Enclosure 

EPA Response to Petition for Reconsideration from Sierra Club 

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

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

Issue: Petitioner asserts that the EPA should reconsider the final ozone designations rule (signed on 

April 30, 2012) and designate 15 counties and parishes identified in the Petition as nonattainment based 

on certified air quality monitoring data for 2009-2011, which became available shortly after signature of 

the final rule. Petitioner also asserts that the EPA should designate as nonattainment the combined 

statistical areas or at least the metropolitan or micropolitan statistical areas in which the listed counties 

or parishes are located. 

Response: The designation process laid out in the Clean Air Act (CAA) involves an interactive process 

between states and the EPA. States provide initial designation recommendations based on current air 

quality data and other factors. The EPA notifies the states of any modifications it believes are 

appropriate to the state recommendations 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 the EPA’s designation guidance for the 2008 ozone National Ambient Air 

Quality Standards (NAAQS), the EPA recommended that “states and tribes identify violating areas 

using the most recent three consecutive years of quality-assured, certified air quality data.” In addition, 

the EPA stated, “We expect to base the final designations in March 2010 on the 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 Administrators, Regions I-X, titled, “Area 

Designations for the 2008 Revised Ozone National Ambient Air Quality Standards.”) In September 

2009, the EPA announced it was reconsidering the 2008 ozone NAAQS and later announced it was 

deferring designations by an additional 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 entered into a Consent Decree 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, Assistant Administrator, to Air Division Directors, Regions 1-10, 

titled, “Implementation of the Ozone National Ambient Air Quality Standard.”) For purposes of issuing 

the designations, the EPA indicated that it would use the recommendations states made in 2009 as 

updated by the most current, certified air quality monitoring data from 2008-2010. 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 submit updated designation recommendations 

also included as part of their recommendation a request that the EPA consider monitoring data from 

2009-2011 in making final designation decisions. In their updated recommendations they indicated to 

the EPA what they anticipated new certified data would show regarding whether an area was attaining 
the standard, and for designation purposes they committed to certifying their 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 explains which years of certified 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, pages 7-8.) For most areas of the country, 

including the 15 counties and parishes identified in the Petition, the final designations for the 2008 

ozone NAAQS were based on air quality monitoring 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 issue the designations by the 

May 31, 2012 Consent Decree deadline. Under 40 CFR 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 determine how and whether to revise the states’ 

designation recommendations based on such data and to provide states with 120-day notice if the EPA 

intends to revise the state’s recommendations. For areas where states notified the EPA of the preliminary 

2011 monitoring results and committed to submit and certify 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 that in order for the EPA to be able to consider 2011 air quality 

monitoring data for purposes of the final designations, the state must 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 and the state to complete the interactive process 

considering the air quality data on which the designation 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 monitoring 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 provides a separate process for redesignating areas based upon subsequent 

air quality-related considerations. We believe the redesignation process 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 consider such new information would result in a never-ending process in 

which designations are never finalized and thus do not provide certainty. 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, is 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 the best of his or her knowledge, taking into consideration the quality assurance findings. 

Certification signals that the monitoring agency has loaded all of its data for the year and has completed the monitoring agency’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 agency may still be reviewing the data, making the data subject to change. 

Therefore, it is the EPA’s practice not to use uncertified air quality data for designations.

2

 The Petitioner notes in a footnote, that the EPA issued the designations a month before the date required by the Consent Decree. 

However, given the timing constraints, this did not affect which data were available to the EPA for use in making the designation decisions. 
parishes, we anticipate that certified data from 2012 would become available about the time we were 

finalizing the reconsideration 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 designation 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 appropriate basis for reconsidering the designations.