[Federal Register Volume 75, Number 28 (Thursday, February 11, 2010)]
[Proposed Rules]
[Pages 6827-6836]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-2983]


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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.

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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 
(PM<INF>10</INF>) as a surrogate for meeting the PSD requirements for 
particulate matter less than 2.5 micrometers (PM<INF>2.5</INF>). 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 PM<INF>2.5</INF> contained in the 
Federal PSD program. Second, EPA is proposing to end early the 
PM<INF>10</INF> Surrogate Policy applicable in States that have an 
approved PSD program in their State Implementation Plan (``SIP-approved 
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:
    <bullet> http://www.regulations.gov. Follow the online instructions 
for submitting comments.
    <bullet> E-mail: <a href="/cdn-cgi/l/email-protection#f091dd919e94dd82dd949f939b9584b0958091de979f86"><span class="__cf_email__" data-cfemail="5c3d713d3238712e7138333f3739281c392c3d723b332a">[email protected]</span></a>.
    <bullet> 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.
    <bullet> Hand Delivery: EPA Docket Center, Public Reading Room, EPA 
West, Room 3334, 1301 Constitution Ave., NW.,

[[Page 6828]]

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: <a href="/cdn-cgi/l/email-protection#b9dddccbd6dcdad297ddd8d7f9dcc9d897ded6cf"><span class="__cf_email__" data-cfemail="d5b1b0a7bab0b6befbb1b4bb95b0a5b4fbb2baa3">[email protected]</span></a>.
    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; e-
mail address: <a href="/cdn-cgi/l/email-protection#f29e9d9c95dc82939fb2978293dc959d84"><span class="__cf_email__" data-cfemail="fe92919099d08e9f93be9b8e9fd0999188">[email protected]</span></a>.

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 PM<INF>2.5</INF> 
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 PM<INF>10</INF> 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                          NAICS a
------------------------------------------------------------------------
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

[[Page 6829]]

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:
    <bullet> Identify the rulemaking by docket number and other 
identifying information (subject heading, Federal Register date and 
page number).
    <bullet> 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.
    <bullet> Explain why you agree or disagree, suggest alternatives, 
and substitute language for your requested changes.
    <bullet> If you estimate potential costs or burdens, explain how 
you arrived at your estimate in sufficient detail to allow for it to be 
reproduced.
    <bullet> Provide specific examples to illustrate your concerns, and 
suggest alternatives.
    <bullet> Explain your views as clearly as possible, avoiding the 
use of profanity or personal threats.
    <bullet> 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; e-
mail address: <a href="/cdn-cgi/l/email-protection#dab6b5b4bdf4aabbb79abfaabbf4bdb5ac"><span class="__cf_email__" data-cfemail="7a1615141d540a1b173a1f0a1b541d150c">[email protected]</span></a>.

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 PM<INF>2.5</INF>
    C. How is the PSD program for PM<INF>2.5</INF> implemented?
    D. Case Law Relevant to the Use of the PM<INF>10</INF> Surrogate 
Policy
III. Transition to the PM<INF>2.5</INF> Requirements for States 
Lacking EPA-Approved PSD Programs
    A. What is the existing grandfathering provision for 
PM<INF>2.5</INF>?
    B. Petitioner's 2008 Challenge to the Grandfathering Provision 
for PM<INF>2.5</INF>
    C. Petitioner's 2009 Petition Seeking Reconsideration and a Stay 
of the Grandfathering Provision for PM<INF>2.5</INF>
    D. Why is EPA proposing to repeal the grandfathering provision 
for PM<INF>2.5</INF>?
    E. What are the effects of repealing the grandfathering 
provision for PM<INF>2.5</INF>?
IV. Ending the PM<INF>10</INF> Surrogate Policy in SIP-approved 
States
    A. What is the current status of the PM<INF>10</INF> Surrogate 
Policy in SIP-approved States?
    B. Petitioner's 2009 Petition Seeking Reconsideration of the 
Continued Use of the PM<INF>10</INF> Surrogate Policy during the 
Three-year Transition Period
    C. Why is EPA proposing to end the PM<INF>10</INF> Surrogate 
Policy in SIP-approved States?
    D. What are the effects of ending the PM<INF>10</INF> 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.
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    \1\ In this proposal, the terms ``we,'' ``us,'' and ``our,'' 
refer to the EPA.
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    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 SIP-approved 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,''

[[Page 6830]]

additional review must be conducted to protect the Class I area's 
increments and special attributes referred to as ``air quality related 
values.''
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    \2\ We 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.
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    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 PM<INF>10</INF>, 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 NO<INF>2</INF> 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 (SO<INF>4</INF>); 
nitrate (NO<INF>3</INF>); 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 PM<INF>2.5</INF>. ``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., SO<INF>4</INF> 
and NO<INF>3</INF>) form in the atmosphere as a result of various 
chemical reactions.
    The health effects associated with exposure to PM<INF>2.5</INF> are 
significant. Epidemiological studies have shown a significant 
correlation between elevated PM<INF>2.5</INF> levels and premature 
mortality. Other important effects associated with PM<INF>2.5</INF> 
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 
PM<INF>2.5</INF> 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 PM<INF>2.5</INF> as the indicator. We 
established health-based (primary) annual and 24-hour standards for 
PM<INF>2.5</INF>. See 62 FR 38652. We set an annual standard at a level 
of 15 micrograms per cubic meter ([mu]g/m\3\) and a 24-hour standard at 
a level of 65 [mu]g/m\3\. 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 
PM<INF>2.5</INF> such as visibility impairment, soiling, and materials 
damage.
    On October 17, 2006, we revised the primary and secondary NAAQS for 
PM<INF>2.5</INF> and PM<INF>10</INF>. In that rulemaking, we reduced 
the 24-hour NAAQS for PM<INF>2.5</INF> to 35 [mu]g/m\3\ and retained 
the existing annual PM<INF>2.5</INF> NAAQS of 15 [mu]g/m\3\. In 
addition, we retained PM<INF>10</INF> as the indicator for coarse PM, 
retained the existing PM<INF>10</INF> 24-hour NAAQS of 150 [mu]g/m\3\, 
and revoked the annual PM<INF>10</INF> NAAQS (which had previously been 
set at 50 [mu]g/m\3\). See 71 FR 61236.

C. How is the PSD program for PM<INF>2.5</INF> implemented?

    After we promulgated the NAAQS for PM<INF>2.5</INF> in 1997, we 
issued a guidance document entitled ``Interim Implementation for the 
New Source Review Requirements for PM<INF>2.5</INF>'' (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 
PM<INF>2.5</INF> NAAQS and PM<INF>2.5</INF> as a regulated pollutant in 
light of known technical difficulties to addressing PM<INF>2.5</INF>. 
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 PM<INF>10</INF> program 
as a surrogate for meeting PM<INF>2.5</INF> NSR requirements until 
certain difficulties concerning PM<INF>2.5</INF> are resolved, 
including the lack of necessary tools to calculate the emissions of 
PM<INF>2.5</INF> and related precursors, the lack of adequate modeling 
techniques to project ambient impacts, and the lack of PM<INF>2.5</INF> 
monitoring sites.
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    \3\ Available 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.
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    On May 16, 2008, EPA published a final rule containing requirements 
for

[[Page 6831]]

State and Tribal plans to implement the Act's preconstruction review 
provisions for the 1997 PM<INF>2.5</INF> 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 PM<INF>2.5</INF> requirements as of the 
effective date of the new rule, rather than relying on the 1997 
PM<INF>10</INF> Surrogate Policy. First, in PM<INF>2.5</INF> attainment 
(or unclassifiable) areas, the new PSD requirements under 40 CFR 51.166 
set forth the PM<INF>2.5</INF> requirements for States with SIP-
approved 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 PM<INF>2.5</INF> requirements in States lacking 
approved PSD programs in their SIPs.
    Second, in PM<INF>2.5</INF> nonattainment areas, new requirements 
were added to 40 CFR 51.165 to enable States to address the 
PM<INF>2.5</INF> 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 PM<INF>2.5</INF> 
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 
PM<INF>2.5</INF> nonattainment area. In the preamble to the May 2008 
final rule, EPA indicated that, in any State that was unable to apply 
the PM<INF>2.5</INF> requirements of appendix S, EPA would act as the 
reviewing authority for the relevant PM<INF>2.5</INF> portions of the 
nonattainment NSR permit. See 73 FR at 28342.
    As mentioned, there were two exceptions to the imposition of new 
PM<INF>2.5</INF> requirements to replace the use of the 1997 
PM<INF>10</INF> Surrogate Policy for issuing construction permits. The 
May 2008 final rule included a grandfathering provision for 
PM<INF>2.5</INF> 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 PM<INF>2.5</INF> 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 PM<INF>10</INF> program as a surrogate to meet the PSD 
program requirements for PM<INF>2.5</INF> pursuant to the 1997 
[PM<INF>10</INF> Surrogate Policy]'' for up to three years (until May 
2011) or until the individual revised State PSD programs for 
PM<INF>2.5</INF> 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 PM<INF>10</INF> Surrogate Policy in 1997, we 
stated that meeting the NSR program requirements for PM<INF>10</INF> 
may be used as a surrogate for meeting the NSR program requirements for 
PM<INF>2.5</INF> until certain technical difficulties concerning 
PM<INF>2.5</INF> are resolved. At that time, we did not identify 
criteria to be applied before the policy could be used for satisfying 
the PM<INF>2.5</INF> requirements. However, courts have issued a number 
of opinions that should be read as establishing guidelines for the use 
of an analysis based on PM<INF>10</INF> as a surrogate for meeting the 
PSD requirements for PM<INF>2.5</INF>. Applicants and State permitting 
authorities seeking to rely on the PM<INF>10</INF> Surrogate Policy 
should consider these opinions in determining whether PM<INF>10</INF> 
serves as an adequate surrogate for meeting the PM<INF>2.5</INF> 
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 PM<INF>10</INF> 
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 PM<INF>10</INF> Surrogate 
Policy in lieu of a PM<INF>2.5</INF> 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 
PM<INF>10</INF> can be considered a reasonable surrogate for 
PM<INF>2.5.</INF> The D.C. Circuit concluded that PM<INF>10</INF> was 
an arbitrary surrogate for a PM pollutant that is one fraction of 
PM<INF>10</INF> where the use of PM<INF>10</INF> as a surrogate for 
that fraction is ``inherently confounded'' by the presence of the other 
fraction of PM<INF>10</INF>. ATA v. EPA, 175 F.3d 1027, 1054 (D.C. Cir. 
1999) (PM<INF>10</INF> is an arbitrary indicator for coarse PM 
(PM<INF>10-2.5</INF>) because the amount of coarse PM within 
PM<INF>10</INF> will depend arbitrarily on the amount of fine PM 
(PM<INF>2.5</INF>)). In another case, however, the D.C. Circuit held 
that the facts and circumstances in that instance provided a reasonable 
rationale for using PM<INF>10</INF> as a surrogate for a fraction of 
PM<INF>10</INF>. American Farm Bureau v. EPA, 559 F.3d 512, 534-35 
(D.C. Cir. 2009) (where the record demonstrated that (1) 
PM<INF>2.5</INF> 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 PM<INF>10</INF> 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 PM<INF>2.5</INF> in 
PM<INF>10</INF> will cause the amount of coarse PM in PM<INF>10</INF> 
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 
PM<INF>10</INF> is a reasonable surrogate for PM<INF>2.5</INF> under 
the facts and circumstances of the specific permit at issue, and not 
proceed on a general presumption that PM<INF>10</INF> is always a good 
surrogate for PM<INF>2.5.</INF>
    Thus, based on this case law, rather than simply assuming that 
using the 1997 PM<INF>10</INF> Surrogate Policy is always an adequate 
alternative for satisfying the PM<INF>2.5</INF> PSD requirements, 
permit applicants and permitting authorities seeking to apply the 1997 
PM<INF>10</INF>

[[Page 6832]]

Surrogate Policy must ensure that the record for each permit supports 
using PM<INF>10</INF> as a surrogate for PM<INF>2.5</INF> under the 
circumstances.
    Finally, this case law suggests that any person attempting to show 
that PM<INF>10</INF> is a reasonable surrogate for PM<INF>2.5</INF> 
would need to address the differences between PM<INF>10</INF> and 
PM<INF>2.5</INF>. For example, emission controls used to capture coarse 
particles in some cases may be less effective in controlling 
PM<INF>2.5</INF>. 72 FR 20,586, 20,617 (April 25, 2007). As a further 
example, the particles that make up PM<INF>2.5</INF> 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 PM<INF>10</INF> Surrogate Policy properly would need to 
consider the differences between PM<INF>10</INF> and PM<INF>2.5</INF> 
and demonstrate that PM<INF>10</INF> is nonetheless an adequate 
surrogate for PM<INF>2.5</INF>.\4\
---------------------------------------------------------------------------

    \4\ Additional discussion about the relevant case law and EPA's 
position on the use of PM<INF>10</INF> as a surrogate for 
PM<INF>2.5</INF> for PSD permitting is contained in an 
Administrative Order issued on August 12, 2009 responding to 
petitioners' concerns about the use of the PM<INF>10</INF> Surrogate 
Policy in a PSD permit issued to Louisville Gas and Electric 
Company.
---------------------------------------------------------------------------

III. Transition to the PM<INF>2.5</INF> 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 PM<INF>2.5</INF> rather 
than rely on the PM<INF>10</INF> 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 
PM<INF>2.5</INF>, to continue having their application reviewed on the 
basis of the PM<INF>10</INF> Surrogate Policy.
    In the preamble to the final rule, EPA indicated that it believed 
that the PM<INF>2.5</INF> 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 then-new PM<INF>10</INF> 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 PM<INF>2.5</INF> in cases where they 
had submitted their complete applications on the basis of the 
PM<INF>10</INF> Surrogate Policy before the effective date of the new 
regulations.
    At the time the grandfathering provision for PM<INF>2.5</INF> 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 PM<INF>2.5</INF> 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 PM<INF>2.5</INF> monitoring, 
emissions estimation and modeling that led to the adoption of the 1997 
PM<INF>10</INF> Surrogate Policy no longer exist, and that those 
sources not falling within the grandfathering provision must conduct 
the required analyses for PM<INF>2.5</INF> directly without relying on 
the PM<INF>10</INF> 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 Sec.  
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 PM<INF>2.5</INF> monitoring, emissions 
estimation, and air quality modeling that led to the PM<INF>10</INF> 
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 
three-month 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 
PM<INF>2.5</INF>?

    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 PM<INF>2.5</INF> 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 PM<INF>10</INF> Surrogate Policy to sources that 
submitted an application before the effective date of the new rule but 
had not yet received a final and

[[Page 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 PM<INF>10</INF> 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 PM<INF>2.5</INF> without reliance on the 
PM<INF>10</INF> 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 PM<INF>2.5</INF> implementation issues that led to 
the adoption of the PM<INF>10</INF> 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 
PM<INF>2.5</INF> analyses. For example, adequate procedures for the 
collection of ambient PM<INF>2.5</INF> are now well established 
throughout the country and provide data useful for the purpose of PSD 
permitting. Also, air quality modeling of direct PM<INF>2.5</INF> 
emissions can be accomplished using an EPA-approved model to predict 
ambient PM<INF>2.5</INF> impacts caused by new and modified sources of 
PM<INF>2.5</INF> emissions. Emissions factors for calculating 
PM<INF>2.5</INF> emissions from various source categories and equipment 
are available, as are national inventories of PM<INF>2.5</INF> 
emissions.
    While direct analysis of PM<INF>2.5</INF> 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 PM<INF>2.5</INF> impacts of precursors (e.g., 
SO<INF>2</INF> and NO<INF>X</INF>) 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 PM<INF>2.5</INF> 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 
PM<INF>2.5</INF> from individual sources.
    However, for the present, regional-scale models available for 
considering chemical transformations associated with the impacts of 
PM<INF>2.5</INF> 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 PM<INF>2.5</INF> precursors in addition to direct 
PM<INF>2.5</INF> emissions. However, this limitation does not preclude 
a permit applicant from determining whether the direct emissions of 
PM<INF>2.5</INF> from the proposed source or modification will cause or 
contribute to a violation of the NAAQS for PM<INF>2.5</INF>, and is not 
a valid basis for using a PM<INF>10</INF> analysis as a surrogate to 
satisfy the PM<INF>2.5</INF> requirements.

E. What are the effects of repealing the grandfathering provision for 
PM<INF>2.5</INF>?

    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 PM<INF>10</INF> Surrogate Policy 
to satisfy the PM<INF>2.5</INF> requirements. Such applications will 
need to be evaluated for PM<INF>2.5</INF> to ensure that the applicable 
administrative record for the permit application is sufficient to 
demonstrate compliance with the PSD requirements for PM<INF>2.5</INF>, 
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 PM<INF>2.5</INF> NAAQS, 
as required by Sec.  165(a)(3) of the Act, and (b) establish a BACT 
emissions limitation for PM<INF>2.5</INF> in the permit, as required by 
Sec.  165(a)(4) of the Act. For any permit that previously was relying 
on a PM<INF>10</INF> 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 PM<INF>2.5</INF> NSR Implementation 
Rule--but did not receive their permits by that date. Thus, these 
applications were eligible to be grandfathered to use the 
PM<INF>10</INF> Surrogate Policy to satisfy the PM<INF>2.5</INF> 
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 
PM<INF>2.5</INF> requirements in order to obtain a permit. At least two 
of the sources are reportedly planning to take enforceable emissions 
limitations on their PM<INF>2.5</INF> emissions in order to avoid the 
PSD requirements for PM<INF>2.5</INF> altogether.
    Should the additional information that these sources acquire and 
analyze for PM<INF>2.5</INF> result in the need to tighten the 
conditions pertaining to the control of PM<INF>2.5</INF> emissions in 
any of the yet-issued permits, then direct environmental benefits would 
result. In any event, ending the use of the PM<INF>10</INF> Surrogate 
Policy will provide desired certainty to the PM<INF>2.5</INF> 
permitting process by ensuring that all permit applicants show that 
their source does not cause or contribute to a violation of the 
PM<INF>2.5</INF> NAAQS and otherwise meets all of the requirements for 
PM<INF>2.5</INF>, and not use PM<INF>10</INF> surrogacy as means of 
avoiding a real analysis demonstrating that the PM<INF>2.5</INF> 
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 
PM<INF>2.5</INF>.
    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 PM<INF>10</INF> 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 PM<INF>10</INF> Surrogate Policy in SIP-Approved States

A. What is the current status of the PM<INF>10</INF> 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 PM<INF>2.5</INF> stated that SIP-approved 
States may continue to implement a PM<INF>10</INF> program as a 
surrogate to meet the PSD program requirements for PM<INF>2.5</INF> 
pursuant to the 1997 PM<INF>10</INF> Surrogate Policy. This continued 
use of the PM<INF>10</INF> 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 PM<INF>10</INF> Surrogate Policy is in effect, in 
light of the various relevant

[[Page 6834]]

court decisions discussed above, it is prudent to conclude that the 
policy should not be read as allowing the automatic use of a 
PM<INF>10</INF> analysis as a surrogate for satisfying PM<INF>2.5</INF> 
requirements. Moreover, the PM<INF>10</INF> Surrogate Policy contains 
limits within the policy itself. As stated in the 1997 Seitz 
Memorandum, the PM<INF>10</INF> Surrogate Policy provided that, in view 
of significant technical difficulties that existed in 1997, EPA 
believed that PM<INF>10</INF> may properly be used as a surrogate for 
PM<INF>2.5</INF> 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 PM<INF>10</INF> 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 PM<INF>10</INF> 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 PM<INF>10</INF> Surrogate 
Policy had the effect of waiving for up to three years the requirement 
to assure compliance with the PM<INF>2.5</INF> NAAQS, and that 
applicants, States and EPA have the technical ability to address the 
PM<INF>2.5</INF> requirements directly rather than relying on a 
PM<INF>10</INF> 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 PM<INF>10</INF> Surrogate Policy in 
SIP-approved States?

    In this action, EPA is proposing to end the PM<INF>10</INF> 
Surrogate Policy before the end of the three-year transition period for 
revising SIPs (May 2011). The grounds for this proposal are that the 
PM<INF>2.5</INF> implementation issues that led to the adoption of the 
PM<INF>10</INF> Surrogate Policy in 1997 have been largely resolved to 
a degree sufficient for sources and permitting authorities to conduct 
meaningful permit-related PM<INF>2.5</INF> analyses. EPA had previously 
concluded that these difficulties had been resolved to a degree 
sufficient for all Federal PSD permit reviews to begin direct 
PM<INF>2.5</INF>-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 PM<INF>2.5</INF> analyses. 
The EPA is seeking comments on whether the technical issues that gave 
rise to the PM<INF>10</INF> 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 PM<INF>10</INF> 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 PM<INF>2.5</INF> NAAQS based on these final 
rules, the State may continue to implement a PM<INF>10</INF> program as 
a surrogate to meet the PSD program requirements for PM<INF>2.5</INF> 
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 PM<INF>2.5</INF> directly when issuing PSD 
permits. For example, if the State has adopted EPA's definition of 
``regulated NSR pollutant,'' then PM<INF>2.5</INF> falls within this 
definition, because PM<INF>2.5</INF> 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 PM<INF>2.5</INF> and to demonstrate that a source will 
not cause or contribute to a violation of the PM<INF>2.5</INF> NAAQS 
using direct air quality modeling of the proposed unit's direct 
emissions of PM<INF>2.5</INF> to project the impact on the 
PM<INF>2.5</INF> NAAQS.
    One complication for States that seek to implement a full 
PM<INF>2.5</INF> analysis immediately under their existing SIPs may be 
the absence of a significant emissions rate for PM<INF>2.5</INF>. 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 PM<INF>2.5</INF> 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 PM<INF>2.5</INF> 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 
PM<INF>2.5</INF> 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 PM<INF>2.5</INF> 
NAAQS'' because they lack the legal authority to implement the PSD 
program for PM<INF>2.5</INF>. In this context it would be helpful to 
hear commenters' views on whether the legal authority of SIP-approved 
States to implement a PM<INF>2.5</INF> program is impeded by the 
absence of a significant emissions rate for PM<INF>2.5</INF> 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 PM<INF>10</INF> 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 PM<INF>10</INF> 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 
PM<INF>10</INF> 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 PM<INF>10</INF> Surrogate 
Policy continues to be necessary for implementing the Act's 
PM<INF>2.5</INF> requirements.

D. What are the effects of ending the PM<INF>10</INF> Surrogate Policy 
in SIP-approved States?

    When the PM<INF>10</INF> 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 PM<INF>10</INF> 
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 
PM<INF>2.5</INF> rather than PM<INF>10</INF>. EPA is taking comment on 
what kind of transition process, if any, should be allowed if

[[Page 6835]]

EPA decides to end the PM<INF>10</INF> 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 PM<INF>10</INF> Surrogate Policy in SIP-approved States. 
However, the approved ICR for the NSR program was prepared as if the 
2008 rule that added PM<INF>2.5</INF> 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 
PM<INF>10</INF> 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 
PM<INF>10</INF> 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 PM<INF>10</INF> 
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 PM<INF>10</INF> 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 PM<INF>2.5</INF> that affects about 
twenty-one sources), and to end early our policy allowing SIP-approved 
States to use the PM<INF>10</INF> 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 PM<INF>2.5</INF> are adequately protected 
against the adverse effects of PM<INF>2.5</INF> emissions from new and 
modified sources of air pollution by ending the use of a surrogate 
analyses for PM<INF>2.5</INF> 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

[[Page 6836]]

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 PM<INF>10</INF> 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 
PM<INF>10</INF> 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.


Sec.  52.21  [Amended]

    2. In Sec.  52.21, remove paragraph (i)(1)(xi).

[FR Doc. 2010-2983 Filed 2-10-10; 8:45 am]
BILLING CODE 6560-50-P


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