecting valuable data since 2002. It had consistently indicated levels of ozone pollution high enough during certain times of the year to cause significant health impacts in the area.1 In response to our inquiry after the fact, EPA said they complied with a request from the monitor-site landowner, The Nature Conservancy (TNC), and from Kansas State University (KSU), the operating agency, to remove the monitor. Documents attached to EPA's response indicated that TNC and KSU were concerned that the monitor would be used for regulatory compliance purposes and interfere with research on rangeland burning. Such research is being conducted to assess new management techniques and different time cycles for the burning (both in years and seasons of the year). Initial information we received from KSU personnel conducting research at the Konza Prairie Research station indicated they had acted at the urging of KDHE who complained that the ozone monitor had been designated as a compliance monitor without their knowledge or consent and that the monitor was improperly located for regulatory purposes. The Kansas Chapter Sierra Club alerted the public and launched an investigation to determine whether the closure of the monitor was justified in view of the public health impacts of ozone pollution on Kansans who live in or around the City of Manhattan and the large number of students who attend the University. The Chapter requested the relevant documents from EPA, KDHE and Kansas State University, the last of which was not obtained until May of 2014. CASTNET. This is a system of air quality monitors managed by the USEPA (57 sites) and the National Park Service (25 sites). The purpose is to provide data to assess trends in air quality and atmospheric deposition in order to evaluate the effectiveness of national and regional air pollution control programs. LTER (Long Term Ecological Research) monitors are concerned with long-term ecological research and the Konza Prairie monitor was one of only three such sites in the U.S. http://epa.gov/castnet/javaweb/ozone.html

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Rangeland Burning in the Flint Hills of Eastern Kansas. The burning of grasslands in April of 2009, 2010 and 2011 had led to numerous "exceedances" of the ozone National Ambient Air Quality Standard (NAAQS) at several monitors in Kansas including the Kansas City and Wichita metro areas. EPA rules allow states to prepare a report analyzing conditions relating to such exceedances in order to justify a request that the data be "flagged" or exempted from inclusion in the calculations that determine whether a "violation" has occurred. This is called an "exceptional events" report. A violation leads to an enforcement process by USEPA. EPA denied KDHE's exceptional events request after the 2009 & 2010 exceedances on the grounds that KDHE had not prepared a "Smoke Management Plan" (SMP). So a SMP was completed in the Fall of 2010. Nonetheless the Flint Hills burning in 2011 resulted again in numerous exceedances of the ozone NAAQS. Based on the existence of the SMP, KDHE requested that the 2011 data be flagged. Over the strong objections of the Kansas Chapter Sierra Club, KDHE's petition was approved by EPA Region 7. Conclusions The preponderance of evidence demonstrates that KDHE campaigned to remove the Konza Prairies ozone monitor in order to avoid the strong likelihood that ozone standard exceedances there could lead to tighter restrictions on range burning in the Flint Hills. KDHE's assertion that the monitor did not meet EPA rules for locating a regulatory monitor is substantially without merit. EPA Region 7 essentially facilitated this process even to the extent, at one point, of incorporating KDHE into the line of authority and communication with the site operator, Kansas State University, even though it was an EPA-owned monitor. Administrators at KSU overruled reservations expressed by their research personnel who operated the monitor, because they feared political repercussions from an ozone standard non-attainment designation. Without any evidence we could find, KSU administrators accepted KDHE's claim that continued regulatory status of the Konza Prairie monitor could lead to interference with range burning research in the Flint Hills when, to the contrary, this research would likely become more important. The national EPA entities that managed the Konza Prairie monitor as part of their CASTNET system were insufficiently proactive in notifying state regulators about the change in the regulatory status of the CASTNET monitors. They were unprepared to deal with this controversy because they have not required landowners and operators to give sufficient notice before shutting monitors in their care. Thus EPA was unable to enforce their plan for public notice and comment, which in this case, could have countered some of the misinformation and led to a more satisfactory solution. For example, EPA officials might have clarified that a much milder range of sanctions would apply for violations at a rural monitor used primarily to assess long-range transport of

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pollutants, as opposed to an urban monitor. Finally EPA-HQ's policy of imposing onto state agencies certain costs of dealing with exceedances at EPA-owned monitors increased the risk of conflict with state officials. Despite considerable data demonstrating that people in the Manhattan, Kansas area are at times exposed to dangerous levels of air pollution during the April - September ozone season, few participants in the controversy examined this part of the issue. A primary purpose of the Clean Air Act is to protect the public health and welfare. As far as we can tell this serious problem for the public health is still not being addressed.

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Introduction Background. Without prior public notice the US Environmental Protection Agency authorized the discontinuance of the Konza Prairie ozone air quality monitor near Manhattan, Kansas on April 5, 2013. This monitor, which was part of USEPA's CASTNET national monitoring network, had been collecting valuable data since 2002 and is located in an area of Kansas with no other ozone or particle monitors.1 It had consistently indicated levels of ozone pollution high enough during certain times of the year to cause significant health impacts in the area.1 In response to our inquiry after the fact, EPA said they complied with a request from the monitor-site landowner, The Nature Conservancy (TNC), and from Kansas State University (KSU), the operating agency, to remove the monitor. Documents attached to EPA's response indicated that TNC and KSU were concerned that the monitor would be used for regulatory compliance purposes and interfere with research on rangeland burning. Such research is being conducted to assess new management techniques and different time cycles for the burning (both in years and seasons of the year). Initial information we received from KSU personnel conducting research at the Konza Prairie Research station indicated they had acted at the urging of KDHE who complained that the ozone monitor had been designated as a compliance monitor without their knowledge or consent and that the monitor was improperly located for regulatory purposes. The Kansas Chapter Sierra Club alerted the public and launched an investigation to determine whether the closure of the monitor was justified in view of the public health impacts of ozone pollution on Kansans who live in or around the City of Manhattan and the large number of students who attend the University. The chapter immediately submitted a Kansas Open Records Request (KORA) to both KDHE and to KSU and a Freedom of Information Act (FOIA) request to the EPA. Information was received promptly from KDHE, KSU and EPA's Region 7, but the request to the national offices of EPA (EPA HQ) was not satisfied until May 16, 2014. Most of the email record from EPA HQ was heavily redacted. However we greatly appreciate that EPA did not charge a fee for this service. CASTNET. This is a system of air quality monitors managed by the USEPA (57 sites) and the National Park Service (25 sites). The purpose is to provide data to assess trends in air quality and atmospheric deposition in order to evaluate the effectiveness of national and regional air pollution control programs. It measures dry deposition of certain air pollutants in rural areas and is the primary source of rural ozone monitoring data for USEPA. It supports the development of secondary NAAQS standards and is concerned with ecological effects such as on growth of crops and forests. LTER (Long Term Ecological Research) monitors are concerned with long-term ecological research

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and the Konza Prairie was one of only three such sites in the United States. http://epa.gov/castnet/javaweb/ozone.html. Rangeland Burning in the Flint Hills of Eastern Kansas. The burning of grasslands in April of 2009, 2010 and 2011 had led to numerous "exceedances" of the ozone National Ambient Air Quality Standard (NAAQS) at several monitors in Kansas including the Kansas City and Wichita metro areas. EPA rules allow states to prepare a report analyzing the source of and weather conditions relating to NAAQS exceedances in order to justify a request that the exceedance data be "flagged" or exempted from inclusion in the calculations that determine whether a "violation" has occurred. This is called an "exceptional events" report. A violation leads to an enforcement process by USEPA. EPA denied KDHE's exceptional events request after the 2009 & 2010 exceedances on the grounds that KDHE had not prepared a "Smoke Management Plan" (SMP). A SMP was completed in the Fall of 2010. Nonetheless the Flint Hills burning in 2011 resulted again in numerous exceedances of the ozone NAAQS. Based on the existence of the SMP, KDHE produced an exceptional events report and requested that the 2011 data be flagged. Over the strong objections of the Kansas Chapter Sierra Club, KDHE's petition was approved by EPA Region 7. More detailed information on these proceedings is available on the Chapter website: http://kansas.sierraclub.org/issues/flint-hills/ The Chapter was understandably concerned when we learned, after the fact, that one of the ozone monitors, the Konza Prairie monitor with a history of air quality standard exceedances, was shut in April of 2013. The Timeline. From all the material received under our KORA and FOIA requests we have selected those documents that best describe the timeline and the process and its participants under which this event unfolded. April 23, 2012. USEPA Clean Air Markets Div. (CAMD) sends out draft of CASTNET Plan for Part 58 Compliance to regional personnel including Josh Tapp, Region 7 Chief, Air Planning and Development.2 (Part 58 refers to Clean Air Act regulations concerning the use of air quality monitors for enforcement purposes.)

June 21, 2012. Region 7 is deeply involved in reviewing drafts of KDHE's Exceptional Events Report relating to the 2011 Flint Hills burn season.3 Nov. 28, 2012. KDHE submits final report4 to EPA Region 7 requesting that ozone exceedances during the 2011 Flint Hills rangeland burn season, including the Konza

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Prairie events, be allowed as exceptional events. The exceedances recorded at the Konza Prairie monitor on April 12 and 13, 2011 occurred during the two heaviest burn days of that season. KDHE's cover letter states that at the time of their earlier letter of March 12, 2012, KDHE did not know that the Konza Prairie CASTNET monitor had been upgraded to compliance status under 40CFRPart 58.5

Dec. 3, 2012. Josh Tapp of EPA R7 calls EPA-CAMD to report that KDHE feels "blind-sided by upgrade of Konza monitor to compliance status. Gary Lear, Environmental Scientist who coordinates CASTNET for CAMD recounts the five year process for the upgrade of CASTNET monitors including conference calls and professional conference presentations that have been made on this subject, but he suggests that OAQPS, the EPA entity that overseas the national air quality compliance monitoring network, may not have properly communicated these changes to the states.6 Dec. 7, 2012. KDHE withdraws their request for concurrence to include Konza ozone exceedance data as exceptional events. They say they will evaluate submittal of a separate request for the Konza data. No reason is given.7 Dec. 10, 2012. EPA-CAMD responds to Josh Tapp about the presentations OAQPS and CAMD made about the compliance transition but acknowledged that state and regional air quality personnel may have ignored this info as irrelevant to them. According to Lear, Tapp says KDHE wants the monitor discontinued or moved to a more urban location like downtown Manhattan, Ks. Lear responded that CASTNET system is designed to monitor rural conditions. Tapp said that KDHE's concern is that rangeland burning is already unwelcome and could easily result in economic consequences on the surrounding rural area from a non-attainment determination.8

Dec. 12, 2012. KDHE contacts AMEC Environment & Infrastructure, Inc., the EPA contractor for the CASTNET system, to request that the April 12 & 13, 2011 ozone data from the Konza Prairie CASTNET monitor be "flagged" and coded as related to "prescribed fire." Request is granted.9

Dec. 20, 2012. In an exchange of emails among EPA-CAMD personnel to set up a conference call on Jan. 4 with EPA Region 7 management and Tom Gross, Doug Watson and Chris Dobbs of KDHE, Gary Lear of CAMD says, "Tim, I don't think it's necessary to wait until Rick returns to have the call because, unfortunately, Konza Prairie is a LTER site on KSU land and once they figure that out (if they haven't already) they could easily decide to unilaterally just shut the site down completely -- and we would have little or no recourse."10 Call was subsequently set for January 3. Dec. 28, 2012. EPA concurs with KDHE's request to have the April, 2011 ozone exceedances declared exceptional events that will not be counted toward any violations. EPA said, "The EPA concurs that KDHE has successfully made the demonstration referred to in 40CFR50.14 (the exceptional events rule) to the EPA's satisfaction for the

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dates of April 6, 12, 13 and 29, 2011." EPA does not specifically mention the Konza monitor in their letter. However, the only exceedance listed for April 13, 2011 in KDHE's November 28 request was at the Konza Prairie ozone monitor which indicates EPA's intent was to flag all the exceedances at Kansas ozone monitors related to the rangeland burning.11 Jan. 3, 2013. A briefing document (from KDHE KORA response) for the Jan. 3 conference call with national and regional EPA personnel and KDHE lists as the main issue: that the Konza Prairie CASTNET monitor may not be properly sited to collect ozone data for regulatory purposes given the proximity to research fires conducted near the site. The brief lists the text of 40 CFR Part 58, App. E, Sec. 3.a., "Spacing from Minor Sources." The text of this rule notes that primary pollutants such as S02, lead, or particles from local minor sources can be present at high concentrations and prevent accurate determination of regional air quality. Ozone is not mentioned in this citation. The brief goes on to list options to address these concerns such as (1) classifying the ozone monitor as a "Special Purpose Monitor" to be used only for research purposes and (2) excluding data during times of localized control burns. The brief says that the state is responsible for requesting exceptional event flags for data from monitors operated by the National Park Service or other federal agencies and the state must apply to their EPA region for concurrence.12 Jan. 3, 2013. According to handwritten notes on the Jan. 3 call provided by EPA Region 7 and an email version provided by CAMD, Tom Gross of KDHE said that they had not been consulted by EPA when the CASTNET monitor was installed 10 years before. He said KDHE occasionally used the Konza Prairie monitor data, but was unaware that it had been upgraded to become Part 58 compliant (eligible to be used for compliance purposes). He said EPA should have emailed every state contact about it. CAMD responded that they had shared this information through NACAA meetings and calls, national air quality conference presentations and monthly conference calls. The CAMD notes said KDHE acknowledged they regularly tuned into the monthly NACAA calls, but apparently missed the information about upgrading the CASTNET sites. Gross then mentioned it cost $100,000+ to produce an exceptional event report and that EPA should pay for it. Gross said up to 400,000 acres may be burned in close proximity to the monitor at any given time. The discussion turned to what adjustments to the process could be made to exempt data from the Konza Prairie monitor. There was no one on the call from USEPA Office of Air Quality Planning and Standards (OAQPS) to discuss that, so the call was adjourned.13 March 4, 2013. EPA's OAQPS conducts an analysis that indicates that the future risk of violating the ozone NAAQS at the Konza Prairie monitor would not disappear if the monitor was relocated prior to the ozone season because high readings are

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substantially related to regional influences, not just local rangeland burning. They note, however, that moving the monitor would get KDHE out of any immediate risk because there would not be the three years of data required at the new site to declare it out of attainment.14 March 6, 2013. Tom Gross of KDHE tells Josh Tapp of Region 7 EPA that he has talked with the Director of the Kansas Chapter of The Nature Conservancy (TNC) that owns the land where the ozone monitor is located. Tapp asks for a draft of the contract between KSU and EPA.15 March 11, 2013, 3:30 PM. On a conference call in preparation for a call with KDHE the next day, personnel from EPA's OAPQS, CAMD and Region 7 discuss that KDHE has talked to both Kansas State University (KSU) and The Nature Conservancy (TNC) and they will pull permission for the site if it is used for compliance. CAMD says it is not planning to change the quality assurance qualification of the equipment and therefore it is probably legally bound to allow use of data for regulatory purposes.16

March 11, 2013, 5:04 PM. Gary Lear of EPA-CAMD notifies John Blair, KSU's Principle Investigator (PI) at the NSF-funded Long-Term Ecological Research (LTER) program at the Konza Prairie Biological Station, that KDHE has notified EPA Region 7 that they have been "in negotiation with TNC and Konza Prairie" about shutting the entire CASTNET site down if the ozone function is not turned off. They have a phone conversation. Mr. Blair responds that he talked with John Briggs, Director of the Station and that both he and Briggs are "uncomfortable with shutting down the ozone monitoring site due to pressure from KDHE."17 March 12, 2013, 8:26 AM Gary Lear reports to various EPA personnel on his discussion with KSU's John Blair. Lear says Blair and Briggs of KSU and the TNC (unnamed) "are more concerned about the precedent of shutting down a research site because of unwanted data than they are about threats to the CASTNET site, Biological Station or TNC. KDHE offered to set up and operate either a monitor in downtown Manhattan, Ks or a "private' ozone monitor at the site if they would agree to shut down the CASTNET monitor. The KSU/TNC parties declined.18 March 12, 2013, 9:30 AM. On a conference call between aforementioned EPA offices and KDHE, Tom Gross of KDHE says the Konza Prairie monitor does not meet the siting criteria set out by EPA rules. Mark Evangelista of OAQPS says KDHE can request exceptional event status. Gross says he has a staff of only three people and doesn't have the resources to prepare an exceptional events (EE) report, which he later says would cost $50,000. Evangelista suggests that some type of low-cost, streamlined EE procedure would suffice. CAMD says they do not want their monitors to become a burden, but anyone who does ozone measurements needs to comply with Part 58 quality assurance standards, because the data is used for analysis of rural (long range) transport. Consideration will be given to keeping the site without ozone

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measurement or to lowering the quality assurance standard for more exploratory research.19 March 12, 2013, 8:20 PM. Gary Lear of EPA-CAMD notifies superiors that he has asked for another week to resolve some remaining issues, and he presents his analysis of what those are: (1) Are there any reasons why the site should not be used for attainment determinations? He cites the review of Mark Evangelist of OAQPS who concluded that, although the site is occasionally influenced by prescribed burning in the area, it behaves similarly to other sites in the region and appears to be regionally representative. He then noted that KDHE disagrees; (2) What are the real impacts of a non-attainment determination on KDHE and Riley County? KSU does not want to create hostility in the community by creating a financial burden because of their research activity, and KDHE has told them non-attainment could cost the state "tens of millions of dollars." Lear suggests that the county may qualify as a Rural Transport Area under CAA Section 182(h) which would greatly limit the repercussions of any non-attainment designation.20 March 13, 2013, 10:32 AM. John Blair of KSU notifies Gary Lear of EPA-CAMD that Tom Gross of KDHE has asked for a meeting with various KSU personnel prior to the next call with EPA. Blair says that if it were possible to substitute the regulatory aspects of the CASTNET monitor with a replacement regulatory monitor in Manhattan, they could continue to support the CASTNET mission in Konza.21 March 13, 2013, 4:01 PM. Steven Graham, Asst. to the Dean and Director, College of Ag/K-State Research and Extension, informs two KSU colleagues that Tom Gross of KDHE called to tell him about the problem of using the Konza ozone monitor for compliance purposes, and says that if KSU had been consulted, they would have objected. "This is putting us in the wrong category and risking lots of people, (Governor, Sec. of Ag, KLA, ranchers, cities, etc.) being very mad at us" for providing the site. Gross has been talking to EPA Region 7 who seems to understand our position but EPA-DC does not. He invites them to a meeting with KDHE22 March 18, 2013. Gary Lear of EPA-CAMD explains that the Part 58 rules require that a monitor with adequate quality (QA/QC) standards must be used for compliance purposes. CAMD had been criticized for not having sufficient QA/QC standards for their CASTNET ozone measurements, and that deficiency limited their comparability to the largest network of ozone measurements (SLAMS). They upgraded in response to that criticism, and then had little choice but to allow the data to be used for compliance.23 March 19, 2013. Tom Gross of KDHE tells Josh Tapp of EPA Region 7 and others at KDHE and KSU that he wants to push back the CASTNET call with EPA to the first week of April because spring break at KSU has interfered with his ability to get KSU faculty together for a discussion beforehand.24

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March 25, 2013,11:09 AM. Email from Rebecca Weber, Director of EPA Region 7 Division of Air and Waste Management, and Josh Tapp's superior, to John Mitchell, Director of Environment at KDHE requesting a phone conference on the Konza monitor issue as a follow-up to their previous discussion, sent prior to her briefing from EPA three days hence.25 March 25, 2013, 3:50 PM. Daniel Devlin, Director of Kansas Center for Agricultural Resources and the Environment and Kansas Water Resources Institute at KSU tells John Blair that Tom Gross of KDHE had called him several times the previous week to set up a meeting with KSU personnel.25 March 25, 2013, 6:32 PM . John Bair, PI at the KSU Biological Station reports to KSU colleagues about his conversation that day with Gary Lear of EPA-CAMD. Blair says, "Based on what I know, they have determined that there is no technical reason why the CASTNET site should be discontinued. They have determined that it meets all EPA/CASTNET operating and siting criteria. They have had an independent analysis of data from the Konza site done, in comparison with other sites in the state and region, and determined that Konza is regionally representative and not unduly influenced by local events, as KDHE claims. Therefore, the only reason to terminate it would be political and they are not in favor of doing that, nor would that set a good precedent for them or us."27 March 26, 2013, 4:28 PM. Tom Gross of KDHE sends an advance copy of his March 27 briefing PowerpointR presentation to KSU personnel and to Ron Manes of TNC. Gross's presentation contains, among other things, the following points: On Flint Hills Impacts - "Cannot request multiple flags without upgrading SMP to a more restrictive approach," On consequences of a nonattainment designation - "Potential for loss of highway funds and restrictions on how highway funds can be spent." "Economic development curtailed." Conclusions - "Time is critical" "Konza site has two years of ozone data," "Three years required to make designation," "Ozone season starts April 1," "Burn season starts now."28

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A full copy of KSU's presentation to KSU, provided by EPA-HQ in their FOIA response, may be found at http://kansas.sierraclub.org/shutdown-of-konza-prairie-ozone-monitor/ March 26, 2013, 9:32 PM. John Blair gives his take on the KDHE briefing document to KSU colleagues expressing his skepticism, and noting that termination of the monitor would be based on political and economic considerations, not technical ones. He does, however, note that he is concerned that the data could lead to a more restrictive smoke management policy and more limited burning in the Flint Hills.29 March 27, 2013, 12:07 AM. Robert Manes of TNC sends an email to Josh Tapp of EPA Region 7 to express their concerns that Konza Prairie monitor is being used for regulatory purposes and could have negative impacts on important research including prescribed and experimental burning. 30 March 27, 2013. Tom Gross drives to Manhattan, Kansas for a 10:30 AM meeting with various KSU personnel. Gross provides a draft of a letter to be sent to Josh Tapp of EPA Region 7.31 March 27, 2013, 4:58PM. Ron Trewyn, VP for Research at KSU, sends a revised version of KDHE's draft to Josh Tapp of EPA Region 7 expressing their concerns that the change to compliance status of the Konza Prairie monitor was not discussed with them and its use for that purpose will jeopardize their conservation goals related to prescribed fire in the Flint Hills region and cited their work on the Flint Hills SMP. They want EPA to find a way KSU can continue their participation in CASTNET where the monitor is not used for compliance.32 March 27, 2013, 6:49 PM. John Blair writes to Trewyn and Guikema, Assoc. VP of Research at KSU, "Our letter focuses on the potential impacts of continuing these measurements on prescribed burning and grassland conservation in the Flint Hills (as it probably must to be politically palatable), but I think a bigger issue is whether we (or any other entity) should stop measuring an environmental variable that is of concern to human health because of the economic (and therefore political) impacts this could have with respect to electric power generation and other major point sources in Riley and Pottawatomie counties. Knowing that these air quality problems exist, it seems to me that the 'right' thing to do would be to pressure KDHE to start monitoring air quality n Manhattan."33 March 28, 2013. Tom Gross informs KSU personnel that KDHE had a follow-up call with EPA Region 7 that day, and EPA 7 passed on the position of EPA HQ that "they could not find a way for the ozone monitor to revert back to being a research monitor." 34 April 1, 2013. Ron Trewyn, VP for Research at KSU notifies Ron Manes of TNC that, after discussions within KSU, "it appears the only acceptable path forward is to remove the ozone monitor from the Konza site . . . . He further states, "It's not clear

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what steps are required to actually remove the ozone monitor from the system, but the sooner that can be done the better."35 April 3, 2013. Rob Manes of TNC notifies Josh Tapp of EPA Region 7 that TNC wants any EPA monitoring equipment that is used for compliance data gathering to be removed from the Konza Biological Research Station as soon as possible.36 April 4, 2013, 9:08 AM. Tom Gross says he wants to "make arrangements with whoever is appropriate to have the monitor unplugged," and offers to send one of his staff to retrieve the monitor and deliver it to the Region 7 lab.37 April 4, 2013, 11:12 AM. Tom Gross informs Briggs and Trewyn of KSU that he just got off the phone with EPA Region 7 and they are attempting to get an approval for KSU to unplug the monitor.38 April 5, 2013, 7:38 AM. Rebecca Weber of EPA Region 7 tells Tom Gross that KSU can turn off the monitor.39 April 5, 2013, 7:45 AM. Gross relays this message to Briggs and Trewyn of KSU. 40 April 5, 2013, 8:30 AM. Jim Guikema Assoc. VP of Research at KSU offers to "climb over the fence with a wire-cutter."41 April 5, 2013,10:55 AM. Ron Trewyn, VP of Research at KU notifies several KSU staff that he got a call from Tom Gross and with all the burning going on and planned, he's hoping the disconnect occurs today. Gross "stressed, 'the sooner, the better' and he would like to know when the plug is pulled so he can pass it along. Its clear he's being pushed by others on this matter."42 April 5, 2013 PM, 3:43PM. John Briggs, Director of the Biological Station reports to Gross of KDHE that the Konza ozone monitor is off. 43 Note that in these April 4 & 5 communications that EPA Region 7 has incorporated Tom Gross of KDHE into the line of communication and authority even though EPA owns the monitor and the operating agreement is between EPA and KSU. April 5, 2013, 4:04 PM. Gross forwards the news to Steven Graham, Asst. to the Dean and Director, College of Ag/K-State Research and Extension, who then forwards it to Daniel Devlin, Director of Kansas Center for Agricultural Resources and the Environment and Kansas Water Resources Institute and Carol Blocksome, grazing specialist and Assoc. Professor in Horticulture, Forestry and Recreation Dept. of the KSU Research & Extension. Graham responds to Gross as follows:

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"Wow. A perfect ending to the week! Thanks for working so hard on this issue and making it end so successfully. This is great. Let's all have a great weekend."44

April 12, 2013. When the Kansas Chapter of the Sierra Club contacted Tom Gross of KDHE to inquire as to why the Konza Prairie ozone monitor was not producing data, Gross responded, "That is an EPA monitor not a KDHE one, so I will defer to them. I will copy Josh Tapp on this note so he can respond."45 May 1, 2013. Melissa Puchalski , on behalf of EPA-CAMD, apparently in an attempt to assess an alternate location for a monitor in Kansas, contacts other national EPA staff to ask if Region 7 receives funds to operate the NCORE station at Tallgrass Prairie (in Chase County in the Kansas Flint Hills), and why they don't generate ozone data at their rural NCORE station.46 Note. In August, 2009 Sonoma Technology, Inc. of Petaluma, CA produced an NCORE Site Characterization for the Tallgrass Prairie site. The following excerpt from the Introduction of this report describes NCORE: The U.S. Environmental Protection Agency (EPA) monitoring regulations (40 CFR, Part 58, Appendix D) require states to establish and operate a new monitoring network, called NCore, by January 1, 2011. NCore is a multi-pollutant monitoring program that will consist of about 55 urban and 20 rural stations. The sites will be equipped with several advanced measurement systems to monitor particulate matter (PM2.5 and PM10-2.5), ozone, carbon monoxide (CO), sulfur dioxide (SO2), total reactive nitrogen (NOy), and meteorological parameters (temperature, wind speed, wind direction, and relative humidity). EPA is preparing a list of candidate site locations in cooperation with state, local, and tribal partners. May 2, 2013. Tim Hanley of EPA-OAPQS responds, "The Tallgrass site does not receive STAG funds as a NCORE site. This location was intended to be an NCORE station, and Kansas actually went through with a request which we approved. However, before the official start of the network in 2011, Region 7 informed us that due to staff losses in Kansas, that the state could no longer move forward with the necessary improvements."47 May 3, 2013. EPA-CAMD compiles all comments and contacts with states and EPA regions regarding the CASTNET system about the issue of its use for regulatory purposes. At that time, aside from Kansas, only Arkansas expressed concerns about the use for compliance. Region 1 requested a timeline of when it was communicated to states and regions that CASTNET monitors would be used for attainment purposes. This compilation included presentations by CAMD staff at six national professional meetings from 2006 to 2012 and two conference calls normally attended by state officials responsible for the OAQPS regulatory air monitoring system. The list also referred to a proposed rulemaking in 2007 and a response to comments in the Federal Register in 2008, but it is unclear from the description whether the upgrade of data to meet requirements for posting to the AQS database starting in 2008 is the same as

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stating that the data will be used for compliance purposes which began in 2011 for CASTNET.48 Analysis of the Available Information Who Led the Effort to Prevent the Regulatory Use of the Konza Prairie Monitor? It is clear that Tom Gross of KDHE initiated and led this campaign, but higher management at KDHE knew about it and approved. Why Did KDHE Initiate this Effort? The ostensible reasons given by KDHE were (1) that the site does not meet the location and setting requirements for a monitor whose data would be used for NAAQS compliance purposes, and (2) KDHE cannot afford the cost of preparing an exceptional events report to flag any exceedances at that monitor. Had they known it would be used for regulatory purposes they would not have agreed to its siting at the Konza Prairie Biological Research Station in 2002. KDHE indicates that it did not learn about the qualification of the site for compliance purposes until sometime after March of 2012 when they began the process of applying for flags (exemptions) for all the exceedances related to the 2011 Flint Hills burn season. Are These Reasons Valid? CASTNET is owned and managed by federal agencies. EPA provided no specific evidence that they notified state-level officials involved in the air quality monitoring system about the change in status of these monitors aside from through national professional meetings and wide-ranging conference calls. They could have made a proactive effort to ensure state officials knew of the change, for example, via certified mail. It is more likely that regional EPA personnel were aware of the change, but EPA Region 7 provided no evidence that they notified KDHE. Nonetheless, it is clear that someone at KDHE knew about it in mid-2012 during the proceedings to flag the 2011 burn data, because they included the Konza monitor exceedances in the exceptional events report that they submitted to EPA. These exceedances were subjected to the same analysis as the other monitors. Accordingly, KDHE could have brought up the issue much earlier, and thus allow a more thorough and measured evaluation of the problem. Such a measured evaluation would likely have concluded that KDHE's principal claim, that the monitor was incorrectly located, was substantially without foundation for the following reasons: 1. The Konza monitor was intended to be a rural monitor, and CASTNET is the primary source of rural ozone readings for EPA. The data is very important for the purpose of assessing long-range transport of ozone pollution; 2. The burning of grass and crop waste is widespread in the Midwest and Great Plains and would be a normal, intermittent component of ambient air in rural locations. This,

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as well as the use of nearby fields for burn research, was known when the monitor was installed in 2002; 3. Ozone is not emitted immediately by a combustion source; rather it is formed downwind under certain conditions by a reaction of oxides of nitrogen and volatile organic compounds. It is well known that through a process called NOx titration, ozone can be broken down in the immediate vicinity of a combustion source. Indeed 40 CFR Part 58 App. E Section 3b states: (b) Similarly, local sources of nitric oxide (NO) and ozone-reactive hydrocarbons can have a scavenging effect causing unrepresentatively low concentrations of O3 in the vicinity of probes and monitoring paths for O3. Thus nearby grass burning would result in lower, not higher ozone levels and reduce the risk of exceedances of the ozone NAAQS. 4. Finally EPA-CAMD compared the data generated by the Konza Prairie monitor with data from other monitors in the region and determined that it was reflective of regional values and that it was not significantly impacted by local burns. In their second ostensible motivation, that they could not afford to prepare an exceptional events report every time there was an exceedance at the Konza Prairie monitor, KDHE has a strong point. The monitor is owned and managed by EPA and was placed in 2002, apparently with limited KDHE involvement, as part of EPA's CASTNET system. Later EPA-CAMD decided (for good reasons) to upgrade the quality of the monitor to be consistent with the State and Local Air Monitoring Network (SLAMS) which, under EPA rules, meant that the data must be posted for regulatory purposes. KDHE has been under strong budget pressure in recent years and would be understandably concerned. It is illogical that KDHE should have to pay any costs associated with this monitor. Were there other reasons for KDHE's Campaign? The ozone standard is 75 parts per billion (ppb), and a violation occurs when the three-year average of the fourth highest value in each year exceeds 75ppb. The Konza Prairie monitor began generating data suitable for regulatory purposes in 2011. In 2011 the fourth highest ozone value measured was 76 ppb, and in 2012 it was 74 ppb. So it would take a fourth highest value of 76 ppb or higher in 2013 for a violation to be declared. Such a value had been reached in 5 of the 11 years this monitor has been in operation. Further, our own tabulation showed that in the 2002 - 2012 period, 29 out of 43 ozone exceedances at the site occurred outside the annual Flint Hills burning season.1 Thus KDHE was well aware that the area had a long history of marginal air quality throughout the ozone season and that a violation either in 2013 or some later year would be a significant risk.

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A violation would result in a designation of non-attainment for the area around Manhattan, Kansas, which was viewed as highly undesirable by all parties in Kansas. Mr. Gross made it very clear that he wanted the monitor shut before the 2013 burning season began, typically April 1, and he went to great lengths to achieve this. Email traffic clearly demonstrates that both KDHE and EPA were well aware of this situation and, indeed it was a compelling element of Mr. Gross's presentation to TNC and KSU personnel to convince them to pull permission to use the monitor. One element we had been unable to fathom is why KDHE went to such lengths when EPA Region 7 was obviously prepared to approve exempting the 2011 Konza exceedances from consideration of a violation, along with all the others. In fact a careful reading of the Administrator's approval letter suggests EPA actually did flag the Konza data since it was the only exceedance on April 13. Also EPA-CAMD had indicated that, as a rural monitor concerned primarily with assessing long-range transport, any violations would qualify for special treatment, resulting in minimal economic repercussions. We received no documents explaining why there was no follow-up to this suggestion. A very strong clue to solving the puzzle may be found in Tom Gross's presentation to KSU, a copy of which was also sent to TNC, the landowner, where KDHE says: "Cannot request multiple flags without upgrading SMP to a more restrictive approach," Indeed, Section 8.5 of SMP contains the following statement: "If the SMP is not effective enough to prevent an exceedance of the NAAQS, then certain contingency measures will need to be considered."50 The Flint HIlls Smoke Management Plan was prepared by a committee consisting of Flint Hills landowners & ranchers, Ag associations such as the Farm Bureau and Kansas Livestock Association, area legislators, KDHE, EPA Region 7 and KSU. It is strictly voluntary. The main operative element of the SMP is a website maintained by the KSU Research and Extension which has, for decades, advised Flint Hills ranchers on burning and grazing practices. Gross knew that EPA Region 7 would be placed in a tough spot if exceedances continued. We believe this is the underlying reason why KDHE wanted to shut the monitor, so there would be no need for any more exceptional event requests, at least related to the Konza Prairie monitor. Our interpretation is supported by parallel concerns expressed by KSU Research Administrators and the obvious satisfaction expressed by KSU Research and Extension personnel and administrators when the monitor was shut (ie. the April 5 emails).

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Should the Decision Have Been Presented for Public Review and Comment? This whole process took place behind closed doors. A good case can be made that the Konza Prairie monitor was an important installation and worthy of a public review before its fate was decided. This monitor was only one of three Long Term Ecological Research (LTER) monitors in the US. Its loss has left a gap of some five hundred miles from north to south and one thousand miles from east to west in the CASTNET system. Consistently high ozone readings had been generated at the site over its 11 years of existence in a rural area. Why is that? So why wasn't the site's fate subjected to public notice and review? The most obvious reason is that KDHE succeeded in stampeding the owner and operator of the site to pull permission in order to avoid a violation of the NAAQS and the need to apply for exceptional event status. But EPA has culpability here as well. The 2013 CASTNET Part 58 Compliance Overview contained the following provision: 9. Annual Monitoring Network Plans and Network Assessment EPA prepares an annual CASTNET (EPA, NPS and BLM-sponsored sites) monitoring network plan for public review. The network plan focuses on the ozone component of CASTNET and addresses the ozone monitoring requirements of 40 CFR 58.10(b), including any anticipated new CASTNET ozone sites or ozone sites that are in jeopardy of being discontinued. . . . The annual monitoring network plan is posted for 30 days of public inspection on approximately May 15 on the CASTNET website. The plan and response to any comments received during the inspection period are distributed to OAQPS and all EPA Regional Office contacts, and submitted to the EPA Division Director for approval no later than July 1.   However, EPA's agreement with site operators and landowners apparently does not contain a provision for notice ahead of a desired shutdown of a monitor. Thus EPA had no legal means to carry out the requirement in its network plan. Thus long-term environmental data, which represents an asset obtained at considerable public expense, can be easily compromised whenever a political situation is encountered such as at the Konza Prairie monitor. Kansas State University's Role. KSU had been the operator of the Konza Prairie CASTNET site since 2002. The change to regulatory status was mentioned in the Spring, Summer and Fall, 2011 issues of the Newsbrief for CASTNET Site Operators, but KSU personnel would be unlikely to understand the ramifications. It is obvious from the email traffic that it was KDHE that connected the dots for them in early 2013. KDHE even drafted the letter they sent to EPA expressing their position on the matter. It is also clear that the Director and Principal Investigator at the Konza Prairie Biological Research Station were resistant to the shutdown of the monitor, but were overruled by KSU administrators who were concerned about an adverse political reaction to a designation of non-attainment of the ozone standard, and by KDHE's assertion that

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rangeland burning and associated research would be threatened. Nowhere in the documentation provided to us do we see where KSU administrators actually obtained any evidence for a scenario whereby rangeland burning research at the Konza Prairie and elsewhere in the Flint Hills could be curtailed or compromised. Actually the opposite would be more likely be the case. It would be enhanced. Sections 7.2.3 to 7.2.5 of the SMP set out a strong role for additional research.50 The long-term solution to the excessive burning and stocking now occurring in the Flint Hills will likely depend on research & trials by KSU, TNC and others on patch-burn and related, less intensive management techniques, and more diverse timing. Finally it is clear that KSU Research and Extension personnel involved in the Flint Hills range burning and the Smoke Management Plan were greatly relieved to see the monitor shut down. EPA Region 7's Role. Region 7 had played a key role in the preparation of the Flint Hills Smoke Management in Plan 2010 and, after it failed to prevent a large number of ozone exceedances in 2011, approved the exceptional events request made by KDHE in 2012. During the Konza Prairie monitor controversy they mainly served as a conduit to EPA HQ for KDHE. None of the documents indicate that Region 7 produced any significant push-back to KDHE's campaign. In the final days, Region 7 even incorporated KDHE into the line of communication and authority to shut the EPA-owned monitor. EPA HQ's role. Personnel at EPA headquarters who manage the nation's air quality monitoring systems maintained that they needed to upgrade all the CASTNET monitors in order to make data comparable throughout. Once that is done the monitor's data must be posted to the air database for compliance purpose. This makes perfect sense since the Clean Air Act places top priority on protecting public health. However, none of the documents provided to us explained what happened to the suggestion that, as a rural monitor in a prime location to assess long-range transport, the Konza Prairie monitor and Riley County could quality for greatly attenuated economic consequences in the event of a NAAQS violation and non-attainment designation. EPA's agreements with CASTNET site operators and landowners apparent allow the precipitous removal of monitors. This causes a significant loss of value in an important public asset, ie. the continuity of a valuable data series. Finally, EPA's policy that, after upgrading EPA owned and operated monitors to compliance use, states must foot the bill for seeking exceptional status for any exceedances seems to be illogical and unfair. EPA needs to fix this because this is the kind of thing its critics like to point to as an "unfunded mandate."

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The Disappearing NCore Monitor. Finally the exchange of emails on May 1 and May 2, 2013 among EPA HQ personnel about the NCore monitor at the Tallgass Prairie site caught our attention. This monitor is even shown on the map on the EPA website for NCore. http://www.epa.gov/ttn/amtic/ncore/networks.html The problem is . . . it doesn't exist. Here is yet another case where a monitor that would be well positioned to assess the air quality during the Flint Hills annual burn was cancelled. This is deserving of further investigation, and we have contacted EPA Region 7 to that end. Need More Focus on the Public Health. Considerable data was collected at the Konza Prairie ozone monitor from 2002 through 2012 to demonstrate that people in the Manhattan area are at times exposed to dangerous levels of air pollution during the April - September ozone season. The USEPA website explains a principal purpose of the Clean Air Act: To protect public health and welfare nationwide, the Clean Air Act requires EPA to establish national ambient air quality standards for certain common and widespread pollutants based on the latest science. EPA has set air quality standards for six common "criteria pollutants": particulate matter (also known as particle pollution), ozone, sulfur dioxide, nitrogen dioxide, carbon monoxide, and lead.49 Few participants in the controversy examined this part of the issue. As far as we can tell this serious problem for the public health is still not being addressed. The primary goal of the Clean Air Act is to protect the public health and welfare.49 Conclusions The preponderance of evidence demonstrates that KDHE campaigned to remove the Konza Prairies ozone monitor in order to avoid the strong likelihood that ozone standard exceedances there could lead to tighter restrictions on range burning in the Flint Hills. KDHE's assertion that the monitor did not meet EPA rules for locating a regulatory monitor is substantially without merit. EPA Region 7 essentially facilitated this process even to the extent, at one point, of incorporating KDHE into the line of authority and communication with the site operator, Kansas State University, even though it was an EPA-owned monitor. Administrators at KSU overruled reservations expressed by their research personnel who operated the monitor, because they feared political repercussions from an ozone standard non-attainment designation. Without any evidence we could find, KSU

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administrators accepted KDHE's claim that continued regulatory status of the Konza Prairie monitor could lead to interference with range burning research in the Flint Hills when, to the contrary, this research would likely become more important. The national EPA entities that managed the Konza Prairie monitor as part of their CASTNET system were insufficiently proactive in notifying state regulators about the change in the regulatory status of the CASTNET monitors. They were unprepared to deal with this controversy because they have not required landowners and operators to give sufficient notice before shutting monitors in their care. Thus EPA was unable to enforce their plan for public notice and comment, which in this case, could have countered some of the misinformation and led to a more satisfactory solution. For example, EPA officials might have clarified that a much milder range of sanctions would apply for violations at a rural monitor used primarily to assess long-range transport of pollutants, as opposed to an urban monitor. Finally EPA-HQ's policy of imposing onto state agencies certain costs of dealing with exceedances at EPA-owned monitors increased the risk of conflict with state officials. Despite considerable data demonstrating that people in the Manhattan, Kansas area are at times exposed to dangerous levels of air pollution during the April - September ozone season, few participants in the controversy examined this part of the issue. A primary purpose of the Clean Air Act is to protect the public health and welfare. As far as we can tell this serious problem for the public health is still not being addressed. References 1. Sierra Club Fact Sheet, monitor map, KDHE Presentation to KSU. http://kansas.sierraclub.org/shutdown-of-konza-prairie-ozone-monitor/ 2. Email from Timothy Sharac, CAMD, to distribution. 3. Email from Gina Grier, EPA Region 7, to Tom Gross of KDHE with copy to Josh Tapp. 4. KDHE, State of Kansas Exceptional Event Package, April 6, 12, 13, and 29, 2011, Nov. 27, 2012. 5. Letter from John Mitchell, Dir. Div. of Environment, KDHE to EPA Regional Administrator, Nov. 28, 2012. 6. Email from Gary Lear, EPA-CAMD to Timothy Sharac, CAMD. 7. Letter from John Mitchell, Dir. Div. of Environment, KDHE to EPA Regional Administrator, Dec. 7, 2012. 8. Email Gary Lear of CAMD to Richard Haeuber, Chief, Assessment and Communications Branch, CAMD. 9. Email from Yao Tang, KDHE to Christopher Rogers of AMEC, Dec. 12, 2012. Roger grants request in email dated Dec. 13, 2012. 10. Email exchanges dated Dec. 12, 2012 among Gary Lear, Richard Haeuber and Timothy Sharac of EPA-CAMD.

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11. Letter from EPA Region 7 Administrator, Karl Brooks, to John Mitchell, Dir. Div. of Environment at KDHE, Dec. 28, 2012. 12. Clean Air Status and Trends network (CASTNET). Issues with Konza Prairie Regulatory Ozone Monitoring. Conference Call, January 3, 2013. 13. Email from Timothy Sharac of CAMD to Lewis Weinstock, Group Leader, Ambient Monitoing Group, Air Quality Assessment Division, USEPA Office of Air Quality Planning and Standards. One paragraph of this email, provided by USEPA was redacted. Handwriiten notes dated Jan. 3, 2013 provided by EPA Region 7. Author unclear. 14. Email from Richard Wayland OAQPS to Mark Evangelista, OAPQS Air Quality Analysis Group with copy to Joshua Tapp of EPA Region 7. 15. Email correspondence between Tom Gross of KDHE to Josh Tapp of EPA Region 7. 16. Handwritten notes by national EPA personnel. 17. Email correspondence between Gary Lear and John Blair. 18. Email from Gary Lear of EPA-CAMD to various national EPA personnel. 19. Handwritten notes by national EPA personnel. 20. Partially redacted email from Gary Lear of EPA-CAMD to R. Haeuber, Melissa Puchalski & Timothy Sherac. 21. Email from John Blair, KSU to Gary Lear, EPA-CAMD. 22. Email from Steven Graham to Daniel Devin and Ernie Minton. 23. Heavily redacted email from Gary Lear to Richard Haeuber fo EPA CAMD. 24. Email from Gross to Tapp et al with subject: "CASTNET Call on Thursday. 25. Email from Rebecca Weber to John Mitchell with subject: Konza. 26. Email from Daniel Devlin to John Blair with subject, "Possible Meeting on Air Monitor." 27. Email from John Blair to Ron Trewyn, Jim Guikema, Assoc. VP of Research and John Briggs. 28. Emails from Tom Gross to Ron Trewyn, John Blair, John Briggs and Guikema of KSU and separately to Ron Manes of TNC. 29. Email from John Blair to Ron Trewyn, Jim Guikema and John Briggs. 30. Email correspondence between Robert Manes of TNC and Josh Tapp re: Konza Ozone Monitor. 31. Email from James Guikema of KSU to Ron Trewyn of KSU concerning suggested edits to the KDHE draft. 32. Email with copies to Briggs and Blair of KSU. 33. Email to Trewyn and Guikema with copy to Briggs. 34. Email from Gross to Blair and Trewyn of KSU with copies to Briggs, Guikema of KSU and John Mitchell and Rick Brunetti (Gross's immediate surpervisor) of KDHE. 35. Email from Trewyn to Rob Manes with copy to Tom Gross of KDHE. 36. Email from Manes to Tapp with copies to John Briggs and Ron Trewyn of KSU, Tom Gross of KDHE and Brian Obermeyer of TNC and and Lance Hedges (association not noted).

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37. Email from Gross to EPA REgion 7 personnel including Josh Tapp and Rebecca Weber with copies to Brunetti, Mitchell and Doug Watson of KDHE. 38. Email from Gross to Trewyn and Briggs with copies to Mitchell and Brunetti of KDHE. 39. Email from Weber to Gross with copies to Gary Lear of EPA-CAMD and Josh Tapp of EPA Region 7 40. Email from Gross to Briggs and Trewyn of KSU. 41. Email from James Guikema to Ron Trewyn of KSU. 42. Email from Trewyn to Guikema, Peterson and Briggs of KSU. 43. Email from John Briggs to Tom Gross. 44. Email from Graham to Gross, Blocksome and Devlin with subject: Konza ozone site. 45. Email from Tom Gross to Craig Volland, Chair of the Air Quality and Agriculture committees of the Kansas Sierra Club. 46. Email from Melissa Puchalski to Laurie Trinca which is forwarded to Tim Hanley. 47. Email from Tim Hanley to Laurie Trinca which is forwarded to Ms. Puchlski. 48. Email from Richard Haeber of EPA-CAMD to Reid Harvey of CAMD 49. http://www.epa.gov/air/caa/requirements.html. See also 42 U.S. Code, Sec 7401(b)(1). 50. Bureau of Air, KDHE, Flint Hills Smoke Management Plan, December, 2010, http://www.kdheks.gov/bar/air-monitor/flinthills.html