From: David Baron <dbaron@earthjustice.org>

To: Gina McCarthy/DC/USEPA/US@EPA, J anet McCabe/DC/USEPA/US@EPA, Joseph Goffman/DC/USEPA/US@EPA Cc: "jnolen@lungusadc.org" <jnolen@lungusadc.org>, "JWalke@nrdc.org" <JWalke@nrdc.org>

Date: 08/06/2010 06:01 PM Subject: Ozone designations

All,

Relevant to our discussion last week, it might be helpful to look at the history of designations for the 1997 ozone standard. The states submitted preliminary reco mmendations on designations in 2000, but then the designations process was put on hold during litigation over the standards. After resolution of the litigation, EPA by memo dated 11-14-02 asked states to update their designation recommendations by 4- 15-03, http://www.epa.gov/ozonedesignations/199 7standards/documents /111402_8hrschedule.pdf , later extended to 7-15-03, http://www.epa.gov/ozonedesignations/1997sta ndards/documents/022703_extension.pdf , a deadline that states generally met. EPA responded to the states' recommendations (including proposed modifications where warranted) on 12-3-03, and final designations were signed 4-15-04 (published 4-30-04). 69 Fed. Reg. 23858, 23861-62 (2004). Thus, from the time EPA asked states to submit revise d designations (11-14-02), it took 17 months to get to final designations

– and this in a process that was not deemed to be expedited. Note also that EPA was able to review the state’s submissions and get back with its modifications in just over 4 1⁄2 months. In some cases EPA actually completed its review in l ess time. For example, Pennsylvania didn’t submit its recommendations until August 15, 20 03, but EPA still got back with its modifications by 12-3-03 --- about 3 1⁄2 months later. See http://www.epa.gov/ozonedesignations/ 1997standards/regions/region3.htm

. EPA’s ozone designations for Penns ylvania were later upheld in Pennsylvania v. EPA , 429 F.3d 1125 (D.C. Cir. 2005). The similarities between the situation in 2003-04 and th e situation today are significant. That experience shows that EPA has completed designations in substan tially less than 2 years, that the entire process can be completed in17 months even when not expedited, and that EPA can review and modify the states’ proposed designations in a defensible way in as little as 3 1⁄2 months. It is reasonable to expect that the 17 month schedule achieved in 2003-04 could be expedited by several months by requiring the states to submit their recommendations in 3 or 4 months in stead of the 8 months allowed by the Bush Administration, and by directing the regions to comple te their reviews of the states' submissions in 3 1⁄2 months. Even adding the 120 days required for subse quent consultation between EPA and the states, that brings the entire process to completion within about a year. Although it's true that EPA could well be facing more nonattainment areas this time around, the number of nonattainment areas identified in 2004 was subs tantial --- 474 counties or parts of counties in nonattainment. Hope the above is useful. David



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David Baron Managing Attorney Earthjustice 1625 Massachusetts Avenue, NW, Suite 702 Washington, DC 20036 (202) 667-4500 Ext. 203 (phone) (202) 667-2356 (fax) dbaron@earthjustice.org <mailto:dbaron@earthjustice.org >