Summary of Interagency Working Comments on Draft Language under EO 12866 Interagency Review. 

Subject to Further Policy Review.

“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” (RIN 2060-AQ07).

1) Page 16, line 7: The commenter suggests to delete the word “the” before CAIR (should read, 

“states included within the respective NOx SIP Call or CAIR geographic regions”)

2) Page 19, second paragraph: First sentence beginning “In November 2008,” along with beginning 

of second sentence needs to be revised for accuracy. Suggest the following: “In November 2008, 

the D.C. Circuit Court of Appeals heard oral argument concerning multiple petitions for judicial 

review of EPA’s Phase 2 Ozone Implementation Rule and the Notice of Reconsideration. Among 

other issues, the petitioners (including NRDC) challenged . . .”

3) Also in the second sentence of this paragraph: insert “ozone” before “nonattainment areas, and 

delete comma after “other areas”

4) Third sentence of this same paragraph: Suggest adding the text below immediately after the 

phrase “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,”

5) Same sentence: “litigant’s challenge” should be corrected to “litigants’ challenges”

6) Page 23, second paragraph, second sentence, beginning “As mentioned earlier, the Court 

deferred . . .”: after the word “Court,” insert the following parenthetical: “(in response to the 

joint suggestion of the parties)”

7) Same paragraph, next sentence: delete the last two words, “described later,” as these words are 

confusing in this sentence.

8) Common issue arising at page 30, third paragraph; top of page 47, and top of page 49: there is a 

particular phrase sometimes employed to describe what technical analysis must demonstrate in 

order to show that compliance with a cap-and-trade program actually satisfies RACT for a 

particular nonattainment area: “[technical analysis must] demonstrate that this program results 

in equal to or greater than actual emission reductions from the EGUs within the nonattainment 

area than would application of RACT on all subject EGUs within the nonattainment area.” In this 

phrase, the words “equal to or greater than” are used in a very awkward way grammatically.

But later in the document (at page 49-50), a different phrase is employed to describe the same 

substantive concept, and this phrase is easier to follow grammatically: “[must show that] 

“compliance by EGUs participating in the program results in actual emissions reductions in the 

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

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

the area.” If possible, the commenters suggest that this second phrase be used in each place 

where the document refers to this concept.

9) Page 45, 3rd paragraph beginning “EPA has reevaluated”: change “Courts’” to “Court’s” 

(singular)

10) Page 56, last sentence before start of Section IV: last phrase of this sentence is very awkward 

grammatically, suggest revising to the following: “and whether there are legal rationales 

consistent with the CAA that would allow EPA to adopt such an approach.”

For ease of reference, these edits are represented in the “track changes” format on the attached 

document.