32892 Federal Register / Vol. 79, No. 110 / Monday, June 9, 2014 / Proposed Rules 

1See 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). 

2See 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). 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 51 

[EPA–HQ–OAR–2009–0897; FRL–9909–28– 

OAR] 

RIN 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 U.S. Environmental 

Protection Agency (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-andtrade programs. 

DATES: Comments. Comments must be 

received on or before July 9, 2014. 

Public Hearings. If anyone contacts us 

requesting a public hearing on or before 

June 24, 2014, we will hold a public 

hearing. Please refer to SUPPLEMENTARY

INFORMATION for additional information 

on the comment period and the public 

hearing. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–HQ– 

OAR–2009–0897, 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: 28221T, 1200 Pennsylvania 

Avenue NW., Washington, DC 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 NW., Room 

3334, Washington, DC 20004, Attention 

Docket ID No. EPA–HQ–OAR–2009– 

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 

protected through www.regulations.gov 

or email. The www.regulations.gov Web 

site 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, William 

Jefferson Clinton West Building, Room 

3334, 1301 Constitution Ave. NW., 

Washington, DC 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. 

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 Call 1 and/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: 


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Industry group SIC a NAICSb

Electric Services .......................................... 492 221111, 221112, 221113, 221119, 221121, 221122. 

aStandard Industrial Classification. 

b North American Industry Classification System. 

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. 

• 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 June 24, 2014. 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 Web site 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 

F. Impact of the NRDC v. EPA Court 

Decision on Determinations and 

Presumptions 

III. Proposed Action 

IV. Statutory and Executive Order Reviews 

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 in 40 CFR Part 51 

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 

state implementation plan (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 contain additional requirements 

applicable to certain ozone and 

particulate matter (PM, including PM2.5) 

nonattainment areas, respectively. 

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 


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3See 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). 

4See NRDC v. EPA, 571 F.3d 1245, at 1252–53 

(D.C. Cir. 2009). 

5NOX is a precursor for ozone formation, while 

both NOX and SO2 are precursors for PM2.5

formation. 6See North Carolina v. EPA, 531 F.3d 896; 

modified by 550 F.3d 1176 (D.C. Cir. 2008). 

7See ‘‘Federal Implementation Plans: Interstate 

Transport of Fine Particulate Matter and Ozone and 

Correction of SIP Approvals, Final Rule,’’ 76 FR 

48208 (August 8, 2011). 

8See EME Homer City Generation L.P. v. EPA, 

696 F.3d 7 (D.C. Cir. 2012), cert. granted 133 S. Ct. 

2857 (2013). 

9See 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). 

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 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-andtrade program as one mechanism for 

states to 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. 

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.6 In 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, 2012.8 In 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 and issued 

a decision on April 29, 2014, that 

reversed the judgment of the D.C. 

Circuit and remanded the case for 

further proceedings. At this time, 

CSAPR remains stayed and CAIR 

remains in place. 

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. 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 


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10See Phase 2 Ozone Implementation Rule, 70 FR 

71617. 

11See ‘‘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. 

12See ‘‘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). 

13Specifically, 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. 

14See Phase 2 Ozone Implementation Rule— 

Notice of Reconsideration, 72 FR 31730. 

15 Id. 72 FR 31731. 

16 Id. 72 FR 31730. 

17 Id. 

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 Implementation Rule addressed 

various statutory requirements, 

including the requirement for RACTlevel 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 capand-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 

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 sourceby-source application of RACT to the 

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-bysource RACT.’’ 17

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 CAIRrelated 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. 


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18See NRDC v. EPA, 571 F.3d 1245 (D.C. Cir. 

2009). 

19 Id. 571 F.3d at 1257. 

20 Id. 

21 Id. 

22 Id. 571 F.3d at 1258. 

23 Id. 

24 Id. 

25 Id. at 1250. 

26NRDC v. EPA, No. 09–1198 (D.C. Cir.) (order of 

August 30, 2013). 

27The PM2.5 Implementation Rule is now codified 

at 40 CFR Section 51.1000–1012. Section 51.1010 

addresses the RACT and RACM requirements. 

28The 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. 

29See PM2.5 Implementation Rule, 72 FR 20623. 

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-and-trade 

program to satisfy an area-specific 

statutory mandate.’’ The Court 

emphasized that: ‘‘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 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 RACT-level 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 RACT-level 

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 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

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 


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30 Id. at 72 FR 20624. 

31 Id. at 72 FR 20625. 

32See ‘‘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. 

33See 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. 

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. 

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 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 

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-andtrade 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 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. 


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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 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. 

In general, the EPA supports flexible, 

common sense approaches that provide 

the health and environmental 

protections required under the CAA 

while maximizing flexibility for states. 

The EPA also supports maintaining the 

integrity of regional cap-and-trade 

programs. Therefore, as a result of this 

action, states would retain the option of 

relying on source participation in a 

regional cap-and-trade program for 

purposes of meeting the RACT or RACM 

requirements for the 1997 ozone 

NAAQS or the 1997 PM2.5 NAAQS if 

there is a technical analysis that 

supports the conclusion that 

participation in the cap-and-trade 

program is equivalent. More information 

about this flexibility is included below. 

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-andtrade 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. 

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. 

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-the-board 

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-and-trade 

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 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 


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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 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 

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, 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 

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 tribes were 

provided a brief overview of the 

proposed rule. The EPA specifically 

solicits additional comment on this 

proposed action from tribal officials. 


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G. Executive Order 13045: Protection of 

Children From Environmental Health 

and Safety Risks 

The EPA interprets E.O. 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 E.O. has the potential to influence 

the regulation. This action is not subject 

to E.O. 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 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 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. 

List of Subjects in 40 CFR Part 51 

Environmental protection, 

Administrative practice and procedure, 

Air pollution control, Ozone, Particulate 

matter, Reporting and recordkeeping 

requirements, Volatile organic 

compounds. 

Dated: May 29, 2014. 

Gina McCarthy, 

Administrator. 

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. 

* * * * * 

[FR Doc. 2014–13415 Filed 6–6–14; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

50 CFR Part 17 

[Docket Nos. FWS–HQ–ES–2014–0012; 

FWS–HQ–ES–2014–0013; FWS–HQ–ES– 

2014–0014; 450 003 0115] 

Endangered and Threatened Wildlife 

and Plants; 90-Day Finding on 

Petitions To List Two Tortoises as 

Endangered or Threatened and and a 

Sloth as Endangered 

AGENCY: Fish and Wildlife Service, 

Interior. 

ACTION: Notice of petition findings and 

initiation of status reviews. 

SUMMARY: We, the U.S. Fish and 

Wildlife Service (Service), announce 90- 

day findings on two petitions to list two 

species (Flat-tailed tortoise (Pyxis 

planicauda) and Spider tortoise (Pyxis 

arachnoides)) as endangered or 

threatened and one petition to list one 

species (Pygmy three-toed sloth 

(Bradypus pygmaeus)) as endangered 

under the Endangered Species Act of 

1973, as amended (Act). Based on our 

review, we find that these petitions 

present substantial scientific or 

commercial information indicating that 

the petitioned actions may be 

warranted. Therefore, with the 

publication of this document, we are 

initiating a review of the status of these 

species to determine if the petitioned 

actions are warranted. To assure that the 

best scientific and commercial data 

informs the status review and, if 

warranted, the subsequent listing 

determinations, and to provide an 

opportunity for all interested parties to 

provide information for consideration 

for the status assessment, we are 

requesting information regarding these 

species (see Request for Information, 

below). Based on the status reviews, we 

will issue 12-month findings on the 

petitions, which will address whether 


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