Federal Register / Vol. 75, No. 28 / Thursday, February 11, 2010 / Proposed Rules 6827 

notice is also subject to section 307(d) 

of the CAA (42 U.S.C. 7407(d)). 

List of Subjects 

40 CFR Part 51 

Administrative practices and 

procedures, Air pollution control, 

Carbon monoxide, Fugitive emissions, 

Intergovernmental relation, Lead, 

Nitrogen dioxide, Ozone, Particulate 

matter, Reporting and recordkeeping 

requirements, Sulfur oxides, 

Transportation, Volatile organic 

compounds. 

40 CFR Part 52 

Administrative practices and 

procedures, Air pollution control, 

Carbon monoxide, Fugitive emissions, 

Intergovernmental relation, Lead, 

Nitrogen dioxide, Ozone, Particulate 

matter, Reporting and recordkeeping 

requirements, Sulfur oxides, 

Transportation, Volatile organic 

compounds. 

Dated: February 4, 2010. 

Lisa P. Jackson, 

Administrator. 

[FR Doc. 2010–2965 Filed 2–10–10; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R06–OAR–2006–0569; FRL–9112–2] 

Approval of Air Quality Implementation 

Plans; New Mexico; Albuquerque/ 

Bernalillo County 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: The EPA is proposing 

revisions to the State Implementation 

Plan submitted by the Governor of New 

Mexico on May 24, 2006. The revisions 

address Title 20 of the New Mexico 

Administrative Code, Chapter 11, Part 

102 (denoted 20.11.102 NMAC), which 

apply to oxygenated fuels in the 

Albuquerque/Bernalillo County area. 

The revisions include editorial and 

substantive changes that clarify the 

requirements under 20.11.102 NMAC. 

We are proposing to approve these 

revisions in accordance with the 

requirements of section 110 of the Clean 

Air Act. 

DATES: Written comments must be 

received on or before March 15, 2010. 

ADDRESSES: Comments may be mailed to 

Mr. Guy Donaldson, Chief, Air Planning 

Section (6PD–L), Environmental 

Protection Agency, 1445 Ross Avenue, 

Suite 1200, Dallas, Texas 75202–2733. 

Comments may also be submitted 

electronically or through hand delivery/ 

courier by following the detailed 

instructions in the ADDRESSES section of 

the direct final rule located in the rules 

section of this Federal Register. 

FOR FURTHER INFORMATION CONTACT: 

Carrie Paige, Air Planning Section 

(6PD–L), Environmental Protection 

Agency, Region 6, 1445 Ross Avenue, 

Suite 700, Dallas, Texas 75202–2733, 

telephone (214) 665–6521; fax number 

214–665–7263; e-mail address 

paige.carrie@epa.gov. 

SUPPLEMENTARY INFORMATION: In the 

final rules section of this Federal 

Register, EPA is approving the State’s 

SIP submittal as a direct final rule 

without prior proposal because the 

Agency views this as a noncontroversial 

submittal and anticipates no adverse 

comments. A detailed rationale for the 

approval is set forth in the direct final 

rule. If no relevant adverse comments 

are received in response to this action, 

no further activity is contemplated. If 

EPA receives adverse comments, the 

direct final rule will be withdrawn and 

all public comments received will be 

addressed in a subsequent final rule 

based on this proposed rule. EPA will 

not institute a second comment period. 

Any parties interested in commenting 

on this action should do so at this time. 

Please note that if EPA receives adverse 

comment on an amendment, paragraph, 

or section of this rule and if that 

provision may be severed from the 

remainder of the rule, EPA may adopt 

as final those provisions of the rule that 

are not the subject of an adverse 

comment. 

For additional information, see the 

direct final rule, which is located in the 

rules section of this Federal Register. 

Dated: January 15, 2010. 

Al Armendariz, 

Regional Administrator, Region 6. 

[FR Doc. 2010–2791 Filed 2–10–10; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–HQ–OAR–2003–0062: FRL–9113–2] 

RIN 2060–AP75 

Implementation of the New Source 

Review (NSR) Program for Particulate 

Matter Less Than 2.5 Micrometers 

(PM2.5); Notice of Proposed 

Rulemaking To Repeal Grandfathering 

Provision and End the PM10 Surrogate 

Policy 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: In this action, in response to 

a petition for reconsideration, EPA is 

proposing two actions that would end 

EPA’s 1997 policy that allows sources 

and permitting authorities to use a 

demonstration of compliance with the 

prevention of significant deterioration 

(PSD) requirements for particulate 

matter less than 10 micrometers (PM10) 

as a surrogate for meeting the PSD 

requirements for particulate matter less 

than 2.5 micrometers (PM2.5). First, in 

accordance with the Administrator’s 

commitment to the petitioners in a letter 

dated April 24, 2009, the EPA is 

proposing to repeal the ‘‘grandfathering’’ 

provision for PM2.5 contained in the 

Federal PSD program. Second, EPA is 

proposing to end early the PM10

Surrogate Policy applicable in States 

that have an approved PSD program in 

their State Implementation Plan (‘‘SIPapproved States’’). 

DATES: Comments. Comments must be 

received on or before March 15, 2010. 

Public Hearing. If anyone contacts 

EPA requesting the opportunity to speak 

at a public hearing concerning the 

proposed regulation by February 22, 

2010, EPA will hold a public hearing on 

February 26, 2010. If a hearing is held, 

the record for the hearing will remain 

open until March 29, 2010. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–HQ– 

OAR–2003–0062, by one of the 

following methods: 

• http://www.regulations.gov. Follow 

the online instructions for submitting 

comments. 

• E-mail: a-and-r-docket@epa.gov. 

• Mail: Air and Radiation Docket, 

Environmental Protection Agency, Mail 

code 6102T, 1200 Pennsylvania Avenue, 

NW., Washington, DC 20460. Please 

include a total of two copies. 

• Hand Delivery: EPA Docket Center, 

Public Reading Room, EPA West, Room 

3334, 1301 Constitution Ave., NW., 


cprice-sewell on DSK2BSOYB1PROD with PROPOSALS
6828 Federal Register / Vol. 75, No. 28 / Thursday, February 11, 2010 / Proposed Rules 

Washington, DC 20460. Such deliveries 

are only accepted during the Docket’s 

normal hours of operation, and special 

arrangements should be made for 

deliveries of boxed information. 

Instructions: Direct your comments to 

the applicable docket. EPA’s policy is 

that all comments received will be 

included in the public docket without 

change and may be made available 

online at http://www.regulations.gov, 

including any personal information 

provided, unless the comment includes 

information claimed to be confidential 

business information (CBI) or other 

information whose disclosure is 

restricted by statute. Do not submit 

information that you consider to be CBI 

or otherwise protected through http:// 

www.regulations.gov or e-mail. The 

http://www.regulations.gov Web site is 

an ‘‘anonymous access’’ system, which 

means EPA will not know your identity 

or contact information unless you 

provide it in the body of your comment. 

If you send an e-mail comment directly 

to EPA without going through http:// 

www.regulations.gov, your e-mail 

address will be automatically captured 

and included as part of the comment 

that is placed in the public docket and 

made available on the Internet. If you 

submit an electronic comment, EPA 

recommends that you include your 

name and other contact information in 

the body of your comment and with any 

disk or CD–ROM you submit. If EPA 

cannot read your comment due to 

technical difficulties and cannot contact 

you for clarification, EPA may not be 

able to consider your comment. 

Electronic files should avoid the use of 

special characters, any form of 

encryption, and be free of any defects or 

viruses. 

Docket: All documents in the docket 

are listed in the http:// 

www.regulations.gov index. Although 

listed in the index, some information is 

not publicly available, e.g., 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 http:// 

www.regulations.gov or in hard copy at 

the EPA Docket Center, Public Reading 

Room, EPA West, Room 3334, 1301 

Constitution Ave., NW., 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) 566–1742, 

and the telephone number for the Air 

Docket is (202) 566–1744. 

Public Hearing. If a public hearing is 

held, it will be held at the U.S. 

Environmental Protection Agency, 1200 

Pennsylvania Avenue, Washington, DC 

20004. 

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 e-mail 

address: deroeck.dan@epa.gov. 

To request a public hearing or 

information pertaining to a public 

hearing on this document, contact Ms. 

Pamela Long, Air Quality Policy 

Division, Office of Air Quality Planning 

and Standards (C504–03), 

Environmental Protection Agency, 

Research Triangle Park, North Carolina 

27711; telephone number (919) 541– 

0641; fax number (919) 541–5509; email address: long.pam@epa.gov. 

SUPPLEMENTARY INFORMATION: 

I. General Information 

A. Does this action apply to me? 

Entities affected by this proposed 

action include: (1) Those proposed new 

and modified major stationary sources 

subject to the Federal PSD program that 

submitted a complete application for a 

PSD permit before the July 15, 2008 

effective date of the PM2.5 New Source 

Review (NSR) Implementation Rule, but 

have not yet received a final and 

effective permit authorizing the source 

to commence construction, and (2) those 

proposed new and modified major 

stationary sources, subject to a PSD 

program in SIP-approved States, that 

have not yet received a final and 

effective permit authorizing the source 

to commence construction. 

EPA estimates that about twenty-one 

proposed new sources or modifications 

would be affected by the proposed 

repeal of the grandfathering provision. 

At least two projects known to have 

been grandfathered have already 

received final permits to construct (that 

are effective) prior to EPA taking action 

to stay the provision, but EPA is not 

proposing that this repeal would apply 

retroactively to such permits. 

The entities potentially affected by a 

proposal to end early the use of the 

PM10 Surrogate Policy in SIP-approved 

States include proposed new and 

modified major stationary sources in all 

industry groups. The majority of sources 

potentially affected are expected to be in 

the following groups: 

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.

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 proposal also 

include State and local reviewing 

authorities, and Indian country, where 

affected new and modified major 

stationary sources would locate. 

B. What should I consider as I prepare 

my comments for EPA? 

1. Submitting CBI. Do not submit 

information containing CBI to EPA 

through http://www.regulations.gov or 

e-mail. Send or deliver information 

identified as CBI only to the following 

address: Mr. Roberto Morales, OAQPS 

Document Control Officer (C404–02), 

U.S. EPA, Office of Air Quality Planning 

and Standards, Research Triangle Park, 

North Carolina 27711, Attention: Docket 


cprice-sewell on DSK2BSOYB1PROD with PROPOSALS
Federal Register / Vol. 75, No. 28 / Thursday, February 11, 2010 / Proposed Rules 6829 

1 In this proposal, the terms ‘‘we,’’ ‘‘us,’’ and ‘‘our,’’ 

refer to the EPA. 

2We have delegated our authority to some States 

that lack an approved PSD program in their SIPs but 

have requested the authority to implement the 

Federal PSD program. The EPA remains the 

reviewing authority in non-delegated States lacking 

SIP-approved programs and in Indian country. 

ID EPA–HQ–OAR–2003–0062. Clearly 

mark the part or all of the information 

that you claim to be CBI. For CBI 

information in a disk or CD–ROM that 

you mail to EPA, mark the outside of the 

disk or CD–ROM as CBI and then 

identify electronically within the disk or 

CD–ROM the specific information that 

is claimed as CBI. In addition to one 

complete version of the comment that 

includes information claimed as CBI, a 

copy of the comment that does not 

contain the information claimed as CBI 

must be submitted for inclusion in the 

public docket. Information so marked 

will not be disclosed except in 

accordance with procedures set forth in 

40 CFR part 2. 

2. Tips for Preparing Your Comments. 

When submitting your comments, 

remember to: 

• Identify the rulemaking by docket 

number and other identifying 

information (subject heading, Federal 

Register date and page number). 

• Follow directions—The Agency 

may ask you to respond to specific 

questions or organize comments by 

referencing a Code of Federal 

Regulations (CFR) part or section 

number. 

• Explain why you agree or disagree, 

suggest alternatives, and substitute 

language for your requested changes. 

• If you estimate potential costs or 

burdens, explain how you arrived at 

your estimate in sufficient detail to 

allow for it to be reproduced. 

• Provide specific examples to 

illustrate your concerns, and suggest 

alternatives. 

• Explain your views as clearly as 

possible, avoiding the use of profanity 

or personal threats. 

• Make sure to submit your 

comments by the comment period 

deadline identified. 

C. 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 

proposed rule will also be available on 

the World Wide Web. Following 

signature by the EPA Administrator, a 

copy of this proposed rule will be 

posted in the regulations and standards 

section of our NSR home page located 

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

D. How can I find information about a 

possible Public Hearing? 

To request a public hearing or 

information pertaining to a public 

hearing on this document, contact Ms. 

Pamela Long, Air Quality Policy 

Division, Office of Air Quality Planning 

and Standards (C504–03), 

Environmental Protection Agency, 

Research Triangle Park, North Carolina 

27711; telephone number (919) 541– 

0641; fax number (919) 541–5509; email address: long.pam@epa.gov. 

E. How is this preamble organized? 

I. General Information 

A. Does this action apply to me? 

B. What should I consider as I prepare my 

comments for EPA? 

C. Where can I get a copy of this document 

and other related information? 

D. How can I find information about a 

possible Public Hearing? 

E. How is this preamble organized? 

II. Background 

A. Prevention of Significant Deterioration 

(PSD) Program 

B. Fine Particulate Matter and the NAAQS 

for PM2.5

C. How is the PSD program for PM2.5

implemented? 

D. Case Law Relevant to the Use of the 

PM10 Surrogate Policy 

III. Transition to the PM2.5 Requirements for 

States Lacking EPA–Approved PSD 

Programs 

A. What is the existing grandfathering 

provision for PM2.5? 

B. Petitioner’s 2008 Challenge to the 

Grandfathering Provision for PM2.5

C. Petitioner’s 2009 Petition Seeking 

Reconsideration and a Stay of the 

Grandfathering Provision for PM2.5

D. Why is EPA proposing to repeal the 

grandfathering provision for PM2.5? 

E. What are the effects of repealing the 

grandfathering provision for PM2.5? 

IV. Ending the PM10 Surrogate Policy in SIPapproved States 

A. What is the current status of the PM10

Surrogate Policy in SIP-approved States? 

B. Petitioner’s 2009 Petition Seeking 

Reconsideration of the Continued Use of 

the PM10 Surrogate Policy during the 

Three-year Transition Period 

C. Why is EPA proposing to end the PM10

Surrogate Policy in SIP-approved States? 

D. What are the effects of ending the PM10

Surrogate Policy in SIP-approved States? 

V. Statutory and Executive Order Reviews 

A. Executive Order 12866: Regulatory 

Planning and 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 

Concerning Regulations 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. Determination Under Section 307(d) 

VI. Statutory Authority 

II. Background 

A. Prevention of Significant 

Deterioration (PSD) Program 

The NSR provisions of the Clean Air 

Act (Act) are a combination of air 

quality planning and air pollution 

control technology program 

requirements for new and modified 

major stationary sources of air pollution. 

Section 109 of the Act requires EPA to 

promulgate primary national ambient 

air quality standards (NAAQS or 

standards) to protect public health and 

secondary NAAQS to protect public 

welfare. Once we 1 have set these 

standards, States must develop, adopt, 

and submit to us for approval SIPs that 

contain emission limitations and other 

control measures to attain and maintain 

the NAAQS and to meet the other 

requirements of section 110(a) of the 

Act. 

Part C of title I of the Act contains the 

requirements for a component of the 

major NSR program known as the PSD 

program. The PSD program sets forth 

procedures for the preconstruction 

review and permitting of new and 

modified major stationary sources of air 

pollution locating in areas meeting the 

NAAQS (‘‘attainment’’ areas) and areas 

for which there is insufficient 

information to classify an area as either 

attainment or nonattainment 

(‘‘unclassifiable’’ areas). In most States, 

EPA has approved a PSD permit 

program that is part of the applicable 

SIP. The Federal PSD program at 40 CFR 

52.21 applies in States that lack a SIPapproved PSD permit program, and in 

Indian country.2 The applicability of the 

PSD program to a new major stationary 

source or major modification must be 

determined in advance of construction 

and is a pollutant-specific 

determination. Once a major new source 

or major modification is determined to 

be subject to the PSD program (i.e., a 

PSD source), among other requirements, 

it must undertake a series of analyses for 

each NSR regulated pollutant subject to 

review to demonstrate that it will use 

the best available control technology 

(BACT) and will not cause or contribute 

to a violation of any NAAQS or 

increment. In cases where the source’s 

emissions of any NSR regulated 

pollutant may adversely affect an area 

specially classified as ‘‘Class I,’’ 


cprice-sewell on DSK2BSOYB1PROD with PROPOSALS
6830 Federal Register / Vol. 75, No. 28 / Thursday, February 11, 2010 / Proposed Rules 

3Available in the docket for this rulemaking, ID 

No. EPA–HQ–OAR–2003–0062, and at http:/ 

www.epa.gov/region07/programs/artd/air/nsr/ 

nsrmemos/pm25.pdf. 

additional review must be conducted to 

protect the Class I area’s increments and 

special attributes referred to as ‘‘air 

quality related values.’’ 

Under certain circumstances, EPA has 

previously allowed proposed new major 

sources and major modifications that 

have submitted a complete PSD permit 

application before the effective date of 

an amendment to the PSD regulations, 

but have not yet received a final and 

effective PSD permit, to continue 

relying on information already in the 

application rather than immediately 

having to amend applications to 

demonstrate compliance with the new 

PSD requirements. In such a way, these 

proposed sources and modifications 

were ‘‘grandfathered’’ or exempted from 

the new PSD requirements that would 

otherwise have applied to them. 

For example, the Federal PSD 

regulations at 40 CFR 52.21(i)(1)(x) 

provide that the owners or operators of 

proposed sources or modifications that 

submitted a complete permit 

application before July 31, 1987, but did 

not yet receive the PSD permit, are not 

required to meet the requirements for 

PM10, but could instead satisfy the 

requirements for total suspended 

particulate matter that were previously 

in effect. 

In addition, EPA has allowed some 

grandfathering for permit applications 

submitted before the effective date of an 

amendment to the PSD regulations 

establishing new maximum allowable 

increases in pollutant concentrations 

(also known as PSD increments). The 

Federal PSD regulations at 40 CFR 

52.21(i)(10) provide that proposed 

sources or modifications that submitted 

a complete permit application before the 

effective date of the increment in the 

applicable implementation plan are not 

required to meet the increment 

requirements for particulate matter less 

than 10 microns, but could instead 

satisfy the increment requirements for 

total suspended particulate matter that 

were previously in effect. Also, 40 CFR 

52.21(b)(i)(9) provides that sources or 

modifications that submitted a complete 

permit application before the provisions 

embodying the maximum allowable 

increase for nitrogen oxides (the NO2

increments) took effect, but did not yet 

receive a final and effective PSD permit, 

are not required to demonstrate 

compliance with the new increment 

requirements to be eligible to receive the 

permit. 

When the reviewing authority reaches 

a preliminary decision to authorize 

construction of a proposed major new 

source or major modification, the 

authority must provide notice of the 

preliminary decision and an 

opportunity for comment by the general 

public, industry, and other persons that 

may be affected by the emissions of the 

proposed major source or major 

modification. After considering these 

comments, the reviewing authority may 

issue a final determination on the 

construction permit in accordance with 

the PSD regulations. However, under 

EPA regulations at 40 CFR part 124 and 

similar State regulations, an 

administrative appeal of a permitting 

determination may prevent the permit 

from becoming final and effective until 

the appeal is resolved. 

B. Fine Particulate Matter and the 

NAAQS for PM2.5

Fine particles in the atmosphere are 

made up of a complex mixture of 

components. Common constituents 

include sulfate (SO4); nitrate (NO3); 

ammonium; elemental carbon; a great 

variety of organic compounds; and 

inorganic material (including metals, 

dust, sea salt, and other trace elements) 

generally referred to as ‘‘crustal’’ 

material, although it may contain 

material from other sources. Airborne 

particulate matter with a nominal 

aerodynamic diameter of 2.5 

micrometers or less (a micrometer is 

one-millionth of a meter, and 2.5 

micrometers is less than one-seventh the 

average width of a human hair) is 

considered to be ‘‘fine particles,’’ and is 

also known as PM2.5. ‘‘Primary’’ particles 

are emitted directly into the air as a 

solid or liquid particle (e.g., elemental 

carbon from diesel engines or fire 

activities, or condensable organic 

particles from gasoline engines). 

‘‘Secondary’’ particles (e.g., SO4 and 

NO3) form in the atmosphere as a result 

of various chemical reactions. 

The health effects associated with 

exposure to PM2.5 are significant. 

Epidemiological studies have shown a 

significant correlation between elevated 

PM2.5 levels and premature mortality. 

Other important effects associated with 

PM2.5 exposure include aggravation of 

respiratory and cardiovascular disease 

(as indicated by increased hospital 

admissions, emergency room visits, 

absences from school or work, and 

restricted activity days), lung disease, 

decreased lung function, asthma attacks, 

and certain cardiovascular problems. 

Individuals particularly sensitive to 

PM2.5 exposure include older adults, 

people with heart and lung disease, and 

children. 

On July 18, 1997, we revised the 

NAAQS for PM to add new standards 

for fine particles, using PM2.5 as the 

indicator. We established health-based 

(primary) annual and 24-hour standards 

for PM2.5. See 62 FR 38652. We set an 

annual standard at a level of 15 

micrograms per cubic meter (μg/m3) and 

a 24-hour standard at a level of 65 μg/ 

m3. At the time we established the 

primary standards in 1997, we also 

established welfare-based (secondary) 

standards identical to the primary 

standards. The secondary standards are 

designed to protect against major 

environmental effects of PM2.5 such as 

visibility impairment, soiling, and 

materials damage. 

On October 17, 2006, we revised the 

primary and secondary NAAQS for 

PM2.5 and PM10. In that rulemaking, we 

reduced the 24-hour NAAQS for PM2.5

to 35 μg/m3 and retained the existing 

annual PM2.5 NAAQS of 15 μg/m3. In 

addition, we retained PM10 as the 

indicator for coarse PM, retained the 

existing PM10 24-hour NAAQS of 150 

μg/m3, and revoked the annual PM10

NAAQS (which had previously been set 

at 50 μg/m3). See 71 FR 61236. 

C. How is the PSD program for PM2.5

implemented? 

After we promulgated the NAAQS for 

PM2.5 in 1997, we issued a guidance 

document entitled ‘‘Interim 

Implementation for the New Source 

Review Requirements for PM2.5’’ (John S. 

Seitz, EPA, October 23, 1997).3 That 

guidance was designed to help States 

implement the Act requirements for 

PSD pertaining to the new PM2.5

NAAQS and PM2.5 as a regulated 

pollutant in light of known technical 

difficulties to addressing PM2.5. 

Specifically, section 165(a)(1) of the Act 

provides that no new or modified major 

source may be constructed without a 

PSD permit that meets all of the section 

165(a) requirements with respect to the 

regulated pollutant. Moreover, section 

165(a)(3) provides that the emissions 

from any such source may not cause or 

contribute to a violation of any NAAQS. 

Also, section 165(a)(4) requires BACT 

for each pollutant subject to PSD 

regulation. The 1997 guidance states 

that sources are allowed to use 

implementation of a PM10 program as a 

surrogate for meeting PM2.5 NSR 

requirements until certain difficulties 

concerning PM2.5 are resolved, 

including the lack of necessary tools to 

calculate the emissions of PM2.5 and 

related precursors, the lack of adequate 

modeling techniques to project ambient 

impacts, and the lack of PM2.5

monitoring sites. 

On May 16, 2008, EPA published a 

final rule containing requirements for 


cprice-sewell on DSK2BSOYB1PROD with PROPOSALS
Federal Register / Vol. 75, No. 28 / Thursday, February 11, 2010 / Proposed Rules 6831 

State and Tribal plans to implement the 

Act’s preconstruction review provisions 

for the 1997 PM2.5 NAAQS in both 

attainment and nonattainment areas. 73 

FR 28321. The rule, with two 

exceptions, requires that major 

stationary sources seeking permits must 

begin directly satisfying the PM2.5

requirements as of the effective date of 

the new rule, rather than relying on the 

1997 PM10 Surrogate Policy. First, in 

PM2.5 attainment (or unclassifiable) 

areas, the new PSD requirements under 

40 CFR 51.166 set forth the PM2.5

requirements for States with SIPapproved programs to include in their 

State PSD programs; similar 

requirements were added to 40 CFR 

52.21—the Federal PSD program—for 

EPA (or, where applicable, delegated 

State agencies) to use for implementing 

the new PM2.5 requirements in States 

lacking approved PSD programs in their 

SIPs. 

Second, in PM2.5 nonattainment areas, 

new requirements were added to 40 CFR 

51.165 to enable States to address the 

PM2.5 NAAQS as part of a 

nonattainment NSR program. During the 

period of time allowed for States to 

amend their existing nonattainment 

NSR programs to address the new PM2.5

requirements, States are allowed to rely 

on the procedures under 40 CFR part 51 

appendix S (‘‘The Interpretative Rule’’) 

to issue permits to new or modified 

major stationary sources proposing to 

locate in a PM2.5 nonattainment area. In 

the preamble to the May 2008 final rule, 

EPA indicated that, in any State that 

was unable to apply the PM2.5

requirements of appendix S, EPA would 

act as the reviewing authority for the 

relevant PM2.5 portions of the 

nonattainment NSR permit. See 73 FR at 

28342. 

As mentioned, there were two 

exceptions to the imposition of new 

PM2.5 requirements to replace the use of 

the 1997 PM10 Surrogate Policy for 

issuing construction permits. The May 

2008 final rule included a 

grandfathering provision for PM2.5 in the 

Federal PSD program at 40 CFR 52.21. 

This grandfathering provision applied to 

sources that had applied for, but had not 

yet received, a final and effective PSD 

permit before the July 15, 2008 effective 

date of the May 2008 final rule. The 

relevant grandfathering provision is 

described in greater detail in section 

III.A of this preamble. This 

grandfathering provision had not been 

proposed for comment in the November 

1, 2005 notice of proposed rulemaking. 

Instead, the November 2005 proposal 

provided that the revised PM2.5

requirements when final would take 

effect immediately in States where the 

Federal PSD program applies. 70 FR 

65986, November 1, 2005 at 66043. 

For States with SIP-approved PSD 

programs, the preamble to the May 2008 

final rule stated that SIP-approved 

States may continue to implement a 

PM10 program as a surrogate to meet the 

PSD program requirements for PM2.5

pursuant to the 1997 [PM10 Surrogate 

Policy]’’ for up to three years (until May 

2011) or until the individual revised 

State PSD programs for PM2.5 are 

approved by EPA, whichever comes 

first. See 73 FR 28341. 

D. Case Law Relevant to the Use of the 

PM10 Surrogate Policy 

When EPA issued the PM10 Surrogate 

Policy in 1997, we stated that meeting 

the NSR program requirements for PM10

may be used as a surrogate for meeting 

the NSR program requirements for PM2.5

until certain technical difficulties 

concerning PM2.5 are resolved. At that 

time, we did not identify criteria to be 

applied before the policy could be used 

for satisfying the PM2.5 requirements. 

However, courts have issued a number 

of opinions that should be read as 

establishing guidelines for the use of an 

analysis based on PM10 as a surrogate 

for meeting the PSD requirements for 

PM2.5. Applicants and State permitting 

authorities seeking to rely on the PM10

Surrogate Policy should consider these 

opinions in determining whether PM10

serves as an adequate surrogate for 

meeting the PM2.5 requirements in the 

case of the specific permit application at 

issue. 

First, courts have held that a surrogate 

may be used only after it has been 

shown to be reasonable to do so. See, 

e.g., Sierra Club v. EPA, 353 F.3d 976, 

982–984 (D.C. Cir. 2004) (stating general 

principle that EPA may use a surrogate 

if it is ‘‘reasonable’’ to do so and 

applying analysis from National Lime 

Assoc. v. EPA, 233 F.3d 625, 637 (D.C. 

Cir. 2000) that is applicable to 

determining whether use of a surrogate 

is reasonable in setting emissions 

limitations for hazardous air pollutants 

under section 112 of the Act); Mossville 

Environmental Action Now v. EPA, 370 

F. 3d 1232, 1242–43 (D.C. Cir. 2004) 

(EPA must explain the correlation 

between the surrogate and the 

represented pollutant that provides the 

basis for the surrogacy.); Bluewater 

Network v. EPA, 370 F. 3d 1, 18 (D.C. 

Cir. 2004) (‘‘The Agency reasonably 

determined that regulating 

[hydrocarbons] would control PM 

pollution both because HC itself 

contributes to such pollution, and 

because HC provides a good proxy for 

regulating fine PM emissions.’’). Though 

these court opinions all addressed when 

it was reasonable to use a surrogate in 

contexts different from the use of the 

PM10 Surrogate Policy, EPA believes 

that the overarching legal principle from 

these decisions is that a surrogate may 

be used only after it has been shown to 

be reasonable (such as where the 

surrogate is a reasonable proxy for the 

pollutant or has a predictable 

correlation to the pollutant) and that 

this principle applies where an 

applicant or permitting authority seeks 

to rely upon the PM10 Surrogate Policy 

in lieu of a PM2.5 analysis to obtain a 

PSD permit. 

Second, with respect to PM surrogacy 

in particular, there are specific issues 

raised in the case law that bear on 

whether PM10 can be considered a 

reasonable surrogate for PM2.5. The D.C. 

Circuit concluded that PM10 was an 

arbitrary surrogate for a PM pollutant 

that is one fraction of PM10 where the 

use of PM10 as a surrogate for that 

fraction is ‘‘inherently confounded’’ by 

the presence of the other fraction of 

PM10. ATA v. EPA, 175 F.3d 1027, 1054 

(D.C. Cir. 1999) (PM10 is an arbitrary 

indicator for coarse PM (PM10–2.5) 

because the amount of coarse PM within 

PM10 will depend arbitrarily on the 

amount of fine PM (PM2.5)). In another 

case, however, the D.C. Circuit held that 

the facts and circumstances in that 

instance provided a reasonable rationale 

for using PM10 as a surrogate for a 

fraction of PM10. American Farm 

Bureau v. EPA, 559 F.3d 512, 534–35 

(D.C. Cir. 2009) (where the record 

demonstrated that (1) PM2.5 tends to be 

higher in urban areas than in rural areas, 

and (2) evidence of health effects from 

coarse PM in urban areas is stronger, 

EPA reasoned that setting a single PM10

standard for both urban and rural areas 

would tend to require lower coarse PM 

concentrations in urban areas. The court 

considered the reasoning from the ATA 

case and accepted that the presence of 

PM2.5 in PM10 will cause the amount of 

coarse PM in PM10 to vary, but on the 

specific facts before it held that such 

variation was not arbitrary.) EPA 

believes that these cases demonstrate 

the need for permit applicants and 

permitting authorities to determine 

whether PM10 is a reasonable surrogate 

for PM2.5 under the facts and 

circumstances of the specific permit at 

issue, and not proceed on a general 

presumption that PM10 is always a good 

surrogate for PM2.5.

Thus, based on this case law, rather 

than simply assuming that using the 

1997 PM10 Surrogate Policy is always an 

adequate alternative for satisfying the 

PM2.5 PSD requirements, permit 

applicants and permitting authorities 

seeking to apply the 1997 PM10


cprice-sewell on DSK2BSOYB1PROD with PROPOSALS
6832 Federal Register / Vol. 75, No. 28 / Thursday, February 11, 2010 / Proposed Rules 

4Additional discussion about the relevant case 

law and EPA’s position on the use of PM10 as a 

surrogate for PM2.5 for PSD permitting is contained 

in an Administrative Order issued on August 12, 

2009 responding to petitioners’ concerns about the 

use of the PM10 Surrogate Policy in a PSD permit 

issued to Louisville Gas and Electric Company. 

Surrogate Policy must ensure that the 

record for each permit supports using 

PM10 as a surrogate for PM2.5 under the 

circumstances. 

Finally, this case law suggests that 

any person attempting to show that 

PM10 is a reasonable surrogate for PM2.5

would need to address the differences 

between PM10 and PM2.5. For example, 

emission controls used to capture coarse 

particles in some cases may be less 

effective in controlling PM2.5. 72 FR 

20,586, 20,617 (April 25, 2007). As a 

further example, the particles that make 

up PM2.5 may be transported over long 

distances while coarse particles 

normally travel shorter distances. 70 FR 

65,984, 65,997–98 (November 1, 2005). 

Under the principles in the case law, 

any source or permitting authority 

seeking to use the PM10 Surrogate Policy 

properly would need to consider the 

differences between PM10 and PM2.5 and 

demonstrate that PM10 is nonetheless an 

adequate surrogate for PM2.5.4

III. Transition to the PM2.5

Requirements for States Lacking EPA– 

Approved PSD Programs 

A. What is the existing grandfathering 

provision for PM2.5? 

As described in section II.C of this 

preamble, new and modified major 

stationary sources applying for permits 

under the Federal PSD program after the 

July 15, 2008 effective date of the May 

2008 final rule must directly satisfy the 

requirements for PM2.5 rather than rely 

on the PM10 Surrogate Policy to satisfy 

those requirements. However, until the 

EPA recently stayed the provision for 

three months, the grandfathering 

provision contained in the Federal PSD 

program at 40 CFR 52.21(i)(1)(xi) 

allowed sources that had not yet 

received final and effective permits, but 

had submitted a complete PSD permit 

application before the effective date of 

the final rule for PM2.5, to continue 

having their application reviewed on 

the basis of the PM10 Surrogate Policy. 

In the preamble to the final rule, EPA 

indicated that it believed that the PM2.5

grandfathering provision was consistent 

with the existing provision under 40 

CFR 52.21(i)(1)(x) whereby EPA 

grandfathered new and modified major 

stationary sources with permit 

applications based on PM from the thennew PM10 increment requirements 

established in 1987. Thus, applicants 

would not be expected to perform new 

analyses to establish compliance with 

the BACT and air quality requirements 

for PM2.5 in cases where they had 

submitted their complete applications 

on the basis of the PM10 Surrogate 

Policy before the effective date of the 

new regulations. 

At the time the grandfathering 

provision for PM2.5 was put into effect, 

we estimate that less than twenty 

proposed new or modified major 

stationary sources were covered. Of 

these, at least two projects subsequently 

received final and effective PSD permits 

after the July 15, 2008 effective date of 

the final rule. 

B. Petitioners’ 2008 Challenge to the 

Grandfathering Provision for PM2.5

On July 15, 2008, the Natural 

Resources Defense Council and the 

Sierra Club jointly submitted a petition 

to the Administrator seeking 

reconsideration of four provisions of the 

May 16, 2008 final rule, including the 

grandfathering provision for PM2.5

under the Federal PSD program. In the 

petition, the petitioners argued that 

‘‘EPA unlawfully failed to present this 

grandfathering provision and 

accompanying rationale to the public for 

comment.’’ July 15 Petition at 6. Thus, 

petitioners argued, EPA had not given 

interested parties any notice of and the 

opportunity to comment on the 

grandfathering provision that EPA 

adopted in 40 CFR 52.21(i)(1)(xi) in the 

final rule. Moreover, with regard to the 

grandfathering provision itself, the 

petitioners questioned EPA’s authority 

to waive statutory requirements by 

establishing such a provision and 

argued that ‘‘Congress specifically 

addressed the issue of grandfathering in 

section 168(b) and again allowed for the 

grandfathering of only those sources on 

which ‘construction has commenced’ 

before enactment of the 1997 Clean Air 

Act Amendments.’’ July 15 Petition at 7. 

Finally, petitioners argued that the 

technical difficulties with respect to 

PM2.5 monitoring, emissions estimation 

and modeling that led to the adoption 

of the 1997 PM10 Surrogate Policy no 

longer exist, and that those sources not 

falling within the grandfathering 

provision must conduct the required 

analyses for PM2.5 directly without 

relying on the PM10 Surrogate Policy, 

and so there was no justification for the 

grandfathering provision. July 15 

Petition at 8. In sum, petitioners 

asserted that the grandfathering 

provision in § 52.21(i)(1)(xi) was illegal 

and arbitrary, and requested that EPA 

stay the provision. 

On January 14, 2009, EPA responded 

in a letter to the petitioners that the 

Agency was denying all aspects of the 

petition for reconsideration. 

C. Petitioners’ 2009 Petition Seeking 

Reconsideration and a Stay of the 

Grandfathering Provision for PM2.5

On February 10, 2009, the same 

petitioners submitted a second petition 

similar to the first to EPA. The second 

petition made the same arguments that 

were presented in the July 15, 2008 

petition seeking reconsideration and an 

administrative stay and sought 

reconsideration of both the May 2008 

final rule and the January 2009 denial 

of petitioners’ first petition for 

reconsideration. In response to the 

February 2009 petition, on April 24, 

2009, the Administrator reversed the 

Agency’s earlier decision and agreed to 

reconsider each of the four challenged 

provisions. In addition, the 

Administrator indicated that the Agency 

intended to propose repealing the 

grandfathering provision ‘‘on the 

grounds that it was adopted without 

prior public notice and is no longer 

substantially justified in light of the 

resolution of the technical issues with 

respect to PM2.5 monitoring, emissions 

estimation, and air quality modeling 

that led to the PM10 Surrogate Policy in 

1997.’’ Finally, the Administrator 

announced that she was 

administratively staying the 

grandfathering provision for three 

months under the authority of section 

307(d)(7)(B) of the Act. That threemonth administrative stay became 

effective on June 1, 2009—the date the 

notice announcing the stay was 

published in the Federal Register—and 

ended on September 1, 2009. (74 FR 

26098). In order to allow additional time 

necessary to finalize this rulemaking, 

EPA proposed and promulgated a 

second stay that will keep the 

grandfathering provision stayed until 

June 22, 2010. See 74 FR 48153, 

September 22, 2009. 

D. Why is EPA proposing to repeal the 

grandfathering provision for PM2.5? 

In this notice, consistent with the 

Administrator’s April 24, 2009 letter to 

the petitioners, we are proposing to 

repeal the grandfathering provision in 

the Federal PSD program at 40 CFR 

52.21(i)(1)(xi). As described above, the 

November 1, 2005, proposal provided 

that the revised PM2.5 requirements 

would take effect immediately in States 

where the Federal PSD program applies 

(see 70 FR 66043), and did not propose 

or seek comment on the continued 

application of the PM10 Surrogate Policy 

to sources that submitted an application 

before the effective date of the new rule 

but had not yet received a final and 


cprice-sewell on DSK2BSOYB1PROD with PROPOSALS
Federal Register / Vol. 75, No. 28 / Thursday, February 11, 2010 / Proposed Rules 6833 

effective PSD permit. On review of the 

reconsideration petition, we agree with 

the petitioners that it was not 

appropriate to adopt the grandfathering 

provision without providing for public 

notice and comment on the concept of 

allowing certain sources covered by the 

Federal PSD program to continue to use 

the PM10 Surrogate Policy after the 

effective date of the final rule. 

Moreover, we find that there is 

sufficient justification to propose 

repealing the grandfathering provision. 

The impact of a repeal will be to require 

sources that submitted a permit 

application before the effective date 

(July 15, 2008) of the May 16, 2008, final 

rule to satisfy the PSD requirements for 

PM2.5 without reliance on the PM10

Surrogate Policy. However, EPA does 

not propose to interpret this proposed 

repeal to have any effect on permits that 

became final and effective before the 

stay of section 52.21(i)(1)(xi) by the 

Administrator. 

Our proposal to repeal the grandfather 

provision rests primarily on the fact that 

the PM2.5 implementation issues that led 

to the adoption of the PM10 Surrogate 

Policy in 1997 have been largely 

resolved to a degree sufficient for the 

owners and operators of sources and 

permitting authorities to conduct 

meaningful permit-related PM2.5

analyses. For example, adequate 

procedures for the collection of ambient 

PM2.5 are now well established 

throughout the country and provide 

data useful for the purpose of PSD 

permitting. Also, air quality modeling of 

direct PM2.5 emissions can be 

accomplished using an EPA-approved 

model to predict ambient PM2.5 impacts 

caused by new and modified sources of 

PM2.5 emissions. Emissions factors for 

calculating PM2.5 emissions from 

various source categories and 

equipment are available, as are national 

inventories of PM2.5 emissions. 

While direct analysis of PM2.5 impacts 

may now be conducted, not all technical 

difficulties have been resolved. For 

example, EPA has not approved any 

models that can reliably predict the 

localized ambient PM2.5 impacts of 

precursors (e.g., SO2 and NOX) emitted 

from individual stationary sources. 

Some regional-scale photochemical 

transport models have been modified to 

provide the capability to track the 

transport and formation of primary and 

secondarily-formed PM2.5 from either 

single or multiple sources. The EPA is 

currently evaluating whether such 

source apportionment implementations 

in photochemical models are an 

appropriate option to estimate 

downwind transport and formation of 

PM2.5 from individual sources. 

However, for the present, regionalscale models available for considering 

chemical transformations associated 

with the impacts of PM2.5 and its 

precursors are designed to account for 

impacts of multiple sources over 

relatively wide distances, and have not 

been approved by EPA for localized 

permitting purposes. This limitation 

results in underestimating the ambient 

impact of a single source that is emitting 

PM2.5 precursors in addition to direct 

PM2.5 emissions. However, this 

limitation does not preclude a permit 

applicant from determining whether the 

direct emissions of PM2.5 from the 

proposed source or modification will 

cause or contribute to a violation of the 

NAAQS for PM2.5, and is not a valid 

basis for using a PM10 analysis as a 

surrogate to satisfy the PM2.5

requirements. 

E. What are the effects of repealing the 

grandfathering provision for PM2.5? 

If EPA adopts a final rule to repeal the 

grandfathering provision, any PSD 

permit applications covered by the 

grandfathering provision that have not 

yet been approved and issued a final 

and effective PSD permit will not be 

able to rely on the PM10 Surrogate 

Policy to satisfy the PM2.5 requirements. 

Such applications will need to be 

evaluated for PM2.5 to ensure that the 

applicable administrative record for the 

permit application is sufficient to 

demonstrate compliance with the PSD 

requirements for PM2.5, including 

analyses necessary to (a) demonstrate 

that the emissions increase from the 

proposed new or modified major 

stationary source will not cause or 

contribute to a violation of the PM2.5

NAAQS, as required by § 165(a)(3) of 

the Act, and (b) establish a BACT 

emissions limitation for PM2.5 in the 

permit, as required by § 165(a)(4) of the 

Act. For any permit that previously was 

relying on a PM10 surrogate analysis, 

additional information is likely to be 

required to fulfill these requirements. 

The EPA is aware of twenty-seven 

sources that had submitted PSD permit 

applications under the Federal PSD 

program prior to July 15, 2008—the 

effective date of the PM2.5 NSR 

Implementation Rule—but did not 

receive their permits by that date. Thus, 

these applications were eligible to be 

grandfathered to use the PM10 Surrogate 

Policy to satisfy the PM2.5 requirements. 

For at least six of these applications, the 

permit was either issued or denied, or 

the project was cancelled, prior to June 

1, 2009, when the administrative stay 

became effective. For most of the 

remaining twenty-one applications, the 

sources have already directly addressed, 

or are planning to directly address, the 

applicable PM2.5 requirements in order 

to obtain a permit. At least two of the 

sources are reportedly planning to take 

enforceable emissions limitations on 

their PM2.5 emissions in order to avoid 

the PSD requirements for PM2.5

altogether. 

Should the additional information 

that these sources acquire and analyze 

for PM2.5 result in the need to tighten 

the conditions pertaining to the control 

of PM2.5 emissions in any of the yetissued permits, then direct 

environmental benefits would result. In 

any event, ending the use of the PM10

Surrogate Policy will provide desired 

certainty to the PM2.5 permitting process 

by ensuring that all permit applicants 

show that their source does not cause or 

contribute to a violation of the PM2.5

NAAQS and otherwise meets all of the 

requirements for PM2.5, and not use 

PM10 surrogacy as means of avoiding a 

real analysis demonstrating that the 

PM2.5 requirements are met. We believe 

this certainty would outweigh any 

burdens caused by any delay to the 

permit applicants that would be 

affected. Nevertheless, we are herein 

soliciting comments concerning any 

such burdens that may be incurred by 

the affected sources to help us evaluate 

this proposed repeal of the 

grandfathering provision for PM2.5. 

A repeal of the grandfathering 

provision in a subsequent final rule 

would not impact any PSD permits that 

became final and effective in reliance on 

the PM10 Surrogate Policy under the 

policy itself or the grandfathering 

provision that incorporated that policy 

by reference before the stay of that 

provision. 

IV. Ending the PM10 Surrogate Policy in 

SIP-Approved States 

A. What is the current status of the PM10

Surrogate Policy in SIP-approved 

States? 

As described in section II.C of this 

preamble, the preamble to the May 2008 

final NSR rule for PM2.5 stated that SIPapproved States may continue to 

implement a PM10 program as a 

surrogate to meet the PSD program 

requirements for PM2.5 pursuant to the 

1997 PM10 Surrogate Policy. This 

continued use of the PM10 Surrogate 

Policy was a transition measure, 

provided for SIP-approved States in 

conjunction with the three-year period 

provided under 40 CFR 51.166(a)(6)(i) to 

adopt and submit SIP revisions 

following the May 2008 rule. See 73 FR 

28340–28341. 

Although the PM10 Surrogate Policy is 

in effect, in light of the various relevant 


cprice-sewell on DSK2BSOYB1PROD with PROPOSALS
6834 Federal Register / Vol. 75, No. 28 / Thursday, February 11, 2010 / Proposed Rules 

court decisions discussed above, it is 

prudent to conclude that the policy 

should not be read as allowing the 

automatic use of a PM10 analysis as a 

surrogate for satisfying PM2.5

requirements. Moreover, the PM10

Surrogate Policy contains limits within 

the policy itself. As stated in the 1997 

Seitz Memorandum, the PM10 Surrogate 

Policy provided that, in view of 

significant technical difficulties that 

existed in 1997, EPA believed that PM10

may properly be used as a surrogate for 

PM2.5 in meeting NSR requirements 

‘‘until these difficulties are resolved.’’ 

Seitz Memorandum at 1. In the May 

2008 final rule, EPA noted that ‘‘these 

difficulties have largely been resolved.’’ 

See 73 FR at 28340 (col. 2–3). Thus, in 

addition to the case law demonstration 

discussed previously, a source or 

permitting authority seeking to rely on 

the PM10 Surrogate Policy should 

identify any technical difficulties that 

exist to justify the application of the 

policy in each specific case. 

B. Petitioners’ 2009 Petition Seeking 

Reconsideration of the Continued Use of 

the PM10 Surrogate Policy During the 

Three-year Transition Period 

In their February 10, 2009, petition for 

reconsideration, the Natural Resources 

Defense Council and the Sierra Club 

argued, among other things, that the 

continued use of the PM10 Surrogate 

Policy had the effect of waiving for up 

to three years the requirement to assure 

compliance with the PM2.5 NAAQS, and 

that applicants, States and EPA have the 

technical ability to address the PM2.5

requirements directly rather than 

relying on a PM10 analysis as a 

surrogate. February 2009 Petition at 4– 

6. As we noted previously, the 

Administrator granted the February 

2009 petition for reconsideration in her 

April 24, 2009, letter. 

C. Why is EPA proposing to end the 

PM10 Surrogate Policy in SIP-approved 

States? 

In this action, EPA is proposing to 

end the PM10 Surrogate Policy before 

the end of the three-year transition 

period for revising SIPs (May 2011). The 

grounds for this proposal are that the 

PM2.5 implementation issues that led to 

the adoption of the PM10 Surrogate 

Policy in 1997 have been largely 

resolved to a degree sufficient for 

sources and permitting authorities to 

conduct meaningful permit-related 

PM2.5 analyses. EPA had previously 

concluded that these difficulties had 

been resolved to a degree sufficient for 

all Federal PSD permit reviews to begin 

direct PM2.5-based assessments as of the 

July 15, 2008, effective date of the May 

2008 final rule. Section III.D of this 

preamble, which discusses our proposal 

to repeal the grandfathering provision in 

the Federal PSD program, provides a 

more thorough discussion of the status 

of technical difficulties associated with 

PM2.5 analyses. The EPA is seeking 

comments on whether the technical 

issues that gave rise to the PM10

Surrogate Policy in 1997 are sufficiently 

resolved that the policy is no longer 

needed either for Federal or State 

permitting actions. 

As mentioned earlier, in the May 2008 

final rule, EPA allowed States to 

continue using the PM10 Surrogate 

Policy on the grounds that States would 

need time to update their State laws and 

make SIP submissions to EPA. 73 FR at 

28340–28341. In the final rule preamble, 

we said that ‘‘if a SIP-approved State is 

unable to implement a PSD program for 

the PM2.5 NAAQS based on these final 

rules, the State may continue to 

implement a PM10 program as a 

surrogate to meet the PSD program 

requirements for PM2.5 pursuant to the 

1997 guidance.’’ 73 FR at 28341. 

The existing provisions in many State 

implementation plans may already 

provide sufficient legal authority for 

several SIP-approved States to begin 

addressing PM2.5 directly when issuing 

PSD permits. For example, if the State 

has adopted EPA’s definition of 

‘‘regulated NSR pollutant,’’ then PM2.5

falls within this definition, because 

PM2.5 is a ‘‘pollutant for which a 

national ambient air quality standard 

has been promulgated.’’ 40 CFR 

51.166(b)(49)(i); 40 CFR 52.21(b)(50)(i). 

Therefore, such States may already have 

an EPA-approved SIP that authorizes 

the State to establish BACT limits for 

PM2.5 and to demonstrate that a source 

will not cause or contribute to a 

violation of the PM2.5 NAAQS using 

direct air quality modeling of the 

proposed unit’s direct emissions of 

PM2.5 to project the impact on the PM2.5

NAAQS. 

One complication for States that seek 

to implement a full PM2.5 analysis 

immediately under their existing SIPs 

may be the absence of a significant 

emissions rate for PM2.5. See, 73 FR at 

28340. Assuming a State that has 

adopted EPA’s definition of ‘‘regulated 

NSR pollutant’’ also applies EPA’s 

definition of ‘‘significant emissions 

rate,’’ then under the latter definition, 

any increase in emissions of PM2.5 will 

be deemed significant. 40 CFR 

51.166(b)(23)(ii); 40 CFR 52.21(b)(23)(ii). 

The most significant implication of the 

latter may be that some sources making 

modifications that increase PM2.5

emissions in amounts less than 10 tons 

per year may have to undertake 

additional PSD review that would not 

be required if the State’s SIP included 

the significant emissions rate for PM2.5

set forth in EPA’s May 2008 final rule. 

The EPA requests comments on 

whether SIP-approved States should be 

considered ‘‘unable to implement a PSD 

program for the PM2.5 NAAQS’’ because 

they lack the legal authority to 

implement the PSD program for PM2.5. 

In this context it would be helpful to 

hear commenters’ views on whether the 

legal authority of SIP-approved States to 

implement a PM2.5 program is impeded 

by the absence of a significant emissions 

rate for PM2.5 or whether other factors 

present significant complications for 

States. 

The EPA also recognizes that there are 

other issues that could impact the 

decision to end the PM10 Surrogate 

Policy. To help EPA consider these 

issues, we are specifically seeking 

comment on several additional 

questions. These questions are as 

follows: 

—What are the environmental benefits 

or harms that will result from ending 

the policy before May 2011, and what 

are the environmental benefits or 

harms that will result if the PM10

Surrogate Policy is left in place until 

May 2011? 

—What implementation difficulties for 

State permitting authorities or PSD 

applicants seeking permits will result 

from ending the PM10 Surrogate 

Policy before the three-year transition 

period? 

In addition, EPA invites comments on 

any other points that interested parties 

believe are relevant to whether the PM10

Surrogate Policy continues to be 

necessary for implementing the Act’s 

PM2.5 requirements. 

D. What are the effects of ending the 

PM10 Surrogate Policy in SIP-approved 

States? 

When the PM10 Surrogate Policy ends 

in SIP-approved States, the effects will 

be the same as those described 

previously in section III.E of this 

preamble, which discusses the effects of 

the proposed repeal of the 

grandfathering provision in States 

where the Federal PSD program applies. 

If EPA decides to end the PM10

Surrogate Policy before the end of the 

original transition period in States with 

SIP-approved PSD programs, EPA is 

proposing that new and modified major 

sources seeking permits in such States 

would be thereafter required to conduct 

permit-related analyses based on PM2.5

rather than PM10. EPA is taking 

comment on what kind of transition 

process, if any, should be allowed if 


cprice-sewell on DSK2BSOYB1PROD with PROPOSALS
Federal Register / Vol. 75, No. 28 / Thursday, February 11, 2010 / Proposed Rules 6835 

EPA decides to end the PM10 Surrogate 

Policy in the final rule. 

V. Statutory and Executive Order 

Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review 

Under Executive Order (EO) 12866 

(58 FR 51735, October 4, 1993), this 

action is a ‘‘significant regulatory action’’ 

because it raises novel legal or policy 

issues. Accordingly, EPA submitted this 

action to the Office of Management and 

Budget (OMB) for review under EO 

12866 and any changes made in 

response to OMB recommendations 

have been documented in the docket for 

this action. 

B. Paperwork Reduction Act 

This action does not impose any new 

information collection burden that is 

not already accounted for in the 

approved information collection request 

(ICR) for the NSR program. We are not 

proposing any new paperwork 

requirements (e.g., monitoring, 

reporting, recordkeeping) as part of this 

proposed action. This action proposes to 

amend one part of the regulations at 40 

CFR 52.21 by repealing the 

grandfathering provision that affects 

about twenty-one sources, and to end 

the use of the 1997 PM10 Surrogate 

Policy in SIP-approved States. However, 

the approved ICR for the NSR program 

was prepared as if the 2008 rule that 

added PM2.5 to the NSR program would 

be fully implemented immediately upon 

the effective date of the rule, without 

any phase-in period during which the 

grandfathering provision or 1997 PM10

Surrogate Policy would apply. Thus, 

while this action will result in increased 

permitting burden for those sources who 

would have otherwise been able to use 

the grandfathering provision or PM10

Surrogate Policy, this burden is already 

included in the approved ICR. The OMB 

previously approved the information 

collection requirements contained in the 

existing regulations (40 CFR parts 51 

and 52) under the provisions of the 

Paperwork Reduction Act, 44 U.S.C. 

3501 et seq., and assigned OMB control 

number 2060–0003. The OMB control 

numbers for EPA’s regulations in 40 

CFR are listed in 40 CFR part 9. 

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 proposal on small entities, small 

entity is defined as: (1) A small business 

as defined by the Small Business 

Administration’s (SBA) 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-for-profit 

enterprise which is independently 

owned and operated and is not 

dominant in its field. 

After considering the economic 

impacts of this proposed rule on small 

entities, I certify that this action will not 

have a significant economic impact on 

a substantial number of small entities. 

This proposed rule will not impose any 

new requirements on small entities. We 

have determined that small businesses 

will not incur any adverse impacts 

because EPA is taking this action to 

propose one amendment to the 

regulations at 40 CFR 52.21 (by 

repealing the grandfathering provision 

that affects about twenty-one sources), 

and to end early our policy of allowing 

SIP-approved States to use the PM10

Surrogate Policy. This does not create 

any new requirements or burdens. No 

costs are associated with this 

amendment. 

We continue to be interested in the 

potential impacts of the proposed rule 

on small entities and welcome 

comments on issues related to such 

impacts. 

D. Unfunded Mandates Reform Act 

This action contains no Federal 

mandate under the provisions of Title II 

of the Unfunded Mandates Reform Act 

of 1995 (‘‘URMA’’), 2 U.S.C. 1531–1538 

for State, local, and tribal governments 

or the private sector. This action only 

proposes to amend one part of the 

regulations at 40 CFR 52.21 (by 

repealing the grandfathering provision 

that affects about twenty-one sources), 

and to end early our policy of allowing 

SIP-approved States to use the PM10

Surrogate Policy. Therefore, this action 

is not subject to the requirements of 

sections 202 or 205 of UMRA. 

This 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. 

E. Executive Order 13132: Federalism 

This 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 action only 

proposes to amend one part of the 

regulations at 40 CFR 52.21 (by 

repealing the grandfathering provision 

for PM2.5 that affects about twenty-one 

sources), and to end early our policy 

allowing SIP-approved States to use the 

PM10 Surrogate Policy. Thus, Executive 

Order 13132 does not apply to this 

proposed rule. 

In the spirit of Executive Order 13132, 

and consistent with EPA policy to 

promote communications between EPA 

and State and local governments, EPA 

specifically solicits comment on this 

proposed rule 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 action will not impose any 

new obligations or enforceable duties on 

tribal governments. 

EPA specifically solicits additional 

comment on this proposed action from 

tribal officials. 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

and Safety Risks 

EPA interprets Executive Order 13045 

(62 FR 19885, April 23, 1997) as 

applying only to those regulatory 

actions that concern health or safety 

risks, such that the analysis required 

under section 5–501 of the Executive 

Order has the potential to influence the 

regulation. This action is not subject to 

Executive Order 13045 because it does 

not establish an environmental standard 

intended to mitigate health or safety 

risks. In fact, this action will help 

ensure that the health-based national 

standards for PM2.5 are adequately 

protected against the adverse effects of 

PM2.5 emissions from new and modified 

sources of air pollution by ending the 

use of a surrogate analyses for PM2.5

impacts. 

H. Executive Order 13211: Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use 

This action is not a ‘‘significant energy 

action’’ as defined in Executive Order 


cprice-sewell on DSK2BSOYB1PROD with PROPOSALS
6836 Federal Register / Vol. 75, No. 28 / Thursday, February 11, 2010 / Proposed Rules 

13211 (66 FR 28355 (May 22, 2001)), 

because it is not likely to have a 

significant adverse effect on the supply, 

distribution, or use of energy. EPA is 

proposing to amend one part of the 

regulations at 40 CFR 52.21 (expected to 

affect about twenty-one regulated 

entities), and to end early the use of the 

PM10 Surrogate Policy in SIP-approved 

States. In both instances, only a portion 

of the affected sources are involved in 

the production or distribution of energy. 

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 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. NTTAA directs EPA to provide 

Congress, through OMB, explanations 

when the Agency decides not to use 

available and applicable voluntary 

consensus standards. 

This proposed rulemaking does not 

involve technical standards. Therefore, 

EPA is not considering 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. 

EPA has concluded that it is not 

practicable to determine whether there 

would be disproportionately high and 

adverse human health or environmental 

effects on minority and/or low income 

populations from this proposed rule. 

The rule proposes only to amend to one 

part of the regulations at 40 CFR 52.21 

(by repealing the grandfathering 

provision that affects about twenty-one 

sources), and to end early the PM10

Surrogate Policy in SIP-approved States. 

The affected sources, after further 

analysis and data collection, may 

receive permitted emissions limits that 

are equally or more protective of public 

health than would be likely in the 

absence of this proposed rule change. 

K. Determination Under Section 307(d) 

Pursuant to sections 307(d)(1)(J) and 

307(d)(1)(V) of the CAA, the 

Administrator determines that this 

action is subject to the provisions of 

section 307(d). Section 307(d)(1)(V) 

provides that the provisions of section 

307(d) apply to ‘‘such other actions as 

the Administrator may determine.’’ 

VI. Statutory Authority 

The statutory authority for this action 

is provided by section 301(a) of the CAA 

as amended (42 U.S.C. 7601(a)). This 

notice is also subject to section 307(d) 

of the CAA (42 U.S.C. 7407(d)). 

List of Subjects in 40 CFR Part 52 

Administrative practices and 

procedures, Air pollution control, 

Environmental protection, 

Intergovernmental relations. 

Dated: February 4, 2010. 

Lisa P. Jackson, 

Administrator. 

For the reasons set out in the 

preamble, title 40, chapter I of the Code 

of Federal Regulations is proposed to be 

amended as follows: 

PART 52—[AMENDED] 

1. The authority citation for part 52 

continues to read as follows: 

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

§ 52.21 [Amended] 

2. In § 52.21, remove paragraph 

(i)(1)(xi). 

[FR Doc. 2010–2983 Filed 2–10–10; 8:45 am] 

BILLING CODE 6560–50–P 


cprice-sewell on DSK2BSOYB1PROD with PROPOSALS