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6560-50-P

ENVIRONMENTAL PROTECTION AGENCY 

40 CFR Part 51

[EPA-HQ-OAR-2009-0897; FRL- ]

2060-AQ07

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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

SUMMARY: The EPA is proposing to withdraw any prior determination or 

presumption, for the 1997 8-hour ozone national ambient air quality standard (NAAQS) 

and the 1997 fine particle (PM2.5) NAAQS, that compliance with the Clean Air Interstate 

Rule (CAIR) or the NOx SIP Call automatically constitutes reasonably available control 

technology (RACT) or reasonably available control measures (RACM) for oxides of 

nitrogen (NOx) or sulfur dioxide (SO2) emissions from electric generating unit (EGU) 

sources participating in these regional cap-and-trade programs. 

DATES: Comments. Comments must be received on or before [INSERT DATE 30 

DAYS AFTER PUBLICATION IN THE FEDERAL REGISTER]. Public Hearings.

If anyone contacts us requesting a public hearing on or before [INSERT DATE 15 

DAYS AFTER DATE OF PUBLICATION IN THE FEDERAL REGISTER], we will 

hold a public hearing. Please refer to SUPPLEMENTARY INFORMATION for 

additional information on the comment period and the public hearing. 
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ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-OAR2009-0897, by one of the following methods:

 www.regulations.gov. Follow the online instructions for submitting comments. 

Attention Docket ID No. EPA-HQ-OAR-2009-0897.

 Email: a-and-r-docket@epa.gov. Attention Docket ID No. EPA-HQ-OAR-2009-

0897.

 Fax: (202) 566-9744. Attention Docket ID No. EPA-HQ-OAR-2009-0897.

 Mail: EPA Docket Center, EPA West (Air Docket), Attention Docket ID No. 

EPA-HQ-OAR-2009-0897, U.S. Environmental Protection Agency, Mailcode: 

2822T, 1200 Pennsylvania Avenue, NW, Washington, D.C. 20460. Please include 

a total of two copies. 

 Hand Delivery: U.S. Environmental Protection Agency, William Jefferson 

Clinton West Building (Air Docket), 1301 Constitution Avenue, Northwest, 

Room 3334, Washington, D.C. 20004, Attention Docket ID No. EPA-HQ-OAR2009-0897. Such deliveries are only accepted during the Docket's normal hours of 

operation, and special arrangements should be made for deliveries of boxed 

information.

Instructions. Direct your comments to Docket ID No. EPA-HQ-OAR-2009-0897.

The EPA's policy is that all comments received will be included in the public docket 

without change and may be made available online at www.regulations.gov, including any 

personal information provided, unless the comment includes information claimed to be 

Confidential Business Information (CBI) or other information whose disclosure is 

restricted by statute. Do not submit information that you consider to be CBI or otherwise 
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protected through www.regulations.gov or email. The www.regulations.gov website is an 

“anonymous access” system, which means the EPA will not know your identity or 

contact information unless you provide it in the body of your comment. If you send an 

email comment directly to the EPA without going through www.regulations.gov, your 

email address will be automatically captured and included as part of the comment that is 

placed in the public docket and made available on the Internet. If you submit an 

electronic comment, the EPA recommends that you include your name and other contact 

information in the body of your comment and with any disk or CD-ROM you submit. If 

the EPA cannot read your comment due to technical difficulties and cannot contact you 

for clarification, the EPA may not be able to consider your comment. Electronic files 

should avoid the use of special characters, avoid any form of encryption, and be free of 

any defects or viruses. For additional information about the EPA's public docket, visit the 

EPA Docket Center homepage at www.epa.gov/epahome/dockets.htm.

Docket. All documents in the docket are listed in the www.regulations.gov index. 

Although listed in the index, some information is not publicly available, e.g., CBI or 

other information whose disclosure is restricted by statute. Certain other material, such as 

copyrighted material, will be publicly available only in hard copy. Publicly available 

docket materials are available either electronically in www.regulations.gov or in hard 

copy at the Air and Radiation Docket and Information Center, EPA/DC, EPA William 

Jefferson Clinton West Building, Room 3334, 1301 Constitution Ave., NW, Washington, 

D.C. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through 

Friday, excluding legal holidays. The telephone number for the Public Reading Room is 

(202) 566-1744, and the telephone number for the Air Docket is (202) 566-1742. 
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FOR FURTHER INFORMATION CONTACT: Ms. Kristin Riha, Office of Air 

Quality Planning and Standards, Air Quality Policy Division, Mailcode C539-01, 

Research Triangle Park, NC 27711, telephone (919) 541-2031; fax number: (919) 541-

5315; email address: riha.kristin@epa.gov.

SUPPLEMENTARY INFORMATION: 

I. General Information

A. Does this action apply to me?

Entities potentially affected by this action include states (typically state air 

pollution control agencies) and in some cases, local governments that are responsible for 

air quality management and planning. In particular, states with areas designated 

nonattainment for the 1997 8-hour ozone NAAQS and/or the 1997 PM2.5 NAAQS and 

that are located within the geographic areas covered by the NOx SIP Call1and/or the 

CAIR

2 may be affected by this action. EGUs located in such geographic regions may also

be affected by any new RACT or RACM reviews that may result from final rulemaking 

on this action. These sources are in the following groups: 

Industry group SIC

a NAICSb

Electric Services 492 221111, 221112, 221113, 221119, 221121, 

221122

a

Standard Industrial Classification.

b North American Industry Classification System.

 

1

See Finding of Significant Contribution and Rulemaking for Certain States in the Ozone 

Transport Assessment Group Region for Purposes of Reducing Regional Transport of 

Ozone; Final Rule, 63 FR 57356 (October 27, 1998).

2

See Rule to Reduce Interstate Transport of Fine Particulate Matter and Ozone (Clean 

Air Interstate Rule); Revisions to Acid Rain Program; Revisions to the NOx SIP Call; 

Final Rule, 70 FR 25162 (May 12, 2005).
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B. What should I consider as I prepare my comments for the EPA?

1. Submitting CBI. Do not submit this information to the EPA through 

www.regulations.gov or email. Clearly mark the part or all of the information that you 

claim to be CBI. For CBI information in a disk or CD-ROM that you mail to the EPA, 

mark the outside of the disk or CD-ROM as CBI and then identify electronically within 

the disk or CD-ROM the specific information that is claimed as CBI. In addition to one 

complete version of the comment that includes information claimed as CBI, a copy of the 

comment that does not contain the information claimed to be CBI must be submitted for 

inclusion in the public docket. Information so marked will not be disclosed except in 

accordance with procedures set forth in 40 CFR Part 2. 

2. Tips for Preparing Your Comments. When submitting comments, 

remember to:

 Identify the rulemaking by docket number and other identifying information 

(subject heading, Federal Register date and page number).

 Follow directions - The agency may ask you to respond to specific questions or 

organize comments by referencing a Code of Federal Regulations (CFR) part or 

section number.

 Explain why you agree or disagree; suggest alternatives and substitute language 

for your requested changes.

 Describe any assumptions and provide any technical information and/or data that 

you used.

 If you estimate potential costs or burdens, explain how you arrived at your 

estimate in sufficient detail to allow for it to be reproduced.
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 Provide specific examples to illustrate your concerns, and suggest alternatives.

 Explain your views as clearly as possible, avoiding the use of profanity or

personal threats.

 Make sure to submit your comments by the comment period deadline identified.

C. Where can I get a copy of this document and other related information?

In addition to being available in the docket, an electronic copy of this notice will 

be posted at http://www.epa.gov/airquality/ozonepollution/actions.html.

D. What information should I know about a possible public hearing? 

To request a public hearing or information pertaining to a public hearing on this 

document, contact Ms. Pamela Long at (919) 541-0641 before 5 p.m. on [INSERT 

DATE 15 DAYS AFTER DATE OF PUBLICATION IN THE FEDERAL 

REGISTER]. If requested, further details concerning a public hearing for this proposed 

rule will be published in a separate Federal Register notice. For updates and additional 

information on a public hearing, please check the EPA’s website for this rulemaking at

http://www.epa.gov/airquality/ozonepollution/actions.html.

E. How is this notice organized?

The information presented in this notice is organized as follows:

I. General Information

 A. Does this action apply to me?

 B. What should I consider as I prepare my comments for the EPA?

C. Where can I get a copy of this document and other related information?

 D. What information should I know about a possible public hearing?

 E. How is this notice organized? 

II. Background

 A. CAA Requirements and the Definitions of RACT and RACM

B. The NOx SIP Call

C. The CAIR

D. The Phase 2 Ozone Implementation Rule

E. The PM2.5 Implementation Rule
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F. Impact of the NRDC v. EPA Court Decision on Determinations and 

Presumptions

III. Proposed Action

IV. Statutory and Executive Order Review

A. Executive Order 12866: Regulatory Planning and Review and Executive 

Order 13563: Improving Regulation and Regulatory Review

B. Paperwork Reduction Act

C. Regulatory Flexibility Act

D. Unfunded Mandates Reform Act

E. Executive Order 13132: Federalism

F. Executive Order 13175: Consultation and Coordination with Indian Tribal 

Governments

G. Executive Order 13045: Protection of Children from Environmental 

Health and Safety Risks

H. Executive Order 13211: Actions Concerning Regulations That

Significantly Affect Energy Supply, Distribution, or Use

I. National Technology Transfer and Advancement Act

J. Executive Order 12898: Federal Actions to Address Environmental Justice 

in Minority Populations and Low-Income Populations

Statutory Authority

List of Subjects

II. Background

A. CAA Requirements and the Definitions of RACT and RACM

The Clean Air Act (CAA) requires the EPA to designate areas as either 

attainment, nonattainment, or unclassifiable for each NAAQS. States have primary

responsibility for implementing the NAAQS within their borders, and each state must 

develop a SIP that contains adequate provisions for attainment and maintenance of the 

NAAQS. The SIPs developed by states must meet the applicable statutory requirements. 

For areas designated nonattainment, Part D of the CAA requires that SIPs must include 

certain control measures. Subpart 1 of Part D contains generally applicable requirements 

for all nonattainment areas. Subpart 2 and Subpart 4 of Part D contains additional 

requirements applicable to certain ozone and particulate matter (PM, including PM2.5)

nonattainment areas, respectively. 
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Among the general statutory requirements for all nonattainment areas is the 

requirement in section 172(c)(1) that SIPs: “provide for the implementation of all 

reasonably available control measures as expeditiously as practicable (including such 

reductions in emissions from existing sources in the area as may be obtained through the 

adoption, at a minimum, of reasonably available control technology).” Ozone 

nonattainment areas that are subject to the requirements of Subpart 2 must meet more 

specific RACT requirements in accordance with section 182(b)(2)(C). States located 

within the Ozone Transport Region (OTR) have additional requirements to impose 

RACT on sources statewide, rather than only in nonattainment areas, in accordance with 

section 184. 

The EPA refers to the requirement for “reasonably available control measures” as 

RACM, and refers to the subset of RACM in the parenthetical for “reasonably available

control technology” as RACT. RACM and RACT measures apply broadly to a range of 

source categories located in designated nonattainment areas, including large stationary

sources such as EGUs. The EPA has historically interpreted RACT to mean the lowest 

emissions limitation that a particular source is capable of meeting by the application of 

control technology that is reasonably available considering technological and economic 

feasibility.

3

 

RACT requirements are specifically intended to impose emission controls for 

purposes of attainment and maintenance of the NAAQS within a specific nonattainment 

 

3

See Memorandum from Roger Strelow titled “Guidance for Determining Acceptability

of SIP Regulations in Non-Attainment Areas.” (December 9, 1976). See also “State 

Implementation Plans; General Preamble for the Implementation of Title I of the Clean 

Air Act Amendments of 1990,” 57 FR 13498 (April 16, 1992).
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area. The EPA has interpreted the terms RACT and RACM for purposes of Subpart 1 

requirements as being the level of emissions control that is necessary to provide for 

expeditious attainment of the NAAQS within a nonattainment area. Courts have upheld 

this interpretation of the statute with respect to nonattainment SIPs.4

In contrast to nonattainment plan requirements, section 110(a)(2)(D)(i) requires 

each state’s SIP to contain provisions that will prevent emissions from sources in the state 

from having certain prohibited impacts on the air quality of other states, via interstate 

transport. In particular, section 110(a)(2)(D)(i)(I) requires that a state’s SIP must contain 

provisions to prevent emissions in amounts that would “contribute significantly to 

nonattainment in, or interfere with maintenance by, any other state” with respect to a 

NAAQS. The EPA has initiated several regulatory programs pursuant to section 

110(a)(2)(D)(i)(I) to address interstate transport of emissions that have such prohibited 

impacts on attainment of the ozone and PM2.5 NAAQS on a regional basis.

B. The NOx SIP Call 

In October 1998, the EPA published a rule under section 110(a)(2)(D)(i) of the 

CAA, commonly referred to as the “NOx SIP Call.” This rule was intended to reduce NOx

emissions (a precursor for ozone formation) from sources that significantly contribute to

nonattainment or interfere with maintenance of the ozone NAAQS in one or more 

downwind states. To implement these reductions, the NOx SIP Call required 22 states and 

the District of Columbia to submit SIP revisions prohibiting those NOx emissions that the

EPA determined to be adversely impacting downwind air quality problems. The NOx SIP 

Call provided a regional emissions cap-and-trade program as one mechanism for states to 

 

4

See NRDC v. EPA, 571 F.3d 1245, at 1252-53 (D.C. Cir. 2009).
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meet their interstate transport requirements under section 110(a)(2)(D)(i). Through this 

mechanism, affected sources could meet emissions reductions requirements either by

installing NOx emissions controls or by purchasing allowances from other sources located 

within the geographic region covered by the NOx SIP Call. 

C. The CAIR

In May 2005, the EPA published another rule under section 110(a)(2)(D)(i) of the 

CAA, referred to as the “Clean Air Interstate Rule” (or the CAIR). The CAIR required

reductions of NOx and/or SO2 emissions across 28 states and the District of Columbia 

needed to eliminate significant contribution to nonattainment, or interference with 

maintenance of, the 1997 8-hour ozone NAAQS and/or the 1997 PM2.5 NAAQS in one or 

more downwind states.

5

Similar to the NOx SIP Call, the EPA provided a regional 

emissions cap-and-trade mechanism as one means for upwind states to meet the interstate 

transport requirements of section 110(a)(2)(D)(i). By this mechanism, affected sources 

could meet their emission reduction requirements either by installing controls for NOx

and/or SO2 emissions, or by purchasing allowances from other sources located in the

geographic region covered by the CAIR. On April 28, 2006 (71 FR 25328), the EPA also 

promulgated Federal Implementation Plans (FIPs) for all jurisdictions covered by the 

CAIR to address the section 110(a)(2)(D)(i) requirements in the event that states were 

unable to make a SIP submission containing state measures necessary to alleviate 

interstate transport.

 

5 NOx is a precursor for ozone formation, while both NOx and SO2 are precursors for 

PM2.5 formation.
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A number of parties filed petitions for review in 2008 to challenge the CAIR on 

various grounds. As a result of this litigation, the United States Court of Appeals for the 

District of Columbia Circuit (the Court) remanded the CAIR to the EPA, but later 

decided not to vacate the rule.6In the process of remanding the CAIR, however, the 

Court identified serious concerns with the EPA’s reading of the statute and analytical 

approach, including such core issues as the agency’s method of evaluating significant 

contribution to nonattainment and interference with maintenance of the NAAQS. In 

response to the remand of the CAIR, the EPA finalized another rule, the “Cross-State Air 

Pollution Rule” (CSAPR) on July 6, 2011 (published in the Federal Register on August 

8, 2011).

7

This rule was then vacated by the U.S. Court of Appeals for the District of 

Columbia (D.C. Circuit) on August 21, 2012.8In its opinion vacating the CSAPR, the 

D.C. Circuit instructed the EPA to continue administering the CAIR pending 

promulgation of a valid replacement. The United States Supreme Court subsequently

agreed to review the decision of the D.C. Circuit. Oral argument before the Supreme 

Court was held on December 10, 2013.

Both the NOx SIP Call and the CAIR were intended and designed to eliminate 

interstate transport of pollutants that have impacts on attainment and maintenance of the

ozone and/or PM2.5 NAAQS in downwind areas. Thus, they provide significant emissions 

reductions that assist downwind areas with attainment or maintenance of the NAAQS, 

and allow downwind states to develop SIPs in reliance on regional emissions reductions. 

 

6

See North Carolina v. EPA, 531 F.3d 896; modified by 550 F.3d 1176 (D.C. Cir. 2008).

7

See “Federal Implementation Plans: Interstate Transport of Fine Particulate Matter and 

Ozone and Correction of SIP Approvals, Final Rule,” 76 FR 48208 (August 8, 2011). 

8

See EME Homer City Generation L.P. v. EPA, 696 F.3d 7 (D.C. Cir. 2012), cert. 

granted 133 S. Ct. 2857 (2013).
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However, the EPA did not intend that either the NOx SIP Call or the CAIR would 

completely obviate the potential need for additional local pollution controls in downwind 

nonattainment areas, nor did the EPA intend either action to override the statutory

requirements for SIPs for nonattainment areas.9 

In order to help states address the specific statutory requirement for SIPs for 

nonattainment areas for the 1997 8-hour ozone NAAQS and 1997 PM2.5 NAAQS, the 

EPA promulgated both regulations and guidance applicable to each NAAQS in separate 

implementation rules. Within those actions, the EPA addressed questions concerning the

intersection of the requirements for regional control strategies and the requirements for 

local control strategies to reduce interstate transport in individual nonattainment areas

needed for local attainment purposes. In particular, the EPA focused on the issue of 

whether, or to what extent, compliance by EGUs with the requirements of the NOx SIP 

Call and/or the CAIR could also be construed as compliance with the RACT 

requirements for local nonattainment SIPs for the 1997 8-hour ozone and 1997 PM2.5

NAAQS. The EPA’s approach to this issue for each NAAQS is described in more detail 

later.

D. The Phase 2 Ozone Implementation Rule

On November 29, 2005 (70 FR 71612), the EPA published an ozone 

implementation rule to address nonattainment SIP requirements for the 1997 8-hour 

ozone NAAQS (the Phase 2 Ozone Implementation Rule). The Phase 2 Ozone 

 

9

See the CAIR, 70 FR 25184 (discussing the need for both regional and local emission 

reductions to bring all areas into attainment); See also Clean Air Fine Particle 

Implementation Rule, 72 FR 20587 (discussing the need for regional and national 

emission reduction programs in conjunction with local controls in SIPs for nonattainment 

areas to bring all areas into attainment). 
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Implementation Rule addressed various statutory requirements, including the requirement 

for RACT-level controls for sources located within nonattainment areas generally, and 

controls for NOx emissions from EGUs in particular. After explaining its analysis of the 

issue, the EPA indicated its determination that the regional NOx emissions reductions that 

result from either the NOx SIP Call or the CAIR would meet the NOx RACT requirement 

for EGUs located in states included within the respective NOx SIP Call or CAIR 

geographic regions. Thus, the EPA concluded that: “[t]he State need not perform a NOx

RACT analysis for sources subject to the State’s emission cap-and-trade program where 

the cap-and-trade program has been adopted by the State and approved by the EPA as 

meeting the NOx SIP Call requirements or, in States achieving the CAIR reductions 

solely from electric generating units (EGUs), the CAIR NOx requirements.”10

In January 2006, Earthjustice, on behalf of the Natural Resources Defense 

Council (NRDC), filed a petition for reconsideration of the Phase 2 Ozone 

Implementation Rule, objecting to the EPA’s determination that, in certain 

circumstances, compliance with the requirements of the CAIR would constitute RACT 

for NOx emissions for EGUs located in states within the CAIR region.11 The petition 

raised objections to an alleged failure to seek public comment on the determination and to 

the agency’s interpretation of the CAA to allow a regional emissions reduction program 

to constitute RACT for sources located within nonattainment areas, as well as other 

related issues. The EPA granted the petition for reconsideration of the Phase 2 Ozone 

Implementation Rule and subsequently conducted a Supplemental Technical Analysis to 

 

10 See Phase 2 Ozone Implementation Rule, 70 FR 71617.

11 See “Petition for Reconsideration,” filed by David Baron, Earthjustice, on behalf of 

NRDC (January 30, 2006). A copy of the petition is located in the docket for this action.
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assess whether compliance with the CAIR could satisfy the NOx RACT requirement for 

EGUs in certain geographic areas.

12 A proposed rule, which presented this analysis and 

solicited comments regarding the reconsideration of whether the CAIR would constitute 

RACT for NOx emissions for EGUs located in states within the CAIR region, was 

published in December 2006. The EPA did not reconsider or request comments on its 

prior determination that the NOx SIP Call constitutes RACT for those sources covered by

the NOx SIP Call. 

The EPA then published a final notice of reconsideration on June 8, 2007 (72 FR 

31727), reflecting the agency’s additional evaluation of whether compliance with the 

CAIR could constitute RACT for NOx emissions for certain EGUs. In that action, the 

EPA modified its conclusion regarding when compliance with the CAIR may satisfy NOx

RACT requirements for EGUs in areas within the CAIR region. The EPA reaffirmed its 

determination that, in many ozone nonattainment areas, compliance with the CAIR would 

satisfy NOx RACT requirements for EGUs in such areas.

13 However, the EPA stated that 

this determination would only apply to specific areas for which the EPA’s Supplemental 

Technical Analysis showed that the CAIR was projected to achieve equal or greater NOx

emissions reductions than application of source-by-source application of RACT to the 

 

12 See “Technical Support Document for Phase 2 of the Final Rule to Implement the 8-

Hour Ozone National Ambient Air Quality Standard-Notice of Reconsideration; NOx

RACT for EGUs in CAIR States – Supplemental Technical Analysis,” December 

2006.(Docket ID no. EPA-HQ-OAR-2003-0079, item number EPA-HQ-OAR-2003-

0079-1044.2) (Supplemental Technical Analysis).

13 Specifically, the EPA determined that compliance with the CAIR would meet the NOx

RACT requirements for ozone nonattainment areas in sections 172(c)(1) and 182(f), and 

the statewide NOx RACT requirements for SIPs for states located within the Ozone 

Transport Region pursuant to sections 184(b) and 182(f). See Phase 2 Ozone 

Implementation Rule-Notice of Reconsideration, 72 FR 31730. 
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EGUs within the nonattainment area. Even in those nonattainment areas where the EPA 

did not make a formal determination, however, the EPA also established a separate 

presumption that compliance with the CAIR, in certain circumstances, could satisfy NOx

RACT requirements for EGUs in any area within the CAIR region.

14 The EPA thus 

announced that states could rely initially on this presumption, even in areas where the 

agency had made no formal determination, assuming certain conditions. Finally, the EPA 

reiterated in the final notice of reconsideration that EGU sources complying with the 

requirements of the NOx SIP Call would also be considered to have met their ozone NOx

RACT obligations, assuming certain conditions.

15

 

In addition to the Supplemental Technical Analysis, the EPA provided various 

legal and policy bases for its determinations and presumptions in the final notice of 

reconsideration of the Phase 2 Ozone Implementation Rule. For example, the EPA argued 

that its interpretation of section 172(c) to allow RACT to include consideration of 

regionwide emissions reductions, rather than nonattainment area specific reductions only, 

was permissible because of the use of the term “reasonable” as part of the definition of 

RACT.16 As a policy matter, the EPA also argued that emissions reductions that result 

from regional scale programs like the CAIR often “will achieve a more effective and 

economically efficient air quality improvement in nonattainment areas than application of 

source-by-source RACT.”17

 

14 See Phase 2 Ozone Implementation Rule-Notice of Reconsideration, 72 FR 31730.

15 Id. 72 FR 31731.

16 Id. 72 FR 31730.

17 Id.
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In November 2008, the U.S. Court of Appeals for the D.C. Circuit heard oral 

argument concerning multiple petitions for judicial review of the EPA’s Phase 2 Ozone 

Implementation Rule and the Notice of Reconsideration. Among other issues, the 

petitioners (including NRDC) challenged the EPA’s determination that compliance with 

the NOx SIP Call and/or the CAIR could satisfy NOx RACT requirements for EGUs in 

ozone nonattainment areas, and the EPA’s specific determinations for some areas and 

general presumption for other areas, that compliance with the CAIR could satisfy NOx

RACT for EGUs in ozone nonattainment areas. In view of its decision in North Carolina 

v. EPA, in which the Court had previously remanded the CAIR and in response to the 

parties’ joint suggestion to the Court that any further litigation of CAIR-related issues be 

held in abeyance given the North Carolina decision, the Court deferred consideration of

the litigants’ challenges to the Phase 2 Ozone Implementation Rule and Reconsideration 

Notice insofar as they related to the CAIR program.

As a result of this litigation, the Court decided that the provisions in the Phase 2

Ozone Implementation Rule indicating that a state need not perform (or submit) a NOx

RACT analysis for EGU sources subject to a cap-and-trade program that meets the 

requirements of the NOx SIP Call are inconsistent with the statutory requirements of 

section 172(c)(1).

18 The Court specifically held that the Phase 2 Ozone Implementation 

Rule allowing use of the NOx SIP call to constitute RACT without any locally applicable 

analysis regarding the equivalence of NOx SIP Call and RACT reductions: “is 

inconsistent with the Clean Air Act . . . in allowing participation in a regional cap-andtrade program to satisfy an area-specific statutory mandate.” The Court emphasized that: 

 

18 See NRDC v. EPA, 571 F.3d 1245 (D.C. Cir. 2009).
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“the RACT requirement calls for reductions in emissions from sources in the area; 

reductions from sources outside the nonattainment area do not satisfy the requirement . . . 

Accordingly, participation in the NOx SIP call would constitute RACT only if 

participation entailed at least RACT-level reductions in emissions from sources within 

the nonattainment area.”

The Court rejected the EPA’s arguments that a regional emissions reductions 

program like the NOx SIP Call would result in greater emissions reductions in 

nonattainment areas as unsupported by any adequate technical analysis.19 The Court 

likewise rejected the EPA’s argument that regionwide emissions reductions would 

collectively achieve better emissions reductions because this argument did not comport 

with the explicit “in the area” language of section 172(c)(1).20 With respect to the EPA’s 

argument that the statute is ambiguous as to whether each individual source within a 

nonattainment area must install RACT, the Court concluded that even if that were 

correct, the EPA had failed to evaluate the impact of the NOx SIP Call on the air quality 

within specific nonattainment areas, and thus the EPA “has failed to establish that NOx

SIP Call compliance can be equated to RACT compliance.”21 The Court disagreed with 

the EPA’s theory that section 172(c)(6), which authorizes auctions as a permissible form 

of control measure, could allow reliance on a regional cap-and-trade type program in lieu 

of the RACT requirement for sources “in the area.”22 Finally, the Court rejected the 

argument that the EPA’s interpretation should be upheld because a state could still elect 

 

19 Id. 571 F.3d at 1257.

20 Id. 

21 Id.

22 Id. 571 F.3d at 1258.
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to define RACT to require greater emissions reductions from EGUs in a given area for 

local attainment needs, concluding that: “[a] state’s decision to require stricter controls 

cannot eliminate the defect in the EPA’s approach – failing to implement the requirement 

of at least RACT-level reductions in emissions from sources in the nonattainment area.”23 

Based on the foregoing reasoning, the Court remanded the provision of the Phase 

2 Ozone Implementation Rule determining that the NOx SIP Call satisfies NOx RACT for 

EGUs because the EPA had failed to show that compliance with the NOx SIP Call would 

achieve at least RACT-level reductions in each nonattainment area. In deciding not to 

vacate the provision, however, the Court noted that a determination that RACT was 

satisfied by compliance with the NOx SIP Call might be permissible for an area if 

accompanied by a technical analysis demonstrating that the program in fact “results in 

greater emissions reductions in a nonattainment area than would be achieved if RACTlevel controls were installed in that area.”24 In other words, the Court rejected the notion 

that a regional cap-and-trade program intended to eliminate interstate transport of 

emissions consistent with section 110(a)(2)(D)(i) could automatically constitute RACTlevel control as required by section 172(c)(1), but held open the possibility that such a 

program might in fact result in the same, or higher, level of emissions reductions in 

individual nonattainment areas. 

Significantly, the Court did not address at all the EPA’s comparable 

determinations and presumption that compliance with the CAIR would constitute NOx

RACT for EGUs in ozone nonattainment areas under certain circumstances. As 

 

23 Id.

24 Id. 
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mentioned earlier, the Court (in response to the joint suggestion of the parties) deferred 

consideration of the CAIR-related challenges to the EPA’s determinations and 

presumption because at the time of this decision, the Court had already remanded the 

CAIR.

25 However, on August 30, 2013, the U.S. Court of Appeals for the D.C. Circuit 

granted the EPA’s request for voluntary remand of the CAIR determination and vacatur 

of the CAIR presumption. In granting the agency’s request, the Court said that “[v]acatur 

of the presumption is appropriate in light of the NRDC v. EPA...”26

E. The PM2.5 Implementation Rule

On April 25, 2007 (72 FR 20586), the EPA published the “Clean Air Fine Particle 

Implementation Rule” to address nonattainment SIP requirements for the 1997 PM2.5 

NAAQS (the PM2.5 Implementation Rule).27 That action provided regulations and 

additional guidance in the preamble for state plans required to implement the 1997 PM2.5

NAAQS. The PM2.5 Implementation Rule provided a framework for developing SIP

submissions for nonattainment areas based on the Subpart 1 requirements for 

nonattainment areas found in section 172 of the CAA.

28

 

25 Id. at 1250.

26 NRDC v. EPA, No. 09-1198 (D.C. Cir.) (order of August 30, 2013).

27 The PM2.5 Implementation Rule is now codified at 40 CFR Section 51.1000 – 1012. 

Section 51.1010 addresses the RACT and RACM requirements. 

28 The EPA notes that on January 4, 2013, the PM2.5 Implementation Rule was remanded 

by the U.S. Court of Appeals for the D.C. Circuit. The Court ruled that the EPA should 

have issued the implementation rule under the Clean Air Act requirements of Subpart 4. 

(See NRDC v. EPA, 706 F.3d 428 (D.C. Cir. 2013). This proposal addresses only one 

aspect of the remanded PM2.5 Implementation Rule, i.e., the presumption that CAIR is 

RACT/RACM for purposes of attainment plans for the 1997 PM2.5 NAAQS. This issue is 

not directly related to the court’s decision in NRDC v. EPA. The EPA intends to respond 

to the court’s remand in that decision in another rulemaking that will address 

implementation requirements for the PM2.5 NAAQS more broadly.
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With respect to the requirements of section 172 (c)(1), the PM2.5 Implementation 

Rule used a combined RACT/RACM approach, where a state’s obligation to implement 

RACT was considered as part of the overall RACM obligation for EGU sources. 

RACT/RACM was defined in the Rule as the set of emission reduction measures needed 

to attain the standards as expeditiously as practicable in the nonattainment area at issue. 

Through guidance in the preamble to the final PM2.5 Implementation Rule, the EPA also

established a presumption that compliance with the CAIR would satisfy RACT/RACM

requirements for SO2 and NOx emissions from EGUs in states participating in the CAIR

cap-and-trade program for such emissions.29 

For SO2, the EPA’s guidance recommended that states that obtained all SO2

reductions required by the CAIR from EGUs could presume that such sources located 

within a designated nonattainment area were meeting SO2 RACT/RACM requirements 

because of overall regional SO2 reductions from EGUs. The guidance indicated that this 

presumption could be used without conducting a technical analysis comparing the CAIR 

and RACT/RACM reductions for the specific nonattainment area. For NOx, the EPA 

similarly recommended that so long as the EGU sources in the state were required to 

operate NOx emissions controls on a year-round basis to comply with the CAIR, then that 

state could presume that those EGUs were meeting NOx RACT/RACM requirements 

because of overall regional NOx reductions from EGUs. The EPA made no decision with 

respect to what might constitute RACT/RACM level controls for direct PM2.5 emissions 

from EGUs in relation to the CAIR because the CAIR only addressed the NOx and SO2

emissions from such sources.

 

29 See PM2.5 Implementation Rule, 72 FR 20623. 
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Based on this presumption that compliance with the CAIR would constitute 

RACT/RACM level controls for SO2 and NOx emissions from EGUs within the CAIR

region, the EPA concluded that: “states may define RACT/RACM as the CAIR level of 

control on the collective group of sources in the region rather than impose a specific level 

of control on individual sources.”30 In other words, the EPA indicated that states could 

presume that EGUs located within a given nonattainment area were meeting the 

RACT/RACM requirement, based solely upon a regional program that imposed controls 

on sources both within and outside designated nonattainment areas. The EPA 

acknowledged that reliance on the presumption could result in situations where specific 

EGUs located within nonattainment areas might elect to comply with the CAIR through 

the acquisition of allowances, rather than the reduction of emissions. Although the EPA 

articulated a series of policy and technical reasons for the appropriateness of considering 

a regional control program like the CAIR to be a preferable approach, the agency also 

acknowledged that a state might “conclude that establishing additional ‘beyond CAIR’ 

emissions control requirements on specific sources in nonattainment areas is warranted to 

provide for attainment as expeditiously as practicable.”31 These policy and technical 

arguments are very similar to those made by the EPA in connection with challenges to 

the Phase 2 Ozone Implementation Rule, and rejected by the Court decision discussed in 

further detail previously in this notice.

In June 2007, the EPA received a petition for reconsideration filed by Earthjustice

on behalf of several petitioners (including NRDC) that raised several objections to the

 

30 Id. at 72 FR 20624.

31 Id. at 72 FR 20625.
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PM2.5 Implementation Rule.

32 One of the principle objections raised by the petition is that 

under the CAA, compliance with a regional trading program, such as the CAIR, should 

not be presumed to satisfy RACT/RACM requirements for individual EGU sources

located in nonattainment areas. The petitioner argued that the effect of the “CAIR-RACT 

presumption” was to waive the CAA RACT requirements for individual EGU sources 

located within PM2.5 nonattainment areas. The petition also asserts that the presumption 

and its accompanying rationale were added to the rule after the close of the public 

comment period, and that the EPA therefore failed to seek public comment on the final 

rule’s determination that the CAIR presumptively satisfies SO2 and NOx RACT 

requirements for EGUs located in nonattainment areas. The petition further maintains that 

the EPA lacks authority to establish a presumption on what satisfies RACT in this 

fashion, and that the EPA’s conclusion that the CAIR can be presumed to satisfy RACT 

is arbitrary and capricious because it lacked a factual basis. Lastly, the petition also 

maintained that even if an initial presumption that compliance with the CAIR constituted 

compliance with the RACT requirements of section 172(c)(1) were otherwise 

permissible, the final rule would be arbitrary and unlawful because it failed to explain if 

or how the presumption can be rebutted. 

Significantly, Earthjustice filed the petition for reconsideration of the PM2.5 

Implementation Rule well before the Court in the NRDC v. EPA case addressed the 

comparable issue with respect to the NOx SIP Call in the context of the Phase 2 Ozone 

 

32 See “Petition for Reconsideration,” filed by Paul Cort, Earthjustice, on behalf of the 

American Lung Association, Medical Advocates for Healthy Air, Natural Resources 

Defense Council, and the Sierra Club (June 25, 2007). A copy of the petition is in the 

docket for this action.
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Implementation Rule. Nevertheless, the petitioner made essentially the same points as the 

Court in the NRDC v. EPA case that to allow compliance with a regional cap-and-trade 

program to constitute RACT for sources located within a nonattainment area 

automatically, or pursuant to an unsupported presumption, would be contrary to the 

explicit requirements of section 172(c)(1). Moreover, the EPA notes that multiple parties 

have indicated that they intend to challenge the PM2.5 Implementation Rule on this same 

issue through petitions for review currently pending in the Court.

In light of the arguments raised in the petition for reconsideration, and in light of 

the Court’s decision in NRDC v. EPA, the EPA decided to grant the petition for 

reconsideration on this issue and initiate this rulemaking.

33

F. Impact of the NRDC v. EPA Court Decision on Determinations and Presumptions

The EPA has reevaluated whether compliance with the NOx SIP Call could 

automatically constitute NOx RACT for EGUs in light of the Court’s opinion in the 

NRDC v. EPA case. Given the explicit wording of section 172(c)(1) that sources “in the 

area” must at a minimum adopt RACT controls for that area, the EPA believes that it is 

no longer appropriate to presume that this requirement is automatically met through the 

participation of sources in a regional emissions cap-and-trade program. Implicit in a 

regional cap-and-trade program is that some sources may elect to use allowances in lieu 

of emissions controls to meet the regional emissions reductions requirements, and that 

those elections could change from year to year. The EPA believes that it would be 

inappropriate to pre-judge whether participation in a cap-and-trade program satisfies NOx

 

33 See letter dated April 25, 2011, from Lisa P. Jackson to Paul Cort, Earthjustice. A copy 

of this letter is located in the docket for this action. 
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RACT for EGU sources in any given nonattainment area. The EPA further believes that 

states could rely on a regional emissions cap-and-trade program for purposes of meeting 

NOx RACT requirements if they conduct the appropriate analysis demonstrating that 

compliance by EGUs participating in this program results in actual emission reductions in 

the particular nonattainment area that are equal to, or greater than, emission reductions

that would result if RACT were applied to each individual EGU source or the EGU 

source category in the nonattainment area.

Additionally, based on the logic of the NRDC v. EPA Court decision, and the 

concerns raised in the petition for reconsideration on the PM2.5 Implementation Rule, the 

EPA believes that it would be inappropriate absent an analysis for the EPA to pre-judge 

whether regional cap-and-trade programs would constitute RACT or RACM for covered 

sources in a particular PM2.5 nonattainment area. 

III. Proposed Action

In this notice, the EPA is proposing to: (1) withdraw from the Phase 2 Ozone 

Implementation Rule the determination that compliance with the NOx SIP Call satisfies 

NOx RACT for EGUs located in certain ozone nonattainment areas or in states within the 

OTR; (2) withdraw from the Phase 2 Ozone Implementation Rule the separate 

determination that compliance with the CAIR satisfies NOx RACT for EGUs located in 

certain specific ozone nonattainment areas.; and (3) withdraw from the PM2.5 

Implementation Rule any presumption that compliance with the CAIR automatically

satisfies RACT/RACM requirements for SO2 and NOx emissions from EGUs located in 

PM2.5 nonattainment areas. 
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The EPA has reevaluated whether compliance with the NOx SIP Call could 

constitute NOx RACT for EGUs in light of the Court’s opinion in the NRDC v. EPA case. 

Given the explicit wording of section 172(c)(1) that sources “in the area” must at a 

minimum adopt RACT controls for that area, the EPA believes that it is no longer 

appropriate to determine that this requirement is automatically addressed for certain 

sources based upon the participation of those sources in a regional cap-and-trade 

program. After reconsideration, the EPA believes that it would be consistent with the 

statutory provision, with the overall structure of the CAA with respect to nonattainment 

plans, and with the overarching objective to provide for expeditious attainment of the 

NAAQS in each nonattainment area, that states should evaluate the EGUs located within 

designated nonattainment areas for any necessary controls. As noted above, the NRDC v. 

EPA decision left open the possibility that an area-specific analysis might establish that 

compliance with a regional cap-and-trade program like the NOx SIP Call could 

simultaneously result in factual compliance with the RACT requirement for sources 

located within nonattainment areas, and EPA’s elimination of the prior determination will 

in no way prevent a state from conducting and relying on such an analysis. States have 

the option of conducting a technical analysis for the specific nonattainment area

considering the emissions controls required by a regional cap-and-trade program, and 

demonstrating that compliance by EGUs participating in the program results in actual 

emission reductions in the particular nonattainment area that are equal to or greater than 

the emission reductions that would result if RACT were applied to each individual EGU

source or the EGU source category within the nonattainment area. 
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We note that subsequent to the NRDC v. EPA decision, the Court granted the 

EPA’s request for a remand of a similar determination, previously made in the Phase 2 

Ozone Implementation Rule, that compliance with the CAIR could, in some 

circumstances, automatically satisfy RACT requirements for certain sources. Following 

the North Carolina v. EPA decision that remanded the CAIR, the Court had deferred 

consideration of whether compliance with the CAIR could automatically satisfy a 

source’s obligation to install RACT for the 1997 ozone NAAQS. Following vacatur of 

the rule that was to replace the CAIR, however, the EPA decided that it would be 

appropriate to reconsider this determination also in light of the earlier decision in NRDC 

v. EPA. The EPA believes that the logic of the NRDC v. EPA decision extends to any

determination that sources subject to a regional trading program such as the CAIR 

automatically comply with RACT requirements for NOx. In other words, the decision 

establishes that any such determination is permissible if supported by an adequate 

technical demonstration showing that the trading program would result in equal or greater 

emission reductions than would be achieved by application of RACT to the relevant 

sources or source categories. 

The EPA does not believe the analysis to support the CAIR determination in the 

Phase 2 Ozone Implementation Rule provides an adequate technical demonstration. For 

this reason, the EPA is also proposing to withdraw its conclusion, made in the Phase 2 

Ozone Implementation Rule final notice of reconsideration, that the EPA’s Supplemental 

Technical Analysis gives an adequate demonstration that participation in the CAIR is 

projected to achieve equal or greater annual emissions reductions from EGUs than

source-by-source RACT for certain specific areas.
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The EPA is proposing this action because it no longer believes that the 

assumptions held within the Supplemental Technical Analysis are adequate to make such 

a showing. After reconsideration, the EPA now concludes that the analysis’s across-theboard assumptions regarding what constitutes RACT for all sources in all nonattainment 

areas were inadequate, and did not consider whether more advanced control technologies, 

such as post-combustion controls (e.g., selective catalytic reduction or selective noncatalytic reduction), might at some time be technically and economically feasible for 

specific sources in some areas. 

The EPA is consequently proposing to amend Section 51.912 to state explicitly

that for each individual major source, or major source category, in a nonattainment area, 

states must conduct a RACT analysis for purposes of 1997 8-hour ozone NAAQS SIPs. 

As part of the PM2.5 Implementation Rule, the EPA included a presumption that 

EGU participation in the CAIR constituted RACT or RACM for SO2 for EGU sources in 

a particular nonattainment area. The EPA did not include a supporting analysis for this 

presumption as part of the Rule. The EPA believes that the logic of the NRDC v. EPA

decision extends to any presumption that sources subject to a regional emissions cap-andtrade program such as the CAIR automatically comply with RACT or RACM

requirements for NOx or SO2.

As a result of this action, states should not rely merely on the fact that sources are 

complying with a regional cap-and-trade program as a basis for RACT or RACM-level 

emissions controls for the 1997 8-hour ozone NAAQS or the 1997 PM2.5 NAAQS. States 

must comply with the provisions of the CAA, which require an evaluation of emissions 

sources, such as EGUs, located within designated nonattainment areas for potential 
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RACT or RACM controls, and imposition of such controls as may be necessary for 

expeditious attainment of the NAAQS within the area. 

However, states retain the option of conducting a technical analysis for the 

specific nonattainment area considering the emissions controls required by a regional 

cap-and-trade program, and demonstrating that compliance by EGUs participating in the 

cap-and-trade program results in actual emission reductions in the particular

nonattainment area that are equal to or greater than the emission reductions that would 

result if RACT or RACM were applied to an individual EGU source or the EGU source 

category within the nonattainment area. States could conduct this analysis for the EGUs 

in the nonattainment area, either individually or in the aggregate. 

The EPA anticipates that in many areas, such an evaluation will likely indicate 

that EGUs within the nonattainment area at issue are already adequately controlled for 

NOx and SO2 emissions, whether by virtue of the NOx SIP Call, the controls required by

the CAIR, or by other means. However, based on the logic of the NRDC v. EPA Court 

decision, and the concerns raised in the petition for reconsideration of the PM2.5 

Implementation Rule, the EPA believes that it would be inappropriate to pre-judge that 

outcome prior to state development of locally applicable demonstrations showing 

equivalent reductions.

The EPA is soliciting comments on the withdrawal of the determinations and 

presumption as explained previously in this notice. Additionally, the EPA does not 

believe that the withdrawal of the determinations and presumption has a practical impact 

on state planning and emissions control efforts, either currently or prospectively, for the 

1997 ozone and PM2.5 NAAQS. The EPA has worked closely with those states who 
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previously relied on the determinations or presumption, and in those instances either the 

states or EPA (through SIP approval notices) have conducted, or are currently

conducting, the appropriate analysis to demonstrate that EGUs in each nonattainment 

area have met the RACT or RACM requirements. The EPA is not aware of any states that 

have raised concerns about the need to conduct a new RACT or RACM analysis as a 

result of the policy changes proposed in this rulemaking. The EPA is soliciting comments 

on our assessment that the withdrawal of the determinations and presumption does not 

have a practical impact on states.

IV. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review and Executive Order 

13563: Improving Regulation and Regulatory Review

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is a 

"significant regulatory action” because it raises novel policy issues. Accordingly, the 

EPA submitted this action to the Office of Management and Budget (OMB) for review 

under Executive Orders 12866 and 13563 (76 FR 3821, January 21, 2011) and any 

changes made in response to OMB recommendations have been documented in the 

docket for this action.

B. Paperwork Reduction Act

This action does not impose an information collection burden under the 

provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. Burden is defined at 5 

CFR 1320.3(b). This action merely interprets the statutory requirements that apply to 

states in preparing their SIPs.

C. Regulatory Flexibility Act
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The Regulatory Flexibility Act (RFA) generally requires an agency to prepare a 

regulatory flexibility analysis of any rule subject to notice and comment rulemaking 

requirements under the Administrative Procedure Act or any other statute unless the 

agency certifies that the rule will not have a significant economic impact on a substantial 

number of small entities. Small entities include small businesses, small organizations, and 

small governmental jurisdictions.

For purposes of assessing the impacts of this proposed rule on small entities, 

small entity is defined as: (1) A small business that is a small industrial entity as defined 

in the U.S. Small Business Administration (SBA) size standards. (See 13 CFR 121.); (2) 

A governmental jurisdiction that is a government of a city, county, town, school district, 

or special district with a population of less than 50,000; and (3) A small organization that 

is any not-for-profit enterprise which is independently owned and operated and is not 

dominant in its field.

After considering the economic impacts of this proposed rule on small entities, I 

certify that this action will not have a significant economic impact on a substantial 

number of small entities. This rule will not directly impose any requirements on small 

entities. Rather, this rule interprets the obligations of the CAA for states to submit 

implementation plans in order to attain the 1997 8-hour ozone and 1997 PM2.5 NAAQS. 

We continue to be interested in the potential impacts of the proposed rule on small 

entities and welcome comments on issues related to such impacts.

D. Unfunded Mandates Reform Act

This action contains no federal mandates under the provisions of Title II of the 

Unfunded Mandates Reform Act of 1995 (UMRA, 2 U.S.C. 1531 – 1538) for state, local, 
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or tribal governments or the private sector. The action imposes no enforceable duty on 

any state, local, or tribal governments or the private sector. Therefore, this action is not 

subject to the requirements of sections 202 or 205 of the UMRA.

This action is also not subject to the requirements of section 203 of UMRA 

because it contains no regulatory requirements that might significantly or uniquely affect 

small governments. This action merely interprets the statutory requirements that apply to 

states in preparing their SIPs.

E. Executive Order 13132: Federalism

This action does not have federalism implications. It will not have substantial 

direct effects on the states, on the relationship between the national government and the 

states, or on the distribution of power and responsibilities among the various levels of 

government, as specified in Executive Order 13132. This action does not impose any new 

mandates on state or local governments. Thus, Executive Order 13132 does not apply to 

this rule. 

In the spirit of Executive Order 13132, and consistent with EPA policy to promote 

communications between the EPA and state and local governments, the EPA is 

specifically soliciting comments on this proposed rule from state and local officials.

F. Executive Order 13175: Consultation and Coordination with Indian Tribal 

Governments

This rule does not have tribal implications, as specified in Executive Order 13175 

(65 FR 67249, November 9, 2000). The rule does not have a substantial direct effect on 

one or more Indian tribes, since no tribe has to develop a Tribal Implementation Plan

under this regulation. Furthermore, this rule does not affect the relationship or 
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distribution of power and responsibilities between the federal government and Indian 

tribes. The CAA and the Tribal Air Rule establish the relationship of the federal 

government and tribes in developing plans to attain the NAAQS, and this rule does 

nothing to modify that relationship. This rule does not have tribal implications. Thus, 

Executive Order 13175 does not apply to this action. However, the EPA did conduct 

outreach to tribes on a regularly scheduled conference call with the National Tribal Air 

Association on March 27, 2014, where we provided the tribes with a brief overview of 

the proposed rule. The EPA specifically solicits additional comment on this proposed 

action from tribal officials.

G. Executive Order 13045: Protection of Children from Environmental Health and 

Safety Risks 

The EPA interprets EO 13045 (62 FR 19885, April 23, 1997) as applying only to 

those regulatory actions that concern health or safety risks, such that the analysis required 

under section 5-501 of the EO has the potential to influence the regulation. This action is 

not subject to EO 13045 because it does not establish an environmental standard intended 

to mitigate health or safety risks. This proposal is designed to help implement the 

already-established ozone and PM2.5 NAAQS, which were both promulgated in 1997 to 

protect the health and welfare of individuals, including children, who are susceptible to 

the adverse effects of exposure to unhealthy levels of ozone and PM2.5.

H. Executive Order 13211: Actions Concerning Regulations That Significantly Affect 

Energy Supply, Distribution, or Use

This action is not a “significant energy action” as defined in Executive Order 

13211 (66 FR 28355 (May 22, 2001)), because it is not likely to have a significant 
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adverse effect on the supply, distribution, or use of energy because it does not establish 

requirements that directly affect the general public and the public and private sectors, but, 

rather interprets the statutory requirements that apply to states in preparing their SIPs. 

The SIPs themselves will likely establish requirements that directly affect the general 

public, and the public and private sectors. 

I. National Technology Transfer and Advancement Act 

Section 12(d) of the National Technology Transfer and Advancement Act of 1995 

("NTTAA"), Public Law 104-113, section 12(d), (15 U.S.C. 272 note) directs the EPA to 

use voluntary consensus standards in its regulatory activities unless to do so would be 

inconsistent with applicable law or otherwise impractical. Voluntary consensus standards 

are technical standards (e.g., materials specifications, test methods, sampling procedures, 

and business practices) that are developed or adopted by voluntary consensus standards 

bodies. The NTTAA directs the EPA to provide Congress, through OMB, explanations 

when the agency decides not to use available and applicable voluntary consensus 

standards. This rulemaking does not involve technical standards. Therefore, the EPA is 

not considering the use of any voluntary consensus standards.

J. Executive Order 12898: Federal Actions to Address Environmental Justice in 

Minority Populations and Low-Income Populations

Executive Order 12898 (59 FR 7629, Feb. 16, 1994) establishes federal executive 

policy on environmental justice. Its main provision directs federal agencies, to the 

greatest extent practicable and permitted by law, to make environmental justice part of 

their mission by identifying and addressing, as appropriate, disproportionately high and 
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adverse human health or environmental effects of their programs, policies, and activities 

on minority populations and low-income populations in the United States. 

The EPA has determined that this proposed rule will not have disproportionately

high and adverse human health or environmental effects on minority or low-income 

populations because if it has any effect on the level of protection provided to human 

health or the environment, the effect will be to increase the level of protection by

resulting in more stringent emission controls on EGUs in affected nonattainment areas. 

Statutory Authority

The statutory authority for this action is provided by 42 U.S.C. 7501, 7502, 

7511a, 7513a, 7513b and 7601.
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Page 35 of 36 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

List of Subjects in 40 CFR Part 51

Environmental protection, Administrative practice and procedure, Air pollution 

control, Ozone, Reporting and recordkeeping requirements, Particulate matter, Volatile 

organic compounds.

___________________________________

Dated:

___________________________________

Gina McCarthy, 

Administrator.
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For reasons set forth in the preamble, part 51 of chapter I of title 40 of the Code of 

Federal Regulations is proposed to be amended as follows:

Part 51-REQUIREMENTS FOR PREPARATION, ADOPTION, AND SUBMITTAL 

OF IMPLEMENTATION PLANS.

 1. The authority citation for part 51 continues to read as follows:

 Authority: 23 U.S.C. 101; 42 U.S.C. 7401-7671q

 2. Section 51.912 is amended by adding paragraph (a)(4) to read as follows:

 §51.912 What requirements apply for reasonably available control 

technology (RACT) and reasonably available control measures (RACM) under the 

8-hour NAAQS?

 (a) * * * 

 (4) An individual RACT determination must be made for each major source or major 

source category meeting the applicable major source size within a nonattainment area.

* * * * *