Enclosure

EPA Response to Petition for R econsideration from Sierra Club

By Petition dated July 20, 2012, Sierra Club requested th at the EPA reconsider the final designations for

certain identified areas. For the reasons disc ussed below, the EPA is denying the Petition.

Issue: Petitioner asserts that the EPA should reconsider the fi nal ozone designations rule (signed on April 30, 2012) and designate 15 counties and parishes identified in the Petiti on as nonattainment based on certified air quality monitoring data for 2009-2011, which became availa ble shortly after signature of

the final rule. Petitioner also a sserts that the EPA should designat e as nonattainment the combined statistical areas or at least the metropolitan or mi cropolitan statistical areas in which the listed counties or parishes are located.

Response: The designation process la id out in the Clean Air Act (CAA) involves an interactive process between states and the EPA. States provide initia l designation recommendati ons based on current air quality data and other factors. The EPA notifies the states of any modifications it believes are appropriate to the state recommenda tions at least 120-days prior to promulgating the final designations. The states then have an opportunity to respond to the EPA’s intended modifications before the EPA finalizes the designations. In th e EPA’s designation guidance for the 2008 ozone National Ambient Air Quality Standards (NAAQS), the EPA recommended th at “states and tribes identify violating areas using the most recent three consecuti ve years of quality-assured, certif ied air quality data.” In addition, the EPA stated, “We expect to base the final de signations in March 2010 on th e most recent qualityassured data which would be from 2006-2008 or 2007-2009.” ( See memorandum from Robert J. Meyers, Principal Deputy Assistant Administrator, to Region Administ rators, Regions I-X, titled, “Area Designations for the 2008 Revised Ozone National Am bient Air Quality Standards.”) In September 2009, the EPA announced it was reconsidering th e 2008 ozone NAAQS and later announced it was deferring designations by an additi onal year, until March 12, 2011, as provided under the statute due to insufficient information. ( See 75 FR 2936; January 19, 2010.) Because the EPA had not completed the designation process by March 12, 2011, WildEarth Guardians filed suit claiming that the EPA had an outstanding mandatory duty to issue the designations . (WildEarth Guardians v. Jackson, D. Ariz. No. 2:11-CV-1661.) The EPA and WildEarth Guardians ente red into a Consent Decr ee requiring the EPA to complete the designations for the 2008 ozone NAAQS by May 31, 2012.)

On September 22, 2011, the EPA issued a memorandum to clarify for state and local agencies the status of the 2008 ozone NAAQS and to outline plans for moving forward to implement them. ( See memorandum from Gina McCarthy, A ssistant Administrator, to Air Division Director s, Regions 1-10, titled, “Implementation of the Ozone National Ambien t Air Quality Standard.”) For purposes of issuing the designations, the EPA indicated that it would use the recommenda tions states made in 2009 as updated by the most current, certified air quality monitoring data from 20 08-2010. While the EPA did not request that states submit updated designation recommendations, the EPA provided the opportunity

for states to do so. In certain cases, states that chose to s ubmit updated designation recommendations also included as part of their recommendation a request that the EP A consider monitoring data from 2009-2011 in making final designation decisions. In their updated recomm endations they indicated to the EPA what they anticipated new certified data would show regard ing whether an area was attainingthe standard, and for designation purposes they co mmitted to certifying thei r 2011 data earlier than required. 1

In section VII of the Preamble for the April 30, 2012, designations rule and section 3.1.1 of the Response to Comments (RTC) document, the EPA expl ains which years of cer tified air quality data it considered in making designations decisions. ( See 77 FR 30088; May 21, 2012, page 30,091 and RTC document in the docket at HQ-OAR-2008-0476-0675, page s 7-8.) For most areas of the country, including the 15 counties and pari shes identified in the Petition, the final designations for the 2008 ozone NAAQS were based on air quality monitori ng data for the 2008-2010 time period because these

were the most recent certified data available in the timeframe consistent with the EPA’s ability to comply with the procedural requirements of CAA section 107(d) and to issu e the designations by the May 31, 2012 Consent Decree deadline. Under 40 CF R part 58.15(a)(2) regarding the deadline for annual air monitoring certification, states were required to certify 2011 air quality monitoring data by May 1, 2012, and states generally did not certify such data until that date. Data certified on or about May 1, 2012, were not certified in sufficient time for the EPA to evaluate the data and to meet the procedural requirements of the CAA for purposes of meeting the required May 31, 2012 designations

deadline. 2 Specifically, EPA needs sufficient time to dete rmine how and whether to revise the states’ designation recommendations based on such data and to provide states with 120-day no tice if the EPA

intends to revise the state’s recommendations. For area s where states notified the EPA of the preliminary 2011 monitoring results and committed to submit and cer tify the data early, the EPA considered the information submitted by the state in determining whether to notify the state in the December 2011 letters that it intended to modify the state’s recommendation. Additionally , in the notification letters, the

EPA further indicated to states th at in order for the EPA to be able to consider 2011 air quality monitoring data for purposes of th e final designations, the state mu st submit the certified 2011 data for an area by February 29, 2012. The EPA established this deadline for states to submit any additional

information to ensure sufficient time for the EPA a nd the state to complete the interactive process considering the air quality data on which the designa tion would be based, and to provide the EPA with sufficient time to develop the final rule and related technical support documents. For states that met the February 29, 2012 deadline for certifying the 2011 mon itoring data, the EPA was able to consider the data for final designations.

The EPA notes that once the EPA has promulgated initial designations for a new or revised NAAQS, section 107(d)(3) of the CAA provide s a separate process for redesign ating areas based upon subsequent air quality-related considerations. We believe the redesignation proce ss is an appropriate process for addressing monitoring information that was not available in sufficient time to be considered during the initial area designation process. New technical data become available on a regular basis and granting petitions for reconsideration to c onsider such new information would result in a never-ending process in which designations are never finali zed and thus do not provide certain ty. Moreover, if we granted this Petition and considered air quality data from 2009 -2011 to designate the identified 15 counties and

1 Under 40 CFR 58.15(a), the senior air pollution control officer in a state or, where appropriate, local agency, or designee, i s required to
certify by May 1 that the previous year of ambient monitoring data is completely submitted to the EPA’s Air Quality System and that the
ambient monitoring data are accurate to th e best of his or her knowle dge, taking into consideratio n the quality assurance findi ngs. Certification signals that the monitoring agency has loaded all of its data for the year and has completed the monitoring agenc y’s normal
validation process. If the May 1 deadline for data certification has not passed and the data have not been certified, it is not clear to the data
users whether the responsible agency has completed its normal data review and validation process and/or if the agency believes the data are
of adequate quality. The EPA presumes that the monitoring agen cy may still be reviewing the data, making the data subject to ch ange. Therefore, it is the EPA’s prac tice not to use uncertified air quality data for designations.

2 The Petitioner notes in a footnote, that the EPA issued the desi gnations a month before the date required by the Consent Decre e. However, given the timing constrai nts, this did not affect which data were available to the EPA for use in making the designati on decisions.parishes, we anticipate that certified data from 2012 would become available about the time we were finalizing the reconsiderati on process and we could receive a further petition to then consider air quality data from 2010-12. As noted by the Court in Catawba v. EPA , 571 F.3d, page 52, “Congress imposed deadlines on EPA and thus clearly envisioned an end to the designati on process.” We do not agree that new monitoring information that was not available in time for the EPA to fully comply with the procedural requirements of the CAA provides an appr opriate basis for reconsidering the designations.