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CAIR Frequent Questions – Post-Court Decision

Q: Has the US Court of Appeals for the DC Circuit acted on the CAIR litigation?

A: Yes, the US Court of Appeals for the DC Circuit issued a decision on CAIR on July 11, 2008 vacating CAIR and the CAIR Federal Implementation Plan (FIP). A rehearing on that decision was requested by EPA as well as other parties. On December 23, 2008, the Court granted a rehearing in part, remanding CAIR without vacatur, allowing CAIR to remain in effect until a replacement can be put in place. The Court also denied rehearing on the remaining issues. Thus, the July 11, 2008 decision stands, but CAIR remains in place while EPA develops its replacement.

Q: Are there any changes (extensions) to any of the deadlines in CAIR as a result of the uncertainty created by the litigation process?

A: CAIR is in place in its final form. The Court ruling did not modify any of the provisions in CAIR. The original deadlines are still effective.

Q: Does Minnesota remain in CAIR?

A: As part of the July 2008 decision, the Court held that EPA had failed to respond to claim that inclusion of Minnesota in CAIR and CAIR FIPs was based on erroneously high emissions projections for Minnesota EGUs and vacated and remanded CAIR and the CAIR FIP with regard to Minnesota. In its rehearing request, EPA did not ask for rehearing on this matter.

At this point Minnesota remains in CAIR. However, in October 2008, EPA stated, in a letter to petitioner Minnesota Power, that the Agency intended to stay on remand effectiveness of CAIR and CAIR FIPs with regard to Minnesota. This letter was part of briefs filed with the Court. On January 15, 2009, EPA's proposal to stay the effectiveness, for Minnesota only, of CAIR and the CAIR FIP was signed. The proposal has not yet been published in the Federal Register because the new administration is reviewing all actions that were signed but not yet published in the Federal Register.

Q: Will Title IV allowances continue to be required to be surrendered under CAIR?

A: Yes, the CAIR rules as finalized remain in place until EPA promulgates a replacement.

Q: How long will it take for EPA to promulgate the replacement rule?

A: EPA is working diligently and as expeditiously as practicable to develop and promulgate the CAIR replacement rule. While EPA staff has already initiated this effort, no explicit schedule has been established at this time.

Q: What happens to NOx Budget Trading Program (NBP) allowance accounts?

A: EPA has converted allowances in NBP compliance accounts into CAIR ozone season accounts. The NBP accounts were not closed but will remain 'inactive'. Historical information will be maintained for the program.

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