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®: CRE Regulatory Action of the Week

EEPA Tries to Clear Confusion Caused by D.C. Circuit’s CAIR Rules Decision
The U.S. Court of Appeals for the District of Columbia Circuit recently vacated and remanded the U.S. Environmental Protection Agency’s Clean Air Interstate Rule (CAIR) and the Federal implementation Plans for CAIR (CAIR FIPs). EPA and other parties have petitioned for rehearing by the Court, and the Court has not yet issued a mandate in the case. On December 15, 2008, EPA published interim final regulations to its Acid Rain Program rules that the Agency believes were not addressed by, or involved in any of the issues raised by, any parties in the proceeding or the Court. EPA states in its publication that the Agency.
"believes it is reasonable to view these revisions as unaffected by the Court's decision. However, EPA is reaffirming--pursuant to its authority under Title IV of the Clean Air Act (CAA) and CAA section 301--the promulgation of these revisions in this interim final rule in order to remove any uncertainty about their legal status because they have been in effect since mid-2006, most of them are crucial to the ongoing operation of the Acid Rain Program, and the rest of them streamline and clarify requirements of the program."

These interim final regulations are effective on December 15, 2008 and will continue in effect until December 15, 2009.

  • Click here to read EPA’s interim final regulations

    • Also on December 15, 2008, EPA took direct final action to reaffirm the promulgation of certain revisions of the Acid Rain Program rules that were finalized in the Federal Register notices that also finalized the CAIR and CAIR FIPs. These revisions to the Acid Rain Program rules were not addressed by, or involved in any of the issues raised by, any parties in the proceeding or the Court, and EPA believes it is reasonable to view these revisions as unaffected by the Court's decision. EPA is reaffirming the promulgation of these revisions in this direct final rule in order to remove any uncertainty about their legal status.

  • Click here to read EPA’s direct final regulations

    • Finally, on December 15, 2008, EPA proposed to reaffirm the promulgation of certain revisions of the Acid Rain Program rules in order to prevent disruption of the program. These rule revisions were finalized in the Federal Register notices that also finalized the CAIR and final CAIR FIPs. EPA believes that these revisions to the Acid Rain Program rules were not addressed by, or involved in any of the issues raised by, any parties in the D.C. Circuit’s CAIR decision. EPA is proposing to reaffirm--pursuant to its authority under Title IV of the Clean Air Act (CAA) and CAA section 301--the promulgation of these revisions in order to remove any uncertainty about their regulatory status.

    EPA must receive any written comments on these proposed rules by January 29, 2009. EPA must receive any request for a public hearing on the proposed rules by December 22, 2008. If a public hearing is requested, then it will be held on December 30, 2008.

  • Click here to read EPA’s proposed rules