1

BEFORE THE ADMINISTRATOR 

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 

In the Matter of: Final Rule Published at 77 Fed. Reg. 30,088 (May 21, 2012), 

entitled “Air Quality Designations for the 2008 Ozone National Ambient Air 

Quality Standards” Docket No. EPA-HQ-OAR-2008-0476

PETITION FOR RECONSIDERATION 

 Pursuant to Section 307(d)(7)(B) of the Clean Air Act, 42 U.S.C. § 7607(d)(7)(B), the 

Sierra Club petitions the Administrator of the Environmental Protection Agency (“the 

Administrator” or “EPA”) to reconsider the final rule referenced above (“final rule” or “rule”). 

According to EPA, the grounds for the objections raised in this petition arose after the period for 

public comment and are of central relevance to the outcome of the rule. The Administrator must 

therefore “convene a proceeding for reconsideration of the rule and provide the same procedural 

rights as would have been afforded had the information been available at the time the rule was 

proposed.” 42 U.S.C. § 7607(d)(7)(B). 

I. THE PETITION IS TIMELY AND APPROPRIATE 

 This petition raises objections to the final rule captioned above. Each objection is “of 

central relevance to the outcome of the rule,” 42 U.S.C. § 7607(d)(7)(B), in that it demonstrates 

that the rule is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with 

law.” Id. § 7607(d)(9)(A). With respect to each objection, moreover, EPA may take the position 

that they first appeared after the final rule was signed on April 30, 2012. The grounds for the 

objections raised in this petition thus “arose after the period for public comment[]” according to 

EPA’s position on the availability of 2011 ambient monitoring data. See 42 U.S.C. § 

7607(d)(7)(B). Because judicial review of the rule is available by the filing of a petition for 

review by July 20, 2012, and the 2011 ambient monitoring data became certified by no later than 

May 1, 2012, the grounds for the objections arose “within the time specified for judicial review.” 

Id. 

II. EPA MUST DESIGNATE THE AREAS LISTED IN TABLE 1, BELOW, AS 

NONATTAINMENT FOR THE 2008 OZONE NAAQS 

 The following counties and parishes listed in Table 1 have design values greater than 

0.075 parts per million based on certified 2009 – 2011 ambient monitoring data in EPA’s own 

Air Quality System (AQS) as accessed through EPA’s AirData webpage. Available at: 

http://www.epa.gov/airdata/ad_rep_mon.html and incorporated herein by reference. 
2

TABLE 1 

County or 

Parish 

Combined 

Statistical Area 

Metropolitan/Micropolitan 

Statistical Area 

Air 

Monitor 

ID 

2009-

2011 

Design 

Value 

based 

on 

7/20/12 

Air 

Data 

(ppm) 

Montgomery 

County, OH 

DaytonSpringfieldGreenville, OH Dayton, OH 391130037 0.076

Macomb 

County, MI 

Detroit-WarrenFlint, MI 

Detroit-Warren-Livonia, MI 260991003 0.076

Wayne 

County, MI 

Detroit-WarrenFlint, MI 

Detroit-Warren-Livonia, MI 261630019 0.078

Allegan 

County, MI Grand RapidsMuskegonHolland, MI 

Allegan, MI 260050003 0.078

Muskegon 

County, MI Grand RapidsMuskegonHolland, MI 

Muskegon-Norton Shores, 

MI 

261210039 0.076

Clinton 

County, MO 

Kansas CityOverland ParkKansas City, MOKS Kansas City, MO-KS 290490001 0.076

Gregg County, 

TX LongviewMarshall, TX 

Longview, TX 481830001 0.077

Jefferson 

County, KY 

Louisville/Jefferson 

CountyElizabethtownScottsburg, KY-IN 

Louisville-Jefferson County, 

KY-IN 

211110051 0.078

Oldham 

County, KY 

Louisville/Jefferson 

CountyElizabethtownScottsburg, KY-IN 

Louisville-Jefferson County, 

KY-IN 

211850004 0.078

Jefferson 

Parish, LA 

New OrleansMetairie-Bogalusa, 

LA 

New Orleans-MetairieKenner, LA 220511001 0.076
3

Oklahoma 

County, OK Oklahoma CityShawnee, OK 

Oklahoma City, OK 401091037 0.077

Bossier Parish, 

LA Shreveport-Bossier 

City-Minden, LA 

Shreveport-Bossier City, LA 220150008 0.08

Tulsa County, 

OK 

Tulsa-Bartlesville, 

OK 

Tulsa, OK 401430137 0.077

Jefferson 

County, TX N/A 

Beaumont-Port Arthur, TX 482450011 0.076

482450101 0.079

Manitowoc 

County, WI N/A 

Manitowoc, WI 550710007 0.077* 

*Air Monitoring values downloaded from Air Data on 7/20/12 resulted in a design value different 

(higher) than data downloaded in February 2012. 

 Not surprisingly, the design values for these counties and parishes for 2009 – 2011based 

on the “certified” data are the same, with one minor exception which does not change the 

conclusion, design values as identified in our February 3, 2012 comment letter based on the data 

before it was “certified” which is already in the docket and incorporated herein by reference. 

The 2011 data became officially certified no later than May 1, 2012, which was after the 

Administrator signed the final rule making the designations.1 Therefore, EPA should reconsider 

its final rule and designate the above listed counties nonattainment based on 2009 – 2011 

“certified” monitoring data, which is the most recent data available. 2009 – 2011 data has the 

added advantage of being less biased by the Great Recession, as compared to 2008 – 2010 data. 

Using the most recent, least biased data would be consistent with Administrator Jackson’s 

promise to have her EPA administration make decisions based on sound science. 

EPA should not only designate the above counties nonattainment, it should also designate 

the combined statistical areas (CSA) or at least the metropolitan or micropolitan statistical areas 

(MSA) in which these counties are found nonattainment. This would be consistent with EPA’s 

past practice and is important to address parts of the ozone problem such as mobile sources. We 

are not aware of any reason why the whole above listed CSAs or MSAs should not be listed as 

nonattainment. 

 As explained above, the 2009 – 2011 data is now certified so EPA’s previous concern of 

using non-certified data is no longer present. In addition, EPA can give states an opportunity to 

comment on whether these areas should be designed nonattainment to address any concerns 

about not providing states the opportunity to review the 2011 data. Of course, this concern is 

arbitrary in that the data came from the states so they are well aware of it. Furthermore, EPA has 

                                                            

1 We note that EPA could have signed the final rule on May 2, 2012, after the data was certified 

but for some reason which EPA has yet to explain, it chose to sign the rule making the 

designations the day before the 2011 monitoring data was certified. See WildEarth Guardians v. 

Jackson (D. Ariz. No. 2:11-CV-1661) (Consent Decree [Dk.#22] Ordering EPA to sign final rule 

making designations by May 31, 2012, not April 30, 2012). 
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