January 23, 2014

The following table describes the proposed rule “Withdrawal of the Prior Determination or Presumption that Compliance with the 

CAIR or the NOx SIP Call Constitutes RACT or RACM for the 1997 8-Hour Ozone and 1997 Fine Particle NAAQS; and Revision to 

RACT Guidance and RFP Requirements for the 1997 Fine Particle NAAQS” (SAN 5411) and its relationship to stayed litigation 

and/or Court decisions. This rule is currently at OMB.

Policy Issue Impacted Rule Action Driver Action Proposed in OMB Package

EPA’s determination that NOx SIP 

call compliance satisfies the EGU 

NOx RACT requirement for 

nonattainment areas for the 1997 

ozone NAAQS

“Phase 2” Implementation 

Rule for the 1997 Ozone 

NAAQS (issued in 2005)

Court remanded the provision to 

EPA (in NRDC v EPA, 2009)

Withdraw EPA’s previous 

determination; States need to provide 

area-specific evaluations as required by 

NRDC decision; revise 40 CFR 51.912

EPA’s determination that CAIR

compliance satisfies the EGU NOx 

RACT requirement in specific 

selected nonattainment areas for the 

1997 ozone NAAQS

“Phase 2” Implementation 

Rule for the 1997 Ozone 

NAAQS (issued in 2005 and 

reconsidered in 2007)

NRDC et al petition (Nov 2008). 

Court granted EPA request for 

remand in August 2013. 

Withdraw EPA’s previous 

determination; States need to provide 

area-specific evaluations consistent with 

NRDC decision; revise 40 CFR 51.912

Presumption that CAIR 

compliance can automatically 

satisfy the EGU NOx RACT 

requirement in all nonattainment 

areas for the 1997 ozone NAAQS

“Phase 2” Implementation 

Rule for the 1997 Ozone 

NAAQS (issued in 2005 and 

reconsidered in 2007)

NRDC et al petition (Nov 2008). 

Court granted EPA request for 

vacatur in August 2013. 

Withdraw EPA’s previous presumption; 

States need to provide area-specific 

evaluations consistent with NRDC 

decision (Note: this is now moot, given 

the recent Court vacatur decision. The 

rule will be revised accordingly)

Presumption that CAIR

compliance can automatically 

satisfy the EGU NOx & SO2

RACT/RACM requirement for 

nonattainment areas for the 1997 

PM2.5 NAAQS

Implementation Rule for the 

1997 PM2.5 NAAQS issued 

in 2007

In 2011 EPA granted a 2007 

reconsideration petition filed by 

Earthjustice for ALA et al; 

litigation is stayed pending 

reconsideration

Withdraw EPA’s previous presumption; 

States need to provide area-specific 

evaluations consistent with NRDC 

decision.

RFP credit for emissions reductions 

occurring outside nonattainment 

areas for the 1997 PM2.5 NAAQS

Implementation Rule for the 

1997 PM2.5 NAAQS issued 

in 2007

In 2010 EPA granted a 2007 

reconsideration petition filed by 

Earthjustice for ALA et al; 

litigation is stayed pending 

reconsideration

Limit RFP credit to reductions inside 

nonattainment area based on analysis 

similar to that used by court in RACT 

decision.

Criteria for determining RACT in 

nonattainment areas for the 1997 

PM2.5 NAAQS

Implementation Rule for the 

1997 PM2.5 NAAQS issued 

in 2007

In 2011 EPA granted a 2007 

reconsideration petition filed by 

Earthjustice for ALA et al; 

litigation is stayed pending 

reconsideration

Return to historical criteria prior to 2007 

which contains a presumption that it is 

reasonable for a source to bear similar 

cost to other similar sources in the same 

source category