UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Natural Resources Defense Council

and State of New Jersey,

Petitioners,

No. 09-1198

United States Environmental

Protection Agency,

Respondent.

State of New York et al.,

Intervenors.

RESPONDENT EPA'S MOTION FOR VOLUNTARY

REMAND AND PARTIAL VACATUR

Respondent the United States Environmental Protection Agency ("EPA")

hereby moves for a voluntary remand and partial vacatur of the so-called "CAIRRACT" provision challenged by petitioners in this case. That provision allows, in

certain circumstances, compliance with the Clean Air Interstate Rule ("CAIR"), 70

Fed. Reg. 25,162 (May 12, 2005), to satisfy reasonably available control

technology ("RACY") requirements under the Clean Air Act ("CAA" or "Act").
The provision appears in the preamble to a rule known as the Ozone Phase 2 Rule,

see Final Rule to Implement the 8-Hour Ozone National Ambient Air Quality

Standard —Phase 2, 70 Fed. Reg. 71,612 (Nov. 29, 2005), and was modified by

EPA in response to an administrative petition for reconsideration, see Phase 2 of

the Final Rule to Implement the 8-Hour Ozone National Ambient Air Quality

Standard — Notice of Reconsideration, 72 Fed. Reg. 31,727 (June 8, 2007)

The CAIR-RACY provision, as modified on reconsideration, consists of two

severable pieces. The first piece is a "determination," applying to certain

nonattainment areas, that compliance with CAIR is sufficient to satisfy the

nitrogen oxides (NOX) RACY requirement for electric generating units (EGUs)

covered by the CAIR program (the "CAIR-RACY determination"). 72 Fed. Reg.

at 31,730; see also infra at 6-8 (background discussion regarding statutory RACY

requirements, the NOX SIP Call and CAIR).1 The second piece is a general

"presumption" that EGU NOX RACY requirements are satisfied through

1 See 72 Fed. Reg. at 31,730 ("EPA believes it is appropriate for the LAIR states,

under the conditions outlined in this action, to presume, in general, that EGU NOX

RACY requirements are satisfied through implementation of the CAIR program.

Further, in this action EPA makes a determination that in certain areas compliance

with the CAIR is sufficient to satisfy the NOX RACY requirement for EGUs

covered by the LAIR program. The areas covered by this determination are those

where EPA's December 2006 emissions analysis shows that the CAIR is projected

to achieve greater emissions reductions than application of source-by-source

RACY within the nonattainment area or state.").

2
implementation of the CAIR program in any area subject to CAIR (the "CAIRRACY presumption"). 72 Fed. Reg. at 31,730.2 The CAIR-RACY determination

applies to areas for which EPA's technical analysis showed compliance with CAIR

would get greater annual and ozone-season emission reductions than source-bysource RACY in the relevant area (a specific nonattainment area or ozone transport

region state). Id. The CAIR-RACY presumption applies to all other areas covered

by the CAIR program. Id.

EPA now asks the Court to remand the LAIR-RACY determination (without

vacatur), and vacate and remand the CAIR-RACY presumption. Remand of the

CAIR-RACY determination is appropriate to allow EPA, in the first instance, to

consider the impact of intervening developments. Vacatur and remand of the

CAIR-RACY presumption is appropriate because, in light of this panel's prior

decision in the related case number 06-1045, Natural Resources Defense Council

v. EPA, 571 F.3d 1245 (D.C. Cir. 2009) ("NRDC"), the presumption could not be

retained on remand.

2 See 72 Fed. Reg. 31,730 ("For areas where EPA's emissions analysis does not

clearly demonstrate that the CAIR program is projected to achieve greater

emissions reductions than source-by source RACY, this action establishes a

separate presumption that compliance with CAIR, in certain circumstances,

satisfies NOX RACY requirements for EGUs in any area subject to LAIR.").

3
Prior to filing this motion, EPA contacted counsel for Petitioners and for

Respondent-Intervenor Utility Air Regulatory Group ("UARG") to ascertain the

parties' positions on the motion. These consultations are summarized below:

NRDC and the States of New Jersey, New York and Connecticut each have

confirmed that they do not oppose the portion of this motion that seeks remand

with vacatur of the CAIR-RACY presumption. However, these parties do not

consent to the portion of this motion that seeks remand without vacatur of the

CAIR-RACY determination, and they may submit an opposition to that portion of

the motion.

American Fuel &Petrochemical Manufacturers, American Petroleum

Institute and UARG each have indicated that they reserve their position at this time

and may file a response to this motion.

BACKGROUND

I. STATUTORY AND REGULATORY BACKGROUND

A. Statutory Requirements for NAAQS Implementation and RACY

The CAA, enacted in 1970 and extensively amended in 1977 and 1990,

establishes a comprehensive program for controlling and improving the nation's air

quality through a combination of state and federal regulation. Under Title I, EPA

identifies air pollutants anticipated to endanger the public health and welfare, and

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formulates NAAQS, which establish maximum permissible concentrations of those

pollutants in the ambient air. 42 U.S.C. §§ 7408-09; 40 C.F.R. pt. 50. Within

three years of promulgating a new or revised NAAQS, EPA must "designate" areas

of the country as either "attainment" (i.e., meeting that NAAQS), "nonattainment,"

or "unclassifiable." 42 U.S.C. § 7407(d)(1).

For each area within their borders failing to meet a NAAQS, States are

required to submit to EPA a state implementation plan or "SIP" setting forth the

required pollution control measures and other programs the State will use to timely

attain the NAAQS. 42 U.S.C. §§ 7410(a), 7502(b), 7511(a). SIPs are adopted by

the State after reasonable public notice and a hearing. Id. § 7410(a)(1). EPA then

reviews each submitted plan. Id. § 7410(k). If EPA approves the SIP in whole or

in part, the approved provisions become federally enforceable. Id. § § 7413, 7604.

If EPA does not approve or finds the submission incomplete, the State may be

subject to sanctions and, eventually, federal imposed clean air measures. Id.

§§ 7410(c), 7509.

The 1990 Amendments to the CAA established a complex program for

implementing existing and revised NAAQS in Part D, Subparts 1-5 of Title I.

Subpart 1 specifies control measures and other programs that States must include

in their SIPS for all nonattainment areas, including those governed by more specific

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requirements under other subparts. 42 U.S.C. § 7502(b)-(c). Subpart 2 applies to

and establishes a series of five classifications for ozone nonattainment areas in

which ozone pollution exceeds a certain threshold. Id. § 7511(a)(1)-(2). Each of

these classifications requires the adoption of progressively more stringent pollution

reduction measures; higher classified areas must adopt all the measures specified

for the lower classifications, plus additional requirements. Id. § § 7511 a(a)-(e).

Among the requirements established by Subparts 1 and 2 are provisions

concerning "reasonably available control technology" or "RACY." Subpart 1

requires that SIPs for all nonattainment areas "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)."

42 U.S.C. § 7502(c)(1). In addition, ozone nonattainment areas that are subject to

Subpart 2 of Part D must meet more specific RACY requirements. Ems., id.

§ § 7511 a(b)(2)(C), 7511 a(~.

B. The NOx SIP Call and CAIR

The NOX SIP Call, promulgated in 1998, required 22 States and the District

of Columbia to reduce emissions of NOX (oxides of nitrogen) contributing to

D
nonattainment in downwind areas.3 See 63 Fed. Reg. 57,356, 57,358-61 (Oct. 27,

1998); 42 U.S.C. § 7410(a)(2)(D)(i)(I). EPA established a "NOX emissions

budget" for each covered State. See Michigan v. EPA, 213 F.3d 663, 676-86 (D.C.

Cir. 2000) (generally upholding EPA's approach). Each State retained full

discretion to choose any set of controls that would assure the necessary emissions

reductions. See 63 Fed. Reg. at 57,369-70, 57,378; Michigan, 213 F.3d at 687-88.

EPA also established a model rule for interstate trading of NOX emissions

"allowances" which, if adopted by a State, allowed that State to allocate

allowances among its sources that total no more than its emissions budget. 63 Fed.

Reg. at 57,430, 57,456-58; 40 C.F.R. §§ 51.121(b)(2), 51.121(p) and pt. 96. Each

source could meet its allowance limit either by adopting controls or y purchasing

allowances from other participating sources that are achieving greater than

required reductions. All emissions reductions required under the NOX SIP Call

were due by May 2007. 70 Fed. Reg. at 71,614.

In 2005, EPA promulgated LAIR, which employed an analogous cap-andtrade approach but went beyond the earlier rule by requiring significant additional

3 Ground-level ozone is formed by chemical reactions between oxides of nitrogen

and votatile organic compounds ("VOCs") — referred to as "ozone precursors" — in

the atmosphere in the presence of sunlight. 68 Fed. Reg. 32,802 (June 2, 2003).

Ozone is linked to a number of adverse effects on human respiratory function. Id.

at 32,804. Because ozone itself is not directly emitted by sources, the CAA and

EPA's regulations on reducing VOC and NOX emissions.
emissions reductions in the eastern United States. 70 Fed. Reg. 25,162 (May 12,

2005). CAIR required 25 States and the District of Columbia to reduce ozoneseason NOX emission in two phases, with the first phase of reductions due in 2009

and the second in 2015. Id. at 25,167. EPA also adopted a Federal

Implementation Plan for LAIR as a backstop to ensure that the reductions would

be achieved on schedule. 71 Fed. Reg. 25,328 (Apr. 28, 2006).

II. LITIGATION HISTORY AND PERTINENT COURT DECISIONS

SINCE 2009.

This case originated from a set of petitions for review that were consolidated

by the Court under lead case number 06-1045. The petitions all involved

challenges to the Ozone Phase 2 Rule and many also included challenges to EPA's

subsequent decision on an administrative petition for reconsideration of the rule.

Among the specific provisions subject to challenge were the aforementioned

CAIR-RACY provision and a related provision in which EPA determined that

compliance with the NOX SIP Call could satisfy NOX RACY requirements, 70 Fed.

Reg. at 71,617 (the "NOX SIP Call-RACY provision").

The challenges to the CAIR-RACY provision and to the NOX SIP CallRACY provision were among the issues briefed and originally slated for argument

on November 20, 2008. Petitioners argued that the NOX SIP Call-RACY and the

CAIR-RACY provisions were inconsistent with the requirement in section

0
172(c)(1) of the Clean Air Act for RACT controls on existing sources "in" each

nonattainment area and that EPA's technical analysis was both irrelevant and

flawed. See 42 U.S.C. § 7502(c)(1); Final Edited Opening Brief of NRDC in Case

No. 06-1045 at 19-27 (filed July 22, 2008). EPA argued in response that the

statutory language was ambiguous and that EPA had reasonably interpreted the

statute to allow RACT compliance by means of a regional "emissions-averaging"

approach. EPA also defended its technical analysis. See Revised Final Brief of

Respondent EPA in Case No. 06-1045 at 69-84 (filed July 22, 2008).

Oral argument in case number 06-1045 was held on November 20, 2008;

however, due to the status of judicial challenges to the CAIR, the Court declined to

hear oral argument on the CAIR-RACY issue.4 Instead, the Court heard argument

on all other then-pending issues concerning the Ozone Phase 2 Rule and issued its

decision on those issues in July 2009. NRDC, 571 F.3d 1245. Among other

things, the Court found the NOX SIP Call-RACY provision inconsistent with the

'Shortly before the November 2008 argument date, the Court issued a decision in a

separate case vacating CAIR. See North Carolina v. EPA, 531 F.3d 896 (D.C. Cir.

2008). The order of vacatur was subsequently modified on rehearing to an order

remanding CAIR without vacatur. Id., 550 F.3d 1176 (D.C. Cir. 2008). Following

the first North Carolina decision, this panel followed the parties' joint suggestion

that the Court not hear argument on the CAIR-RACY issue on November 20, 2008,

given the status of the North Carolina litigation at that time. See Joint Letter from

the Parties to the Court, filed in Case No. 06-1045 on Oct. 23, 2008; Order in Case

No. 06-1045 dated Nov. 12, 2008.

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plain text of the statute and remanded the provision back to EPA. Id. at 1256-57.

Specifically, the Court concluded 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." Id. at 1256. The Court

rejected EPA's arguments that this statutory requirement is ambiguous. Id. at

1257. The Court further explained that the NOX SIP Call-RACY determination

failed to meet this requirement because EPA had found only that the "NOX SIP

Call is estimated to achieve abeyond-RACY degree of control regionally," but had

"not shown that NOX SIP Call compliance will result in at least RACY-level

reductions in emissions from sources within each nonattainment area." Id.

(emphasis added). The Court remanded EPA's NOX SIP Call-RACY

determination without vacatur, noting that EPA conceivably could reinstate the

determination for most areas "if, upon conducting a technical analysis, it finds the

NOX SIP Call results in greater emissions reductions in a nonattainment area than

would be achieved if RACY-level controls were installed in that area." Id.

On the same day the court issued its decision in NRDC v. EPA, the court

also issued an order severing the challenges to the CAIR-RACY provision from

case no. 06-1045 and assigning it a separate judicial case number, 09-1198. The

court ordered that this newly-severed case (the instant case) be held in abeyance

Zo
and directed the parties to file motions to govern further proceedings within 30

days of the conclusion of agency proceedings in response to the remand in North

Carolina, 531 F.3d 896. See Order in Case No. 06-1045 dated July 10, 2009.

EPA subsequently promulgated a new final rule, known as the Cross-State

Air Pollution Rule, or "Transport Rule," that was intended to take the place of the

remanded LAIR. See Federal Implementation Plans: Interstate Transport of Fine

Particulate Matter and Ozone and Correction of SIP Approvals, 76 Fed. Reg.

48,208 (Aug. 8, 2011). Numerous petitions for judicial review of the Transport

Rule were filed, and the Petitioners in this case and EPA (with no opposition from

Respondent-Intervenor UARG) filed a joint motion requesting that the CAIRRACT case continue to be held in abeyance until the earlier o£ (a) final resolution

of the court challenges to the Transport Rule; or (b) EPA's revocation of, or other

final EPA action addressing the CAIR-RACY provision in the Ozone Phase 2 Rule.

The parties further proposed that the Court's order not preclude petitioners from

moving to lift the abeyance at any time if they determined that EPA had approved

or proposed to approve any state implementation plants (SIPs) based on the CAIRRACY provision, or if the LAIR trading program was reinstated in whole or in

part. The Court granted that motion. See Clerk's Order dated Oct. 17, 2011.

11
The Court subsequently vacated and remanded the Transport Rule to EPA.

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

decision, the court also ordered EPA to continue administering CAIR pending

promulgation of a valid replacement rule. Id. at 38. The EPA and other parties

filed petitions for rehearing, and this Court agreed to hold the CAIR-RACY case in

abeyance during the pendency of those petitions. After all rehearing petitions were

denied, the Court on its own motion reinstated the CAIR-RACY case to its active

docket. See Clerk's Order dated Feb. 22, 2013. On March 29, 2013, EPA and

other parties filed petitions for certiorari (81 U.S.L.W. 3567) (Nos. 12-1182 & 12-

1183) asking the Supreme Court to review this Court's decision in EME Homer

City. Those petitions remain pending as of this date.

In light of the intervening developments — specifically, the decision by this

Court to remand the NOX SIP Call-RACY provision, and its subsequent decision

vacating the Transport Rule and ordering EPA to continue administering CAIR —

EPA is now asking that the Court remand the LAIR-RACY provision to EPA for

further administrative proceedings. EPA also requests that the Court vacate the

portion of the provision that established the CAIR-RACY presumption, as it could

not, consistent with NRDC, 571 F.3d 1245, be retained on remand.

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ARGUMENT

In appropriate circumstances, this Court has discretion to remand and vacate

agency actions prior to full briefing on the merits, and the Court's exercise of this

authority is warranted in the circumstances presented here.5 Remand of the CAIRRACT determination is appropriate as it would allow the Agency to first evaluate

the impact of intervening events and develop a more complete administrative

record for review. Vacatur and remand of the CAIR-RACY presumption is

appropriate as that portion of the CAIR-RACY provision cannot be squared

withthe Court's decision in NRDC, 571 F.3d 1245.

Motions for voluntary remand are commonly granted to allow administrative

agencies to consider newly-available information. See, e.~., Ethyl Corp. v.

Browner, 989 F.2d 522 (D.C. Cir. 1993). Where new information, including

judicial decisions, becomes available after the agency's original action, remand

provides an opportunity for agencies rather than courts to evaluate, in the first

instance, whether modification of the agency decision is appropriate. See id. at

524 (noting that courts generally prefer "to allow agencies to cure their own

mistakes rather than wasting the court's and the parties' resources reviewing a

5 In this case, the parties have fully briefed the merits of the CAIR-RACY issue, but

the Court did not hear oral argument for the reasons explained above. See supra at

9 & n.4.

13
record that both sides acknowledge to be incorrect or incomplete.") The

intervening developments that warrant reevaluation of the CAIR-RACY provision

at issue in this case are: (1) this Court's 2009 decision regarding the legality of the

related NOX SIP Call-RACY provision; and (2) other decisions of this Court

affecting the status of the CAIR.

The 2009 decision remanding the NOX SIP Call-RACY determination to

EPA is directly relevant as it addresses whether and when compliance with

regional trading programs such as those created by the NOX SIP Call and CAIR

can satisfy the RACY requirement in section 172(c)(1) of the Clean Air Act, 42

U.S.C. § 7502(c)(1). NRDC, 571 F.3d at 1256-57. This court's decision in EME

Homer City, 696 F.3d 7, requiring EPA to continue administering CAIR, is also

directly relevant as the challenged provision addresses when compliance with

CAIR may satisfy certain NOX RACY requirements.6

On remand, EPA would consider whether the analysis conducted to support

the LAIR-RACY determination is sufficient in light of the decision in NRDC v.

EPA and any other relevant factors. EPA would also consider the impact of the

EME Homer City decision and any Supreme Court review of that decision.

6 As noted above, EPA and other parties have filed petitions for certiorari asking

the Supreme Court to review the EME Homer City decision.

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In this motion, EPA is also asking the Court to vacate one portion of the

LAIR-RACY provision -- the aforementioned CAIR-RACY presumption, which

EPA acknowledges is not consistent with the Court's decision in NRDC. Courts

have discretion to grant requests for voluntary vacatur and remand. See, e.g_,

Sierra Club v. EPA, 705 F.3d 458, 463-66 (D.G Cir. 2013). An agency normally

may not repeal a rule without providing an opportunity for public notice and

comment, see 42 U.S.C. § 7607(d) (establishing procedural requirements that

apply to certain Clean Air Act rules); see also 5 U.S.C. § 553 (Administrative

Procedure Act notice and comment requirements). However, where, as here, an

agency concedes that an action under review (or a portion thereo f is legally

invalid, and the Court agrees, administrative notice and comment requirements in

no way preclude a court from granting vacatur. See, ~, Sierra Club,705 F.3d at

463-66 (agreeing to vacate and remand concededly flawed portions of a rule);

Building Industry Legal Defense Found. v. Norton, 231 F. Supp. 2d 100, 108

(D.D.C. 2002) (granting request for voluntary vacatur); Center for Native

Ecosystems v. Salazar, 795 F. Supp. 2d 1236 (D. Colo. 2011) (same); see also,

ems., Home Builders Assns of N. Cal. v. Norton, 293 F. Supp. 2d 1, 5 (D.D.C.

2002) (approving consent decree vacating agency action)).

'The concerns some district courts have expressed about granting requests for

15
Whether vacatur, in addition to remand, is appropriate depends in large part

on whether the agency might be able to justify the challenged portion of the rule on

remand. See Allied-Signal, Inc. v. United States Nuclear Re u~ latory Comm'n, 988

F.2d 146, 150-51 (D.C. Cir. 1993). This Court's decision to remand the NOX SIP

Call-RACY provision without vacatur, NIZDC, 571 F.3d at 1257, was consistent

with the general principle that remand is a more appropriate remedy where an

agency may be able to justify an inadequately supported rule. See Allied-Signal,

988 F.2d at 150-51. Indeed, as noted above, the Court explicitly concluded that

remand was the appropriate remedy "because the EPA might be able to reinstate

the [NOX SIP Call-RACY provision] if, upon conducting a technical analysis, it

finds the NOX SIP Call results in greater emission reductions in a nonattainment

area than would be achieved if RACY-level controls were installed in that area."

NRDC, 571 F.3d at 1257. EPA believes that remand without vacatur is similarly

the appropriate remedy for the CAIR-RACY determination, because that

determination also could conceivably still be justified on an area-specific basis.

vacatur are not relevant here, where the challenged agency action is directly in

conflict with the Court's decision in a related case. See Carpenters Indus. Council

v. Salazar, 734 F. Supp. 2d 126, 135-56 (D.D.C. 2010) (citing conflicting district

court decisions regarding the scope of court's equitable power to summarily vacate

agency actions); National Parks Conserv. Assn v. Salazar, 660 F. Supp. 2d 3, 5

(D.B.C. 2009). Summary vacatur of the CAIR-RACY presumption is appropriate

because it is clear, for reasons explained further below, that the presumption could

not survive merits review.

16
The CAIR-RACY presumption, however, is different from the NOX SIP

Call-RACY determination because it permitted states to conclude that CAIR

satisfied NOX RACY requirements in the absence of any supporting technical

analysis. In its final action on reconsideration of the Ozone Phase 2 Rule, EPA

explained that it would be appropriate for states covered by the CAIR, "to

in general, that EGU NOX RACY requirements are satisfied through

implementation of the CAIR program." 72 Fed. Reg. at 31,730 (emphasis added).

The presumption applied to those areas for which EPA's technical analysis did not

show LAIR would achieve greater reductions that source-by-source RACY in the

relevant area. Id. (explaining that the presumption applies to areas "where EPA's

emissions analysis does not clearly demonstrate that the CAIR program is

projected to achieve greater emissions reductions than source-by-source RACY").g

Although the presumption is rebuttable, the rule allows states to rely on the

presumption in the first instance simply by documenting their reliance on the

presumption in their SIP submissions. Id.

The decision in NRDC, 571 F.3d 1245, leaves no room for EPA to adhere to

this approach. While the Court acknowledged that it might be possible to

$ Those areas for which EPA's technical analysis showed that LAIR was projected

to achieve greater emission reductions than source-by-source RACY within the

relevant area were covered by the LAIR-RACY determination, not the CAIRRACT presumption. Id.

17
conclude that a regional program like the NOX SIP Call or CAIR satisfies the nonattainment area specific RACT requirement, it held that any such conclusion must

be supported by technical analysis showing that the regional program will obtain

the necessary emissions reductions from sources in each relevant non-attainment

area. Id. at 1257. However, as explained above, the CAIR-RACY presumption

was to cover the nonattainment areas for which there was no EPA technical

analysis demonstrating that CAIR would achieve RACY-level reductions, and the

presumption was designed so that states could rely on it without conducting such

analysis themselves. Moreover, EPA's rationale for adopting the presumption

relied on precisely the sort of regional (as opposed to area-specific) considerations

that the Court later rejected in its 2009 decision. See, e.g_, Revised Final Brief of

EPA at 81 (asserting that the presumption was reasonable because "CAIR

emissions reductions, taken as a whole, ...overall [will be] significantly greater

than reductions obtained from source-by-source RACY from EGUs") (emphasis

added).9 Thus, there would be no legal basis for EPA to retain the CAIR-RACY

9 Other factors EPA cited in its brief as supporting the presumption included:

"(1) `the special attributes of EGUs, including the unique interrelated nature of the

power supply network'; (2) the likelihood that CAIR compliance `will achieve a

more effective and economically efficient air quality improvement in

nonattainment areas than application of source-by-source RACY'; and (3) the fact

that the 2009 LAIR emissions cap reflects the maximum total capacity of controls

that EGUs feasibly could install by that date." Id. at 80-81 (quoting 72 Fed. Reg.

Zs
presumption on remand. For all these reasons, vacatur of the presumption is

appropriate and within the discretion of the Court to order.

CONCLUSION

For the foregoing reasons, EPA respectfully requests that the court grant this

motion and issue an order and judgment: (a) remanding the CAIR-RACY

determination published at 72 Fed. Reg. at 31,730-31 to EPA for further

administrative proceedings10; and (b) vacating and remanding to EPA the CAIRRACY presumption published at 72 Fed. Reg. at 31,730.11

at 31,730-31). None of these factors is a legally valid basis for presuming

compliance with RACY under this Court's 2009 NRDC decision.

10 See 72 Fed. Reg. at 31,730 ("EPA believes it is appropriate for the CAIR states,

under the conditions outlined in this action, to presume, in general, that EGU NOX

RACY requirements are satisfied through implementation of the CAIR program.

Further, in this action EPA makes a determination that in certain areas compliance

with the CAIR is sufficient to satisfy the NOX RACY requirement for EGUs

covered by the CAIR program. The areas covered by this determination are those

where EPA's December 2006 emissions analysis shows that the CAIR is projected

to achieve greater emissions reductions than application of source-by-source

RACY within the nonattainment area or state."),

"See 72 Fed. Reg. at 31,730 ("For areas where EPA's emissions analysis does not

clearly demonstrate that the CAIR program is projected to achieve greater

emissions reductions than source-by source RACY, this action establishes a

separate presumption that compliance with CAIR, in certain circumstances,

satisfies NOX RACY requirements for EGUs in any area subject to LAIR.").

19
Respectfully submitted,

IGNACIA S. MORENO

Assistant Attorney General

Environment and Natural Resources Division

DATED: June 6, 2013 /s/ Brian H. Lynk

BRIAN H. LYNK

U.S. Department of Justice

Environmental Defense Section

P.O. Box 7611

Washington, DC 20044

(202) 514-6187

Counsel for Respondent EPA

OF COUNSEL:

SONJA L. RODMAN

Office of General Counsel

U.S. Environmental Protection Agency

1200 Pennsylvania Ave., NW

Washington, DC 20460

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CERTIFICATE OF SERVICE

I, the undersigned, hereby certify that on June 6, 2013, I caused a true

and correct copy of the foregoing to be served by electronic transmission to each of

the following counsel:

David Samuel Baron

Earthjustice Legal Defense Fund

1625 Massachusetts Ave., NW, Suite 702

Washington, D.C. 20036

dbaron(a~earthjustice.org

Counsel fog Petitioner Natural Resources Defense Council

Jon C. Martin

Attorney General's Office of the State of New Jersey

Division of Law

25 Market Street

P.O. Box 093, Richard J. Hughes Justice Complex

Trenton, NJ 08625-0093

j on.Tllal`tlri(a~dol.lps.state.nj.us

Counsel fog Petitioner the State of New .Ie~sey

Charles Howland Knauss

Shannon S. Broome

Katten Muchin Rosenman LLP

2900 K Street, NW, North Tower -Suite 200

Washington, DC 20007-5 1 1 8

chuck.knauss (a,kattenlaw. com

shannon.broome (a~kattenlaw. com

Counsel fog Inte~veno~s American Fuel &Petrochemical Manufactu~e~s and

American Petroleum Institute

21
Norman William Fichthorn

Hunton &Williams LLP

1900 K Street, NW, Suite 1200

Washington, D.C. 20006

nfichthorn(a~hunton. com

clangworth~(a~hunton. com

awood(a~hunton.com

Counsel fog Intervenor Utility Air Regulatory Group

Morgan Costello

Attorney General's Office of the State of New York

The Capitol

New York State Department of Law

Albany, NY 12224-0341

mor~an.costello a,a~.n~~

Counsel fog Inte~veno~ the State of New York

Kimberly P. Massicotte

Scott N. Koschwitz

Attorney General's Office of the State of Connecticut

55 Elm Street

P.O. Box 120

Hartford, CT 06141-0120

kimberly.massicotte(a~ct. gov

scott.koschwitz(a~ct. Gov

Counsel fog Inte~^veno~ the State of Connecticut

Dated: June 6, 2013 /s/ Brian H. L

Brian H. Lynk

22