1 BEFORE THE ADMINISTRATOR UNITED STATES ENVIRONMENTA L PROTECTION AGENCY



### In the Matter of: Final Rule Publishe d at 77 Fed. Reg. 30,088 (May 21, 2012), entitled “Air Quality Designations fo r 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 Cl ean Air Act, 42 U.S.C. § 7607(d)(7)(B), the Sierra Club petitions the Admi nistrator of the Environmen tal 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 ra ised in this petition ar ose after the period for public comment and are of central relevance to th e 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 inform ation 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, capri cious, an abuse of discretion, or ot herwise 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 re view of the rule is available by the filing of a petition for review by July 20, 2012, and the 2011 ambient monito ring 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 th rough 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/JeffersonCountyElizabethtownScottsburg, KY-IN Louisville-Jefferson County, KY-IN 211110051 0.078

Oldham County, KY Louisville/JeffersonCountyElizabethtownScottsburg, KY-IN Louisville-Jefferson County, KY-IN 211850004 0.078

Jefferson Parish, LA New OrleansMetairie-Bogalusa, LA New Orleans-MetairieKenner, LA 220511001 0.0763 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 th ese 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 iden tified in our February 3, 2012 comment letter based on the data before it was “certified” which is already in the docket and incor porated 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 woul d 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 count ies nonattainment, it should also designate the combined statistical areas (CSA ) or at least the metropolitan or micropolitan st atistical areas (MSA) in which these counties are found nonattainmen t. 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 longe r present. In addition, EPA can give states an opportunity to comment on whether these areas should be desi gned 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 ex plain, 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).made de s past. Ne on EPA’ s data if E P

IV. C

T designat e

DATED :
Cc: (via e Carla Ol d oldham. c s ignations b a vertheless, a

s recomme n P A believes

C ONCLUSI

T herefore, fo r

e the CSAs a

: July 20, 2 0

e mail) d ham

c arla@epa.g o a sed on pos t

a s we just sa

n dation to de

that is nece s

ON

r the reason s

a nd MSAs l i

0 12

o v t 120-day n o id, EPA ca n signate the a

s sary.

s explained a i sted in Tab l

Respe c

_____ _ Robert Law O f 435R C Berea, Tel: (8 5 Fax: (8 Email:

Couns e

4 o tice process

n give states a

a bove areas n

a bove, EPA e 1 nonattai n

c tfully subm i

_ _________ _

Ukeiley f

fice of Rob C hestnut Str e

KY 40403 5 9) 986-540 66) 618-10 1 rukeiley@i g

e l for Petitio n informatio n an opportu n

n onattainm e

must recon s

n ment.

i tted,

_ ________ _ ert Ukeiley

e et, Ste. 1

2 1 7 g c.org

n er Sierra C n or conside r

n ity to revie w
e nt based on

s ider the fin a

_ ___

C lub r ations in th e

w and com m

the 2009-2 0

a l rule and e

m ent

0 11