UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

Natural Resources Defense Council and State ofNew Jersey,

Petitioners, No. 09-1 198 United States Environmental Protection Agency,

Respondent.

State ofNew 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 ofthe 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 2Rule,

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 ofReconsideration, 72 Fed. Reg. 31,727 (June 8, 2007) The CAIR

-RACY provision, as modified on reconsideration, consists oftwo 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 ofthe 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 ofsource-by-source RACY within the nonattainment area or state.

## "). 2implementation ofthe 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 ofthe CAIR-RACY determination is appropriate to allow EPA,in the first instance, to consider the impact ofintervening developments. Vacatur and remand ofthe CAIR-RACY presumption is appropriate because, in light ofthis 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 ofNew Jersey,New York and Connecticut each have confirmed that they do not oppose the portion ofthis motion that seeks remand with vacatur ofthe CAIR-RACY presumption. However,these parties do not consent to the portion ofthis motion that seeks remand without vacatur ofthe 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 ofstate and federal regulation. Under Title I, EPA identifies air pollutants anticipated to endanger the public health and welfare, and

4formulates NAAQS,which establish maximum permissible concentrations ofthose

pollutants in the ambient air. 42 U.S.C. §§ 7408-09; 40 C.F.R. pt. 50. Within three years ofpromulgating a new or revised NAAQS,EPA must "designate" areas ofthe 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). IfEPA approves the SIP in whole or in part, the approved provisions become federally enforceable. Id. §§ 7413, 7604. IfEPA 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 ofTitle 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

5requirements under other subparts. 42 U.S.C. § 7502(b)-(c). Subpart 2 applies to

and establishes a series offive 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 ofprogressively more stringent pollution reduction measures; higher classified areas must adopt all the measures specified for the lower classifications, plus additional requirements. Id. §§ 7511a(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,ofreasonably available control technology)." 42 U.S.C. § 7502(c)(1). In addition, ozone nonattainment areas that are subject to Subpart 2 ofPart D must meet more specific RACY requirements. Ems., id. §§ 7511a(b)(2)(C), 7511a(~. B. The NOx SIP Call and CAIR The NOX SIP Call,promulgated in 1998,required 22 States and the District ofColumbia to reduce emissions ofNOX (oxides ofnitrogen)contributing to

Dnonattainment 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 ofcontrols 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 ofNOX emissions "allowances" which, ifadopted 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 ofnitrogen and votatile organic compounds ( "VOCs")
— referred to as "ozone precursors" — in the atmosphere in the presence ofsunlight. 68 Fed.Reg. 32,802 (June 2, 2003). Ozone is linked to a number ofadverse 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 ofColumbia to reduce ozoneseason NOX emission in two phases, with the first phase ofreductions 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 ofpetitions for review that were consolidated by the Court under lead case number 06-1045. The petitions all involved challenges to the Ozone Phase 2Rule and many also included challenges to EPA's subsequent decision on an administrative petition for reconsideration ofthe 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 0172(c)(1)ofthe 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 BriefofNRDC 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 ofa 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 ofjudicial 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 2Rule 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 ofvacatur 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 ofthe 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. 9

### plain text ofthe 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 ofcontrol 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 ifRACY-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 ofthe conclusion ofagency 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 ofthe remanded LAIR. See Federal Implementation Plans: Interstate Transport ofFine Particulate Matter and Ozone and Correction of SIP Approvals, 76 Fed.Reg. 48,208 (Aug. 8,2011). Numerous petitions for judicial review ofthe 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 ofthe 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 2Rule. The parties further proposed that the Court's order not preclude petitioners from moving to lift the abeyance at any time ifthey determined that EPA had approved
or proposed to approve any state implementation plants (SIPs)based on the CAIRRACY provision, or ifthe LAIR trading program was reinstated in whole or in part. The Court granted that motion. See Clerk's Order dated Oct. 17, 2011.

11The 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 ofa 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 ofthose 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 ofthis date. In light ofthe 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 ofthe provision that established the CAIR-RACY presumption,as it could not, consistent with NRDC,571 F.3d 1245,be retained on remand.

12ARGUMENT

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 ofthis authority is warranted in the circumstances presented here.5 Remand ofthe CAIRRACT determination is appropriate as it would allow the Agency to first evaluate the impact ofintervening events and develop a more complete administrative record for review. Vacatur and remand ofthe CAIR-RACY presumption is appropriate as that portion ofthe 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 ofthe 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 ofthe 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 ofthe CAIR-RACY provision at issue in this case are: (1)this Court's 2009 decision regarding the legality ofthe related NOX SIP Call-RACY provision; and (2)other decisions ofthis Court affecting the status ofthe 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)ofthe 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 ofthe decision in NRDC v. EPA and any other relevant factors. EPA would also consider the impact ofthe EME Homer City decision and any Supreme Court review ofthat 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. 14In this motion,EPA is also asking the Court to vacate one portion ofthe

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

on whether the agency might be able to justify the challenged portion ofthe 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 ifRACY-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 ofcourt'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 ofthe 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 ofany 

### supporting technical analysis. In its final action on reconsideration ofthe 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 ofthe 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 ofregional (as opposed to area-specific)considerations that the Court later rejected in its 2009 decision. See, e.g_, Revised Final Briefof 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 ofEGUs,including the unique interrelated nature ofthe 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 ofcontrols 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 ofthe presumption is

appropriate and within the discretion ofthe 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 ofthese 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 ofthe 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 ofsource-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.

## "). 19Respectfully 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 ofJustice Environmental Defense Section P.O. Box 7611 Washington,DC 20044 (202)514-6187 Counsel for Respondent EPA OF COUNSEL: SONJA L.RODMAN Office ofGeneral Counsel U.S. Environmental Protection Agency 1200 Pennsylvania Ave.,NW Washington,DC 20460

20CERTIFICATE OF SERVICE

I, the undersigned,hereby certify that on June 6,2013,I caused a true and correct copy ofthe 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 ofthe State ofNew Jersey Division ofLaw 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 20007-51 18 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

21Norman 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 ofthe State ofNew York The Capitol New York State Department ofLaw 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 ofthe State ofConnecticut 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 ofConnecticut Dated: June 6,2013 /s/ Brian H.L Brian H.Lynk

22