Court Rules on Phase 2 Ozone Rule

On June 10, 2009, the U.S. Circuit Court of Appeals for the District of Columbia remanded (without vacatur) two areas of the Final Rule To Implement the 8-Hour Ozone National Ambient Air Quality Standard – Phase 2 (Phase 2 Rule) and remanded (with vacatur) a third area of the Phase 2 Rule. The areas of the rule that were affected by the Court’s decision are summarized below:

• The Court ruled (remanded without vacatur) that the Phase 2 Rule violated the Clean Air Act (CAA) by allowing participation in the NOx SIP Call in lieu of mandating specific reductions within a non-attainment area through the application of Reasonably Available Control Technology (RACT) requirements.
• The Court also ruled (remanded without vacatur) that U.S. EPA acted arbitrarily when it eliminated the requirement for an attainment demonstration for an area to be approved before a new source is allowed to use a past emission reduction to offset a new emissions increase.
• Finally, the Court ruled (remanded with vacatur) that the elimination of 18-month time waivers under Appendix S is in violation of the anti-backsliding provisions of the CAA. 

Click here to view the full text of the ruling.