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Response to Comments Submitted to Docket but Not Addressed in Final Rule to

Issue 9-month Stay of Grandfather Provision: 74 FR 48153, September 22, 2009

June 8, 2010

1. Comment: One commentor (Mirant)1claims that the original [administrative] stay that 

became effective on June 1, 2009 (see 74 Fed. Reg. 26,098 (June 1, 2009)), is invalid because it 

responds to a petition that was not authorized by statute (filed 151 days after statutory deadline) 

and sought relief that is not available under section 307(d) of the CAA. In addition, the 

commentor claims that the EPA could not subsequently extend that invalid stay. Similarly, 

another commentor (NEDA/CAP) states that EPA could not extend the 3-month stay beyond the 

3-month period provided for in CAA 307(d)(7)(B).

Response: First, the original administrative stay that became effective on June 1, 2009 expired 

in September 2009 and is not at issue in this action to establish the current 9-month stay. Thus, 

EPA does not need to respond to this commentor’s claim that the original administrative stay 

was invalid.

Second, the 9-month stay issued on September 22, 2009 at 74 FR 48,153, is not an extension of 

the 3-month stay established under CAA 307(d)(7)(B) in the sense that the two stays combine to 

create a single 12-month stay. Instead, the 9-month stay is a separate stay established by a 

separate notice and comment rulemaking under the authority of CAA 301(a). EPA understands 

that this confusion may have arisen because the proposed 9-month stay described it as an 

“extension” 2; however, the authority identified as the basis for the proposed rule was CAA 

301(a)--not CAA 307(d)(7)(B) which is the authority for the administrative stay. See 74 Fed. 

Reg. 36,427, 36,430 (July 23, 2009). The final rule also identified CAA 301(a) as the statutory 

authority for the 9-months stay, see 74 Fed. Reg. 48,153, 48,156 (Sept. 22, 2009), and explained 

that use of the word ”extension“ and other forms of the word ”extend“ was not intended to 

indicate that the 9-month stay was extending the administrative stay beyond 3 months. See 74 

Fed. Reg. at 48,154 n. 2. Finally, EPA notes that the 3-month stay expired on September 1, 2009 

(see 74 Fed. Reg. 26,098 (June 1, 2009), and the 9-month stay did not become effective until 

September 22, 2009 (see 74 Fed. Reg. 48,153 (Sept. 22, 2009). This timing further confirms that 

the two stays are separate actions.

 

1 Mirant’s letter providing its comments on the proposed nine-month stay began with a 

request that EPA state that the proposed nine-month stay would not apply to the applications for 

Mirant’s two facilities in Conta Costa County, California, and said that if EPA were to provide 

such a statement then Mirant had no objection to the proposed nine-month stay. Because EPA is 

not providing the statement requested by Mirant, it is responding to Mirant’s comments opposing 

the nine-month stay. A response to Mirant’s argument that the stay does not apply to these two 

facilities is provided below.

2 This inaccurate description of the 9-month stay as an extension of the 3-months stay appears elsewhere. 

See Memorandum from Stephen D. Page, Director, Office of Air Quality Planning and Standards, “Modeling 

Procedures for Demonstrating Compliance with PM2.5 NAAQS” (March 23, 2010) at 2.
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2. Comment: One commentor (Mirant) states that the stay has the effect of imposing new 

requirements on regulated entities, and that EPA cannot use an administrative stay to impose 

new requirements on permit applicants. Instead, EPA must use notice and comment rulemaking, 

and it has not done so.

Response: As noted above, the 9-month stay, which followed the original administrative stay, is 

not based on the authority to establish an administrative stay under CAA 307(d)(7)(B). EPA 

used notice and comment rulemaking to establish the 9-month stay. See 74 Fed. Reg. 

36,427(July 23, 2009) and 74 Fed. Reg. 48,153 (Sept. 22, 2009). Further, we disagree with the 

commentor’s premise here: that the stay of the grandfather provision imposes new requirements. 

Neither the PM10 surrogate policy nor the grandfather provision (when applied consistent with 

the applicable case law and within the limits of the policy) eliminates or reduces any 

requirements that must be met under the CAA. Instead, the PM10 surrogate policy provides an 

alternative means of demonstrating compliance with the applicable requirements.

3. Comment: One commentor (NEDA-CAP) says that the stay would create confusion among 

regulated entities and others concerning the application of (1) the PM10 surrogate policy in states 

with approved NSR SIPs, and (2) the NSR transition period for condensable PM. The 

commentor requests that EPA clarify that this stay has no effect on these two provisions.

Response: We regret any confusion that may exist between the proposed stay to end the 

grandfather provision for PM2.5 and the other two proposed actions identified by the commentor. 

The proposed action to stay the grandfather provision for PM2.5 applies solely to the 

implementation of PM2.5 in the federal PSD program. The proposed stay does not does not affect 

permit applications in SIP-approved states where applicants and permitting authorities that are 

considering relying on the PM10 Surrogate Policy in SIP-approved states are expected to 

consider the case law that impacts the use of the PM10 Surrogate Policy, and other limits in the 

use of the policy. See, e.g., 75 Fed. Reg. 6827, 6831-32 (Feb. 11, 2010). Further, EPA notes that 

it has proposed to end early the PM10 Surrogate Policy in SIP-approved states. See 75 Fed. Reg. 

6827, 6833-35. 

Similarly, the stay of the grandfather provision does not effect the transition period for 

condensable PM, but EPA notes that it has taken a separate action to take comment on ending 

the NSR transition period for condensable PM earlier than January 1, 2011. See 74 Fed. Reg. 

12,970, 12,976 (March 25, 2009).

4. Comment: Two commentors (Mirant and UARG) state that a 9-month stay of the grandfather 

provision is inconsistent with § 165(c) of the Clean Air Act, which provides that any completed 

PSD permit application be granted or denied within one year after the date of filing of the 

completed application. UARG further states that EPA’s rules and policies in effect at the time of 

their application allowed the applicants to rely on the PM10 surrogate policy, and any change in 

that policy is contrary to the requirement for prompt action under CAA 165(c).]
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Response: EPA does not dispute that some of the permit applications that fell within the 

grandfather provision have not been granted or denied within the one-year period provided in 

§ 165(c) of the Act. Commentors, however, have not shown that this delay can be attributed to a 

stay of the grandfather provision. For example, even if the grandfather provision were not 

stayed with respect to these pending applications, it is not clear that the applications have 

provided the information or analysis necessary under the case law to demonstrate that PM10 is a 

reasonable surrogate such that the Surrogate Policy could be used. See, e.g., discussion of case 

law in 75 Fed. Reg. 6827, 6831-32 (Feb. 11, 2010). Finally, EPA notes that the change that 

commentor refers to with respect to how the PM10 surrogate policy is applied does not come 

from a change in the policy itself. Instead, it comes from the court opinions that EPA must 

recognize as governing EPA’s policy.

5. Comment: One commentor (UARG) states that the proposed [second] stay is unsupported 

and fails to provide adequate basis for public comment. The commentor further claims that the 

proposed stay has the effect of imposing requirements that would not otherwise apply; thus, the 

stay changes rather than preserves the regulatory status quo and thus imposes a “particularly 

heavy burden” on EPA to explain the basis for the stay (UARG p.3)

Response: First, in the proposed rule, we stated the basis on which we were proposing to 

impose a further 9-month stay on the grandfather provision: that the grandfather provision was 

adopted without prior public notice and is not longer substantially justified in light of the 

resolution of the technical issues with respect to PM2.5 that led to the PM10 surrogate policy in 

1997, and that an additional nine months would provide time for EPA to propose, take comment 

on, and issue a final action on whether the grandfather provision should be repealed. 74 Fed. 

Reg. 36,427, 36,429 (col. 1) (July 23, 2009). To the extent that this commentor or any other 

person believed that there were remaining technical issues that required the continued use of the 

surrogate policy, this was sufficient notice for them to identify any such technical issues and 

explain why those issues should prevent the proposed stay from being put in place. With respect 

to EPA’s statement that the grandfather provision was adopted without public notice, EPA notes 

that this same commentor provided its views on why there was adequate public notice, 

demonstrating that EPA’s statement was sufficient to put persons on notice of this issue. 

Second, as noted above, we disagree with the commentor’s premise that the stay of the 

grandfather provision has the effect of imposing new requirements on sources that would be 

permitted to rely on the PM10 surrogate policy under the grandfather provision. Neither the 

PM10 surrogate policy nor the grandfather provision (when applied consistent with the 

applicable case law and within the limits of the policy) eliminates or reduces any requirements 

that must be met under the CAA. Instead, the PM10 surrogate policy provides an alternative 

means of demonstrating compliance with the applicable requirements.

6. Comment: One commentor (UARG) states that the timing of the proposed 9-month stay

would not allow sufficient time for EPA to take final action on the 9-month stay before the end 

of the 3-month administrative stay on September 1, 2009. 

Response: This comment is founded on the premise that EPA would have to finalize the 9-

month stay before the end of the administrative stay on September 1 to ensure that the second 
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stay would be a legitimate “extension” of the administrative stay. In fact, the second stay was 

not intended to extend the administrative stay, but instead to establish a second, separate stay of

the grandfather provisions. EPA did not finalize the 9-month stay until September 22. See 74 

Fed. Reg. 48,153 (Sept. 22, 2009).

7. Comment: One commentor (Mirant) states that EPA has misrepresented the effects of the 

nine-month stay and presented arguments why the stay would not apply to completed 

applications because the stay cannot have retroactive effect. 

Response: EPA does not agree with the commentor’s arguments concerning the effect of the stay

or its analysis concluding that the effect of the stay would constitute a retroactive effect that is 

inconsistent with case law or EPA regulations, but does not need to respond to these arguments 

at this time. Whether or not the effect of the stay will be consistent with the commentor’s 

arguments will be determined in individual permitting decisions going forward for sources that 

had originally been grandfathered. With respect to the stay overall, EPA has determined that 

the 9-month stay is appropriate regardless of whether the commentor’s arguments on these 

points are correct or not, for the reasons presented in response to other comments and in the 

final rule preamble. 74 Fed. Reg. 48,153, 48,154 (Sept. 22, 2009). 

8. Comment: One commentor (UARG) states that a 9-month stay is inconsistent with the 

argument that EPA made in opposing a motion to stay the grandfather provision (among other 

parts of EPA’s May 2008 final rule) in NRDC v. EPA, No. 08-1250 (D.C. Cir.). 

Response: EPA disagrees that its opposition to a court-ordered stay of the grandfather provision 

is inconsistent with an agency stay of the provision. As EPA made clear, the issue on the motion 

to stay was whether the Court should issue a stay that had the effect of rewriting an agency rule 

by severing related provisions of the rule and allowing some, but not others, to take effect. EPA 

opposed such a court-ordered stay on the basis of well-established case law finding that it is not 

proper for courts to sever and stay a portion of an agency action if there is substantial doubt that 

the agency would have adopted the severed portion on its own. That situation is different than 

the circumstances here, where the agency (not the court) considers whether one portion of the 

rule (the grandfather provision) should be stayed while the other part of the rule (the decision to 

otherwise end the use of the PM10 surrogate policy in federal program states) remains in effect.

9. Comment: Two commenters claim that there is a lack of adequate guidance to justify ending 

the use of the PM10 surrogate policy at this time. One commentor (Mirant ) states that with stay

in place, there is no guidance to review pending applications. There is no modeling available to 

meet PM2.5 requirements. The second commentor (UARG) claims that EPA mentions resolution 

of technical issues but does not explain this conclusion. This commentor believes that there is no 

evidence that technical issues are resolved. The commentor also states that EPA gives no reason 

why the PM10 surrogate policy is no longer appropriate (which was reaffirmed in 2005 and 

restated in our Sept. 2008 Opp. To Motion for Stay). 

Response: We believe that there is sufficient information available to enable sources to estimate 

the ambient impacts of direct PM2.5 emissions from stationary sources, and to a limited extent to 

account for ambient levels of secondarily-formed PM2.5 as well. In fact, some of the sources 
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affected by the stay have chosen to revise their analyses for PM2.5 by addressing PM2.5 emissions 

in lieu of relying on the PM10 surrogate policy. While the technical tools needed to complete a 

comprehensive analysis of all emissions that contribute to ambient concentrations of PM2.5 are 

only in the developmental stage; the use of available tools is preferred over the continued use of 

the PM10 surrogate policy to satisfy the requirements for PM2.5. Modeling of direct PM2.5

emissions from stationary sources can be accomplished using the same air quality model that is 

used for PM10. Moreover, EPA is in the process of developing procedures that will assist 

sources and permitting authorities to carry out the required analyses for meeting the PM2.5

requirements. An initial outcome of this process is a memorandum dated March 23, 2010, titled 

“Modeling Procedures for Demonstrating Compliance with PM2.5 NAAQS,” which clarifies the 

implications of the transition away from the PM10 surrogate policy, and provides basic guidance 

that can be used by PSD applicants and permitting authorities to assist in completing a PM2.5

ambient impact analysis for PSD applications.

With regard to commentor’s claim that EPA gave no reason why the PM10 surrogate 

policy was no longer appropriate, we have made it clear that courts have issued various 

opinions that govern the use of PM10 as a surrogate for meeting the PSD requirements for PM2.5. 

For example, courts have held that a surrogate may be used only after it has been shown to be 

reasonable to do so, and this would include a discussion of the differences between PM10 and 

PM2.5 and a demonstration that PM10 is nonetheless an adequate surrogate for PM2.5. Finally, 

the 1997 surrogate policy presumes that the necessary technical tools for completing a PM2.5

analysis are not available. Because we have concluded that these technical issues have been 

sufficiently resolved, we believe that any use of the surrogate policy should include a finding 

that the technical tools needed for a PM2.5 analysis are not available, thereby necessitating the 

use of a surrogacy approach.

10. Comment: One commenter (Mirant) seeks assurance from EPA that the grandfather 

provision is still applicable to two permit applications for the commentor’s facilities in Contra 

Costa County, California, which were determined to be complete while the provision was in 

effect prior to the issuance of the stay. This commenter requests that EPA concur that the 

grandfather provision remains applicable to two permit applications pending before the Bay Area 

Air Quality Management Division (BAAQMD), which administers a delegated PSD program. 

The commenter reasons that this result is achieved by virtue of a BAAQMD regulation that EPA 

has approved into the SIP, which provides that a decision to authorize construction shall be based 

on federal and state regulations and standards in force on the date the application is declared to 

be complete. 

Response: EPA has determined that the area in which the two permit applications of concern 

are located is currently designated “nonattainment” for PM2.5. Hence, as long as the area 

continues to be designated nonattainment when construction permits are issued to these sources, 

the federal PSD permit requirements under 40 CFR 52.21 do not apply to them, and so they are 

not impacted by the stay of the grandfather provision. 

However, even if the area of concern was not designated as nonattainment for PM2.5, 

EPA could not provide assurance to any proposed source that the conditions allowed under the 

grandfather provision would remain applicable under the circumstances described by the 
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commenter. While the stay of section 52.21(i)(1)(xi) remains in effect, the grandfathering 

provision will not be applicable under federal law to a final decision by BAAQMD to issue either 

of these PSD permits. Permitting decisions are generally governed by the law in effect at the 

time they are made. See, In re: Dominion Energy Brayton Point, LLC, 12 E.A.D. 490, 614-616 

(EAB 2006). Even if the “regulations in force” provision is applicable under state law (section 

2-1-409 of BAAQMD regulations), this provision cannot supercede or nullify the EPA 

regulations at 40 CFR 52.21 that also apply and determine the requirements of federal law for 

these pending PSD permit applications. Although EPA has approved section 2-1-409 of 

BAAQMD regulations as part of the State Implementation for Plan for certain purposes, 

BAAQMD does not have an approved SIP that applies to PSD permitting. As the administrator 

of a delegated PSD permitting program under section 52.21(u), BAAQMD stands in the shoes of 

US EPA Region 9 and is required to apply the provisions of 40 C.F.R. 52.21. See, In re: West 

Suburban Recycling and Energy Center, LP, 6 E.A.D. 692, 703-707 (EAB 1996). The 

commenter impermissibly equates BAAQMDs delegated PSD program with a state PSD 

program that has been duly authorized by EPA as part of a state SIP. See, id. at 704. The 

applicable delegation agreement between Region 9 and BAAQMD specifies that “[t]he District 

shall issue PSD permits under this partial delegation agreement in accordance with the PSD 

requirements of the District’s Regulation 2 – Rule 2 and 40 CFR 52.21, as amended on 

December 31, 2002.” U.S. EPA – Bay Area Air Quality Management District Agreement for 

Delegation of Authority to Issue and Modify Prevention of Significant Deterioration Permits 

Subject to 40 CFR 52.21 (Feb. 6, 2008). While the delegation agreement references District 

Regulation 2, the agreement does not specify that District Regulation 2 may supercede 40 CFR 

52.21 in this or any other circumstance.