Bryan W. Shaw, Ph.D., Clzairman 

Buddy Garcia, Coinmissionev 

Carlos Rubinstein, Commissionsr 

Mark R. Viclceiy, P.G., Exealtiue Dii'ector 

Protecting Texas by Reducing and Preventing Pollution 

The Honorable Cass R. Sunstein 

Administrator 

Office of Information and Regulatory Affairs 

Office of Management and Budget 

Eisenhower Executive Office Building 

1650 Pennsylvania Avenue, N.W. 

Washington D.C. 20503 

Dear Administrator Sunstein: 

I would like to request your attention to a specific issue associated with proposed designations and 

classifications under the 2008 ozone National Ambient Air Quality Standards (NAAQS), a United 

States Environmental Protection Agency (EPA) rule now before 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 nonattainment based upon the latest certified monitoring data (a design 

value of 84 parts per billion), which would have indicated a "marginal" classification, if the EPA 

continued to utilize the previous classification metric adopted for the 1997 eight-hour ozone standard. 

In fact, in a September 22, 2011, memo to Regional Air 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 1997 eight-hour ozone standard at the same 

higher classification for the revised 2008 ozone NAAQS, regardless of the classification metric 

outlined in the September 22, 2011, memo. Texas submitted a reclassification request to "severe" for 

the HGB area to the 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 EPA to 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 1997 eight-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 to the proposed r~ile prior Lo ils p~~blication. 

I appreciate your consideration on this matter. If you 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, EPA 
WASHINGTON, 13 C 20460 

September '22,201 1 

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 is 0.075 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 actions to 

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 reduce emissions that 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 classification th&sholds so that we can halize the design&ons. While we 

intend to take into consideration aU com~nents we receive on the 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 Court to consider. 
Based on om initial review of ozone air quality data from 2008-2010,52 areas monitor air 

quality that exceeds the 0,075 ppm standard. This preliminary review shows considerably fewer 

areas not meeting the 2008 standard than (he number identified in 2009 when states made their 

recommendations, Using the '"yercent above the standard" classification approach, 43 of the 52 

areas would fa11 into the Marginal cakgory, As you know, many ofthe mandatory measures 

under the Clean Air Act are not required for Marginal areas since they are expected to aqhieve 

attainment within 3 years, In addition, EPA's modeling indicates thai approximateky halfof the 

52 areas would attain the 0.075 ppm standard by 201 5 [the expected attainment deadline for 

Marginal meas) as a result ofthe emission-reducing rules already in place. 

Because we have states' 2009 reconmendations and quallty assured ozone data for 2008-2010, 

there is nothing that stilte or locd agencies need to do until we issue the 120-day letters later this 

year, though of course, states we welcome to cantact us to discuss specific issues at any he. 

We expect to finalize initial area designations for the 2008 ozone NAAQS by mid-2012. 

However, we note that EPA currently faces litigation with respect lo the timing of the 

designations and expects that the resolution of the litigation may well affect. the precise tinljng of 

the schedule for designations. 

IJicmning Kcquir~mcvrs ottd O/hc:r Requircd StrO~nissions 

W'c will begin an cxpcditcd rulcmaking to outline thc implemrntation requirements for thc 2008 

standxd in the wry ncdr linure, i'he ~ule will hc as struightforward and simple as we can malte 

it. As you know, thc Clean Air r\cr providcs sevetnl years ibr sratcs ro ilcvclop their State 

Implerr.cnlatioli Plans (SIPS) and to implc.lncnt any ~niu~daturg measures. Ilowever! scveral 

deadlines lir some state submisrions havc ulrcady nassed, including the infrastruclure Sll's and 

interstate transport SIPS. There are few requirem&& for ~ar~inalareas beyond those SPs. 

EPA does not intend to nenalize states for the passage of time, but we may also f@w litigation on 

these issues. In negotiating schedules for expdditio<s completion of required elements, wt? will 

seek to minimize anv administrative burden on slates associated with these requirements. 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 - - onrules or 

other programs, such iis energy efficiency. 

Federal Action$ to Reduce Emissions 

EPA will continue to move forward with implementation and development of federal rules that 

reduce emissions of nolMants that contribute to smog and threaten public health. These actions 

il~clude recently prolnulgated rulcs that lowcr NOx &I VOC 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 standards for Boilcrs, the k1er~'ur~ and Air 'l'oxics Standards (MATS) for 

power pla& the ~\lew Source ~erfomanci Stdads &SPS) for Comercial InoineratorF$Solid 

Waste Incinerators (CISWI) and the Oil/Gas sector, and the Tier 3 vehicle and fuel staardards, 

These federal actions wilt ensure steady forward progress to cleaq up the nation's air and protect 

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. EPAwill propose 

my appropriate revisions in the Ed1 of 2013 and finalize any revisions to the dandard in 2014, 

Attached to this memorandum is a schedule that lays out the upcoming steps in rhar 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! opportunities for - -- fher discussion and questions with state and locafoffrcials in the coming weeks. 

Attachment 
September 22,2011 

Qmne NMQS Review S~hedule 

-- . 

Integrated Sciexe I Assessment (ISA) 

2" Draft ISA 

CASAC and public review of 2nd Dmft ISA 

CASAC and public review Id Draft REAs May 2012 

2" Draft REAs Nav2012 

CASAC and public review 2"d Draft REAS JanlFeb 2013 

Final REAs Apr2013 

Policy Assessment (PA) la' Draft PA Apr2012 

and Rulemaking CASAC and public review Tsf Draft PA May 2012 

CASACand public review 2nt Dfaft PA 
September 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 for public comment. 
September 22,2011 

Designation Status 

for 1997 ozone 

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

*Generally, the area descriptions in this tahle refer to metropolitan areas. Precise area boundaries will he established 

through the designations process. 

**EPA will establish classification thresholds through notice-and-comment rolemaking. Listed in this tahle are the 

classificatioils that would result from the "perce~~t-above-sta~~dard"pproach EPA used for the 1997 NAAQS. 

These thresholds are: Marginal 0.076 up to 0.086 ppm; Moderate 0.086 up lo 0.100 ppm; Serious 0.100 up to 0.1 13 

ppm; Severe0.113 up to 0.175; audExtreme 0.175 ppm andup.