Bryan W. Shaw, Ph.D., Clzairman Buddy Garcia, Coinmissionev Carlos Rubinstein,Commissionsr Mark R. Viclceiy, P.G., Exealtiue Dii'ector

Protecting Texas by Reducing andPreventing Pollution

The Honorable Cass R. Sunstein Administrator Office of Information and Regulatory Affairs Office of Management and Budget Eisenhower Executive Office Building 1650Pennsylvania Avenue, N.W. Washington D.C. 20503 Dear Administrator Sunstein: I would like to request your attention to a specificissue associated with proposed designations and classifications under the 2008 ozone National Ambient Air Quality Standards (NAAQS), a United States Environmental Protection Agency (EPA) rule nowbefore your office for consideration. Pursuant to the requirements in Section 107(d)(1)(A) of the Federal Clean

### Air Act (FCAA), Texas Governor Rick Perry submitted a recommendation for designation of areas in Texas with regard to the 2008 ozone NAAQS to the EPA on October 31,2011. The Houston-Galveston-Brazoria (HGB) area was recommended to be nonattainmentbased upon thelatest certified monitoring data (a design value of 84parts per billion), which would have indicated a "marginal" classification,if the EPA continued to utilize the previous classification metric adoptedfor the 1997eight-hour ozone standard. In fact,in a September 22, 2011, memo to RegionalAir Division Directors (attached),Assistant Administrator Gina McCarthy expressed the EPA's preliminary classification for the HGB area would indeed be "marginal." The EPA has neither proposed or finalized a rule regarding the application of classification requirements of FCAA, Section 181(a)(1)for the 2008 ozone NAAQS. I understand that the EPA is considering classifymg areas that had previously requested a voluntary bump-up to a higher classification under the previous 1997eight-hour ozone standard at the same higher classification for the revised 2008 ozone NAAQS, regardless of the classificationmetric outlined in the September 22, 2011, memo. Texas submitted a reclassification request to "severe" for theHGB area tothe EPA under Section 181@)(3)of the FCAAfor the 1997 ozoneNAAQS,but never intended this request to extend to an unknown future standard. There is no procedural precedence or statutory authority for the EPAto propose a high'er classification for an area than is warranted 

### by the ozone concentrations observed by the EPA's approved monitor network. Texas is not requesting and does not want a voluntary bump-up of the classification for the HGB area, nor does the Texas Commission on Environmental Quality agree that the previous voluntary bump-up for the HGB area concerning the 1997eight-hour ozone standard is appropriate for, or applies to, the 2008 eight-hour ozone standard. The governor is submitting a formal request to the EPA to follow their classification metric and designate the HGB area as "marginal" for the 2008 eight-hour ozone standard. As it is my understanding that the proposed rule is already before your office for revicw, 

### I

P.O. Box 13087 

# - Austin,Texas 787~-3087 * 5~2-23g-iooo * www.ICeq.texas.gov - How is our customer service? www.tcet~.texes.gov/goto/c~~ston~ers~~~vey

,The Honorable Cass R. Sunstein Page 2 respectfully request that you consider the concerns identified in this lctter and make appropriate changes tothe proposed r~ile prior Lo ils p~~blication.

I appreciate your consideration onthis matter. Ifyou have any questions or need additional information,please feel lree to contact me at 5121239-5510. Sincerelv,

Bryan W. Shaw, Ph.D., Chairman Texas Commission on Environmental Quality Enclosure

cc: Lisa P. Jackson, Administrator, EPAWASHINGTON, 13 C 20460

September '22,2011


### MEMORANDUM TO: Air Division Direcars, Regions 1

## - 10 

### FROM:
SUBJECT: lmplernentati&f the Ozone National Ambient Air Quality Standard

The purpose of this memorandum 

### is to clarify for state and local air agencies the status ofthe ozone National Ambient 

### Air Qllality Standard 

### WAAQS) and to outline irxiplrme~ltation steps moving fonvacd. With the 

### recent decision on the reconsideration of the ozone NAAQS, the current ozone NAAQS is0.075 ppm. 

### This standard 

### will provide additional public healih and welfare protection until the nextregular review is completed, and 

### EPA fully intends to implement this current standard as required under thc 

### Cleaz Air~ct.' 

### As I will describe helow in more detaii,EPA is moving ahead with certain required actionsto i~nplemcnt the 

### 2008 srandxrd, but will 

### Ju so mindful ol'~:ie I'rcsidenr'h and Adminis~rator's tlirection tila1 in these chnllcnging economic time3 El'!\ sllould rduce uncertainty :~nd n~initni~ the regulatory burdens on rrfate and local governments. EPA 

### is also conti~iuing to impleme~it and develop federal 

### rules and athee programmatic 

### actions to reduceemissionsthat contribute to

. - smog and ikprove air quality and public hcalth across the nation. 

### Area Designations 1IP.4 is proccctliny wilh initial ;I~I dt.signntio~~s under thc 2008 Ai~~~dard, jti~rtirg with the reromnicndutions stares made in 2009 and updating the111 wilh thc rnvst CLIIIUI~, certified air qu:dity dnrx We expeel lo issue our propvsed changes lv the jluttss' rccommcndatio~is (lllc''I 2U- (lay ietws") la!cr 

### this till. Wc will quickly iniliiue and crm~plctc a rulc~riaking to es~ab!isll nokattainrnent area classificationth&sholds so that we can halize the design&ons. While we intend 

### to take into considerationaU com~nents we receive onthe proposed 

### rule, we note that we used a "percent above the standard" approach for classification u;d& the 

### 1997 ozone standard and believe that remains a reasonable approach. 

# ' Note that the 2008 standard is under legal challenge. 

### EPA ha9 recently indicated to the Courl that it does not object to the establishment of a briefing schedule in that litigation and has provided 

### a schedule for 

### the Courtto consider.

### Based on ominitial review of ozone air quality data from 2008-2010,52 areas monitor air quality that exceedsthe 0,075 ppm standard. This preliminary review shows considerably fewer areas not meeting the 2008 standardthan (he number identified 

### in 2009 when 

### statesmadetheir recommendations, 

### Using the 

### '"yercent above the standard" classificationapproach, 

### 43 ofthe 52 areas would fa11 into the Marginal cakgory, As

### you know, many ofthemandatory measures under the Clean Air Act are not required for Marginal areas sincethey are expected to aqhieve attainmentwithin 3 

### years, In addition, EPA's 

### modeling indicates thai approximatekyhalfof the 52 areas would attain the 0.075 ppm standardby 2015 [the expected attainment deadline for Marginal meas) 

### as a result oftheemission-reducing rules alreadyinplace. Because we have states' 2009reconmendations and quallty assured ozone data for2008-2010, there is 

### nothingthat stilteor locd agencies need to dountil we 

### issue the 120-day letters later this year, though of course, states we welcometo cantact us to discuss specific issues atanyhe. We expectto finalizeinitial area designationsfor the 2008 ozoneNAAQS by 

### mid-2012. However, we note that EPA 

### currently faces litigation with respectlo the timing 

### of the designationsand expects that 

## the resolution ofthe 

### litigationmay well affect.the precise tinljng of the schedule for designations. IJicmningKcquir~mcvrs ottd O/hc:r Requircd 

### StrO~nissions W'c will begin an cxpcditcd rulcmaking to 

### outline thc implemrntationrequirements for thc 2008 

### standxd in the wry 

### ncdr linure, i'he ~ule will hc 

### as struightforward and simple as we can malte it. 

### Asyou know, thc Clean Air r\cr 

### providcs sevetnl years 

### ibr sratcs ro ilcvclop their State Implerr.cnlatioli Plans (SIPS) and to implc.lncntany ~niu~daturg measures. Ilowever! scveral deadlines lir some state submisrions havc ulrcady nassed, including the infrastruclureSll's 

### and interstate transport SIPS. There are fewrequirem&& for ~ar~inalareas beyond those SPs. EPA doesnot intend to nenalize statesfor the passage oftime, but we may also 

### f@w litigation on these issues. 

### In negotiating schedules for expdditio<s completionofrequired elements, wt?

### will seektominimize anv 

### administrativeburden on slates associated with theserequirements. To the 

### cxtcnt that states are alrcady cngagcd or cvould like to get started with cican air prngrams io 

### address the standitrd. we will 

### orovidc assistance with ruidance and model ia~~guagc on rules or 

# - - - 

### other programs, such iis 

### energy efficiency. Federal

### Action$ to 

### Reduce 

### Emissions EPA 

### will continueto move forward with implementationand development offederal rulesthat reduce emissions of nolMants that contribute to smog and threaten public health. These actions il~clude recently prolnulgated rulcs that lowcr NOx 

### &IVOC emissions such as 

### the Cross-State Air Pollution Rule (CSAI'K), the I'ortland Ccment Rulc, and Light and llemy IAty 

### Vchiclc standards. l'hey also include rules under development 

### such as the Evliiximum ~ichlevablc Contrul 'l'echnoloirv (EvlACTI standardsfor Boilcrs, the k1er~'ur~ and Air 'l'oxics Standards(MATS) 

### for power 

### pla& the ~\lew Source~erfomanci Stdads 

### &SPS) for ComercialInoineratorF$Solid Waste 

### Incinerators

### (CISWI) and the Oil/Gas sector, and the 

### Tier 3 

### vehicle and fuel staardards, These federal actions 

### wilt ensure steadyforward progressto cleaqup the nation's air andprotect the health of American families, while minimizing and in many cases eliminating the need for states t~ 

### use their scarce resources on local &ction~,Tho

### Next Ozane Review 

### The next regulnr review of the health and 

### welfare science 

### is well underway. EPAwillpropose my 

### appropriate

### revisions in the Ed1of 

### 2013 and

### finalize 

### any revisionstothe dandard in 2014, Attached to 

### this memorandum 

### is a 

### schedule that 

### lays out 

### the upcoming steps 

### inrhar review. I 

### hope this memorru~dum has 

### answcrcd somc 

### of'thc most immediate 

### questions. Please distribute this Inelno to state and local air 

### iigencics in 

### your Rcgion. We will be 

### plwitiiny!opportunitiesfor 

## - -- fher discussion and questions with 

### state 

### and locafoffrcials in 

### the coming weeks. AttachmentSeptember22,2011 

## QmneNMQSReview S~hedule



# --

. IntegratedSciexe Assessment (ISA) 

# I

2" Draft ISA CASAC and public reviewof 2nd Dmft ISA

CASAC and public review IdDraft REAs May2012 2" 

### Draft REAs Nav2012 CASAC and public review

### 2"d Draft REAS JanlFeb2013 Final REAs Apr2013 Policy Assessment (PA) la' Draft

### PA Apr2012 and Rulemaking CASAC and public reviewTsf Draft PA May

### 2012
CASACand public review 

### 2ntDfaft PASeptember 22,2011
EPA has done a preliminary review of ozone air quality data from 2008-2010. Below is EPA's initial estimate of areas exceeding the 2008 ozone standard of0.075 ppm, based on those data. The actual nonattainment areas will be determined through the designations process, which will include extensive input and review by the states and an opportunity forpublic comment.September 22,2011

Designation Status

for 1997 ozone



## I Providence (All RI), RI 0.076 Marginal 

## I Nonattainment 

## I
*Generally, the area descriptionsin this tahle refer to metropolitan areas. Precise area boundarieswill he established through the designations process. **EPA will establish classification thresholds through notice-and-comment rolemaking. Listed in this tahle are the classificatioilsthat would result from the "perce~~t-above-sta~~dard" pproach EPA used for the 1997NAAQS. These thresholds are: Marginal 0.076 up to 0.086ppm; Moderate 0.086 up lo 0.100 ppm; Serious0.100 up to 0.1 13 ppm; Severe0.113 up to 0.175; audExtreme 0.175 ppm andup.