Federal Register / Vol. 77, No. 207 / Thursday, October 25, 2012 / Rules and Regulations 65107 

■ 11. Section 966.13 is revised to read 

as follows: 

§ 966.13 Ex parte communications. 

Ex parte communications are not 

allowed between a party and the 

Hearing Official or the Official’s staff. 

For these purposes, ex parte 

communication means an oral or 

written communication, not on the 

public record, with one party only with 

respect to which reasonable prior notice 

to all parties is not given, but it shall not 

include requests for status reports or 

procedural matters. A memorandum of 

any communication between the 

Hearing Official and a party will be 

transmitted to both parties. 

Stanley F. Mires, 

Attorney, Legal Policy & Legislative Advice. 

[FR Doc. 2012–26248 Filed 10–24–12; 8:45 am] 

BILLING CODE 7710–12–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Parts 51 and 52 

[EPA–HQ–OAR–2003–0062; FRL–9742–8] 

RIN 2060–AR30 

Implementation of the New Source 

Review (NSR) Program for Particulate 

Matter Less Than 2.5 Micrometers 

(PM2.5): Amendment to the Definition of 

‘‘Regulated NSR Pollutant’’ 

Concerning Condensable Particulate 

Matter 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: The EPA is issuing a final rule 

that revises the definition of ‘‘regulated 

NSR pollutant’’ contained in two sets of 

Prevention of Significant Deterioration 

(PSD) regulations and in the EPA’s 

Emission Offset Interpretative Ruling. 

The revision corrects an inadvertent 

error made in 2008 when the EPA 

issued its rule to implement the New 

Source Review (NSR) program for fine 

particles with an aerodynamic diameter 

of less than or equal to 2.5 micrometers 

(PM2.5). This revision removes a general 

requirement in the definition of 

‘‘regulated NSR pollutant’’ to include 

condensable PM when measuring one of 

the emissions-related indicators for 

particulate matter (PM) known as 

‘‘particulate matter emissions’’ in the 

context of the PSD and NSR regulations. 

However, the rule preserves the 

requirement in some particular cases to 

include condensable PM in 

measurements of ‘‘particulate matter 

emissions’’ as required by other 

regulations. In addition, measurement of 

condensable PM continues to be 

required in all cases for two other 

emissions-related indicators for 

emissions of PM—emissions of particles 

with an aerodynamic diameter of less 

than or equal to 10 micrometers (PM10

emissions) and PM2.5 emissions. 

DATES: The amendments to 40 CFR parts 

51 and 52 are effective December 24, 

2012. 

ADDRESSES: The EPA has established a 

docket for this action under Docket ID 

No. EPA–HQ–OAR–2003–0062. All 

documents in the docket are listed in 

the www.regulations.gov index. 

Although listed in the index, some 

information is not publicly available, 

e.g., Confidential Business Information 

(CBI) or other information whose 

disclosure is restricted by statute. 

Certain other material, such as 

copyrighted material, is not placed on 

the Internet and will be publicly 

available only in hard copy form. 

Publicly available docket materials are 

available either electronically through 

www.regulations.gov or in hard copy at 

the EPA Docket Center, Public Reading 

Room, EPA West, Room 3334, 1301 

Constitution Avenue, Northwest, 

Washington, DC 20460. The Public 

Reading Room is open from 8:30 a.m. to 

4:30 p.m., Monday through Friday, 

excluding legal holidays. The telephone 

number for the Public Reading Room is 

(202) 566–1744, and the telephone 

number for the Air Docket is (202) 566– 

1742. 

FOR FURTHER INFORMATION CONTACT: Mr. 

Dan deRoeck, Air Quality Policy 

Division (C504–03), U.S. Environmental 

Protection Agency, Research Triangle 

Park, NC, 27711; telephone number 

(919) 541–5593; fax number (919) 541– 

5509; or email address: 

deroeck.dan@epa.gov. 

SUPPLEMENTARY INFORMATION: The 

information in this Supplementary 

Information section of this preamble is 

organized as follows: 

I. General Information 

A. Does this action apply to me? 

B. Where can I get a copy of this document 

and other related information? 

II. Purpose 

III. Background 

A. National Ambient Air Quality Standards 

(NAAQS) for PM 

B. Measuring and Reporting Emissions of 

PM 

C. NSR Program for PM 

IV. What is the final action that the EPA is 

taking on the definition of ‘‘regulated 

NSR pollutant’’ and how does it affect 

the way ‘‘particulate matter emissions’’ 

are measured? 

V. What comments did we receive on the 

proposed amendments to the definition 

of ‘‘regulated NSR pollutant’’? 

A. Regulated Indicators of PM 

B. Defining PM Consistent With an 

Applicable New Source Performance 

Standard (NSPS) 

C. Defining PM To Include Condensable 

PM in the State Implementation Plan 

(SIP) 

D. Comments Related to Special EPA 

Policies for Implementing PM 

Requirements Under the NSR Program 

E. Other Comments Unrelated to the Final 

Rule 

VI. Statutory and Executive Order Reviews 

A. Executive Order 12866—Regulatory 

Planning and Review and Executive 

Order 13563: Improving Regulation and 

Regulatory Review 

B. Paperwork Reduction Act 

C. Regulatory Flexibility Act 

D. Unfunded Mandates Reform Act 

E. Executive Order 13132—Federalism 

F. Executive Order 13175—Consultation 

and Coordination With Indian Tribal 

Governments 

G. Executive Order 13045—Protection of 

Children From Environmental Health 

and Safety Risks 

H. Executive Order 13211—Actions That 

Significantly Affect Energy Supply, 

Distribution, or Use 

I. National Technology Transfer and 

Advancement Act 

J. Executive Order 12898—Federal Actions 

To Address Environmental Justice in 

Minority Populations and Low-Income 

Populations 

K. Congressional Review Act 

L. Judicial Review 

VII. Statutory Authority 

I. General Information 

A. Does this action apply to me? 

Entities affected by this rule include 

sources in all industry groups. The 

majority of sources potentially affected 

are expected to be in the following 

groups that emit PM: 

Industry group NAICSa

Electric services ........................................ 221111, 221112, 221113, 221119, 221121, 221122. 

Petroleum refining ..................................... 32411. 

Industrial inorganic chemicals ................... 325181, 32512, 325131, 325182, 211112, 325998, 331311, 325188. 

Industrial organic chemicals ..................... 32511, 325132, 325192, 325188, 325193, 32512, 325199. 

Miscellaneous chemical products ............. 32552, 32592, 32591, 325182, 32551. 


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65108 Federal Register / Vol. 77, No. 207 / Thursday, October 25, 2012 / Rules and Regulations 

Industry group NAICSa

Natural gas liquids .................................... 211112. 

Natural gas transport ................................ 48621, 22121. 

Pulp and paper mills ................................. 32211, 322121, 322122, 32213. 

Paper mills ................................................ 322121, 322122. 

Automobile manufacturing ........................ 336111, 336112, 336712, 336211, 336992, 336322, 336312, 33633, 33634, 33635, 336399, 

336212, 336213. 

Pharmaceuticals ........................................ 325411, 325412, 325413, 325414. 

a North American Industry Classification System. 

Entities affected by this rule also 

include state, local and tribal reviewing 

authorities responsible for 

implementing Clean Air Act (CAA or 

Act) stationary source permitting 

programs. 

B. Where can I get a copy of this 

document and other related 

information? 

In addition to being available in the 

docket, an electronic copy of this final 

rule will also be available on the World 

Wide Web. Following signature by the 

EPA Administrator, a copy of this final 

rule will be posted in the regulations 

and standards section of our NSR home 

page located at http://www.epa.gov/nsr. 

II. Purpose 

The purpose of this rulemaking is to 

revise the definition of ‘‘regulated NSR 

pollutant’’ to correct an inadvertent 

error contained in the regulations for 

PSD at 40 CFR 51.166 and 52.21, and in 

the EPA’s Emission Offset Interpretative 

Ruling at 40 CFR part 51 Appendix S. 

This error was introduced in the revised 

definition of ‘‘regulated NSR pollutant’’ 

in the 2008 rule titled, ‘‘Implementation 

of the New Source Review (NSR) 

Program for Particulate Matter Less 

Than 2.5 Micrometers (PM2.5).’’ See 73 

FR 28321 (May 16, 2008). The revised 

definition required that particulate 

matter emissions, PM10 emissions and 

PM2.5 emissions—representing three 

separate size ranges or indicators of 

particles—must include ‘‘gaseous 

emissions from a source or activity 

which condense to form particulate 

matter at ambient temperatures,’’ i.e., 

condensable particulate matter 

(condensable PM). See existing 40 CFR 

51.166(b)(49)(vi), part 51 Appendix S, 

and 52.21(b)(50)(vi). This final action 

removes an unintended new 

requirement on state and local agencies 

and the regulated community that 

‘‘particulate matter emissions’’ must 

include the condensable PM fraction in 

all cases. As described in more detail in 

section IV of this preamble, in the 2008 

rule we did not intend that the term 

‘‘particulate matter emissions’’ be listed 

with ‘‘PM2.5 emissions’’ and ‘‘PM10

emissions’’ to include the condensable 

PM fraction of primary PM. Historically, 

for ‘‘particulate matter emissions’’ often 

only the filterable fraction had been 

considered for NSR purposes, consistent 

with the applicable New Source 

Performance Standards (NSPS) for PM 

and the corresponding compliance test 

method. 

This final action ensures that our 

originally-intended approach for 

regulating the three indicators for 

emissions of particulate matter under 

the PSD program is codified. Thus, 

‘‘PM10 emissions’’ and ‘‘PM2.5

emissions’’ are regulated as criteria 

pollutants (that is, under the portion of 

the definition of ‘‘regulated NSR 

pollutant’’ that refers to ‘‘[a]ny pollutant 

for which a national ambient air quality 

standard has been promulgated * * *’’), 

and are required to include the 

condensable PM fraction emitted by a 

source. See 40 CFR 51.166(b)(49)(i) and 

52.21(b)(50)(i). By contrast, ‘‘particulate 

matter emissions’’ is regulated as a noncriteria pollutant under the portion of 

the definition that refers to ‘‘[a]ny 

pollutant that is subject to any standard 

promulgated under section 111 of the 

Act,’’ where the condensable PM 

fraction generally is not required to be 

included in measurements to determine 

compliance with standards of 

performance for PM. See 40 CFR 

51.166(b)(49)(ii) and 52.21(b)(50)(ii). 

III. Background 

A. National Ambient Air Quality 

Standards (NAAQS) for PM 

Sections 108 and 109 of the CAA 

govern the establishment and revision of 

the NAAQS. Section 108 directs the 

Administrator to identify and list each 

air pollutant that ‘‘in his judgment, 

cause[s] or contribute[s] to air pollution 

which may reasonably be anticipated to 

endanger public health and welfare’’ 

and ‘‘the presence of which in the 

ambient air results from numerous or 

diverse mobile or stationary sources’’ 

and to issue air quality criteria for those 

pollutants that are listed. CAA section 

108(a)(1)(A), (B). Section 109 directs the 

Administrator to propose and 

promulgate primary and secondary 

NAAQS for pollutants listed under 

section 108 to protect public health and 

welfare, respectively. Section 109 also 

requires review of the NAAQS at 5-year 

intervals. 

‘‘Particulate matter’’ is a term used to 

define an air pollutant that consists of 

a mixture of solid particles and liquid 

droplets found in the ambient air. 

Particulate matter occurs in many sizes 

and shapes and can be made up of 

hundreds of different chemicals. As 

explained further in the discussion that 

follows, the EPA has regulated several 

size ranges of particles under the CAA, 

referred to as indicators of particles, 

which has required that test methods be 

developed to measure the appropriate 

size particles that occur in the ambient 

air or that are being emitted directly 

from a source. In some cases, the EPA 

regulates certain species of particles as 

separate ‘‘air pollutants.’’ For example, 

lead, beryllium, fluorides and sulfuric 

acid mist are constituents of particulate 

matter that are also regulated separately 

under New Source Performance 

Standards (40 CFR part 60) and/or 

National Emissions Standards for 

Hazardous Air Pollutants (40 CFR parts 

61, 63 or 65). 

Particles as measured in the ambient 

air consist of both primary and 

secondary particles. Primary particles 

are emitted directly from sources, and 

may include gaseous emissions, which, 

when emitted from the stack of a source, 

condense under ambient conditions to 

form particles. Primary particles directly 

emitted by a source as a solid or liquid 

at the stack and captured on the filter of 

a test train are referred to as the 

‘‘filterable’’ PM fraction. The gaseous 

emissions that form particles upon 

condensing under ambient conditions 

soon after release from the stack are 

referred to as ‘‘condensable PM.’’ Other 

types of particles, known as secondary 

particles, are formed from precursors, 

such as SO2 and NOX, at a distance from 

their point of release as a result of 

complex reactions in the atmosphere. 

Initially, the EPA established NAAQS 

for PM on April 30, 1971, under 

sections 108 and 109 of the Act. See 36 

FR 8186. Compliance with the original 

PM NAAQS was based on the 

measurement of particles in the ambient 


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1 ‘‘Condensable PM is of potential importance 

because it usually is quite fine and thus falls 

primarily within the PM10 fraction.’’ See ‘‘PM–10 

SIP Development Guideline,’’ EPA–450/2–86–001 

(June 1987) at p. 5–32. 

2The EPA’s NEI contains information about 

sources that emit criteria pollutants and their 

precursors, and hazardous pollutants. The database 

includes estimates of annual air pollutant emissions 

from point, nonpoint and mobile sources. The NEI 

currently contains information on PM with regard 

to the criteria indicators PM10 and PM2.5. 

3 ‘‘Emissions Inventory Guidance for 

Implementation of Ozone and Particulate Matter 

National Ambient Air Quality Standards (NAAQS) 

and Regional Haze,’’ EPA–454/R–99–006 (April 

1999). 

air using an indicator of particles 

measuring up to a nominal size of 25 to 

45 micrometers (mm). The EPA used the 

indicator name ‘‘total suspended 

particulate’’ or ‘‘TSP’’ to define the 

particle size range that was being 

measured. Total suspended particulate 

remained the indicator for the PM 

NAAQS until 1987 when the EPA 

revised the NAAQS in part by replacing 

the TSP indicator for both the primary 

and secondary standards with a new 

indicator that includes only those 

particles with an aerodynamic diameter 

less than or equal to a nominal 10 mm 

(PM10). 

On July 18, 1997, the EPA made 

significant revisions to the PM NAAQS 

in several respects. While the EPA 

determined that the PM NAAQS should 

continue to focus on particles less than 

or equal to 10 mm in diameter, the EPA 

also determined that the fine and coarse 

fractions of PM10 should be considered 

separately. Accordingly, on July 18, 

1997, the EPA added a new indicator for 

fine particles with a nominal mean 

aerodynamic diameter less than or equal 

to 2.5 mm (PM2.5), and continued to use 

PM10 as the indicator for purposes of 

regulating the coarse fraction of PM10. 

See 62 FR 38652. 

In the next periodic review, the EPA 

concluded, on October 17, 2006, that it 

was necessary to revise the primary and 

secondary NAAQS for PM to provide 

increased protection of public health 

and welfare. See 71 FR 61144. The EPA 

retained the two separate indicators— 

PM10 and PM2.5—for determining 

compliance with the revised NAAQS for 

PM, so both continue to be regarded as 

pollutants for which a NAAQS has been 

promulgated. 

B. Measuring and Reporting Emissions 

of PM 

Section 110 of the Act requires that 

state and local air pollution control 

agencies develop and submit plans, 

known as state implementation plans or 

SIPs (that provide for the attainment, 

maintenance and enforcement of the 

NAAQS), for approval by the EPA. An 

essential component of each SIP is the 

emissions reduction strategy, including 

emissions limitations and other control 

measures (as set forth in SIPs and in 

individual source permits) designed to 

control the emissions of pollutants that 

contribute to the air quality against 

which the NAAQS are measured. For 

many years, most control measures for 

PM were generally focused on primary 

PM—specifically, the filterable PM 

fraction. Accordingly, the early EPA test 

methods for quantifying amounts of PM 

emitted by sources generally were based 

on the collection of the filterable PM 

fraction. 

In support of state obligations to 

develop emissions reduction strategies, 

section 111 of the Act requires the EPA 

to adopt standards of performance that 

focus on sources that cause or 

contribute significantly to ‘‘air pollution 

which may reasonably be anticipated to 

endanger public health and welfare.’’ 

Such standards, referred to as NSPS, are 

emissions standards that are intended to 

reflect the degree of air pollution 

emission limitation attainable through 

the application of the best system of 

emission reduction (taking into account 

the cost of achieving such reduction and 

any non-air quality health and energy 

requirements) that the Administrator 

determines has been adequately 

demonstrated. Accordingly, the EPA 

historically has developed NSPS (and 

corresponding compliance test methods) 

under 40 CFR part 60 to provide 

standards of performance that address, 

among other pollutants, the control of 

PM. 

When the EPA promulgated the first 

set of NSPS for PM in 1971, only the 

filterable PM fraction was regulated. 

The EPA simultaneously promulgated a 

test method, known as Method 5, as the 

NSPS compliance test method to 

measure the filterable fraction of PM. 

Once available, Method 5 was often also 

used for permitting purposes to quantify 

the in-stack emissions of PM that 

represented the particles in the 

atmosphere expressed in terms of the 

ambient indicator, TSP—the original 

indicator for the PM NAAQS. Thus, the 

filterable PM collected by Method 5 or 

other similar source test methods was 

sometimes referred to as ‘‘TSP 

emissions,’’ even though it was 

recognized that Method 5 actually 

collected particles that exceeded the 

TSP size range (25–45 mm), and did not 

include the condensable PM fraction. 

Today, Method 5 continues to serve as 

the performance testing procedure for 

most NSPS for PM. 

As a result of the promulgation of the 

PM10 NAAQS in 1987, the annual 

source emissions reporting of 

‘‘particulate matter emissions’’ (required 

under 40 CFR 51.322 and 51.323) ended 

with the state reporting of calendar year 

1987 emissions, and the required 

reporting of PM10 emissions began with 

state reporting of calendar year 1988 

emissions. In the absence of a standard 

reference test method for measuring 

PM10 emissions, states were instructed 

to choose an appropriate method of 

determining PM10 emissions for each 

source. On April 17, 1990, the EPA 

promulgated Method 201A to provide 

the states with a standard means of 

measuring filterable PM10 emissions 

contained in the stack. In the preamble 

of the promulgated Method 201A, the 

EPA noted that condensable PM forms 

very fine particles in the PM10 size range 

and is considered a portion of total PM10

emissions. The EPA announced its 

intent to propose Method 202 as a test 

method to measure the condensable 

portion. On October 12, 1990, the EPA 

proposed Method 202 to provide states 

with a means of measuring condensable 

PM from stationary sources. See 55 FR 

41546. The test method for condensable 

PM, known as Method 202, was 

promulgated on December 17, 1991, in 

Appendix M of 40 CFR part 51. With the 

new focus on the PM10 indicator the 

EPA also began to emphasize the 

relevance of condensable PM,1 and 

encouraged states to consider the 

condensable PM fraction as part of PM10

emissions where it was considered to be 

a significant contributor to an area’s 

PM10 nonattainment status. However, 

there were only a few nonattainment 

areas where control of the condensable 

PM portion was actually required in 

order to achieve attainment of the 

NAAQS. 

Even before the EPA introduced the 

PM2.5 indicator for the PM NAAQS in 

1997, the agency published information 

on PM2.5 emissions in its National 

Emission Inventory Database (NEI).2

With the assistance of information 

gained through speciation analyses of 

PM2.5, the EPA recognized that 

condensable PM could be a substantial 

portion of the total PM2.5 emitted by 

certain source categories. Beginning 

with the 1999 NEI, the EPA began 

including the condensable PM fraction 

of the total PM2.5 emitted by certain 

source categories, and encouraged states 

to consider the condensable PM fraction 

for the development of emissions 

inventories for PM2.5 SIPs.3 The EPA 

also provided condensable PM emission 

factors for various source categories in 

AP–42 so that those state and local air 

control agencies having the 

responsibility to report emission 

inventories would have the tools needed 


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4 ‘‘The inclusion of condensable emissions in a 

source’s PM2.5 emissions is of increasing 

importance with the change in the indicator for 

particulate matter to PM2.5. Condensible emissions 

are essentially fine particles, and thus are a larger 

fraction of PM2.5 than of TSP or PM10.’’ 70 FR 65984 

(November 1, 2005) at p. 66039. 

5The EPA did indicate that ‘‘test methodologies 

that measure only filterable particulate matter 

would be acceptable in areas where no additional 

reductions of primary PM2.5 and particulate 

precursor emissions are required to project 

attainment of the PM2.5 NAAQS.’’ Id. at 66049. 

6Although the language in the PSD requirements 

in the CAA states that those requirements apply to 

any pollutant subject to regulation under the Act, 

section 112(b)(6) of the CAA specifically excludes 

hazardous pollutants regulated under that section of 

the CAA from the PSD provisions. Accordingly, 

hazardous pollutants listed in section 112 of the 

CAA are not regulated under the EPA’s PSD 

regulations. See, e.g., 40 CFR 52.21(b)(50)(v). 

7The EPA uses the term ‘‘particulate matter 

emissions’’ to define a pollutant regulated under the 

PSD program, but not under the nonattainment NSR 

program because nonattainment designations apply 

only with regard to criteria pollutants (pollutants 

for which NAAQS exist, e.g., PM10 and PM2.5). 

‘‘Particulate matter emissions’’ are not considered a 

criteria pollutant. 

to estimate and report those emissions 

to the EPA. 

In 2002, the EPA issued a rule known 

as the Consolidated Emissions 

Reporting Rule (CERR), which, among 

other things, established requirements 

for the reporting to the EPA of PM2.5

emissions. In conjunction with the new 

reporting requirements, the EPA added 

definitions of ‘‘primary PM,’’ ‘‘primary 

PM10,’’ and ‘‘primary PM2.5,’’ all of 

which included both the filterable and 

condensable PM fraction. See 67 FR 

39602 (June 10, 2002). The CERR 

required states to report emissions of 

primary PM10 and primary PM2.5, and 

listed as optional the reporting of 

emissions of primary PM. However, 

when the EPA amended those rules in 

2008, it dropped the definition of 

‘‘primary PM’’ and the listing of 

‘‘primary PM’’ as an optional pollutant, 

eliminating the requirement for 

reporting ‘‘PM’’ (as opposed to PM10 and 

PM2.5). See 73 FR 76539 (December 17, 

2008). 

In November 2005, the EPA proposed 

requirements that states must fulfill in 

developing their implementation plans 

for the attainment of PM2.5 NAAQS. See 

70 FR 65984 (November 1, 2005). With 

the historical emphasis on controlling 

the filterable PM fraction, it became 

apparent that in many cases it would be 

necessary to take a closer look at the 

control of the condensable PM fraction 

in order to attain the PM2.5 NAAQS in 

some areas.4 The preamble to the 2005 

proposed rule highlighted the 

importance in certain cases of 

controlling the condensable PM fraction 

to help ensure the attainment of the new 

NAAQS. It was acknowledged at that 

time that most stationary source test 

methods specified in state rules did not 

provide for the measurement of 

condensable PM. As such, it was found 

that most source test methods 

referenced in SIPs provided a 

measurement of only the filterable 

fraction of PM. The EPA further noted 

that ‘‘these filterable particulate matter 

test methods are either identical or very 

similar to one of the ten federal test 

methods published in Appendix A of 40 

CFR Part 60 and used to determine 

compliance with New Source 

Performance Standards (NSPS).’’ Id. at 

66049. The EPA indicated that states 

needing to adopt local control measures 

for primary PM2.5 in nonattainment 

areas would need to revise their 

stationary source test methods to focus 

on the PM2.5 indicator, including the 

condensable PM fraction.5

On March 25, 2009, the EPA proposed 

to modify existing Method 201A to 

allow for measurement of filterable 

PM2.5. In fact, the proposed modification 

offered the ability to measure filterable 

PM10, filterable PM2.5, or both filterable 

PM10 and filterable PM2.5 from 

stationary sources. At the same time, the 

EPA proposed amendments to Method 

202 to improve the precision of the 

method for measuring condensable PM 

and to provide for more accurate overall 

quantification of primary emissions of 

PM10 and PM2.5 to the ambient air. 

Method 202 contained several optional 

procedures that were intended to 

accommodate the various test methods 

used by state and local regulatory 

entities at the time Method 202 was 

being developed. The inclusion of the 

optional procedures ultimately proved 

problematic in that each of them 

resulted in a different emissions value. 

To address this issue, the EPA explored 

the influence of the optional procedures 

to identify the ones that would result in 

biased or imprecise measurements. In 

December 2010, the EPA promulgated 

an improved Method 202 with limited 

options that would produce more 

consistent measures of emissions. 

C. NSR Program for PM 

The NSR program is a statutorilybased preconstruction permitting 

program that applies when a stationary 

source of air pollution proposes to 

construct or undergo modification. The 

NSR program consists of three different 

preconstruction permit programs: PSD, 

nonattainment NSR and minor NSR. We 

often refer to the PSD and 

nonattainment NSR programs together 

as the major NSR program because those 

permit programs regulate the 

construction of new major stationary 

sources and major modifications to 

existing major stationary sources. 

The nonattainment NSR program 

applies in advance of construction to 

new major stationary sources and major 

modifications of sources of a pollutant 

that locate in an area that is designated 

‘‘nonattainment’’ for that pollutant. As 

such, the nonattainment NSR program 

applies only with respect to pollutants 

for which the EPA has promulgated 

NAAQS (commonly described as 

‘‘criteria pollutants’’). On the other 

hand, the PSD program is a statutorilybased preconstruction review and 

permitting program that applies to new 

or modified major stationary sources 

proposing to locate in an area meeting 

any NAAQS (‘‘attainment’’ areas) and 

areas for which there is insufficient 

information to classify them as either 

attainment or nonattainment 

(‘‘unclassifiable’’ areas) for at least one 

pollutant. Like the nonattainment NSR 

program, the applicability of the PSD 

program to a major stationary source or 

major modification must be determined 

in advance of construction and is on a 

pollutant-specific basis. However, 

unlike the nonattainment NSR program, 

the PSD requirements may apply to any 

‘‘air pollutant’’ that is ‘‘subject to 

regulation’’ under the Act.6 Thus, the 

PSD program is not restricted to criteria 

pollutants.7 Once a major source is 

determined to be subject to the PSD 

program (PSD source) for a particular air 

pollutant, among other requirements, it 

must undertake a series of analyses to 

demonstrate that it will use the best 

available control technology (BACT) to 

minimize the emissions of each 

regulated pollutant and that the 

emissions of the source will not cause 

or contribute to a violation of any 

applicable NAAQS or any applicable 

maximum allowable increase in a 

pollutant concentration (PSD 

increment). 

Consistent with the original NAAQS 

and PSD increments for PM, the PSD 

program established pollutant 

applicability requirements for PM on 

the basis of the TSP indicator. 

Accordingly, the PSD regulations 

defined a ‘‘significant’’ increase in 

emissions of PM as 25 tons per year 

(tpy). When the EPA revised the PM 

NAAQS in 1987, establishing a new 

PM10 indicator, two indicators for 

particles were recognized as being 

regulated under the Act because the 

statutory PSD increments for PM were 

still expressed in terms of TSP. The 

addition of the new PM10 indicator also 

necessitated a distinction between those 

emissions of PM that should be used to 

determine a source’s compliance with 


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Federal Register / Vol. 77, No. 207 / Thursday, October 25, 2012 / Rules and Regulations 65111 

8Available in the docket, ID. No. EPA–HQ–OAR– 

2003–0063, and at http://www.epa.gov.nsr/ 

documents/nsrmemo.pdf. 

9 During this period, EPA communicated that the 

policy should be applied consistent with applicable 

case law on use of surrogates. See 75 FR at 6831. 

10 In addition to the NSPS for PM, it is noted that 

states regulated ‘‘particulate matter emissions’’ for 

many years in their SIPs for PM, and the same 

indicator has been used as a surrogate for 

determining compliance with certain standards 

contained in 40 CFR part 63, regarding National 

Emission Standards for Hazardous Air Pollutants. 

the new PM10 NAAQS and those 

emissions of PM that should be used to 

determine a source’s compliance with 

the existing TSP-based increments. 

Hence, in 1987, the EPA adopted the 

term ‘‘particulate matter emissions’’ to 

represent the indicator of emissions of 

PM that roughly corresponds to the 

ambient indicator, TSP, and adopted the 

term ‘‘PM10 emissions’’ to represent the 

indicator of emissions of PM that 

corresponds to the ambient indicator, 

PM10. See 52 FR 24672 (July 1, 1987). 

Accordingly, the original significant 

emissions rate of 25 tpy was retained 

and applied to the newly-defined term 

‘‘particulate matter emissions’’ 

(associated with the ambient TSP 

indicator), and simultaneously a 

significant emissions rate of 15 tpy was 

defined with regard to ‘‘PM10

emissions.’’ See 40 CFR 51.166(b)(23)(i) 

and 52.21(b)(23)(i). 

In 1993, as authorized by the CAA 

Amendments of 1990, the EPA adopted 

increments for PM that were expressed 

in terms of ambient concentrations of 

PM10, and substituted those increments 

for the original statutory increments for 

PM based on the TSP indicator. See 58 

FR 31622 (June 3, 1993). As a result, 

both the NAAQS for PM and the PSD 

increments for PM were henceforth 

measured by the PM10 indicator and, 

once states revised their SIPs to 

incorporate the new PM10 NAAQS and 

PM10 increments, the TSP (ambient) 

indicator was no longer considered a 

regulated indicator of particles. 

However, because the NSPS for PM 

commonly measured performance 

standard compliance based on 

emissions of PM in a manner that was 

roughly associated with the original 

ambient TSP indicator, the EPA stated 

in the preamble to the 1993 final rule 

promulgating new PSD increments 

based on PM10 that the agency would 

continue to regulate ‘‘particulate matter 

emissions’’ (25 tpy significant emissions 

rate) separately from ‘‘PM10 emissions’’ 

(15 tpy significant emissions rate) for 

purposes of PSD applicability 

determinations. Id. at 31629. 

In October 1997, following the 

promulgation of revised NAAQS for PM, 

which included the addition of NAAQS 

defined by the PM2.5 indicator, the EPA 

issued a guidance memorandum titled 

‘‘Interim Implementation for the New 

Source Review Requirements for PM2.5’’ 

(John Seitz, EPA, October 27, 1997).8 In 

this guidance, the EPA set forth what is 

referred to as the 1997 PM10 Surrogate 

Policy, in which it was explained that 

sources could continue to use 

implementation of a PM10 program as a 

surrogate for meeting the PM2.5 NSR 

requirements until certain technical 

difficulties were resolved. Those 

technical difficulties included the lack 

of necessary tools to calculate PM2.5

emissions and related precursors from 

individual stationary sources, the lack 

of adequate modeling techniques to 

project ambient PM2.5 impacts, and the 

lack of PM2.5 ambient monitoring sites. 

Accordingly, sources applying for PSD 

permits could rely on a demonstration 

of compliance with regard to the PM10

requirements as an interim measure to 

satisfy the CAA requirements for 

meeting BACT and ambient air quality 

standards for the new PM2.5 indicator. In 

2005, following the promulgation of 

nonattainment area designations for 

PM2.5, the EPA issued guidance 

extending the 1997 PM10 Surrogate 

Policy to the issuance of major source 

permits in PM2.5 nonattainment areas. 

(‘‘Implementation of New Source 

Review Requirements in PM2.5

Nonattainment Areas,’’ April 5, 2005.) 

In 2008, the EPA issued a final rule 

setting forth certain new requirements 

for PM2.5 in its NSR and PSD 

regulations. See ‘‘Implementation of the 

New Source Review (NSR) Program for 

Particulate Matter Less Than 2.5 

Micrometers (PM2.5),’’ 73 FR 28321 

(May 16, 2008). Specifically, the EPA 

identified the major source threshold 

and significant emissions rate for PM2.5

to reflect the indicator for the PM 

NAAQS promulgated in 1997. See 40 

CFR 51.166(b)(23)(i) and 52.21(b)(23)(i). 

The 2008 rule also announced the end 

of the use of the EPA’s 1997 PM10

Surrogate Policy under the federal PSD 

program at 40 CFR 52.21 and the 

nonattainment NSR program (including 

the Emission Offset Rule at 40 CFR part 

51 Appendix S) upon the effective date 

of the final rule (July 15, 2008). See 73 

FR at 28340–28343. However, the rule 

provided a grandfathering provision, 

under the federal PSD program, for PSD 

permit applications that were 

determined to be complete before July 

15, 2008, but had not yet received a PSD 

permit by that date, enabling those 

applications to continue to be reviewed 

under the 1997 PM10 Surrogate Policy in 

lieu of the new PM2.5 requirements. 

Later, in a final rule issued on May 18, 

2011, which became effective on July 

18, 2011, the EPA announced the repeal 

of that PSD grandfather provision. See 

76 FR 28646. The EPA continued to 

allow the use of the surrogate policy 9

for PSD permits issued under SIPapproved PSD programs until May 16, 

2011—the due date for revising SIPs to 

incorporate the new PM2.5 PSD 

requirements promulgated in the 2008 

rule. See 76 FR at 28659 (declining to 

adopt a proposal to end the policy 

earlier). 

Hence, PM is currently being 

regulated under the PSD program as 

three separate regulated pollutants. 

Those include PM10 and PM2.5—both of 

which are indicators reflecting the way 

the NAAQS for PM are currently 

measured—and ‘‘particulate matter 

emissions,’’ which is a term used in the 

PSD regulations to signify the indicator 

of PM that is measured and regulated 

under various NSPS for PM (40 CFR 

part 60).10 All three of the indicators for 

PM are considered separately as 

regulated NSR pollutants subject to 

review under the PSD program, which 

means that proposed new and modified 

sources must treat each indicator of PM 

as a separate regulated pollutant for 

applicability determinations, and must 

then apply the PSD requirements, as 

appropriate, independently for each 

indicator of PM. 

The 2008 rule also added a provision 

to the definition of ‘‘regulated NSR 

pollutant’’ in the PSD regulations and 

the Emission Offset Interpretative 

Ruling that required the inclusion of the 

condensable PM fraction for all three 

emissions-based indicators of PM. 

Accordingly, the determination of the 

potential emissions (for permit 

applicability determinations), and the 

setting of emissions limitations and instack pollutant measurements (for 

source compliance purposes) would 

involve the inclusion of the condensable 

fraction of PM for each of the three PM 

indicators. However, the EPA also 

announced in the 2008 rule that it 

would not require states to implement 

the requirement to account for 

condensable PM in establishing 

enforceable emissions limits for either 

PM10 or PM2.5 in permits until the 

completion of a transition period that 

would end on January 1, 2011. See 73 

FR at 28335. The EPA explained that the 

transition period would allow the 

agency time to assess concerns raised 

about uncertainties associated with the 

measurement of direct PM2.5, including 

condensable PM, and to conduct a 

notice and comment rulemaking to 

codify new or revised test methods. 


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11 In developing the NSPS for Wool Fiberglass 

Insulation Manufacturing facilities (Subpart PPP), 

the EPA determined that the control device could 

effectively reduce both the solid particles and the 

condensable PM, and promulgated the PM standard 

based on the measurement of both filterable solid 

particles and condensable PM. In addition, the 

agency established a variant of Method 5, referred 

to as Method 5e, to measure the filterable PM and 

the total organic carbon portion of the impinger 

catch. See 50 FR 7694 (February 25, 1985). 

Thus, while the definition of ‘‘regulated 

NSR pollutant’’ required the inclusion 

of condensable PM in all three 

indicators for emissions of PM, the 

transition policy effectively delayed its 

implementation until January 1, 2011, 

unless an existing permit condition or 

SIP expressly required that the 

condensable PM fraction be included in 

the measurement of PM10 emissions or 

PM2.5 emissions. Also, states were 

required to submit to the EPA by May 

16, 2011, SIP revisions addressing the 

new, revised definition of ‘‘regulated 

NSR pollutant’’ and other new PM2.5

NSR requirements promulgated in the 

2008 rule. 

IV. What is the final action that the EPA 

is taking on the definition of ‘‘regulated 

NSR pollutant’’ and how does it affect 

the way ‘‘particulate matter emissions’’ 

are measured? 

This final rule corrects an inadvertent 

error that established a general 

requirement under the definition of 

‘‘regulated NSR pollutant’’ to account 

for the condensable PM fraction in 

applicability determinations and in 

establishing emissions limitations with 

regard to ‘‘particulate matter 

emissions.’’ The change that has been 

made affects three sets of NSR 

regulations, including the PSD 

regulations at 40 CFR 51.166 and 52.21, 

and the Emission Offset Interpretative 

Ruling at 40 CFR part 51 Appendix S. 

It is important to note that the change 

being finalized under this action does 

not mean that we are totally exempting 

the inclusion of the condensable PM 

fraction as part of ‘‘particulate matter 

emissions.’’ As we described in the 

proposal, it may be necessary for PSD 

sources to count the condensable PM 

fraction with regard to ‘‘particulate 

matter emissions’’ in certain cases. The 

first case is for a source that is subject 

to an NSPS for which the condensable 

PM fraction must be included in the 

determination of compliance with the 

standard of performance for PM.11 The 

second case is where the applicable SIP 

already requires that the condensable 

PM fraction be included in the 

measurement of ‘‘particulate matter 

emissions.’’ Finally, the third case is 

where a source that emits ‘‘particulate 

matter emissions’’ is not subject to an 

NSPS, but is required by the reviewing 

authority to include the condensable 

PM fraction. See 77 FR 15661. 

Accordingly, the EPA proposed to add 

new regulatory language at 40 CFR 

51.166(b)(49)(ii) and 52.21(b)(50)(ii) to 

address these particular situations. 

(However, as pointed out by a 

commenter, we omitted language 

referencing an approved SIP (case 2) in 

the proposed regulatory language.) 

In this final rule, based on public 

comments and additional 

considerations we have since identified, 

we are not adopting the proposed 

clarifying text in 40 CFR 

51.166(b)(49)(ii) and 52.21(b)(50)(ii). In 

the proposal, the EPA explained that the 

revisions to these subsections were 

intended to assure that the condensable 

PM fraction of ‘‘particulate matter 

emissions’’ was counted in those cases 

where either the applicable NSPS 

requires that the condensable PM 

fraction be included in the 

determination of compliance with the 

standard of performance for PM or the 

applicable SIP already requires the 

inclusion of the condensable PM 

fraction. The EPA does not believe that 

the proposed revisions to subparagraph 

(ii) are necessary to include the 

condensable fraction of ‘‘particulate 

matter emissions’’ where it would be 

consistent with the applicable NSPS. 

Federal regulations at 40 CFR 

51.100(pp) already define ‘‘particulate 

matter emissions’’ to be measured 

according to ‘‘the applicable reference 

methods, or an equivalent or alternative 

method, specified in this chapter, or by 

a test method specified in an approved 

State implementation plan.’’ We believe 

that definition is appropriately applied 

under both part 51 and part 52 of our 

regulations, even though part 52 does 

not presently contain such any 

definition of the term ‘‘particulate 

matter emissions,’’ and thus is not 

directly applicable. Thus, the 

condensable fraction of particulate 

matter emissions should be counted 

where appropriate, consistent with the 

part 51 definition. 

In addition, public comments 

discussed later in this preamble raised 

questions about the proposed regulatory 

language that provided the option, when 

an NSPS was not applicable to a source, 

for a reviewing authority to determine 

on a case-by-case basis whether to 

include condensables in ‘‘particular 

matter emissions.’’ Comments have 

persuaded the EPA that this case-bycase approach is not needed and that if 

a source is not covered by an NSPS, the 

condensable PM fraction need not be 

included in ‘‘particulate matter 

emission’’ unless the state elects to 

implement such a requirement through 

its SIP. 

Furthermore, we have recognized that 

the regulatory text that we proposed 

(which is not specific to ‘‘particulate 

matter emissions’’) may have a broader 

effect on the definition and 

measurement of other regulated NSR 

pollutants that extends beyond the 

intentions outlined in the proposal. 

Accordingly, in order to allow for 

further evaluation of the possible 

implications of the proposed regulatory 

text, the EPA is not finalizing the 

proposed revisions to subparagraph (ii) 

at this point. 

For these reasons, we are retaining the 

existing regulatory language in these 

subparts of the PSD regulations without 

change. However, we will continue to 

evaluate the need for the proposed 

changes to 40 CFR 51.166(b)(49)(ii) and 

52.21(b)(50)(ii). 

The proposed revisions to these 

paragraphs of the regulations were a 

secondary component of the proposed 

rule. The primary objective of our 

decision to revise the definition of 

‘‘regulated NSR pollutant’’ is to correct 

an inadvertent error, and thus ensuring 

that we do not impose a new 

requirement on state/local agencies and 

the regulated community that has little 

if any effect on preventing significant air 

quality deterioration or on efforts to 

attain the primary and secondary PM 

NAAQS. That is, the PSD regulations 

will not require the inclusion of 

condensable PM in measurements of 

‘‘particulate matter emissions,’’ except 

where either the applicable NSPS 

compliance test includes the 

condensable PM fraction or the 

applicable implementation plan 

requires the condensable PM fraction to 

be counted. Proposed new or modified 

stationary sources of PM typically will 

be subjected to the PSD requirements on 

the basis of their potential to emit 

significant amounts of PM10 or PM2.5

and will be required to install controls 

for their emissions of PM10 and/or 

PM2.5, both of which must consider the 

condensable PM fraction. 

V. What comments did we receive on 

the proposed amendments to the 

definition of ‘‘regulated NSR 

pollutant’’? 

The EPA provided a 60-day review 

and comment period on this 

rulemaking, which closed on May 15, 

2012. A total of seven comment letters 

(six industry comment letters and one 

state agency comment letter) were 

received on the proposed amendment to 

correct the definition of ‘‘regulated NSR 

pollutant’’ by removing the unilateral 

requirement that condensable PM be 


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Federal Register / Vol. 77, No. 207 / Thursday, October 25, 2012 / Rules and Regulations 65113 

included in measurements of 

‘‘particulate matter emissions.’’ All of 

the commenters supported the EPA’s 

proposed correction. Although the 

commenters supported the EPA’s 

proposal with regard to the way that 

‘‘particulate matter emissions’’ should 

be measured, some commenters also 

requested that the EPA make additional 

revisions or clarify certain aspects of the 

proposal in the final rule preamble and 

regulation language. The following 

subsections provide a summary of those 

requests. 

A. Regulated Indicators of PM 

Comment: A state agency commenter 

claims that the EPA’s discussion of PM 

and the various indicators of PM is 

confusing in several ways. First, the 

state agency commenter notes that the 

EPA uses the general term ‘‘particulate 

matter’’ in the Integrated Science 

Assessment or ISA (previously called 

the Air Quality Criteria Document) to 

describe the criteria pollutant, while 

also using various indicators—TSP, 

PM10 and PM2.5—based on particle size 

to establish NAAQS. The state then 

explained that ‘‘[w]e have always 

understood that each of the indicators 

used for PM included all applicable size 

distributions. Therefore, PMTSP includes 

PM10 and PM2.5 and PM10 includes 

PM2.5. Therefore, we found the preamble 

justification confusing when EPA refers 

to PM without reference to particle 

size.’’ 

Response: Any reference to ‘‘PM’’ 

alone was intended to generally 

describe the generic pollutant without 

regard to the specific indicator being 

regulated by either the NAAQS or an 

emissions test method. The term 

‘‘particulate matter’’ or ‘‘PM’’ is used 

generically to describe a broad range of 

particles. PM is a pollutant that is 

defined more specifically for regulatory 

purposes by the method in which it is 

collected, either under in-stack or 

ambient conditions. As explained 

earlier in this preamble, for NSR 

purposes, the EPA regulates three 

indicators of emissions of PM— 

‘‘particulate matter emissions,’’ ‘‘PM10

emissions’’ and ‘‘PM2.5 emissions,’’ and 

two indicators of ambient PM—PM10

and PM2.5. The term ‘‘total suspended 

particulate’’ or ‘‘TSP’’ was originally 

used by the EPA as an indicator of 

ambient concentrations of PM by which 

compliance with the original NAAQS 

for PM was measured. The term 

‘‘particulate matter emissions’’ 

represents the indicator of emissions of 

PM that roughly corresponds with the 

ambient indicator ‘‘TSP.’’ Since the EPA 

revoked the TSP-based NAAQS, but 

continues to regulate ‘‘particulate matter 

emissions’’ as an emissions indicator 

associated with various NSPS for PM, 

‘‘particulate matter emissions’’ is 

referred to as a non-criteria emissions 

indicator of PM. Accordingly, when we 

intend to refer to a specific regulated 

form of PM, the preamble uses the 

appropriate term—‘‘particulate matter 

emissions,’’ ‘‘PM10 emissions,’’ or 

‘‘PM2.5 emissions’’—to establish the 

form of PM to be regulated for NSR 

applicability determinations and 

emissions setting purposes. 

Comment: The same state agency 

commenter claims that ‘‘EPA proposes 

to regulate only the filterable portion of 

PM under Method 5 and retain PM10

and PM2.5 as indicators for the PM 

criteria pollutant.’’ The state then 

indicated that ‘‘[t]he definition of direct 

emissions for PM10 and PM2.5 includes 

both filterable and condensable PM 

emissions.’’ Thus, the state agency 

commenter claims that it was unclear 

how the EPA’s final rule would affect 

permit applicability determinations, 

‘‘since the state implementation plan 

(SIP) includes condensable emissions 

for total PM.’’ In conjunction with this 

uncertainty, the state commenter asks 

whether it is the EPA’s intent ‘‘to limit 

the emissions for PM to only the 

fraction larger than PM10 or PM2.5? Or, 

is EPA’s intent to limit the emissions for 

PM to only the filterable fraction larger 

than PM10 or PM2.5, but include the 

filterable and condensable emissions for 

PM10 and PM2.5?’’ The state agency 

commenter requests that the EPA 

confirm its understanding that ‘‘no 

source impact analysis under PSD is 

required for PM because EPA considers 

PM—as PMTSP—to be a non-criteria 

pollutant indicator similar to sulfuric 

acid mist.’’ Thus, the state agency 

commenter understood that it would 

evaluate impacts under the state’s minor 

NSR program, and only require a control 

technology review under PSD for the 

filterable fraction of particulate matter 

emissions. 

Response: The final rule sets forth 

minimum PSD program requirements at 

40 CFR 51.166 for an approvable SIP. 

Under those requirements, the 

measurement of ‘‘particulate matter 

emissions’’ generally includes only the 

filterable portion, unless the applicable 

NSPS or SIP requires that the 

condensable PM fraction be counted as 

well. Hence, as in the case of the state 

commenter, where a SIP requires the 

inclusion of condensable PM emissions 

in the measurement of ‘‘total PM’’ (the 

term that the state commenter appears 

to use in lieu of the EPA’s term 

‘‘particulate matter emissions’’), the 

final rule does not preclude the state 

from requiring a source to determine its 

applicability, and enforceable emissions 

limits, for ‘‘particulate matter 

emissions’’ based on both the filterable 

and the condensable PM fractions. In 

any case, it was not the EPA’s intent to 

limit the measurement of ‘‘particulate 

matter emissions’’ to the fraction (or 

filterable fraction) larger than PM10 and 

PM2.5. Clearly, Method 5 measures 

particles that include the filterable PM10

and PM2.5, but includes larger particles 

as well. 

To address ‘‘particulate matter 

emissions,’’ we generally agree with the 

commenter’s understanding that one of 

the primary concerns under the PSD 

program is to ensure that a new major 

stationary source that emits significant 

amounts of ‘‘particulate matter 

emissions’’ or a major modification that 

results in a significant net emissions 

increase of ‘‘particulate matter 

emissions’’ must undergo a control 

technology review for that emissions 

indicator of PM. However, there is a 

source impact assessment component in 

the PSD requirements that cannot 

simply be relegated to a minor NSR 

review requirement with regard to 

‘‘particulate matter emissions.’’ While 

there are no air quality standards 

(NAAQS or increments) associated with 

‘‘particulate matter emissions,’’ section 

165(e)(3)(B) of the CAA requires an 

analysis of the ambient air quality, 

climate, meteorology, terrain, soils and 

vegetation, and visibility ‘‘for each 

pollutant regulated under this Act’’ that 

will be emitted by the proposed PSD 

project. This requirement, referred to as 

the ‘‘Additional Impact Analysis’’ at 40 

CFR 51.166(o) and 40 CFR 52.21(o), 

could potentially require certain 

analyses with regard to ‘‘particulate 

matter emissions’’ as part of the PSD 

preconstruction review process. 

Comment: The state agency 

commenter and an industry commenter 

both had recommendations for 

excluding ‘‘particulate matter 

emissions’’ from the major source 

applicability requirements. The state 

agency commenter’s recommendation 

addresses major modifications, while 

the industry commenter recommends an 

exclusion from major source 

applicability altogether. The state 

agency commenter recommends that, 

because the concern with ‘‘particulate 

matter emissions’’ rests with NSPS 

applicability and control technology 

review, the EPA should ‘‘remove the 

major modification significant emission 

rate (25 tpy) for PM from the PSD major 

modification portion of the PSD rules, 

and rely on the state’s minor NSR 

program to conduct the technology 

review under the NSPS program. 

* * *’’ The industry commenter 


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65114 Federal Register / Vol. 77, No. 207 / Thursday, October 25, 2012 / Rules and Regulations 

believes that there is no reason to 

include ‘‘particulate matter emissions’’ 

in any major NSR applicability 

determinations, regardless of whether 

the term includes condensable PM or 

not, because (1) particles larger than 10 

mm are not a significant driver of health 

effects; and (2) applicability thresholds 

for PM10 and PM2.5 are already in place 

and are generally more protective 

standards than the ‘‘particulate matter 

emissions’’ standards. Thus, the 

industry commenter recommends that 

the definition of ‘‘regulated NSR 

pollutant’’ be further modified to 

eliminate ‘‘particulate matter 

emissions’’ as a third indicator of PM for 

NSR purposes. 

Response: With regard to the 

comments that ‘‘particulate matter 

emissions’’ should be excluded from 

major source applicability 

determinations, we note that the 

statutory PSD requirements mandate 

preconstruction review for each 

pollutant regulated under the CAA. For 

example, section 165(a)(4) requires best 

available control technology for ‘‘each 

pollutant subject to regulation under 

this Act. * * * ’’ Thus, the EPA’s PSD 

regulations require that both criteria and 

non-criteria pollutants undergo PSD 

review under the applicable provisions. 

The term ‘‘particulate matter emissions’’ 

represents an indicator of emissions of 

PM, different from the current 

indicators of PM that define the PM 

NAAQS, that is regulated under various 

NSPS to determine compliance with 

regard to PM based on Test Method 5. 

For this reason, the EPA believes that it 

is necessary to consider ‘‘particulate 

matter emissions’’ to be a separate 

pollutant subject to regulation under the 

CAA and, thus, subject to PSD. See, e.g., 

58 FR 31622 at 31629 (June 3, 1993). 

Comment: Two industry commenters 

request that the EPA clarify that, 

consistent with prior rulemaking, it 

intends to limit the interpretation of 

existing limits—and associated 

compliance demonstration 

requirements—to filterable PM. The 

commenters point to several instances 

when the EPA stated the importance of 

implementing any new or revised 

emissions limits and test methods that 

account for condensable emissions in a 

prospective manner and clearly 

differentiated from existing NSR permit 

requirements in order to avoid 

confusion over a source’s compliance 

status relative to existing PM emissions 

limits that did not include the 

condensable portion. (Commenters cited 

similar EPA statements made in two 

separate Federal Register notices, i.e., 

72 FR 20586 (April 25, 2007) at 20654 

and 73 FR 28321 (May 16, 2008) at 

28335.) 

Response: The EPA’s position with 

regard to the enforcement of permits, as 

explained in the preamble to the 2008 

rule, was and continues to be that the 

provisions requiring the inclusion of the 

condensable PM fraction should be 

implemented prospectively and not 

retroactively after the January 1, 2011, 

default end date for the condensable PM 

transition period. In the preamble to the 

2008 rule, we indicated with regard to 

the potential for retroactive enforcement 

that the EPA ‘‘will not revisit 

applicability determinations made in 

good faith prior to the end of the 

transition period, insofar as the quantity 

of condensable PM emissions are 

concerned, unless the applicable 

implementation plan clearly required 

consideration of condensable PM.’’ See 

73 FR at 28335. We also stated that 

‘‘EPA will interpret PM emissions 

limitations in existing permits or 

permits issued during the transition 

period as not requiring quantification of 

condensable PM2.5 for compliance 

purposes unless such a requirement was 

clearly specified in the permit 

conditions or the applicable 

implementation plan.’’ Id. 28335. Thus, 

we believe our position is clear that it 

is not our intention to apply the 

requirement to include the condensable 

PM fraction to applicability 

determinations and emissions 

limitations in permits that occurred 

prior to the January 1, 2011, end of the 

condensable PM transition period, 

unless such determinations and 

emissions limitations already address 

the condensable PM fraction. We do, 

however, intend to apply the 

requirement prospectively, such that 

when existing sources undergo 

modifications involving increases in 

PM10 emissions and PM2.5 emissions, 

the source will be required to consider 

the condensable fraction of PM10 and 

PM2.5 emissions in determining the 

applicability of PSD to the proposed 

project, and establishing enforceable 

emissions limits and compliance tests. 

B. Defining PM Consistent With an 

Applicable New Source Performance 

Standard (NSPS) 

Comment: Several industry 

commenters support the EPA’s proposal 

to define PM consistent with an 

applicable NSPS. One of the 

commenters recommends that the final 

regulation be amended to clarify that the 

definition and measurement of PM10

and PM2.5, when used in the context of 

NSR and PSD reviews and analyses, also 

be tied to the underlying and governing 

NSPS requirements of the source being 

considered. Specifically, the commenter 

states that the final regulation should be 

amended to state that PM2.5 and PM10

should not include the condensable 

fraction of PM for any source where the 

applicable NSPS does not include the 

condensable fraction of PM in the 

definition or measurement of the PM 

standard. 

Response: The main purpose of this 

rule is to remove the general 

requirement that ‘‘particulate matter 

emissions’’ include the condensable PM 

fraction and to make the measurement 

of ‘‘particulate matter emissions’’ 

generally consistent with the method 

prescribed by the applicable NSPS 

(except where a SIP would be more 

stringent). We do not agree with the 

recommendation by the commenters 

that the final PSD regulations should 

not require ‘‘PM2.5 emissions’’ and 

‘‘PM10 emissions’’ to include the 

condensable PM fraction when the 

applicable NSPS does not include the 

condensable fraction. There may be 

more than one basis upon which a 

pollutant is regulated under the Clean 

Air Act, and hence defined as a 

regulated NSR pollutant. Both PM2.5 and 

PM10 are indicators of PM for which the 

EPA has promulgated health- and 

welfare-based NAAQS and thus each is 

a regulated NSR pollutant independent 

of the scope of any applicable NSPS for 

a source. Furthermore, it is important 

that a source seeking a PSD permit 

demonstrate that its proposed emissions 

increases will not cause or contribute to 

a violation of any NAAQS or increment, 

as is clearly required by the CAA and 

PSD regulations. As such, it is important 

to consider the condensable PM fraction 

in each case when setting enforceable 

emissions limits and compliance tests 

for PSD sources. The fact that a 

particular NSPS may not include the 

condensable fraction to determine 

compliance with a particular 

performance-based standard does not 

alter that fact. The standards of 

performance for new sources 

established under section 111 of the 

CAA reflect emission limits achievable 

at the time of promulgation with the 

best adequately demonstrated 

technological system of continuous 

emission reduction considering the cost 

of achieving such emission reductions 

and any non-air quality health, 

environmental and energy impacts. 

Thus, if the consideration of the 

condensable fraction of PM10 and PM2.5

emissions would not be indicative of the 

efficiency of a control device used by 

the industry at the time of 

promulgation, then it would not be 

necessary or appropriate to include 


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12Several preambles for NSPS have recognized 

that the measurement methods for the standards 

highlight the basis for the test methods selected and 

that the selected test methods will not necessarily 

measure emissions as they would exist upon release 

to the atmosphere. See, e.g., 40 FR 46250 (Oct. 6, 

1975); 43 FR 7568 (Feb. 23, 1978); 44 FR 34840 

(June 15, 1979); 45 FR 66742 (Oct. 7, 1980). 

13See Memo from Stephen L. Johnson, 

Administrator, to Regional Administrators re: EPA’s 

Interpretation of Regulations that Determine 

Pollutants Covered by Federal Prevention of 

Significant Deterioration (PSD) Permit Program, at 

15 (Dec. 18, 2008) (outlining interpretation of CAA 

section 116); 74 FR 51535, 51542–43 (Oct. 7, 2009) 

(proposing to retain Johnson Memo interpretation 

on reconsideration); 75 FR 17004, 17011–12 (April 

2, 2010) (final action on reconsideration of 

interpretation). 

measurement of the condensable PM 

fraction as part of the NSPS.12

On the other hand, SIPs, including the 

NSR permitting requirements, approved 

under section 110 of the Act, must 

provide for the attainment and 

maintenance of NAAQS designed to 

protect public health and welfare. If the 

enforceable limits in a PSD permit for 

PM10 and PM2.5 do not include the 

condensable PM fraction, simply 

because the applicable NSPS does not 

include it, the source’s demonstration of 

compliance with the NAAQS and 

increments for PM10 and PM2.5 would be 

incomplete and subject to challenge. 

Similarly, for nonattainment NSR, it is 

important to consider the condensable 

PM fraction so that all PM10 and PM2.5

emissions increases can be considered 

for applicability determinations and for 

determining required offsets. 

Thus, the final rule retains the general 

requirement to include the condensable 

fraction of PM10 and PM2.5 emissions in 

each case for purposes of NSR 

permitting under the EPA’s regulations 

at 40 CFR 51.166(b)(49)(i), 40 CFR 

52.21(b)(50)(i), 40 CFR 

51.165(a)(1)(xxxvii), and 40 CFR part 51 

Appendix S. Because of these 

provisions, the definition of ‘‘PM10

emissions’’ in section 51.100(rr) of the 

EPA’s regulations should not be 

construed to limit PM10 emissions to 

only the fraction covered by an 

applicable test method in an NSPS or 

SIP. Section 51.100(rr) defines ‘‘PM10

emissions’’ as measured under the 

chapter of the Code of Federal 

Regulations where this provision is 

located or an approved SIP. The more 

specific definitions of the term 

‘‘regulated NSR pollutant’’ referenced 

above are part of the same chapter and 

thus applicable under the general 

definition of ‘‘PM10 emissions’’ in 

section 51.100(rr). Therefore, the 

specific definitions in the NSR 

regulations control in this instance to 

require inclusion of the condensable 

fraction of PM10 emissions in all cases 

under the NSR program. 

C. Defining PM To Include Condensable 

PM in the State Implementation Plan 

(SIP) 

In the preamble to the notice of 

proposed rulemaking (NPRM), we 

indicated that when a proposed source 

or modification emits a pollutant that is 

regulated under section 111 of the CAA, 

but the source itself is not subject to an 

NSPS for that pollutant, the reviewing 

authority will determine the applicable 

test method to be used to determine the 

source’s compliance, e.g., with regard to 

the possible inclusion of condensable 

PM in the measurement of ‘‘particulate 

matter emissions.’’ See 77 FR at 15661 

and 15663 (proposed regulatory text at 

40 CFR 51.166(b)(49)(ii) providing that 

‘‘[f]or sources not currently regulated by 

an applicable NSPS, measurement of 

such pollutant shall be determined by 

the reviewing authority’’). 

Comment: Two industry commenters 

opine that reviewing authorities should 

not be allowed to define PM as requiring 

consideration of condensable PM where 

the SIP does not already require it of a 

particular source category. One of the 

industry commenters suggest that the 

EPA replace the reference to the 

‘‘reviewing authority’’ in proposed 40 

CFR 51.166(b)(49)(ii) and 

52.21(b)(50)(ii) with a reference to the 

‘‘applicable state implementation plan.’’ 

The commenter states that the proposed 

language suggests that, for a non-NSPS 

source, a permitting authority could 

specify a measurement method that is 

inconsistent with the SIP. 

Response: The EPA believes that 

states should follow the requirements 

set forth in their EPA-approved SIP and 

that it would be inappropriate to make 

decisions on individual permits that are 

inconsistent with the applicable SIP 

provisions. Thus, where a SIP provides 

that only the filterable fraction of 

‘‘particulate matter emissions’’ be 

counted, individual sources should not 

be selectively required to count the 

condensable PM fraction as well. We do 

not believe, however, that explicit 

language needs to be included in the 

regulatory text as recommended by the 

commenters. As explained earlier in this 

preamble, we have decided to take no 

final action at this time with regard to 

revising subparagraph (ii) of the 

definition ‘‘regulated NSR pollutant.’’ 

Accordingly, this final action does not 

revise the PSD regulations to include 

the proposed language or any 

clarification of it. As explained earlier, 

the definition of ‘‘particulate matter 

emissions’’ at 40 CFR 51.100(pp) 

provides that states can rely on a test 

method contained in ‘‘an approved State 

implementation plan’’ to determine the 

measurement of that pollutant. In the 

absence of specific language in the 

definition of ‘‘regulated NSR pollutant,’’ 

this definition provides sufficient 

criteria for the reviewing authority to 

determine the applicable method under 

federal law for measuring ‘‘particulate 

matter emissions,’’ and should address 

the commenters’ concerns about the 

reviewing authority using a method 

inconsistent with the SIP in 

circumstances where the reviewing 

authority is implementing the approved 

SIP. 

Comment: One state agency 

commenter provides that the actual 

proposed rule language (40 CFR 

51.166(b)(49)(ii) and 52.21(b)(50)(ii)) 

only accounts for two of three stated 

cases cited by the EPA where 

condensable PM could be included in 

the measurement of ‘‘particulate matter 

emissions,’’ and omits the EPA-cited 

case where the applicable SIP already 

requires that the condensable PM 

fraction be included in the measurement 

of ‘‘particulate matter emissions.’’ The 

commenter suggests that the EPA 

reconsider and specifically list the SIP 

requirement case (where condensable 

PM should still be counted) in the final 

rule language to avoid confusion in 

regulatory intent. 

Response: The commenter is correct 

in identifying the omission of the cited 

regulatory language in the proposal. For 

reasons discussed above, we are not 

adopting the proposed revisions to 

sections 51.166(b)(49)(ii) and 

52.21(b)(50)(ii) at this time. In light of 

the definition of ‘‘particulate matter 

emission’’ in section 51.100(pp), we do 

not believe that a direct reference to the 

SIP needs to be included in sections 

51.166(b)(49)(ii) and 52.21(b)(50)(ii). 

Accordingly, it should be clear that a 

state may choose to adopt a requirement 

for a test method that includes the 

condensable PM fraction as part of 

‘‘particulate matter emissions,’’ for PSD 

applicability and permit enforcement 

purposes. It should also be noted that 

such requirement in a state’s SIP will 

not similarly affect PSD sources in other 

states or SIP jurisdictions.13

D. Comments Related to Special EPA 

Policies for Implementing PM 

Requirements Under the NSR Program 

Comment: Two industry commenters 

express concerns that the discussion in 

the March 16, 2012, proposal preamble 

regarding the history of the EPA’s 

regulation of PM under the NSR 

program, failed to include a description 

of several key policy decisions, 

including the 1997 PM10 Surrogate 


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Policy, the Grandfather Policy for PM2.5

(for pending permits under the federal 

PSD program) and the condensable PM 

Transition Policy. These commenters 

indicate that there are continued 

concerns regarding the EPA’s PM 

regulations that have created 

uncertainty and hardship for the 

regulated community, and specifically 

requests that the EPA include a 

discussion of these policies in the final 

rule preamble for accuracy purposes. 

Response: This preamble includes a 

limited discussion about each of these 

special policies for implementing the 

PM program in section III.C of this 

preamble (New Source Review Program 

for PM). In addition, we have included 

references to earlier actions that provide 

greater details of the respective policies. 

Thus, we do not believe that it is 

necessary to provide more lengthy 

descriptions of the individual policies 

herein. 

E. Other Comments Unrelated to the 

Final Rule 

Several commenters raise concerns of 

either a policy or technical nature 

unrelated to the actions associated with 

this final rule. For example, two 

industry commenters state that EPA 

Method 201A cannot be used to 

accurately measure filterable PM10 and 

PM2.5 from emissions units that use wet 

controls. Another commenter 

recommends that the EPA continue 

work toward development of a 

methodology known as the air dilution 

test methodology. A commenter 

recommends that the EPA accelerate its 

progress toward promulgating complete 

and appropriate modeling and 

monitoring methods necessary to 

provide the required technical support 

for effective and equitable 

implementation of PM2.5 major NSR 

permitting. Finally, one commenter 

requests that the EPA review guidance 

documents to the states to assure that 

the EPA is giving them correct and clear 

direction regarding the need to test 

certified stationary engines. The details 

of these comments can be reviewed in 

the docket where all of the individual 

sets of comments received for this 

rulemaking have been posted. The EPA 

believes that these comments generally 

pertain to broader PM2.5 issues but are 

not relevant to this limited action to 

revise the definition of ‘‘regulated NSR 

pollutant’’ as it applies to condensable 

PM emissions. As such, the issues 

described above are more appropriately 

addressed in forums other than this 

final rule. 

VI. Statutory and Executive Order 

Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review and Executive 

Order 13563: Improving Regulation and 

Regulatory Review 

This action is not a ‘‘significant 

regulatory action’’ under the terms of 

Executive Order 12866 (58 FR 51735, 

October 4, 1993), and is therefore not 

subject to review under Executive 

Orders 12866 and 13563 (76 FR 3821, 

January 21, 2011). 

B. Paperwork Reduction Act 

This action does not impose an 

information collection burden under the 

provisions of the Paperwork Reduction 

Act, 44 U.S.C. 3501 et seq. Burden is 

defined at 5 CFR 1320.3(b). This final 

action removes an unintended 

requirement to include condensable PM 

when quantifying ‘‘particulate matter 

emissions’’ from proposed new major 

stationary sources and major 

modifications subject to the PSD 

program. The change will eliminate an 

unintended burden. 

C. Regulatory Flexibility Act 

The Regulatory Flexibility Act (RFA) 

generally requires an agency to prepare 

a regulatory flexibility analysis of any 

rule subject to notice and comment 

rulemaking requirements under the 

Administrative Procedure Act or any 

other statute unless the agency certifies 

that the rule will not have a significant 

economic impact on a substantial 

number of small entities. Small entities 

include small businesses, small 

organizations and small governmental 

jurisdictions. 

For purposes of assessing the impacts 

of this rule on small entities, ‘‘small 

entity’’ is defined as: (1) A small 

business as defined by the Small 

Business Administration’s regulations at 

13 CFR 121.201; (2) a small 

governmental jurisdiction that is a 

government of a city, county, town, 

school district or special district with a 

population of less than 50,000; and (3) 

a small organization that is any not-forprofit enterprise which is independently 

owned and operated and is not 

dominant in its field. 

After considering the economic 

impacts of this final rule on small 

entities, which removes an unintended 

requirement to include condensable PM 

when quantifying ‘‘particulate matter 

emissions’’ from proposed new major 

stationary sources and major 

modifications, I certify that this action 

will not have a significant economic 

impact on a substantial number of small 

entities. This final rule will not impose 

any requirements on small entities 

because small entities are not subject to 

the requirements of this rule. 

D. Unfunded Mandates Reform Act 

This final action contains no federal 

mandates under the provisions of Title 

II of the Unfunded Mandates Reform 

Act of 1995 (UMRA), 2 U.S.C. 1531– 

1538 for state, local or tribal 

governments or the private sector. The 

action does not impose any enforceable 

duty on any state, local or tribal 

governments or the private sector. This 

action removes an unintended 

requirement to include condensable PM 

when quantifying ‘‘particulate matter 

emissions’’ from proposed new major 

stationary sources and major 

modifications. Thus, this action is not 

subject to the requirements of sections 

202 or 205 of UMRA. 

This final action is also not subject to 

the requirements of section 203 of 

UMRA because it contains no regulatory 

requirements that might significantly or 

uniquely affect small governments. As 

noted above, this final action removes 

an unintended requirement to include 

condensable PM when quantifying 

‘‘particulate matter emissions’’ from 

proposed new major stationary sources 

and major modifications. 

E. Executive Order 13132: Federalism 

This final action does not have 

federalism implications. It will not have 

substantial direct effects on the states, 

on the relationship between the national 

government and the states, or on the 

distribution of power and 

responsibilities among the various 

levels of government, as specified in 

Executive Order 13132. This final action 

removes the unintended requirement to 

include condensable PM when 

quantifying ‘‘particulate matter 

emissions’’ from proposed new major 

stationary sources and major 

modifications. The requirement being 

removed was inadvertently included in 

the 2008 rule for implementation of the 

PM2.5 NSR program. Thus, Executive 

Order 13132 does not apply to this rule. 

Nevertheless, in the spirit of Executive 

Order 13132, and consistent with EPA 

policy to promote communications 

between EPA and state and local 

governments, EPA specifically solicited 

comment on the proposed action from 

state and local officials. 

F. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

This action does not have tribal 

implications, as specified in Executive 

Order 13175 (65 FR 67249, November 9, 

2000). This final action removes the 


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unintended requirement to include 

condensable PM when quantifying 

‘‘particulate matter emissions’’ from 

proposed new major stationary sources 

and major modification. The removed 

requirement was inadvertently included 

in the 2008 rule for implementation of 

the PM2.5 NSR program. 

The Act provides for states to develop 

plans to regulate emissions of air 

pollutants within their jurisdictions. 

The Tribal Air Rule (TAR) under the Act 

gives tribes the opportunity to develop 

and implement Act programs to attain 

and maintain the PM2.5 NAAQS, but 

leaves to the discretion of the tribes the 

decision of whether to develop these 

programs and which programs, or 

appropriate elements of a program, they 

will adopt. Thus, Executive Order 13175 

does not apply to this action. 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

and Safety Risks 

This final action is not subject to 

Executive Order 13045 (62 FR 19885, 

April 23, 1997) because it is not 

economically significant as defined in 

Executive Order 12866, and because the 

agency does not believe the 

environmental health or safety risks 

addressed by this action to eliminate an 

unintended requirement present a 

disproportionate risk to children. The 

removal of this requirement will not 

affect one of the basic requirements of 

the PSD program; that new and 

modified major sources must 

demonstrate that any new emissions do 

not cause or contribute to air quality in 

violation of the NAAQS. 

H. Executive Order 13211—Actions 

That Significantly Affect Energy Supply, 

Distribution, or Use 

This action is not subject to Executive 

Order 13211 (66 FR 28355 (May 22, 

2001)), because it is not a significant 

regulatory action under Executive Order 

12866. 

I. National Technology Transfer and 

Advancement Act 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (NTTAA), Public Law 104– 

113, 12(d) (15 U.S.C. 272 note) directs 

the EPA to use voluntary consensus 

standards in its regulatory activities 

unless to do so would be inconsistent 

with applicable law or otherwise 

impractical. Voluntary consensus 

standards are technical standards (e.g., 

materials specifications, test methods, 

sampling procedures and business 

practices) that are developed or adopted 

by voluntary consensus standards 

bodies. The NTTAA directs the EPA to 

provide Congress, through OMB, 

explanations when the agency decides 

not to use available and applicable 

voluntary consensus standards. 

This action does not involve technical 

standards. Therefore, the EPA did not 

consider the use of any voluntary 

consensus standards. 

J. Executive Order 12898—Federal 

Actions To Address Environmental 

Justice in Minority Populations and 

Low-Income Populations 

Executive Order 12898 (59 FR 7629, 

Feb. 16, 1994) establishes federal 

executive policy on environmental 

justice. Its main provision directs 

federal agencies, to the greatest extent 

practicable and permitted by law, to 

make environmental justice part of their 

mission by identifying and addressing, 

as appropriate, disproportionately high 

and adverse human health or 

environmental effects of their programs, 

policies and activities on minority 

populations and low-income 

populations in the United States. 

The EPA has determined that this 

final rule action to remove an 

inadvertent error that was introduced in 

a 2008 rulemaking will not have adverse 

human health or environmental effects 

on minority or low-income populations 

because it does not appreciably affect 

the level of protection provided to 

human health or the environment. 

K. Congressional Review Act 

The Congressional Review Act, 5 

U.S.C. 801 et seq., as added by the Small 

Business Regulatory Enforcement 

Fairness Act of 1996, generally provides 

that before a rule may take effect, the 

agency promulgating the rule must 

submit a rule report, which includes a 

copy of the rule, to each House of the 

Congress and to the Comptroller General 

of the United States. The EPA will 

submit a report containing this rule and 

other required information to the U.S. 

Senate, the U.S. House of 

Representatives, and the Comptroller 

General of the United States prior to 

publication of the rule in the Federal 

Register. A Major rule cannot take effect 

until 60 days after it is published in the 

Federal Register. This action is not a 

‘‘major rule’’ as defined by 5 U.S.C. 

804(2). This rule will be effective on 

December 24, 2012. 

L. Judicial Review 

Under CAA section 307(b)(1), judicial 

review of this final rule is available only 

by filing a petition for review in the 

United States Court of Appeals for the 

District of Columbia Circuit by 

December 24, 2012. Under CAA section 

307(d)(7)(B), only an objection to this 

final rule that was raised with 

reasonable specificity during the period 

for public comment (including any 

public hearing) can be raised during 

judicial review. This section also 

provides a mechanism for the EPA to 

convene a proceeding for 

reconsideration ‘‘[i]f the person raising 

an objection can demonstrate to the 

Administrator that it was impracticable 

to raise such objection within [the 

period for public comment] or if the 

grounds for such objection arose after 

the period for public comment (but 

within the time specified for judicial 

review) and if such objection is of 

central relevance to the outcome of the 

rule[.]’’ Any person seeking to make 

such a demonstration to us should 

submit a Petition for Reconsideration to 

the Office of the Administrator, 

Environmental Protection Agency, 

Room 3000, Ariel Rios Building, 1200 

Pennsylvania Ave. NW., Washington, 

DC 20004, with a copy to the person 

listed in the preceding FOR FURTHER

INFORMATION CONTACT section, and the 

Associate General Counsel for the Air 

and Radiation Law Office, Office of 

General Counsel (Mail Code 2344A), 

Environmental Protection Agency, 1200 

Pennsylvania Ave. NW., Washington, 

DC 20004. Note, under CAA section 

307(b)(2), the requirements established 

by this final rule may not be challenged 

separately in any civil or criminal 

proceedings brought by the EPA to 

enforce these requirements. 

VII. Statutory Authority 

The statutory authority for this final 

action is provided by sections 101, 160, 

163, 165, 166, 301 and 307(d) of the Act 

as amended (42 U.S.C. 7401, 7470, 7473, 

7475, 7476, 7601 and 7607(d)). 

List of Subjects 

40 CFR Part 51 

Environmental protection, 

Administrative practices and 

procedures, Air pollution control, 

Intergovernmental relations. 

40 CFR Part 52 

Environmental protection, 

Administrative practices and 

procedures, Air pollution control, 

Incorporation by reference, 

Intergovernmental relations. 

Dated: October 12, 2012. 

Lisa P. Jackson, 

Administrator. 

For the reasons stated in the 

preamble, title 40, chapter I of the Code 

of Federal Regulations is amended as 

follows: 


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PART 51—[AMENDED] 

■ 1. The authority citation for part 51 

continues to read as follows: 

Authority: 23 U.S.C. 101; 42 U.S.C. 7401– 

7671q. 

Subpart I—[Amended] 

■ 2. Section 51.166 is amended by 

revising paragraph (b)(49)(i) and by 

removing paragraph (b)(49)(vi). The 

revised text reads as follows: 

§ 51.166 Prevention of significant 

deterioration of air quality. 

* * * * * 

(b) * * * 

(49) * * * 

(i) Any pollutant for which a national 

ambient air quality standard has been 

promulgated. This includes, but is not 

limited to, the following: 

(a) PM2.5 emissions and PM10

emissions shall include gaseous 

emissions from a source or activity 

which condense to form particulate 

matter at ambient temperatures. On or 

after January 1, 2011, such condensable 

particulate matter shall be accounted for 

in applicability determinations and in 

establishing emissions limitations for 

PM2.5 and PM10 in PSD permits. 

Compliance with emissions limitations 

for PM2.5 and PM10 issued prior to this 

date shall not be based on condensable 

particulate matter unless required by the 

terms and conditions of the permit or 

the applicable implementation plan. 

Applicability determinations made prior 

to this date without accounting for 

condensable particulate matter shall not 

be considered in violation of this 

section unless the applicable 

implementation plan required 

condensable particulate matter to be 

included; 

(b) Any pollutant identified under 

this paragraph (b)(49)(i)(b) as a 

constituent or precursor to a pollutant 

for which a national ambient air quality 

standard has been promulgated. 

Precursors identified by the 

Administrator for purposes of NSR are 

the following: 

(1) Volatile organic compounds and 

nitrogen oxides are precursors to ozone 

in all attainment and unclassifiable 

areas. 

(2) Sulfur dioxide is a precursor to 

PM2.5 in all attainment and 

unclassifiable areas. 

(3) Nitrogen oxides are presumed to 

be precursors to PM2.5 in all attainment 

and unclassifiable areas, unless the 

State demonstrates to the 

Administrator’s satisfaction or EPA 

demonstrates that emissions of nitrogen 

oxides from sources in a specific area 

are not a significant contributor to that 

area’s ambient PM2.5 concentrations. 

(4) Volatile organic compounds are 

presumed not to be precursors to PM2.5

in any attainment or unclassifiable area, 

unless the State demonstrates to the 

Administrator’s satisfaction or EPA 

demonstrates that emissions of volatile 

organic compounds from sources in a 

specific area are a significant 

contributor to that area’s ambient PM2.5

concentrations. 

* * * * * 

■ 3. Appendix S to Part 51 is amended 

by revising paragraph II.A.31(ii) and by 

removing paragraphs II.A.31(iii) and 

(iv). The revised text reads as follows: 

Appendix S to Part 51—Emission Offset 

Interpretative Ruling 

* * * * * 

II. * * * 

A. * * * 

31. * * * 

(ii) Any pollutant for which a national 

ambient air quality standard has been 

promulgated. This includes, but is not 

limited to, the following: 

(a) PM2.5 emissions and PM10 emissions 

shall include gaseous emissions from a 

source or activity, which condense to form 

particulate matter at ambient temperatures. 

On or after January 1, 2011, such 

condensable particulate matter shall be 

accounted for in applicability determinations 

and in establishing emissions limitations for 

PM2.5 and PM10 in permits issued under this 

ruling. Compliance with emissions 

limitations for PM2.5 and PM10 issued prior 

to this date shall not be based on 

condensable particulate matter unless 

required by the terms and conditions of the 

permit or the applicable implementation 

plan. Applicability determinations made 

prior to this date without accounting for 

condensable particulate matter shall not be 

considered in violation of this section unless 

the applicable implementation plan required 

condensable particulate matter to be 

included. 

(b) Any pollutant that is identified under 

this paragraph II.A.31(ii)(2) as a constituent 

or precursor of a general pollutant listed 

under paragraph II.A.31(i) or (ii) of this 

Ruling, provided that such constituent or 

precursor pollutant may only be regulated 

under NSR as part of regulation of the general 

pollutant. Precursors identified by the 

Administrator for purposes of NSR are the 

following: 

(1) Volatile organic compounds and 

nitrogen oxides are precursors to ozone in all 

ozone nonattainment areas. 

(2) Sulfur dioxide is a precursor to PM2.5

in all PM2.5 nonattainment areas. 

* * * * * 

PART 52—[Amended] 

■ 4. The authority citation for part 52 

continues to read as follows: 

Authority: 42 U.S.C. 7401 et seq. 

Subpart A—[Amended] 

■ 5. Section 52.21 is amended by 

revising paragraph (b)(50)(i) and by 

removing paragraph (b)(50)(vi). The 

revised text reads as follows: 

§ 52.21 Prevention of significant 

deterioration of air quality. 

* * * * * 

(b) * * * 

(50) * * * 

(i) Any pollutant for which a national 

ambient air quality standard has been 

promulgated. This includes, but is not 

limited to, the following: 

(a) PM2.5 emissions and PM10

emissions shall include gaseous 

emissions from a source or activity, 

which condense to form particulate 

matter at ambient temperatures. On or 

after January 1, 2011, such condensable 

particulate matter shall be accounted for 

in applicability determinations and in 

establishing emissions limitations for 

PM2.5 and PM10 in PSD permits. 

Compliance with emissions limitations 

for PM2.5 and PM10 issued prior to this 

date shall not be based on condensable 

particulate matter unless required by the 

terms and conditions of the permit or 

the applicable implementation plan. 

Applicability determinations made prior 

to this date without accounting for 

condensable particulate matter shall not 

be considered in violation of this 

section unless the applicable 

implementation plan required 

condensable particulate matter to be 

included. 

(b) Any pollutant identified under 

this paragraph (b)(50)(i)(b) as a 

constituent or precursor for a pollutant 

for which a national ambient air quality 

standard has been promulgated. 

Precursors identified by the 

Administrator for purposes of NSR are 

the following: 

(1) Volatile organic compounds and 

nitrogen oxides are precursors to ozone 

in all attainment and unclassifiable 

areas. 

(2) Sulfur dioxide is a precursor to 

PM2.5 in all attainment and 

unclassifiable areas. 

(3) Nitrogen oxides are presumed to 

be precursors to PM2.5 in all attainment 

and unclassifiable areas, unless the 

State demonstrates to the 

Administrator’s satisfaction or EPA 

demonstrates that emissions of nitrogen 

oxides from sources in a specific area 

are not a significant contributor to that 

area’s ambient PM2.5 concentrations. 

(4) Volatile organic compounds are 

presumed not to be precursors to PM2.5

in any attainment or unclassifiable area, 

unless the State demonstrates to the 

Administrator’s satisfaction or EPA 


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Federal Register / Vol. 77, No. 207 / Thursday, October 25, 2012 / Rules and Regulations 65119 

demonstrates that emissions of volatile 

organic compounds from sources in a 

specific area are a significant 

contributor to that area’s ambient PM2.5

concentrations. 

* * * * * 

[FR Doc. 2012–25978 Filed 10–24–12; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R06–OAR–2011–0332; FRL—9743–6] 

Approval and Promulgation of 

Implementation Plans; Texas; 

Revisions to the New Source Review 

(NSR) State Implementation Plan (SIP); 

Antibacksliding of Major NSR SIP 

Requirements for the One-Hour Ozone 

National Ambient Air Quality 

Standards (NAAQS); Major 

Nonattainment NSR (NNSR) SIP 

Requirements for the 1997 Eight-Hour 

Ozone NAAQS; and Major NSR Reform 

Program 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: EPA is approving revisions to 

the SIP for the State of Texas that relate 

to antibacksliding of Major NSR SIP 

Requirements for the one-hour ozone 

NAAQS; Major NNSR SIP requirements 

for the 1997 eight-hour ozone NAAQS; 

Major NSR Reform Program with 

Plantwide Applicable Limit (PAL) 

provisions; and non-PAL aspects of the 

Major NSR SIP requirements, because 

these changes comply with the Federal 

Clean Air Act (the Act or CAA) and EPA 

regulations and are consistent with EPA 

policies. Texas submitted revisions to 

these programs in two separate SIP 

submittals on March 11, 2011. On 

August 29, 2012, Texas submitted SIP 

revisions (adopted July 25, 2012) that it 

had previously proposed February 22, 

2012, for parallel processing. On May 3, 

2012, Texas provided a letter to EPA 

which included a demonstration 

showing how its submitted rules are at 

least as stringent as the Federal NSR 

Reform Program. EPA proposed 

approval of these revisions on June 20, 

2012. Today, EPA is approving the two 

SIP revisions submitted March 11, 2011; 

the revisions submitted August 29, 

2012; and the May 3, 2012, letter as part 

of the Texas NSR SIP. EPA is approving 

these provisions under section 110 and 

parts C and D of the Act. 

DATES: This rule is effective on 

November 26, 2012. 

ADDRESSES: EPA has established a 

docket for this action under Docket ID 

No. EPA–R06–OAR–2011–0332. All 

documents in this docket are listed on 

the http://www.regulations.gov Web 

site. Although listed in the index, some 

information is not publically available, 

e.g., Confidential Business Information 

or other information whose disclosure is 

restricted by statute. Certain other 

material, such as copyrighted material, 

is not placed on the Internet and will be 

publically available only in hard copy 

form. Publically available docket 

materials are available either 

electronically through http:// 

www.regulations.gov or in hard copy at 

the Air Permits Section (6PD–R), 

Environmental Protection Agency, 1445 

Ross Avenue, Suite 700, Dallas, Texas 

75202–2733. The file will be made 

available by appointment for public 

inspection in the Region 6 Freedom of 

Information Act Review Room between 

the hours of 8:30 a.m. and 4:30 p.m. 

weekdays except for legal holidays. 

Contact the person listed in the FOR

FURTHER INFORMATION CONTACT

paragraph below or Mr. Bill Deese at 

(214) 665–7253 to make an 

appointment. If possible, please make 

the appointment at least two working 

days in advance of your visit. There will 

be a 15 cent per page fee for making 

photocopies of documents. On the day 

of the visit, please check in at the EPA 

Region 6 reception area at 1445 Ross 

Avenue, Suite 700, Dallas, Texas. 

The State submittals, which are part 

of the EPA docket, are also available for 

public inspection at the State Air 

Agency during official business hours 

by appointment: Texas Commission on 

Environmental Quality (TCEQ), Office 

of Air Quality, 12124 Park 35 Circle, 

Austin, Texas 78753. 

FOR FURTHER INFORMATION CONTACT: Mr. 

Stanley M. Spruiell, Air Permits Section 

(6PD–R), Environmental Protection 

Agency, Region 6, 1445 Ross Avenue, 

Suite 700, Dallas, Texas 75202–2733; 

telephone (214) 665–7212; fax number 

(214) 665–6762; email address 

spruiell.stanley@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Throughout this document whenever 

any reference to ‘‘we,’’ ‘‘us,’’ or ‘‘our’’ is 

used, we mean EPA. 

Table of Contents 

I. Background 

A. What is the background of the Texas 

programs for major NSR for the eighthour NAAQS for ozone and for NSR 

reform? 

B. What changes did Texas submit? 

C. Proposal and Public Comments 

D. Overview of Today’s Final Rule 

II. What comments did we receive and what 

is our response to the comments? 

III. Final Action 

V. Statutory and Executive Order Reviews 

I. Background 

A. What is the background of the Texas 

programs for major NSR for the eighthour NAAQS for ozone and for NSR 

reform? 

1. Major NSR for the Eight-Hour 

NAAQS for Ozone 

On April 30, 2004, EPA promulgated 

regulations (69 FR 23858) that included 

requirements for implementing Major 

NSR for the 1997 eight-hour ozone 

NAAQS. On May 25, 2005, the TCEQ 

adopted SIP revisions to implement 

these requirements and submitted them 

to EPA on June 10, 2005. The EPA 

disapproved these regulations on 

September 15, 2010 (75 FR 56424) 

because the State’s regulations did not 

meet the requirements of the Act, 

Federal regulations, and were not 

consistent with EPA policy. On March 

11, 2011, TCEQ resubmitted the 

revisions adopted May 25, 2005, and 

submitted further revisions, adopted 

February 9, 2011, to address EPA’s 

September 15, 2010, disapproval. 

Sections I.B and I.D of this preamble 

include further details on TCEQ’s 

submission. 

2. NSR Reform 

On December 31, 2002 (67 FR 80186), 

EPA promulgated its NSR Reform 

Program. On November 7, 2003 (68 FR 

63021), EPA promulgated a final action 

on its reconsideration of the December 

31, 2002, NSR Reform Program’s rules. 

On January 11, 2006, TCEQ adopted its 

regulations for NSR Reform and on 

February 1, 2006, submitted these 

regulations to EPA for SIP approval. 

EPA disapproved these regulations on 

September 15, 2010 (75 FR 56424) 

because the State’s regulations did not 

meet the requirements of the Act, 

Federal regulations, and were not 

consistent with EPA policy. On March 

11, 2011, TCEQ resubmitted the 

revisions adopted January 11, 2006, and 

submitted further revisions, adopted 

February 9, 2011, to address the grounds 

for EPA’s September 15, 2010, 

disapproval. On February 22, 2012, 

TCEQ proposed additional revisions to 

these regulations and requested that 

EPA parallel process these revisions 

with the revisions submitted March 11, 

2011, based upon the revisions that 

TCEQ proposed February 22, 2012. The 

TCEQ adopted these proposed revisions 

on July 25, 2012, and submitted them to 

EPA on August, 29, 2012. Finally, TCEQ 

submitted a letter dated May 3, 2012, to 


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