From: David Baron <dbaron@earthjustice.org> 

To: Gina McCarthy/DC/USEPA/US@EPA, Janet 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 recommendations 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/1997standards/documents/111402_8hrschedule.pdf , later 

extended to 7-15-03, 

http://www.epa.gov/ozonedesignations/1997standards/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 revised 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 less time. For example, Pennsylvania didn’t submit its 

recommendations until August 15, 2003, 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 Pennsylvania were later upheld in Pennsylvania v. EPA, 429 F.3d 1125 

(D.C. Cir. 2005). 

The similarities between the situation in 2003-04 and the situation today are significant. That experience 

shows that EPA has completed designations in substantially 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 instead of the 8 months allowed by the Bush 

Administration, and by directing the regions to complete their reviews of the states' submissions in 3 1⁄2 

months. Even adding the 120 days required for subsequent 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 substantial --- 474 counties or parts of counties in 

nonattainment. 

Hope the above is useful. 

David 

______________________________________ 

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>