28646 Federal Register / Vol. 76, No. 96 / Wednesday, May 18, 2011 / Rules and Regulations 

FOR FURTHER INFORMATION CONTACT: If 

you have questions on this rule, call or 

e-mail Kay Wade, Bridge 

Administration Branch, Coast Guard; 

telephone 504–671–2128, e-mail 

Kay.B.Wade@uscg.mil. If you have 

questions on viewing the docket, call 

Renee V. Wright, Program Manager, 

Docket Operations, telephone 202–366– 

9826. 

SUPPLEMENTARY INFORMATION: The Union 

Pacific Railroad has requested a 

temporary deviation from the operating 

schedule for the swing span bridge 

across the Calcasieu River, mile 36.4, at 

Westlake, Calcasieu Parish, Louisiana. 

The swing span bridge has a vertical 

clearance of 1.07 feet above mean high 

water, elevation 3.56 feet Mean Gulf 

Level in the closed-to-navigation 

position. 

In accordance with 33 CFR 117.5, the 

bridge currently opens on signal for the 

passage of vessels. This deviation allows 

the swing span of the bridge to remain 

closed to navigation from 8 a.m. through 

5 p.m. with an opening for the passage 

of vessels from 12 noon to 1 p.m. on the 

following Thursdays: June 2, 9, 16, 23, 

and 30, 2011. 

The closures are necessary in order to 

remove and install the structural steel, 

new gear motors, and shafts at both ends 

of the bridge and the center pivot pier. 

This maintenance is essential for the 

continued operation of the bridge. 

Notices will be published in the Eighth 

Coast Guard District Local Notice to 

Mariners and will be broadcast via the 

Coast Guard Broadcast Notice to 

Mariners System. 

Navigation on the waterway is 

minimal at the bridge site. The very 

limited commercial traffic at the bridge 

site consists of commercial tugs with 

tows. There are only two companies that 

transit above the bridge. The bridge will 

be able to open for emergencies if 

necessary. There are no alternate 

waterway routes available. Based on 

experience and coordination with 

waterway users, it has been determined 

that these closures will not have a 

significant effect on vessels that use the 

waterway. 

In accordance with 33 CFR 117.35(e), 

the drawbridge must return to its regular 

operating schedule immediately at the 

end of the designated time period. This 

deviation from the operating regulations 

is authorized under 33 CFR 117.35. 

Dated: May 9, 2011. 

David M. Frank, 

Bridge Administrator. 

[FR Doc. 2011–12246 Filed 5–17–11; 8:45 am] 

BILLING CODE 9110–04–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–HQ–OAR–2003–0062: FRL–9306–9] 

RIN 2060–AP75 

Implementation of the New Source 

Review (NSR) Program for Particulate 

Matter Less Than 2.5 Micrometers 

(PM2.5); Final Rule To Repeal 

Grandfather Provision 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: The EPA is issuing a final rule 

that repeals the ‘‘grandfather’’ provision 

for particulate matter less than 2.5 

micrometers (PM2.5) under the Federal 

Prevention of Significant Deterioration 

(PSD) permit program, which is 

administered by EPA in states that lack 

a PSD permit program in their approved 

state implementation plan (SIP). The 

grandfather provision allowed certain 

facilities under certain circumstances to 

satisfy the PSD permit program 

requirements for PM2.5 by meeting the 

requirements for controlling particulate 

matter less than 10 micrometers (PM10) 

and analyzing impacts on PM10 air 

quality as a surrogate approach based on 

an EPA policy known as the ‘‘1997 PM10

Surrogate Policy.’’ In its February 11, 

2010, notice of proposed rulemaking, 

EPA also proposed to end early the 1997 

PM10 Surrogate Policy in EPA-approved 

state PSD programs during the 

remainder of the SIP development 

period, which ends on May 16, 2011. 

EPA is taking no final action on that 

aspect of the proposal. 

DATES: This final rule is effective on July 

18, 2011. 

ADDRESSES: The EPA has established a 

docket for this action under Docket ID 

No. EPA–HQ–OAR–2003–0062. All 

documents in the docket are listed on 

the http://www.regulations.gov Web 

site. Although listed in the index, some 

information may not be publicly 

available, e.g., Confidential Business 

Information (CBI) or other information 

whose disclosure is restricted by statute. 

Certain other material, such as 

copyrighted material, is not placed on 

the Internet and will be publicly 

available only in hard copy form. 

Publicly available docket materials are 

available either electronically through 

http://www.regulations.gov or in hard 

copy at the Air Docket, EPA/DC, EPA 

West, Room 3334, 1301 Constitution 

Avenue, Northwest, Washington, DC. 

The Public Reading Room is open from 

8:30 a.m. to 4:30 p.m., Monday through 

Friday, excluding legal holidays. The 

telephone number for the Public 

Reading Room is (202) 566–1744, and 

the telephone number for the Air Docket 

is (202) 566–1742. 

FOR FURTHER INFORMATION CONTACT: 

Mr. Dan deRoeck, Air Quality Policy 

Division, (C504–03), U.S. 

Environmental Protection Agency, 

Research Triangle Park, NC, 27711; 

telephone number (919) 541–5593; fax 

number (919) 541–5509; or e-mail 

address: deroeck.dan@epa.gov. 

SUPPLEMENTARY INFORMATION: The 

information in this Supplementary 

Information section of this preamble is 

organized as follows: 

I. General Information 

A. Does this action apply to me? 

B. Where can I get a copy of this document 

and other related information? 

II. Overview of This Final Rule 

III. Background 

A. Prevention of Significant Deterioration 

Program 

B. Fine PM and the NAAQS for PM2.5

C. How is the PSD program for PM2.5

implemented? 

IV. Grandfather Provision for PM2.5 in the 

Federal PSD Program 

A. What is the grandfather provision for 

PM2.5? 

B. Why did EPA propose to repeal the 

grandfather provision for PM2.5? 

C. Summary of Comments and Responses 

on the Proposed Repeal of the 

Grandfather Provision 

D. What final action is EPA taking on the 

grandfather provision for PM2.5? 

V. What action is EPA taking on the 1997 

PM10 Surrogate Policy for state PSD 

programs? 

VI. 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 That 

Significantly Affect Energy Supply, 

Distribution, or Use 

I. National Technology Transfer and 

Advancement Act 

J. Executive Order 12898: Federal Actions 

To Address Environmental Justice in 

Minority Populations and Low-Income 

Populations 

K. Congressional Review Act 

L. Conclusion and Determination Under 

Section 307(d) 

VII. Judicial Review 

VIII. Statutory Authority 


wwoods2 on DSK1DXX6B1PROD with RULES_PART 1
Federal Register / Vol. 76, No. 96 / Wednesday, May 18, 2011 / Rules and Regulations 28647 

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

refer to the EPA. 

2Sources that applied for a PSD permit under the 

Federal PSD program on or after July 15, 2008, are 

already excluded from using the 1997 PM10

Surrogate Policy as a means of satisfying the PSD 

requirements for PM2.5. See 73 FR 28321. 

I. General Information 

A. Does this action apply to me? 

Entities potentially affected by this 

action include 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 final PM2.5 New 

Source Review (NSR) Implementation 

Rule (73 FR 28321), but have not yet 

received a final and effective permit 

authorizing the source to commence 

construction. 

The EPA estimates that fewer than 30 

proposed new major sources or 

modifications will be affected by the 

repeal of the grandfather provision in 

the Federal PSD program. At least two 

projects known to have been 

grandfathered received final permits to 

construct (that are effective) prior to 

EPA taking action to stay the provision 

in June 2009; EPA’s final action to 

repeal the grandfather provision does 

not apply retroactively to such permits. 

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 action also 

include state and local governments 

responsible for implementing PSD preconstruction permit programs for new 

and modified major stationary sources 

under the Federal PSD permit program 

(40 CFR 52.21). 

B. Where can I get a copy of this 

document and other related 

information? 

In addition to being available in the 

docket, an electronic copy of this final 

rule will also be available on the World 

Wide Web. Following signature by the 

EPA Administrator, a copy of this final 

rule will be posted in the regulations 

and standards section of our NSR home 

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

II. Overview of This Final Rule 

In this final rule we 1 are taking final 

action on one of the two actions that we 

proposed in a notice of proposed 

rulemaking on February 11, 2010, at 

75 FR 6827. We are taking final action 

on the proposal to repeal the 

grandfather provision for PM2.5

contained in the Federal PSD rules at 40 

CFR 52.21(i)(1)(xi). The grandfather 

provision, applicable only to PSD 

source applications that were 

determined to be complete before July 

15, 2008, enabled those applications to 

continue to be reviewed for PM10 (i.e., 

the 1997 PM10 Surrogate Policy) in lieu 

of the new requirements for PM2.5, 

which became effective on July 15, 

2008. 

When EPA issued the PM10 Surrogate 

Policy in 1997, the policy enabled 

sources, EPA, and state and local 

permitting authorities to address the 

PSD requirements for PM2.5 simply by 

satisfying the requirements for PM10—a 

regulated form of particulate matter 

(PM) that includes PM2.5 as well as 

larger particles. As explained in the 

1997 PM10 Surrogate Policy, some 

alternative to directly addressing PM2.5

was necessary at that time because of 

various technical problems that made it 

infeasible to estimate PM2.5 and conduct 

the analyses necessary to demonstrate 

compliance with the applicable PM2.5

requirements under the PSD program as 

required by section 165 of the Clean Air 

Act (CAA or Act). 

More recently, EPA has made 

important progress in addressing the 

technical issues that impeded a PM2.5

analysis. With the deployment and 

operation of the monitoring network for 

PM2.5 beginning in 1999, ambient air 

quality monitoring data has become 

more abundantly available. Also, EPA 

has promulgated screening tools, 

including a significant emissions rate 

(SER), significant impact levels (SILs), 

and a significant monitoring 

concentration (SMC) to streamline the 

implementation of the PSD program for 

PM2.5. Finally, EPA has issued revised 

test methods for sampling emissions of 

PM2.5 and its condensable fraction, and 

issued interim modeling guidance for 

modeling PM2.5 emissions to complete a 

cumulative air quality analysis for 

PM2.5. 

Accordingly, in this final action, EPA 

will end the use of the 1997 PM10

Surrogate Policy for PSD permits under 

the Federal PSD program (40 CFR 52.21) 

for sources that have been covered by 

the grandfather provision (that is, those 

sources for which a complete permit 

application was submitted before July 

15, 2008 2) and that have not yet been 

issued a permit by the effective date of 

this final rule. After this final rule 

becomes effective, in order for those 

permits to be issued, such applications 

will have to be reviewed directly against 

the PM2.5 requirements or, alternatively, 

use a surrogate approach for PM2.5

(other than the 1997 PM10 Surrogate 

Policy) that is consistent with the 

applicable case law. Thus, those 

affected PSD permit applications must 

be amended to include further analyses 

to demonstrate compliance with the 

PSD requirements for PM2.5. 

Alternatively, those affected PSD permit 

applications must show that PM10 is an 

adequate surrogate for PM2.5 for that 

specific project. The demonstration 

must show, at a minimum, that the 

source’s emissions are controlled to a 

level that satisfies Best Available 

Control Technology (BACT) 

requirements for PM2.5 and that the 

emissions will not cause or contribute to 

a violation of any National Ambient Air 

Quality Standard (NAAQS or standard) 

for PM2.5. 


wwoods2 on DSK1DXX6B1PROD with RULES_PART 1
28648 Federal Register / Vol. 76, No. 96 / Wednesday, May 18, 2011 / Rules and Regulations 

3We have delegated our authority to some states 

that lack an approved PSD program in their SIPs 

and have requested the authority to implement the 

Federal PSD program. The EPA remains the 

reviewing authority in non-delegated states lacking 

SIP-approved programs. The current status of 

individual state PSD programs can be found at 

EPA’s Web site at http://www.epa.gov/nsr/ 

where.html. 

We believe that it is appropriate to 

terminate the use of the 1997 PM10

Surrogate Policy at this time for those 

PSD applications grandfathered under 

the Federal PSD program because the 

necessary technical tools to conduct 

PM2.5 analyses for PSD sources are now 

available. The 1997 PM10 Surrogate 

Policy was always intended as an 

interim measure that was to remain in 

effect only as long as needed. Over the 

past 13 years, EPA believes that the 

necessary technical tools and test 

methods required to show compliance 

with PM2.5 have been developed and, 

hence, we believe that the need for this 

interim approach no longer exists. 

We do not believe that the use of the 

1997 PM10 Surrogate Policy affords the 

same degree of protection of the PM2.5

NAAQS from major new and modified 

stationary sources as does the direct 

analysis of PM2.5 emissions. In addition 

to the fact that the original PM2.5

NAAQS promulgated in 1997 were 

generally more stringent than the 

corresponding PM10 NAAQS, the 

strengthening of the 24-hour primary 

PM2.5 NAAQS in 2005 created a greater 

disparity between the relative 

stringency of the PM2.5 and PM10

standards. Thus, now that the necessary 

technical tools are available, we believe 

that it is important to move as quickly 

as possible to implement fully the PSD 

program for PM2.5. 

We recognize that this action will in 

some cases increase the PSD permit 

review timeframe (although not 

unexpectedly) for the affected 

grandfathered sources, but we believe 

that the use of the 1997 PM10 Surrogate 

Policy should be permanently 

discontinued under the Federal PSD 

program. Those grandfathered sources 

with pending permits have been on 

notice since June 1, 2009, (the date of 

our Federal Register notice announcing 

that we had agreed to reconsider the 

grandfather provision and to 

administratively stay the provision so 

that we could propose repealing it) that 

EPA was considering ending the 

grandfather provision for PM2.5 and, as 

noted above, now have additional 

technical tools to complete the 

permitting process for PM2.5. 

In our February 2010 proposed rule, 

we also proposed to end the use of the 

1997 PM10 Surrogate Policy for permits 

issued under PSD programs 

implemented by states as part of their 

approved SIP. We received and have 

reviewed some comments that support 

an early end to the policy and some 

comments that oppose ending the policy 

earlier than the original May 16, 2011, 

sunset date. Some of the opposing 

comments also asked EPA to extend the 

time that the policy could be used 

beyond the original sunset date. At this 

time, however, we are taking no action 

on our proposal to end the use of the 

1997 PM10 Surrogate Policy or to 

otherwise change the time period during 

which the policy could continue to be 

used. 

Thus, as announced in the May 2008 

rulemaking, the 1997 PM10 Surrogate 

Policy may not be used for any state 

PSD permits after the 3 years allowed 

for SIP development (ending May 16, 

2011). With the end of the 1997 PM10

Surrogate Policy in SIP-approved states 

on May 16, 2011, and the repeal of the 

grandfather provision in this final 

action, the 1997 PM10 Surrogate Policy 

may not be relied on for any pending or 

future applications. 

III. Background 

A. Prevention of Significant 

Deterioration Program 

The NSR provisions of the 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 

NAAQS to protect public health and 

secondary NAAQS to protect public 

welfare. Once we 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 

(short for ‘‘Prevention of Significant 

Deterioration’’) 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.3

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., to be a ‘‘PSD source’’), 

among other requirements, it must 

undertake a series of analyses for each 

regulated NSR pollutant subject to 

review to demonstrate that it will use 

the 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,’’ such as 

national parks and wilderness areas, 

additional review must be conducted to 

protect the Class I area’s increments and 

special attributes referred to as ‘‘air 

quality related values.’’ 

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 

issues 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 PM and the NAAQS for PM2.5

Fine particles in the atmosphere are 

made up of a complex mixture of 

components. Common constituents 

include sulfates; nitrates; 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 PM 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 solid 

or liquid particles (e.g., elemental 


wwoods2 on DSK1DXX6B1PROD with RULES_PART 1
Federal Register / Vol. 76, No. 96 / Wednesday, May 18, 2011 / Rules and Regulations 28649 

4Available 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. 

5We identified various technical difficulties, 

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, the lack of PM2.5 monitoring sites, and the 

lack of adequate approved test methods. 

carbon from diesel engines or fire 

activities, or condensable organic 

particles from gasoline engines). 

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

nitrates) form in the atmosphere as a 

result of various chemical reactions. 

The health effects associated with 

exposure to PM2.5 are significant and 

well studied. 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. 

The EPA has established primary 

health-based long-term and short-term 

NAAQS for PM2.5. The long-term annual 

average standard is 15 micrograms per 

cubic meter (μg/m3), established in 

1997. See 62 FR 38652. The short-term 

24-hour standard is 35 μg/m3, 

established in 2006. See 71 FR 61286. 

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. 

In addition, EPA has established a 

short-term primary and secondary 

NAAQS for PM10 as an indicator for 

coarse PM. The short-term standard for 

PM10 is 150 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 titled, ‘‘Interim 

Implementation for the New Source 

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

Seitz, EPA, October 23, 1997).4 That 

guidance document, referred to 

throughout this preamble as the ‘‘1997 

PM10 Surrogate Policy,’’ allows proposed 

major sources and major modifications 

to satisfy the PSD requirements for 

PM2.5 by meeting the requirements for 

controlling PM10 and for analyzing 

impacts on PM10 air quality as a 

surrogate approach. The 1997 PM10

Surrogate Policy was designed to 

temporarily help states implement the 

CAA requirements for PSD pertaining to 

the new PM2.5 NAAQS and PM2.5 as a 

regulated pollutant. We intended to 

make the policy available until we 

resolved the known technical 

difficulties associated with addressing 

PM2.5.5

We believed the 1997 PM10 Surrogate 

Policy was necessary because 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.’’ The EPA policy for 

implementing the Federal PSD program 

provides that the term ‘‘any NAAQS’’ 

applies to any existing NAAQS, 

including new or revised NAAQS upon 

their effective date. Also, section 

165(a)(4) requires BACT for each 

pollutant subject to PSD regulation. 

PM2.5 became a regulated pollutant 

when EPA promulgated the NAAQS for 

PM2.5 in 1997. 

On November 1, 2005, we proposed 

the Clean Air Fine Particle 

Implementation Rule (PM2.5

Implementation Rule) to implement the 

1997 PM2.5 NAAQS. See 70 FR 65984. 

The PM2.5 Implementation Rule 

proposal described the requirements 

that states and tribes must meet in their 

implementation plans for attainment of 

the PM2.5 NAAQS. Among other things, 

that rule proposal sought comments on 

revisions to the NSR program in 

attainment and unclassifiable areas (the 

PSD program), and in nonattainment 

areas (the nonattainment NSR program). 

For PSD, EPA proposed to revise the 

existing PSD rules in several ways: by 

proposing a PSD major source threshold 

and SER for PM2.5; proposing to define 

applicable precursors to regulate under 

PSD and SERs for those precursors; 

proposing to clarify that condensable 

PM2.5 must be included in determining 

major source status; proposing options 

for implementing the preconstruction 

monitoring requirements for PM2.5; and 

proposing transition provisions for 

implementing the new PSD 

requirements for PM2.5. 

On September 21, 2007, EPA 

proposed additional program elements 

for the PSD program for PM2.5 that were 

not included in the 2005 PM2.5

Implementation Rule proposal. The 

2007 PSD proposal included several 

options for defining the PM2.5

increments, SILs, and an SMC for PM2.5. 

Increments define maximum allowable 

increases in pollutant concentrations 

above a baseline concentration for a 

particular area. The SILs and SMC are 

useful screening tools for effectively 

implementing the air quality impact 

requirements under PSD. See 72 FR 

54112. 

On May 16, 2008, EPA published a 

final PM2.5 NSR Implementation Rule to 

complete the rulemaking for NSR based 

on the 2005 PM2.5 Implementation Rule 

proposal. The 2008 PM2.5 NSR 

Implementation Rule contains 

requirements for state and tribal plans to 

implement the Act’s preconstruction 

review provisions for the PM2.5 NAAQS 

in both attainment and nonattainment 

areas. See 73 FR 28321. The 2008 PM2.5

NSR Implementation Rule generally 

requires that, as of the effective date of 

the new rule (July 15, 2008), major 

stationary sources seeking permits must 

begin directly satisfying the PM2.5

requirements, rather than relying on the 

1997 PM10 Surrogate Policy. 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 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 PM2.5 requirements in states 

lacking approved PSD programs in their 

SIPs. 

Although the 2008 PM2.5 NSR 

Implementation Rule generally requires 

states to begin implementing the new 

PM2.5 requirements upon the July 15, 

2008, effective date of the rule, EPA 

provided two transition provisions 

within the PSD program under specific 

conditions. The first of these transition 

provisions, a grandfather provision, 

applied specifically to certain sources 

that had applied for PSD permits 

pursuant to the Federal PSD program 

under 40 CFR 52.21. The second 

transition provision allowed states to 

continue using the 1997 PM10 Surrogate 

Policy on an interim basis to implement 

the PM2.5 requirements in any state PSD 

program that is part of an approved SIP. 

This latter exception was to apply to 

permit reviews under state PSD 

programs until the end of the 3-year SIP 

development period (which ends in 

May 2011) or until EPA approves the 

revised state program, whichever comes 

first. 


wwoods2 on DSK1DXX6B1PROD with RULES_PART 1
28650 Federal Register / Vol. 76, No. 96 / Wednesday, May 18, 2011 / Rules and Regulations 

6At the time the grandfather provision for PM2.5

was put into effect, we estimate that fewer than 

thirty 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 and before the June 1, 2009, 

administrative stay took effect. 

7Available in the docket for this rulemaking at 

http://www.regulations.gov, document number 

EPA–HQ–OAR–2003–0062–0279.1. 

8Available in the docket for this rulemaking at 

http://www.regulations.gov, document number 

EPA–HQ–OAR–2003–0062–0281. 

IV. Grandfather Provision for PM2.5 in 

the Federal PSD Program 

A. What is the grandfather provision for 

PM2.5? 

Under certain circumstances, EPA has 

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, (i.e., the effective date of the 

revisions to the Federal PSD regulations 

to implement the PM10 NAAQS) are not 

required to meet the requirements for 

PM10, but may instead satisfy the 

requirements for total suspended 

particulate matter (TSP) 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 increments for PM10

in the applicable implementation plan 

are not required to meet the increment 

requirements for PM10, but may instead 

satisfy the increment requirements for 

TSP that were previously in effect. Also, 

40 CFR 52.21(b)(i)(9) provides that new 

sources or sources making modifications 

that submitted complete permit 

applications before the provisions 

embodying the maximum allowable 

increase for nitrogen oxides (the 

nitrogen dioxide increments) took effect 

are not required to demonstrate 

compliance with the new increment 

requirements to be eligible to receive the 

permit. 

Similarly, the 2008 PM2.5 NSR 

Implementation Rule added a 

grandfather provision allowing permit 

applicants that had submitted a 

complete application under the Federal 

PSD program at 40 CFR 52.21 prior to 

the July 15, 2008, effective date, but had 

not yet received their PSD permit by 

that date, to continue being reviewed 

using the 1997 PM10 Surrogate Policy. 

The grandfather provision for PM2.5, 

added as new paragraph (xi) to 40 CFR 

52.21(i)(1), was not proposed for notice 

and comment in the 2005 PM2.5

Implementation Rule proposal. Instead, 

the 2005 PM2.5 Implementation Rule 

proposal had provided that when we 

issued the final rule, the new PM2.5

requirements would take effect 

immediately in PSD permits issued in 

states where the Federal PSD program 

applies. See 70 FR 65986 at 66043. 

As described more in the discussion 

that follows in section IV.B of this 

preamble, EPA has twice stayed the 

grandfather provision for PM2.5, with the 

first of the two stays beginning on June 

1, 2009. Consequently, permits covered 

by the grandfather provision that had 

not already been issued by the effective 

date of the first stay could not be issued 

relying upon the 1997 PM10 Surrogate 

Policy as the basis for approval during 

the time periods that the stays remained 

in effect.6 Prior to the stays, the 

grandfather provisions remained in 

effect from July 15, 2008, until June 1, 

2009, during which time PSD permit 

applications relying on the 1997 PM10

Surrogate Policy to satisfy the PSD 

requirements for PM2.5 continued to be 

acceptable for purposes of approving 

and issuing the PSD permits. 

B. Why did EPA propose to repeal the 

grandfather provision for PM2.5? 

On July 15, 2008, Earthjustice, acting 

on behalf of the Natural Resources 

Defense Council and the Sierra Club, 

submitted a petition to the 

Administrator seeking reconsideration 

of four provisions of the 2008 PM2.5 NSR 

Implementation Rule.7 One of the four 

challenged provisions was the 

grandfather provision for PM2.5 under 

the Federal PSD program. In the 

petition, the petitioners argued that 

‘‘EPA unlawfully failed to present this 

grandfather provision and 

accompanying rationale to the public for 

comment.’’ See July 15 Petition at 6. 

Thus, petitioners argued, EPA had not 

given interested parties any notice of 

and the opportunity to comment on the 

grandfather provision that EPA adopted 

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

rule. Moreover, with regard to the 

grandfather 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), where it allowed for the 

grandfathering of only those sources on 

which construction had commenced 

before enactment of the 1977 Clean Air 

Act Amendments. See July 15 Petition 

at 7. 

Finally, petitioners argued that the 

technical difficulties associated with 

ambient monitoring, estimating 

emissions, and air quality modeling that 

led to the adoption of the 1997 PM10

Surrogate Policy no longer existed. 

Hence, the petitioners argued that all 

sources must conduct the required 

analyses for PM2.5 directly without 

relying on the 1997 PM10 Surrogate 

Policy, and, therefore, there was no 

justification for continuing to allow any 

sources to rely on the grandfather 

provision. See July 15 Petition at 8. In 

sum, petitioners asserted that the 

grandfather provision in 40 CFR 

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. However, 

on February 10, 2009, the same 

petitioners submitted a second petition 

similar to thefirst to EPA.8

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 2008 PM2.5 NSR Implementation 

Rule and the January 2009 denial of 

petitioners’ first petition for 

reconsideration. In response to the 

second petition, the Administrator 

reversed the Agency’s earlier decision 

and agreed to reconsider each of the 

four challenged provisions. 

In a letter dated April 24, 2009, the 

Administrator indicated that the Agency 

would reconsider the grandfather 

provision and propose to repeal the 

grandfather 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 


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Administrator’s letter announced an 

administrative stay of the grandfather 

provision for 3 months under the 

authority of section 307(d)(7)(B) of the 

Act. 

The 3-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. See 74 FR 

26098. In order to allow additional time 

necessary to finalize this rulemaking, 

EPA proposed and promulgated a 

second stay that stayed the grandfather 

provision until June 22, 2010. See 74 FR 

48153, September 22, 2009. During the 

second stay, on February 11, 2010, EPA 

issued a notice of proposed rulemaking 

that proposed repealing the grandfather 

provision. See 75 FR 6827. The same 

notice also proposed to end early the 

use of the 1997 PM10 Surrogate Policy 

in PSD programs implemented by states 

under an approved SIP. EPA is taking 

no final action on the latter proposed 

action, as described further in section V 

of this preamble. 

C. Summary of Comments and 

Responses on the Proposed Repeal of 

the Grandfather Provision 

A total of 38 commenters, including 7 

commenters speaking at the public 

hearing held on February 26, 2010, 

responded to the 2010 notice of 

proposed rulemaking. Most of these 

commenters specifically addressed the 

proposed repeal of the grandfather 

provision for PM2.5 in the Federal PSD 

rule at 40 CFR 52.21(i)(1)(xi). 

Seven commenters support the 

proposal to repeal the grandfather 

provision, while 20 expressly opposed 

it. The commenters provided various 

reasons for their positions. The 

following discussion summarizes the 

significant comments and our responses 

categorized by specific topics. A more 

detailed summary of the comments and 

our responses is contained in the 

Response to Comment document in the 

docket for this rulemaking. 

1. Comments on Legal Concerns 

Comments on Legality of the 

Grandfather Provision: 

Some environmental group 

commenters support EPA’s proposed 

repeal, in part, because of their 

interpretation that the grandfather 

provision is illegal. The commenters 

claim that EPA has no discretion to 

waive or grandfather any permits under 

the Federal PSD program. On the other 

hand, 12 commenters disagree that there 

is anything unlawful about the 

grandfather provision for PM2.5. Those 

commenters claim that EPA clearly has 

the authority to establish a grandfather 

provision as part of a transition 

procedure for implementing new 

requirements. Some of these 

commenters point out that EPA 

indicated in the 2008 PM2.5 NSR 

Implementation Rule that the 

grandfather provision was consistent 

with existing grandfather provisions 

contained in 40 CFR 52.21(i)(1)(x). 

Response: 

We disagree with the comments 

stating that EPA may not establish 

grandfather provisions in appropriate 

circumstances. Our decision to repeal 

the grandfather provision here does not 

reflect any conclusion by EPA that the 

grandfather provision for PM2.5, or 

grandfather provisions in general, are 

unlawful. See also our response to the 

following comments on statutory 

authority. 

Comments on Statutory Authority: 

Several commenters argue against the 

petitioners’ claim in the 2009 petition 

for reconsideration that section 168(b) of 

the Act restricts EPA’s ability to 

grandfather sources by allowing for the 

grandfathering of only those sources on 

which ‘‘construction was commenced 

* * * after June 1, 1975, and prior to 

the enactment of the Clean Air Act 

Amendments of 1977 * * *.’’ These 

commenters argue that Congress’ 

inclusion of a one-time grandfather 

provision upon enactment of the PSD 

program is clearly different from 

grandfathering when a new pollutant is 

identified for regulation by a NAAQS, 

which the Act does not address. These 

commenters urge EPA to confirm that 

the grandfather provision in section 168 

(intended to ease transition upon 

enactment of the PSD statute) does not 

constrain the Agency with respect to 

offering reasonable transition provisions 

when pollutants become newly subject 

to a NAAQS. The commenters argue 

instead that the existence of the 

grandfather provision in section 168 

generally indicates that Congress 

intended for smooth transitions to new 

programs under the Act. 

One of these commenters argues that 

in the PSD program, EPA has included 

grandfather provisions when it adopted 

a number of new permitting 

requirements, and that the Act gives 

EPA substantial discretion to decide on 

the specifics of PSD applicability. 

(Citing Envt’l Defense v. Duke Energy 

Corp., 127 S. Ct. 1423, 1433–34 (2007).) 

Another of the commenters claims that 

a repeal of the grandfather provision 

would be unfair and contrary to the Act. 

Finally, some commenters expressly 

call upon EPA to clarify that it retains 

the authority to issue transition policies, 

such as the grandfather provision, when 

new NAAQS are issued. 

Response: 

We do not agree with the petitioners’ 

original claim that EPA lacks authority 

to adopt and implement the grandfather 

provision for PM2.5. Thus, we agree with 

the commenters who also question the 

petitioners’ claim. In particular, we do 

not agree that the existence of certain 

grandfathering in section 168(b) of the 

Act is properly read to prohibit 

grandfathering in all other 

circumstances. As discussed previously 

in section IV.A of this preamble, and as 

pointed out in some of the comments, 

we have relied on the use of grandfather 

provisions in past NSR regulations 

where we believed that it was 

appropriate as part of the transition 

process for implementing new 

requirements. In the preamble to the 

2008 PM2.5 NSR Implementation Rule, 

we stated our position that the PM2.5

grandfather provision is 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 (measured as 

TSP) from the then-new PM10

requirements established in 1987. 

However, while we continue to believe 

that we have the discretion to use 

grandfather provisions in the PSD 

program where appropriate, we have 

decided to repeal the grandfather 

provision for PM2.5 at 40 CFR 

52.21(i)(1)(xi) on policy grounds, as 

discussed later in this preamble. 

Comments on the Section 165(c) 

Requirement To Issue a PSD Permit 

within 1 Year: 

One commenter points to section 

165(c) of the Act as creating a 1-year 

deadline for issuing a PSD permit after 

a complete application has been 

submitted, and argues that since most, 

if not all, of the permit applications that 

would be affected by the repeal of the 

grandfather provision were likely 

submitted more than 1 year before the 

initial (administrative) stay of the 

grandfather provision took effect, those 

applications are entitled to final action 

consistent with the grandfather 

provision and the use of PM10 as a 

surrogate for PM2.5. The commenter 

further argues that, in addition to 

allowing EPA or states with delegated 

PSD authority to continue ongoing 

violations of the section 165(c) deadline, 

repealing the grandfather provision for 

PM2.5 would deepen and perpetuate the 

‘‘unlawful’’ effects of the stay. 

Response: 

We do not dispute that some of the 

permit applications relying on the 

grandfather provision were not granted 

or denied within the 1-year period 

provided in section 165(c) of the Act, 


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9 In support of this position, the commenter cites 

Appalachian Power v. EPA, 208 F.3d 1015, 1028 

(D.C. Cir. 2001); Alaska Professional Hunters 

Association v. FAA, 177 F.3d 1030, 1033–34 (D.C. 

Cir. 1999); and Paralyzed Veterans of America v. 

D.C. Arena L.P., 117 F.3d 579, 586 (D.C. Cir. 1997). 

but disagree that this is a valid 

justification for allowing the use of the 

grandfather provision, for all of the 

reasons discussed in this preamble. In 

making this comment, the commenter 

has not shown that the failure to act on 

those applications within 1 year can be 

attributed to the stays of the grandfather 

provision (which, as the commenter 

recognizes, came into effect almost 1 

year after the grandfather provision for 

PM2.5 was promulgated). Indeed, the fact 

that a permit was not issued within a 

year during the time that the grandfather 

provision was in effect suggests that 

there were other factors that prevented 

the source from receiving a permit 

within the 1-year period provided by 

CAA section 165(c). Moreover, even if 

the grandfather provision had not been 

stayed with respect to those pending 

applications (or if the 1997 PM10

Surrogate Policy were to become 

available to the applicant through some 

other mechanism in the future), it is not 

clear that the applications provided the 

information or analyses necessary under 

the case law to demonstrate that PM10

is a reasonable surrogate such that the 

1997 PM10 Surrogate Policy could be 

used. See, e.g., discussion of case law in 

75 FR 6827, 6831–32 (February 11, 

2010). Finally, if the applicant believes 

that it can demonstrate that surrogacy is 

consistent with the case law, then it 

may do so under the case law even in 

the absence of EPA’s 1997 PM10

Surrogate Policy. 

Comments on the Legality of 

Repealing the Grandfather Provision for 

PM2.5: 

Some commenters opposing the 

proposed repeal of the grandfather 

provision for PM2.5 argue that the repeal, 

in addition to the second petition for 

reconsideration, is illegal. With regard 

to the repeal action, some commenters 

question EPA’s alleged position that it 

must repeal the grandfather provision 

because there was not adequate notice 

to the public of EPA’s intent to continue 

the use of the 1997 PM10 Surrogate 

Policy. The commenters disagree with 

this position, claiming that a failure to 

provide for notice and comment on a 

provision of a rule cannot be a reason 

to repeal that provision. 

One commenter disputes that there 

was inadequate notice because technical 

difficulties of measuring, modeling, and 

monitoring PM2.5 have been well known 

since 1997 and were fully documented 

during the rulemaking. Thus, the 

commenter asserts that EPA lacked the 

technical basis to require sources that 

had complete applications pending at 

that time of the promulgation of the 

2008 PM2.5 NSR Implementation Rule to 

measure or predict PM2.5 concentration. 

In addition, this commenter asserts that 

EPA failed to meet the administrative 

requirements for terminating the 1997 

PM10 Surrogate Policy. Specifically, the 

commenter states that EPA would have 

had to provide notice of the withdrawal 

of the 1997 PM10 Surrogate Policy to 

reverse its use by sources grandfathered 

by the final 2008 PM2.5 NSR 

Implementation Rule.9 Based on these 

assertions, the commenter contends that 

EPA may not repeal the grandfather 

provision retroactively. 

Two commenters believe that the 

grandfather provision, while not 

explicitly proposed, was a logical 

outgrowth of the proposal. One of the 

commenters expresses the belief that 

EPA raised for comment, in the 2005 

PM2.5 Implementation Rule proposal, 

issues concerning appropriate means for 

and timing of the transition to 

implementation of PM2.5 requirements 

in the PSD program. The other 

commenter alleges that the 2005 PM2.5

Implementation Rule proposal expressly 

announced continued use of the 1997 

PM10 Surrogate Policy as Option 1 at 70 

FR 66044 and solicited comment on this 

approach. 

The latter commenter also argues that 

the 2010 proposal to repeal the 

grandfather provision for PM2.5

represents a dangerous procedural 

precedent. While acknowledging that 

some actions adopted in a final rule 

could clearly be outside the scope of the 

proposed rule, the commenter asserts 

that as an overarching rule, the 

determination of whether regulatory 

actions adopted by a previous 

Administration’s final rule were a 

logical outgrowth of the proposed rule 

should be left for the courts to decide. 

The commenter believes that leaving 

such decisions to the courts will ensure 

objective and consistent determinations 

of administrative law, rather than 

politically-influenced determinations 

that likely will shift from 

Administration to Administration. The 

commenter contends that the 

grandfather provision is not an instance 

that warrants EPA’s departure from that 

principle. 

One commenter claims that the issue 

of the lawfulness of the grandfather 

provision was previously addressed and 

decided by EPA in the January 14, 2009, 

denial of the first petition for 

reconsideration of the final 2008 PM2.5

NSR Implementation Rule. The 

commenter contends that EPA’s reliance 

on the second petition for 

reconsideration, filed on February 10, 

2009, is contrary to section 307(d)(7)(B) 

of the Act because the second petition 

did not contain any new information 

that would justify reconsideration and, 

thus, the second petition was untimely 

and unfounded. 

Response: 

We do not agree with the commenters’ 

claim that we are repealing the 

grandfather provision because of the 

lack of adequate notice to the public. 

The lack of prior public notice was a 

basis only for granting reconsideration 

and going through a subsequent 

rulemaking. EPA’s decision to repeal the 

grandfather provision is not based on 

the fact that the provision was not 

explicitly proposed in the 2005 PM2.5

Implementation Rule proposal. EPA in 

this rule is not taking any position on 

whether a lack of public notice could be 

a basis for repealing a rule, or on the 

other issues that these comments raise 

concerning the adequacy of public 

notice, logical outgrowth, the timeliness 

of the second petition for 

reconsideration, and other procedural 

matters. 

We believe that the Act provides EPA 

with sufficient authority to issue 

transition policy, including grandfather 

provisions, as needed to provide for the 

reasonable implementation of new NSR 

requirements. This is evidenced by the 

fact that we have established 

grandfather provisions in the past, as 

described in section IV.A of this 

preamble. However, it should not be 

taken to mean that we have or intend to 

automatically use grandfathering as a 

transition mechanism for all changes in 

NSR requirements. In this case, we 

continue to believe that the technical 

tools needed to carry out a PM2.5

analysis are currently available to the 

degree necessary to justify requiring 

sources to comply with the PM2.5

requirements via PM2.5 analyses for 

BACT and air quality impacts. Indeed, 

this is what all other sources that are not 

subject to the grandfather provision but 

are located in areas subject to the 

Federal PSD program are required to do. 

Alternatively, sources may use an 

appropriate surrogacy demonstration in 

accordance with past court decisions. 

For this reason and the other 

substantive reasons discussed in this 

preamble, we have decided to repeal the 

grandfather provision for PM2.5. 

Finally, we wish to clarify a point 

made by the commenter who alleged 

that the 2005 PM2.5 Implementation 

Rule proposal expressly announced and 

sought comment on the continued use 

of the 1997 PM10 Surrogate Policy as 

Option 1. That proposal actually 


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proposed to allow the continued use of 

the 1997 PM10 Surrogate Policy only for 

states that have SIP-approved PSD 

programs and need additional time to 

revise their rules to address the PM2.5

requirements. For all other 

circumstances involving the NSR rules, 

we clearly stated that PSD applicants 

would be subject to the PM2.5

requirements as of the effective date of 

the final rule. See 70 FR 66043–44. 

2. Comments on the Burden on Sources 

Resulting From Repeal of the 

Grandfather Provision 

In the 2010 proposal to repeal the 

grandfather provisions for PM2.5, EPA 

solicited comments on the burdens that 

may be incurred by sources affected by 

a repeal of the grandfather provision. 

See 75 FR 6833. Several commenters 

express concern that repeal of the 

grandfather provision would unfairly 

penalize permit applicants who were in 

the process of obtaining construction 

permits. 

Comment: 

One commenter states that repeal 

would effectively impose retroactive 

requirements on sources that relied on 

past EPA statements of the law and the 

effect of the Agency’s regulations, which 

goes against the concepts of 

fundamental fairness and equity. 

Response: 

We disagree with the premise of this 

comment: that the repeal of the 

grandfather provision imposes new 

requirements. The 1997 PM10 Surrogate 

Policy did not eliminate any PSD 

requirements; it simply provided an 

alternative means of demonstrating 

compliance with the applicable 

requirements that were already in the 

PSD regulations at 40 CFR 52.21 when 

the PM2.5 NAAQS became effective in 

1997. Thus, the repeal of the grandfather 

provision does not impose new 

requirements on any source. The 

commenter’s concern about the fairness 

of our decision is addressed in the next 

response. 

Comment: 

Some commenters indicate that repeal 

would result in ‘‘permit gridlock.’’ These 

commenters state that each regulatory 

change adds another year onto the 

permitting process, during which more 

regulations could change and add 

further delay. The commenters contend 

that because of the length of the process, 

the major applicable rules need to stay 

constant (in all but extraordinary 

circumstances) in order for the process 

to proceed in a logical and orderly 

fashion. 

Another commenter claims that repeal 

of the grandfather provision would 

arbitrarily and unreasonably penalize 

applicants for the delay of the reviewing 

authority in discharging its permitting 

responsibilities. The commenter 

provides an example where two 

applicants (Applicants A and B) submit 

complete applications on the same date 

more than a year before the effective 

date of the stay of the grandfather 

provision, but Applicant A’s permit is 

approved and issued before the effective 

date of the stay and Applicant B’s 

permit is not yet ready to be issued on 

the effective date of the stay. The 

commenter concludes that, through no 

fault of Applicant B, EPA’s violation of 

its nondiscretionary statutory duty to 

act within 1 year would impose on the 

applicant the significant costs and delay 

involved in undertaking a new analysis 

of PM and, potentially, revising the 

permit application. 

One commenter opines that an 

important principle underlies all 

grandfather provisions, including this 

PM2.5 grandfather provision. This 

principle is that a source that relies in 

good faith on EPA’s existing standards 

and procedures to design a construction 

project and prepare a PSD permit 

application based upon that design 

should have the right to rely upon those 

existing standards and procedures and 

should not later be penalized 

retroactively when the standards and/or 

procedures change and, more 

importantly, go into effect after the 

application was submitted. 

The same commenter goes on to point 

out that the issuance of a PSD permit 

under the grandfather provision would 

not establish any future waiver of 

compliance or long-term exemption 

under law or in practice because the Act 

requires all sources, including those that 

have undergone PSD review, to comply 

with limitations the state determines in 

its SIP are necessary to meet NAAQS 

(including any future revised NAAQS) 

as well as to comply with any New 

Source Performance Standards. 

According to the commenter, this 

ensures that, regardless of whether a 

source avoided direct evaluation of its 

PM2.5 emissions during NSR because of 

the grandfather provision, its PM2.5

emissions will still be evaluated for 

compliance with the PM2.5 NAAQS. 

Response: 

In projecting the burdens of extended 

permitting time and effort, the 

commenters assume that if we did not 

repeal the grandfather provision, 

sources could rely on the 1997 PM10

Surrogate Policy without further 

analysis. However, as discussed in the 

2010 proposal preamble (see 75 FR 

6831–32) and later in section V.C.1.b of 

this preamble, at present sources are 

only able to use the policy after 

completing a surrogacy demonstration 

consistent with the case law (i.e., PM10

must be shown to be a reasonable 

surrogate for PM2.5 under the 

circumstances of the specific permit) 

and within the limits of the policy itself 

(i.e., there must be continuing technical 

reasons why a PM2.5 analysis is not 

technically feasible). These key 

prerequisites cannot be assumed to be 

met automatically, and the commenters 

have not shown these prerequisites to be 

met with respect to any of the 

applications that would be covered by 

the grandfather provision. Thus, even if 

the grandfather provision were to 

remain in force, additional analysis 

would be required of sources seeking to 

continue using the 1997 PM10 Surrogate 

Policy under that provision. 

The EPA has considered the 

comments concerning how a repeal of 

the grandfather provision might impact 

the permitting process and allegedly 

create unfairness and inequity in some 

of the hypothetical circumstances 

described in the comments. We 

recognize that the commenters’ 

concerns pertain to the fairness of our 

proposal to change the procedures for 

demonstrating compliance with the 

PM2.5 requirements in mid-permit 

process for individual permits. 

However, we believe that we have an 

obligation to weigh those concerns and 

associated burdens against our 

interpretation of the Act, which requires 

that PSD sources must demonstrate that 

their emissions will not cause or 

contribute to a violation of the PM2.5

NAAQS, and such demonstration 

should provide adequate assurance that 

such compliance will occur. We believe 

that the 1997 PM10 Surrogate Policy, 

which has been in effect for about 13 

years, no longer provides an acceptable 

means of making the required 

demonstration in light of the availability 

of the technical tools needed to 

complete a PM2.5 analysis. Thus, as part 

of our obligation to evaluate the need for 

transition policy both initially and on 

an ongoing basis, we have concluded 

that such burdens are neither unfair nor 

inequitable in comparison to the 

benefits associated with having a better 

understanding of the impacts the 

source’s emissions will have on the 

PM2.5 NAAQS. This conclusion is based 

on our belief that the approach set forth 

in the 1997 EPA policy memo, while 

necessary in the absence of the technical 

tools needed to implement the PSD 

program for PM2.5 directly, is 

sufficiently deficient in its ability to 

satisfy the PM2.5 requirements (in that it 

lacks a surrogacy demonstration), 

particularly with regard to possible 


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10A state agency commenter claims that EPA’s 

repeal of the grandfather provision for PM2.5 could 

affect up to 16 of the agency’s pending PSD 

projects. However, this agency’s PSD program is 

part of an EPA-approved SIP and, as such, does not 

appear to be affected by the grandfather provision. 

Instead, we believe that the affected PSD projects 

would be affected by the ending of the 1997 PM10

Surrogate Policy. Thus, we address this comment in 

the section V, where our final action on ending the 

1997 PM10 Surrogate Policy in SIP-approved PSD 

programs is addressed. 

11This guidance memorandum for PM2.5

modeling can be found on EPA’s Web site at 

http://www.epa.gov/ttn/scram. 

adverse impacts on the PM2.5 NAAQS, 

that it should no longer be available as 

a means of meeting those requirements 

now that the necessary technical tools 

for a PM2.5 analysis are available. Case 

law allows the use of surrogates when 

properly applied. Hence, we point out 

that the use of a valid surrogate 

approach in general is not prohibited by 

our action in this final rule. 

Finally, we note that we did not stay 

the grandfather provision until almost 1 

year following its effective date. Some 

permits were issued during the time that 

the grandfather provision was in effect. 

Grandfathered sources for which a PSD 

permit was not issued during that 

period likely had problems related to 

factors other than the PM2.5 analyses 

that prevented the source from receiving 

a permit. 

3. Comments on the Number of Sources 

Affected by Repeal 

Comment: 

We did not receive any comments that 

either validate or dispute the number of 

sources that we estimated would be 

affected by the stay of the grandfather 

provision for PM2.5.10 One commenter 

observes that EPA has recognized that 

continued use of the grandfather 

provision would affect very few, if any, 

still-pending permits, and finds it hard 

to understand why EPA feels it 

necessary not only to discontinue the 

grandfather provision altogether, but 

also to do so immediately by issuing the 

administrative stay. This commenter 

believes that the facts presented by EPA 

undercut the petitioners’ claim that 

grandfathering certain permit 

applications presents an irreparable 

harm. 

Response: 

In the 2010 proposal to repeal the 

grandfather provision, we reported that 

we were aware of 27 sources that had 

submitted PSD permit applications 

under the Federal PSD program prior to 

July 15, 2008— the effective date of the 

2008 PM2.5 NSR Implementation Rule— 

but did not receive their permits by that 

date. Thus, these applications fell 

within the scope of the grandfather 

provision at the time it was 

promulgated. 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 21 

applications, it is our understanding 

that 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. 

Although only a few remaining 

grandfathered sources would be affected 

by a repeal of the grandfather provision, 

we believe that any air quality 

assessment contained in a PSD permit 

should reflect as accurately as possible 

the actual impacts that could be 

experienced in the area of concern. We 

do not believe that an analysis of PM10

emissions impacts on the PM10 NAAQS 

sufficiently represents the potential 

impacts that a source may have on the 

PM2.5 NAAQS. We did not base our 

decision to repeal the grandfather 

provision on the number of sources that 

could ultimately have to submit revised 

analyses to satisfy the PSD requirements 

for PM2.5. 

4. Comments on Retroactive 

Implementation 

Comment: 

Several commenters who oppose the 

proposed repeal of the grandfather 

provision support a position, based on 

a statement by EPA in the 2010 

proposal, that a repeal of the grandfather 

provision would not impact any PSD 

permits that relied on the 1997 PM10

Surrogate Policy that became final and 

effective before the stay of the provision. 

See 75 FR 6833. However, one 

commenter who supports repealing the 

grandfather provision takes exception to 

those opposing commenters’ position 

and requests a clarification as follows: 

To the extent EPA is saying simply that the 

repeal does not change the defensibility of a 

source’s reliance on the illegal policy, we 

agree. But EPA should clarify that it is not 

claiming that its action somehow protects 

past illegal permitting decisions. The 

Surrogate Policy is and always has been 

illegal. Reliance on this illegal policy is 

subject to challenge and cannot be protected 

by EPA preamble statements that lack any 

authority or force of law. 

Response: 

Neither EPA’s repeal of the 

grandfather provision nor its ending of 

the 1997 PM10 Surrogate Policy in SIPapproved states changes the 

defensibility of a source’s previous 

reliance on the 1997 PM10 Surrogate 

Policy. Put another way, repeal of the 

grandfather provision and the ending of 

the 1997 PM10 Surrogate Policy does not 

create a new basis for arguing that the 

permit was not properly issued. 

However, a challenge to a permit that is 

not based on the repeal itself (such as 

a challenge claiming that the 1997 PM10

Surrogate Policy did not provide a valid 

means of meeting the CAA requirements 

or that the policy was not applied 

properly to the permit being challenged) 

is not impacted by repealing the 

grandfather provision for PM2.5. 

5. Comments on the Technical Tools 

Needed for a PM2.5 Analysis 

Some of the commenters responding 

to the 2010 proposal to repeal the 

grandfather provision for PM2.5 agree 

with EPA’s conclusion that the 

technical issues associated with the 

implementation of a PSD program for 

PM2.5 have been largely resolved. 

However, most of the commenters 

believe that the necessary technical 

tools for PM2.5, i.e., ambient monitoring 

data, emissions data (including 

emissions inventories, emissions 

factors, and stack testing methods), and 

air quality modeling techniques, are not 

yet sufficiently available to carry out an 

adequate analysis for PM2.5. One 

commenter claims that technical 

problems continue to exist and points 

out that even EPA has acknowledged 

that some technical issues remain to be 

addressed. The commenter states that 

this shows EPA has not satisfied its 

burden to establish that the PM2.5

program can be implemented by states. 

Response: 

We do not agree with the commenter’s 

claim that because some technical 

issues remain to be addressed, we 

should not require applicants to begin 

carrying out a PM2.5 analysis to satisfy 

the PSD requirements. We believe that 

there is a sufficient technical basis to 

allow sources to begin focusing on PM2.5

emissions and direct demonstrations of 

compliance with the PM2.5 standards 

without the use of surrogates. In the 

March 23, 2010, EPA modeling 

guidance memorandum titled, 

‘‘Modeling Procedures for 

Demonstrating Compliance with the 

PM2.5 NAAQS,’’ we provide procedures 

that help an applicant complete both a 

preliminary significant impact analysis 

and a cumulative impact analysis to 

determine the impact of a PSD source or 

modification on the PM2.5 NAAQS.11

In addition, we have recently 

addressed some of the important 

components of the PSD program for 


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12http://www.epa.gov/ttn/scram. 

PM2.5 that were described by various 

commenters. We published a final rule 

to revise the PM test methods to 

measure in-stack concentrations of 

PM2.5 emissions and condensables on 

December 21, 2010, at 75 FR 80118. As 

discussed further in section IV.C.6 of 

this preamble, we issued the final rule 

containing the PM2.5 increments, SILs, 

and SMC on October 20, 2010, at 75 FR 

64864. All of these documents, along 

with the availability of ambient 

monitoring data and the other necessary 

tools that we describe in our responses 

to comments that follow, provide a 

sound and sufficient technical basis for 

completing necessary analyses of 

impacts of proposed sources on PM2.5

ambient levels. 

a. Comments on Ambient Monitoring 

Data 

Comment: 

One state agency commenter states 

that ambient air monitoring data may 

not represent ‘‘true’’ PM2.5

concentrations because the Federal 

Reference Monitors include particle 

sizes above PM2.5 in the PM2.5 particle 

count. The commenter believes that it is 

difficult to evaluate PSD and minor NSR 

permits without representative ambient 

monitoring data to verify the accuracy 

or appropriateness of emissions factors 

and dispersion modeling predictions. 

Response: 

As part of its periodic review of the 

NAAQS, EPA recently evaluated the 

latest available science for PM in its 

‘‘Integrated Science Assessment (ISA) 

for Particulate Matter’’ (EPA, 2009). This 

document included a discussion of 

Federal Reference Methods (FRMs) and 

other PM test methods. Also, FRMs and 

Federal Equivalent Methods for PM 

were discussed in detail in the 2004 PM 

Air Quality Criteria Document (EPA, 

2004). These discussions document the 

fact that the size-selective nature of the 

FRM for PM2.5 was developed based on 

epidemiological studies which used 

ambient fine particle sampler 

measurements as indicators of exposure. 

The position and shape of the PM2.5

FRM’s fractionation curve was specified 

as a means of separating particles 

contained in the fine-thoracic regime of 

ambient aerosols (e.g., those generated 

by combustion, coagulation, 

condensation) from those particles 

produced by other mechanisms (e.g., 

mechanically generated). The PM2.5

FRM was not designed nor intended to 

collect all particles less than 2.5 

micrometers (μm) aerodynamic diameter 

while excluding all particles greater 

than 2.5 μm aerodynamic diameter. 

Even so, the slope of the PM2.5 FRM’s 

fractionation is quite sharp and only a 

small fraction of particles greater than 

2.5 μm are included in the PM2.5 mass 

concentration measurement. As an 

example, less than 2 percent of 3.2 μm 

particles in the ambient air are included 

in the mass concentration measurement, 

and virtually all particles larger than 

this size are totally excluded from the 

PM2.5 mass concentration measurement. 

Therefore, concerns regarding potential 

PM2.5 mass measurement bias associated 

with large ambient particles are 

unfounded. As a result, the PM2.5 FRM 

provides accurate PM2.5 mass 

concentration measurements for 

purposes of determining compliance 

with the PM2.5 NAAQS, and for 

evaluating the effectiveness of PM2.5

control initiatives. 

Comment: 

Some commenters believe that some 

states may not have adequate ambient 

monitoring data to determine ambient 

background levels. A commenter claims 

that many states do not yet understand 

or have sufficient PM2.5 ambient data to 

support the regional modeling 

initiatives, which would make assessing 

and enforcing the PM2.5 NAAQS 

difficult and problematic for both the 

regulators and the regulated community. 

Response: 

States have been operating a large and 

robust network of PM2.5 samplers since 

1999. As part of each state’s required 

monitoring network, each stack is 

required to have a least one PM2.5 site 

to monitor for regional background and 

at least one PM2.5 site to monitor for 

regional transport. See section 4.7.3, 

Appendix D to 40 CFR part 58. While 

there is flexibility in the location and 

methods used for these sites, given the 

spatial uniformity of PM2.5 compared to 

PM10 and the large number of PM2.5

samplers operating, EPA believes there 

are sufficient PM2.5 data to support data 

needs such as modeling. 

Comment: 

Another commenter claims that there 

is no guidance available on how to 

determine representative (and 

reasonable) PM2.5 background 

concentrations for air quality modeling 

analyses. The commenter contends that 

applying the current EPA-approved 

methodologies for determining 

background concentrations to PM2.5

would result in background 

concentrations of PM2.5 in excess of 80 

percent (and many cases in excess of 95 

percent) of the NAAQS for PM2.5 for vast 

areas of the United States, which would 

leave a PM2.5 emission source only an 

allowable air quality impact (as 

determined from modeling) of 1–4 μg/ 

m3. According to the commenter, even 

a small (less than 25 MMBtu/hr) natural 

gas-fired boiler or a baghouse with an 

allowable emission limit of as little 0.2 

lb/hr will typically have an impact 

greater than 1–4 μg/m3. The commenter 

believes that without additional 

guidance, neither of these types of small 

sources could be permitted. 

Response: 

Generally, the ambient monitoring 

data used as part of the cumulative 

analysis should represent 

concentrations from emissions from 

existing sources that are not also being 

modeled. However, based on recent 

guidance contained in the March 23, 

2010, EPA modeling guidance 

memorandum titled, ‘‘Modeling 

Procedures for Demonstrating 

Compliance with the PM2.5 NAAQS,’’ 12

we recommend a different approach for 

PM2.5, which reflects the fact that 

secondary (precursor) impacts on 

ambient PM2.5 concentrations from 

individual source emissions cannot 

adequately be estimated by currentlyaccepted modeling techniques. That is, 

we recommend that the monitoring data 

for PM2.5 account for the contribution of 

secondary PM2.5 formation 

representative of the area being modeled 

for the proposed PSD source. See March 

23, 2010, Guidance, at pages 7–8. To the 

extent that accounting for precursor 

impacts involves sources from which 

PM2.5 emissions are also being modeled, 

the March 23, 2010, guidance states (at 

page 7) that the double-counting 

problem generally will be of less 

importance for PM2.5 than the 

representativeness of the monitor for 

secondary contributions. We also intend 

to address separately more detailed 

guidance on the determination of 

representative background data for 

PM2.5.

b. Comments on Emissions Factors and 

Emissions Inventories 

Comment: 

Several state agency and industry 

commenters cite continued problems 

with inadequate emissions factors and 

emissions inventories for estimating the 

amount of PM2.5 being emitted from a 

new project or from existing sources 

that must be modeled to demonstrate 

compliance with the PM2.5 NAAQS. For 

example, one commenter states that 

there is extremely limited information 

concerning emissions factors for PM2.5

from industrial sources, without which 

it is not possible to accurately model the 

impacts of PM2.5. Another commenter 

states that emissions inventory data for 

PM2.5 are in development and grossly 

incomplete. Another commenter 

disputes EPA’s claim that emissions 

factors and emissions inventory data are 


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13These OTM methods represent improved 

methods for measuring PM2.5 emissions, including 

condensable PM2.5. These and other OTM methods 

have not yet been subject to the Federal rulemaking 

process, but have been reviewed by EPA’s 

Emissions Measurement Center staff and placed on 

the EPA Web site at http://www.epa.gov/ttn/emc/ 

prelim.html. 

readily available, stating that such 

information is not yet readily available 

in a quality-assured format on a sourceby-source and point-by-point basis as 

needed for regulatory permitting 

analyses. Another commenter adds that 

while progress has occurred since 2008, 

the inventories are far from complete 

and EPA has yet to finalize a PM2.5 test 

method. 

A state agency commenter claims that 

representative emission factors are not 

available for the majority of industries. 

The commenter adds that EPA clearly 

stated in the preamble to the final 2007 

PM2.5 Implementation Rule (citing 72 FR 

20654–55, April 25, 2007) that the 

quality of available direct filterable and 

condensable PM2.5 national industry 

average emissions factors, such as those 

found in EPA’s ‘‘Compilation of Air 

Pollutant Emission Factors’’ (AP–42), is 

often insufficient to establish effective 

source-specific emissions limits, and 

expected states to rely on directly 

measured emissions data. 

The same commenter recognizes the 

caveats related to using the factors in 

AP–42, but states that often these factors 

are the ‘‘best or only method available 

for estimating emissions, in spite of 

their limitations’’ (quoting from AP–42, 

Volume I, Fifth Edition, January 1995, 

Introduction to AP–42). The commenter 

concludes that while EPA advised 

stakeholders of its concern related to 

PM2.5 implementation in 1997, EPA has 

not updated many of the emissions 

factors. In addition, the commenter 

believes that factors for condensable 

emissions are suspect due to the use of 

a test method EPA is currently seeking 

to revise, and directly measured data to 

develop realistic emissions factors are 

not available for many industries at this 

time. 

Response: 

We believe that progress has been 

made in the development of emissions 

factors for PM2.5 since the time the 

comments were submitted. When EPA 

established a transition period for NSR 

purposes in 2008 waiving the 

requirement that states address 

condensable PM in establishing 

enforceable emissions limits for either 

PM10 or PM2.5 in NSR permits, it was to 

provide time for sources and state/local 

reviewing authorities to improve the 

emissions factors for the filterable and 

condensable PM that they need for the 

development of emissions inventories, 

source-specific emissions, and control 

levels achievable with emissions 

controls. See 73 FR 28334–35 (providing 

a waiver until January 1, 2011, unless 

the SIP or applicable permit condition 

otherwise required their inclusion). 

The Agency knows of several states 

and other organizations that have 

improved their ability to accurately 

characterize these emissions. For 

example, the Mid-Atlantic Regional Air 

Management Association (MARAMA) 

conducted a study to identify emissions 

tests that employed EPA’s 

recommended procedures under Test 

Method 202, promulgated in 1990. The 

emissions factors developed by 

MARAMA are expected to be superior 

to the latest published AP–42 emissions 

factors even though both efforts 

attempted to eliminate tests that did not 

use the recommended options to 

minimize artifact formation. Also, the 

State of Pennsylvania and the San 

Joaquin Valley United Air Pollution 

Control District in California have 

performed or required the performance 

of tests using Other Test Method (OTM) 

27 and/or OTM 28 to better characterize 

the emissions of PM2.5 from sources and 

source categories from which they 

believed improved emissions 

information was needed.13

Although the final revised test 

methods for PM2.5 were only recently 

promulgated, on December 21, 2010, 

EPA has had a long history of 

supporting the use of improved 

procedures to perform particle sizing at 

2.5 micrometers using modifications of 

Method 201A, to employ procedures 

included in the 1990 version of Method 

202 for condensable PM, and to employ 

the additional changes included in OTM 

28 for condensable PM (to minimize 

artifact formation). 

As part of the Information Collection 

Requests that EPA has issued to sources 

in support of the development of 

standards for select source categories, 

we have required testing using OTM 27 

(for PM2.5 only) and OTM 28. These 

emissions data are being used by EPA in 

the rule development process. These 

data are also now available for sources 

and states to use in the development of 

improved emissions factors, emissions 

inventories, source emissions estimates, 

control measures evaluations, and 

development of applicable 

requirements. 

With regard to comments regarding 

the adequacy of existing emissions 

inventories, we respond that, while the 

National Emissions Inventory (NEI) and 

state SIP inventories are evolving, their 

quality is sufficient for permit modeling 

for including the emissions sources 

other than the source(s) being permitted. 

The NEI generally uses the best 

available information and much of that 

information is supplied by the states. 

States can take advantage of new data 

stemming from OTM 27 and OTM 28, as 

mentioned previously, to further 

improve their inventory estimates in the 

2009 inventory years and beyond. A 

preliminary version of the 2008 NEI has 

been made available to state and local 

agencies, tribes and EPA Regional 

Offices, and an updated version is 

scheduled to be posted on EPA’s Web 

site for public availability in April of 

2011, to support future modeling efforts. 

The NEI and state inventories will 

continue to improve as emission factors 

become available based on the new 

PM2.5 test method. 

The EPA also has been supplementing 

the inventories provided by the states 

with estimates of condensable PM 

emissions for many years. These 

estimates have included particle sizing 

at 2.5 micrometers of the filterable PM 

and the addition of CPM. We recognize 

that there are some source categories 

where the condensable PM emissions 

may be biased high due to artifact issues 

and that some source categories where 

the condensable PM emissions are 

biased low due to permitted 

adjustments to test data and absence of 

condensable PM testing. We do not 

think that these inventory uncertainties 

justify not using the available data to 

develop inventories; we believe that 

ignoring this information introduces 

greater error than using the data. The 

EPA believes that sources and states 

should use these data as criteria for 

identifying areas needing emissions 

testing to correct biases. We will 

respond to comments concerning the 

test methods for PM2.5 in the 

immediately following subsection. 

c. Comments on the In-Stack Emissions 

Test Method for PM2.5

Comment: 

Closely tied to the comments citing a 

lack of adequate emissions factors for 

PM2.5 are comments claiming the lack of 

an adequate test method for measuring 

direct PM2.5 emissions—especially 

condensable PM emissions. Some 

commenters argue that it would be 

inappropriate for EPA to repeal the 

grandfather provision and require 

applicants to complete a PM2.5 analysis 

without the use of a surrogate until 

adequate PM2.5 emissions test methods 

are adopted by EPA. 

One commenter claims that without 

final rules on test methods, the state 

agency is without specific authority to 

require applicants to comply with this 


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14Federal Register test methods are methods that 

have been proposed in the Federal Register for 

public review and comment. When those methods 

are promulgated they become the official Code of 

Federal Regulations Methods, which may be used 

individually or in combination with other methods 

by Federal, State or local agencies or sources to 

quantify emissions cited by the regulations for 

which the methods were developed and within the 

limitations specified in the method itself without 

further EPA approval. 

15http://www.epa.gov/ttnemc01/. 

16EPA guidance on predecessors for Method 

201A can be found at http://www.epa.gov/ttn/emc/ 

prelim.html and http://www.epa.gov/ttn/emc/ 

ctm.html. 

17 In addition to the Web sites identified in the 

earlier footnote, see also http://www.epa.gov/ttn/ 

emc/methods/method202.html. 

portion of the PM2.5 requirements. An 

industry commenter expresses concern 

with being required to perform an 

emissions test to demonstrate 

compliance with a PSD permit PM2.5

emissions limit when there are no 

federally approved methods, and with 

significant remaining technical issues 

associated with the test methods for 

measuring PM2.5. 

Another industry commenter states 

that although EPA has proposed 

revisions to existing Method 201A to 

allow measurement of filterable PM2.5, 

the revised method is not final, and it 

is not applicable to units with entrained 

moisture droplets in the stack (e.g., 

units with wet stacks due to wet flue gas 

desulfurization (FGD)). Because many 

sources (including many large electric 

generating units) use wet FGD to control 

sulfur dioxide emissions and therefore 

will be unable to use proposed revised 

Method 201A, the commenter sees no 

justification for the conclusion that the 

technical issues associated with 

measuring PM2.5 have been resolved. 

Some commenters indicate that 

problems associated with unacceptable 

artifact levels in existing test methods 

can overstate the results when sampling 

for PM2.5 emissions. 

Response: 

We acknowledge the problems that 

some states and sources have 

experienced with sampling PM2.5

emissions. Until recently, EPA Federal 

Register test methods have been 

primarily used for determining 

compliance with EPA regulations 

published in parts 60, 61, and 63.14 We 

have not seen a need to publish source 

test methods in the Federal Register 

that are primarily for other regulatory 

purposes, such as compliance with 

NAAQS-related permit limits. As a 

result, many air pollutants or precursor 

compounds do not have a promulgated 

Federal test method. Also, the Federal 

Register test methods do not address all 

possible stack or pollutant release 

conditions. We provide test methods on 

our Emissions Measurement Center Web 

site 15 that can be used to quantify an 

extended range of pollutants and an 

extended range of release conditions. 

While not complete, these measurement 

methods provide a resource for states to 

supplement the available Federal 

Register test methods. 

We note, however, that on March 25, 

2009, EPA proposed amendments to 

Methods 201A and 202—in-stack test 

methods for PM. See 74 FR 12970. For 

Method 201A, we proposed to add a 

particle-sizing device to allow for 

sampling of PM2.5. For at least 5 years 

prior to the test method proposal, EPA 

provided guidance addressing the 

majority of the artifact formation 

associated with the 1991 published 

version of that method.16 As mentioned 

previously, the final test method rule 

was promulgated on December 21, 2010, 

and became effective on January 1, 

2011. The amendments to Method 202 

revise the sample collection and 

recovery procedures of the method to 

reduce the formation of reaction artifact 

levels that could lead to inaccurate and 

overstated measurements of 

condensable PM. The amendments to 

Method 202 also result in increased 

precision of the method and improve 

the consistency of measurements 

obtained between source tests 

performed under different regulatory 

authorities. 

As noted by the commenters, at this 

time there is no recognized method for 

quantifying PM2.5 emissions from 

sources that have entrained water 

droplets. We have an active effort to 

develop a test method that can be used 

under such conditions, but at this time 

it is unclear whether a suitable test 

method can be developed. As provided 

in the proposed revision to Method 

201A, we believe that until the test 

method development is complete, the 

use of EPA Method 5 provides a 

reasonable substitute for a stack 

condition-specific test method that 

performs particulate sizing at 2.5 

micrometers. 

Even before the final test method rule 

revising Methods 201A and 202 was 

finalized, for a number of years, we had 

been posting guidance on our Web site 

for measuring emissions of PM2.5, 

including the condensable fraction.17

The equipment, supplies, and 

procedures provided by this guidance 

have been improved over time by 

stakeholders who have submitted 

constructive comments. We believe this 

posted guidance has provided a 

reasonable means to quantify emissions 

that are suitable for use in developing 

emissions inventories; for developing 

information that is useful in developing 

appropriate achievable emissions levels 

for sources; and for assessing the 

performance of a source’s PM controls. 

We recognize that it is desirable to 

provide detailed documentation of the 

conduct of source test methods such 

that there is consistency between 

establishing the applicable requirements 

and the method used to demonstrate 

compliance with those requirements. 

We do not believe that sources and 

states should be limited to Federal 

Register test methods for developing 

their emissions inventories, for 

developing applicable requirements, 

and for demonstrating compliance with 

applicable requirements. Accordingly, 

we believe that it is appropriate for 

sources and states to use other test 

methods, even if there is a Federal 

Register test method, as long as the test 

method used is a reliable indicator of 

the emissions performance for the 

regulated pollutant. 

d. Comments on Air Quality Models 

Comment: 

Commenters supporting EPA’s 

proposal to repeal the grandfather 

provision generally believe that 

sufficient modeling tools are available to 

complete a PM2.5 analysis. One local 

agency commenter states that air quality 

modeling of direct PM2.5 emissions is 

readily available using EPA-approved 

models. 

The same commenter also claims that 

several states (New York, New Jersey, 

Connecticut) have developed policies by 

which permit applicants use standard 

modeling techniques to propose permit 

limits on PM2.5 emissions that would 

not cause or contribute to an exceedance 

of the PM2.5 NAAQS. The commenter 

acknowledges the present difficulty in 

modeling secondary PM2.5 emissions, 

but points out that this 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. 

An environmental group commenter 

similarly agrees with EPA’s conclusion 

that the challenges related to modeling 

are not a valid basis for using PM10 as 

a surrogate. 

Other commenters, however, express 

concern about the lack of adequate 

modeling techniques to fully address 

the PM2.5 impacts resulting from both 

direct PM2.5 emissions and PM2.5

precursors. One commenter describes 

current problems associated with trying 

to model the impacts of PM2.5

precursors and expresses concern that 

by not including formation of PM2.5

from precursor emissions, the complete 


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impact cannot be assessed. Another 

commenter acknowledges that the air 

quality dispersion model, AERMOD, 

can accurately estimate the impact of 

direct PM2.5 emissions, but believes that 

this is inadequate because elevated 

ground level readings of PM2.5 seem to 

have little to do with local direct PM2.5

emissions, but instead result from 

several days of stagnating atmospheric 

conditions that lead to the build-up of 

secondary nitrates and sulfates in the 

air. The commenter points out that 

AERMOD does not address the chemical 

transformations that lead to the creation 

of these nitrates and sulfates from 

precursor emissions. 

Response: 

We agree with the commenters who 

indicate that our proposal to repeal the 

grandfather provision should be 

finalized despite the technical 

difficulties with estimating the impacts 

from emissions of PM2.5 precursors. We 

acknowledge that current modeling 

techniques do not adequately account 

for the secondarily-formed ambient 

impacts of PM2.5 caused by PM2.5

precursors. We are currently working on 

techniques to address such deficiencies 

in order to improve the ability to 

estimate overall impacts of PM2.5 against 

the NAAQS and upcoming increments. 

Nevertheless, models are available to 

model the ambient impact of direct 

PM2.5 emissions, and we believe that it 

is reasonable to carry out the required 

air quality impact analyses with these 

models. In a March 23, 2010, EPA 

modeling guidance memorandum titled, 

‘‘Modeling Procedures for 

Demonstrating Compliance with PM2.5

NAAQS,’’ we provided procedures that 

enable an applicant to complete both a 

preliminary significant impact analysis 

and a cumulative impact analysis to 

determine the impact of a PSD source or 

modification on the PM2.5 NAAQS.18

The guidance memorandum refers to the 

recommended procedures as a 

screening-level analysis or a ‘‘First Tier 

modeling analysis’’ for demonstrating 

compliance with PM2.5 NAAQS and 

increments. The guidance memorandum 

acknowledges that techniques for 

modeling the individual source 

contributions to secondary formation of 

PM2.5 from precursor emissions are not 

currently provided for within EPA’s 

‘‘Guideline on Air Quality Models’’ (also 

published as Appendix W of 40 CFR 

part 51). However, the March 2010 

guideline memorandum provides 

procedures to account for the secondary 

contribution from regional and local 

sources of precursor emissions as part of 

the cumulative impact analysis for 

appropriate comparison to the annual 

and daily PM2.5 NAAQS through the use 

of monitored background ambient 

concentrations. We are planning to 

provide additional guidance on PM2.5

modeling for PSD permitting that will 

include more details on conducting 

such modeling, including options to 

enable more complete accounting for 

individual source contributions to 

secondary PM2.5 formation when their 

precursor emissions are sufficient to 

warrant inclusion. Therefore, we believe 

that the tools and models now available 

to address direct PM2.5 emissions, and to 

a lesser extent secondarily-formed 

PM2.5, are in total sufficient, along with 

our other reasons provided in this 

preamble, to support our conclusion 

that it is appropriate to repeal the 

grandfather provision for PM2.5, thereby 

ending the use of the 1997 PM10

Surrogate Policy under the Federal PSD 

program. 

6. Comments on the Lack of Key PM2.5

Implementation Requirements 

Comment: 

Several state agency, state/local 

agency association, private citizen, and 

industry commenters oppose EPA’s 

proposed repeal of the grandfather 

provision because EPA has yet to take 

final action under 40 CFR 51.166 and 

52.21 to address key parameters needed 

to implement the PSD permit program 

for PM2.5. The key parameters include 

SILs, an SMC, and increments for PM2.5. 

Response: 

On October 20, 2010, we promulgated 

a final rule at 75 FR 64864 that contains 

the PM2.5 increments, SILs, and SMC. 

Under that rule, the SILs and SMC 

became effective in the Federal PSD 

program as of December 20, 2010, and 

the PM2.5 increments will become 

effective on October 20, 2011. Thus, 

under the Federal program there is no 

longer cause for the commenters’ 

concern that implementation of PSD for 

PM2.5 will be difficult and burdensome 

due to the absence of the screening 

levels embodied in the SILs and SMC. 

There will be some period after the 

repeal of the grandfather provision 

under this final rule before the PM2.5

increments become effective. However, 

note that in the preamble to the October 

20, 2010, final rule for PM2.5 increments, 

SILs, and SMC we stated that under that 

rule, sources applying for a PSD permit 

under the Federal PSD program after the 

major source baseline date for PM2.5

(i.e., after October 20, 2010), but before 

the PM2.5 increments become effective 

(i.e., before October 20, 2011), will be 

considered to consume PM2.5 increment. 

(Under section 169(4) of the Act and the 

implementing regulations at 40 CFR 

52.21(b)(13) and (14), any major source 

that commences construction after the 

major source baseline date consumes 

increment, which will be the case for 

any source that receives its permit after 

that date.) We stated further that, while 

EPA will not require any such source to 

include a PM2.5 increment analysis as 

part of its initial PSD application, an 

increment analysis ultimately will be 

required before the permit may be 

issued if the date of issuance will occur 

after October 20, 2011 (the trigger date 

for the PM2.5 increment), when the 

PM2.5 increments can be triggered under 

the Federal PSD program. See 74 FR 

64899. Any formerly grandfathered 

source that has not yet received its final 

permit will be subject to the same 

transition provisions for PM2.5

increments. 

D. What final action is EPA taking on 

the grandfather provision for PM2.5? 

We have decided to repeal the 

grandfather provision for PM2.5

contained in the Federal PSD program at 

40 CFR 52.21(i)(1)(xi). As the result of 

this final action, any PSD permit 

application previously covered by the 

grandfather provision that is not issued 

a final and effective PSD permit before 

the effective date of this rule will not be 

able to rely on the 1997 PM10 Surrogate 

Policy to satisfy the PSD requirements 

for PM2.5. Unless the application 

includes a valid surrogacy 

demonstration (i.e., the applicant can 

show that meeting the requirements for 

PM10 will also meet the requirements for 

PM2.5), the application will need to 

contain PM2.5 data and analyses to meet 

the PM2.5 requirements to ensure that 

the applicable administrative record for 

the permit application is sufficient to 

demonstrate compliance with those 

requirements. Such requirements 

include the analyses necessary to (1) 

establish the appropriate BACT 

emissions limitation(s) for PM2.5 in the 

permit, as required by section 165(a)(4) 

of the Act, and (2) 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 section 165(a)(3) of the Act. 

For any application that previously was 

relying completely on a PM10 surrogate 

analysis based solely on the 1997 PM10

Surrogate Policy, additional information 

will be required to fulfill these 

requirements. 

The EPA is aware of 27 sources that 

had submitted PSD permit applications 

under the Federal PSD program prior to 

July 15, 2008—the effective date of the 

2008 PM2.5 NSR Implementation Rule— 

but did not receive their permits by that 


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date. While some of these applicants for 

PSD permits have already sought 

alternative means of obtaining the 

necessary permit, those that have not 

yet done so will be required to provide 

a PM2.5 analysis that demonstrates the 

application of BACT and that the 

source’s emissions will not cause or 

contribute to a violation of the PM2.5

NAAQS or use a surrogate approach, as 

long as that approach comports with the 

conditions set forth by previous court 

determinations concerning surrogacy 

demonstrations. This final rule ensures 

that the 1997 PM10 Surrogate Policy will 

no longer be applicable to satisfy the 

PSD requirements for PM2.5 under the 

Federal PSD program. 

V. What action is EPA taking on the 

1997 PM10 Surrogate Policy for state 

PSD programs? 

On February 11, 2010, EPA proposed 

to end the 1997 PM10 Surrogate Policy 

in SIP-approved states before May 16, 

2008. In that notice, EPA described the 

current status of the 1997 PM10

Surrogate Policy under state PSD 

programs that are part of an approved 

SIP, and explained why EPA was 

proposing to end the use of the 1997 

PM10 Surrogate Policy early. 75 FR 

6833–34 (Feb. 11, 2010). As indicated 

above, EPA in this Federal Register 

notice is taking no action concerning its 

proposal to end early the use of the 1997 

PM10 Surrogate Policy under state PSD 

programs that are part of an approved 

SIP. Accordingly, the use of the 1997 

PM10 Surrogate Policy under such state 

programs will end on May 16, 2011, in 

accordance with the discussion in the 

May 16, 2008, preamble. 73 FR 28321, 

at 28340–41. 

VI. Statutory and Executive Order 

Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review 

Under Executive Order 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 Executive 

Order 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 

adding any new paperwork 

requirements (e.g., monitoring, 

reporting, and recordkeeping) as part of 

this final action. This action amends 

one part of the regulations at 40 CFR 

52.21 by repealing the grandfather 

provision that affects fewer than 30 

sources. However, the approved ICR for 

the NSR program was prepared as if the 

2008 PM2.5 NSR Implementation Rule, 

which 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 either the grandfather 

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 

grandfather provision or 1997 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 

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 final rule on small entities, small 

entity is defined as: (1) A small business 

as defined by the Small Business 

Administration’s regulations at 13 CFR 

121.201; (2) a small governmental 

jurisdiction that is a government of a 

city, county, town, school district or 

special district with a population of less 

than 50,000; and (3) a small 

organization that is any not-for-profit 

enterprise which is independently 

owned and operated and is not 

dominant in its field. 

After considering the economic 

impacts of this final rule on small 

entities, I certify that this action will not 

have a significant economic impact on 

a substantial number of small entities. 

This final rule will not impose any new 

requirements or burdens on small 

entities. We have determined that small 

entities will not incur any adverse 

impacts as a result of this action to 

amend the regulations at 40 CFR 52.21 

(by repealing the grandfather provision 

that affects fewer than 30 sources). 

Small businesses and other small 

entities generally are not subject to the 

PSD program, which applies only to 

new major stationary sources and major 

modifications at existing major 

stationary sources. In addition, we do 

not believe that any small governments 

serve as PSD reviewing authorities. 

D. Unfunded Mandates Reform Act 

This rule does not contain a Federal 

mandate that may result in expenditures 

of $100 million or more for state, local, 

and tribal governments, in the aggregate, 

or the private sector in any 1 year. This 

action only amends one part of the 

regulations at 40 CFR 52.21 by repealing 

the grandfather provision that affects 

fewer than 30 sources. 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. This 

final rule applies only to new major 

stationary sources and to major 

modifications at existing major 

stationary sources, and we have no 

indication that small governments own 

or operate any major sources that are 

potentially affected by this action. In 

addition, we do not believe that any 

small governments serve as PSD 

reviewing authorities. 

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 

amends one part of the regulations at 40 

CFR 52.21 by repealing the grandfather 

provision for PM2.5 that affects fewer 

than 30 sources. Thus, Executive Order 

13132 does not apply to this final 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 solicited comment on the 

proposed rule from state and local 

officials. We received comments from 

11 state/local regulatory agency and 

regulatory agency association 

commenters concerning the proposed 

repeal of the grandfather provision 

under the Federal PSD program and the 

early end of the 1997 PM10 Surrogate 


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28660 Federal Register / Vol. 76, No. 96 / Wednesday, May 18, 2011 / Rules and Regulations 

Policy under SIP-approved state PSD 

programs. The comments pertaining to 

our repeal of the grandfather provision 

are summarized and addressed in this 

preamble and in a Technical Support 

Document in the Docket for this 

rulemaking. 

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. Thus, Executive 

Order 13175 does not apply to this 

action. 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

and Safety Risks 

The 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 the 1997 PM10 Surrogate Policy 

as a substitute approach for satisfying 

the PM2.5 requirements under the 

Federal PSD program. 

H. Executive Order 13211: Actions That 

Significantly Affect Energy Supply, 

Distribution, or Use 

This action is not subject to Executive 

Order 13211 (66 FR 28355 (May 22, 

2001)), because it is not a significant 

regulatory action under Executive Order 

12866. The EPA is amending one part of 

the regulations at 40 CFR 52.21 

(expected to affect fewer than 30 

regulated entities). Only a portion of the 

sources involved in the production or 

distribution of energy could be 

impacted. 

I. National Technology Transfer and 

Advancement Act 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (‘‘NTTAA’’), Public Law No. 

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. The NTTAA directs EPA to 

provide Congress, through OMB, 

explanations when the Agency decides 

not to use available and applicable 

voluntary consensus standards. 

This action does not involve technical 

standards. Therefore, EPA did not 

consider the use of any voluntary 

consensus standards. 

J. Executive Order 12898: Federal 

Actions To Address Environmental 

Justice in Minority Populations and 

Low-Income Populations 

Executive Order 12898 (59 FR 7629 

(Feb. 16, 1994)) establishes Federal 

executive policy on environmental 

justice. Its main provision directs 

Federal agencies, to the greatest extent 

practicable and permitted by law, to 

make environmental justice part of their 

mission by identifying and addressing, 

as appropriate, disproportionately high 

and adverse human health or 

environmental effects of their programs, 

policies, and activities on minority 

populations and low-income 

populations in the United States. 

The EPA has concluded that this final 

rule does not result in 

disproportionately high and adverse 

human health or environmental effects 

on minority and/or low income 

populations. The rule only amends one 

part of the regulations at 40 CFR 52.21 

by repealing the grandfather provision 

that affects fewer than 30 sources. 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 final rule. 

K. Congressional Review Act 

The Congressional Review Act, 5 

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

Business Regulatory Enforcement 

Fairness Act of 1996, generally provides 

that before a rule may take effect, the 

agency promulgating the rule must 

submit a rule report, which includes a 

copy of the rule, to each House of the 

Congress and to the Comptroller General 

of the United States. The EPA will 

submit a report containing this rule and 

other required information to the U.S. 

Senate, the U.S. House of 

Representatives, and the Comptroller 

General of the United States prior to 

publication of the rule in the Federal 

Register. A major rule cannot take effect 

until 60 days after it is published in the 

Federal Register. This action is not a 

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

804(2). This rule will be effective on 

July 18, 2011. 

L. Conclusion and Determination Under 

Section 307(d) 

Pursuant to section 307(d)(1)(J) of the 

CAA, this action is subject to the 

provisions of section 307(d). Further, to 

the extent that any aspects of this rule 

are not subject to the provisions of 

section 307(d) pursuant to section 

307(d)(1)(J), the Administrator 

determines that this rule is subject to 

the provisions of section 307(d) 

pursuant to section 307(d)(1)(V). 

VII. Judicial Review 

Under section 307(b)(1) of the Act, 

petitions for judicial review of this 

action must be filed in the United States 

Court of Appeals for the District of 

Columbia Circuit by July 18, 2011. Any 

such judicial review is limited to only 

those objections that are raised with 

reasonable specificity in timely 

comments. Filing a petition for 

reconsideration by the Administrator of 

this final rule does not affect the finality 

of this rule for the purposes of judicial 

review nor does it extend the time 

within which a petition for judicial 

review may be filed, and shall not 

postpone the effectiveness of such rule 

or action. Under section 307(b)(2) of the 

Act, the requirements of this final action 

may not be challenged later in civil or 

criminal proceedings brought by us to 

enforce these requirements. 

VIII. Statutory Authority 

The statutory authority for this action 

is provided by the CAA, as amended (42 

U.S.C. 7401 et seq.). Relevant portions 

of the Act include, but are not 

necessarily limited to, sections 101, 110, 

165, and 301 of the CAA as amended 

(42 U.S.C. 7401, 7410, 7475, and 7601). 

This action is also subject to section 

307(d) of the Act (42 U.S.C. 7607(d)). 

List of Subjects in 40 CFR Part 52 

Administrative practices and 

procedures, Air pollution control, 

Environmental protection, Incorporation 

by reference, Intergovernmental 

relations. 

Dated: May 10, 2011. 

Lisa P. Jackson, 

Administrator. 

For the reasons set out in the 

preamble, title 40, chapter I of the Code 

of Federal Regulations is amended as 

follows: 


wwoods2 on DSK1DXX6B1PROD with RULES_PART 1
Federal Register / Vol. 76, No. 96 / Wednesday, May 18, 2011 / Rules and Regulations 28661 

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. 2011–12089 Filed 5–17–11; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 52 

[EPA–R09–OAR–2011–0372; FRL–9307–3] 

Interim Final Determination To Defer 

Sanctions, Sacramento Metro 1-Hour 

Ozone Nonattainment Area, California 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Interim final rule. 

SUMMARY: EPA is making an interim 

final determination to defer imposition 

of sanctions based on a proposed 

determination, published elsewhere in 

this Federal Register, that the State of 

California is no longer required to 

submit or implement a Clean Air Act 

(CAA) Section 185 fee program 

(Termination Determination) for the 

Sacramento Metro 1-hour Ozone 

nonattainment area (Sacramento Metro 

Area) to satisfy anti-backsliding 

requirements for the 1-hour Ozone 

standard. 

DATES: This interim final determination 

is effective on May 18, 2011. However, 

comments will be accepted until June 

17, 2011. 

ADDRESSES: Submit comments, 

identified by docket number EPA–R09– 

OAR–2011–0372, by one of the 

following methods: 

1. Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the on-line 

instructions. 

2. E-mail: steckel.andrew@epa.gov. 

3. Mail or deliver: Andrew Steckel 

(Air–4), U.S. Environmental Protection 

Agency Region IX, 75 Hawthorne Street, 

San Francisco, CA 94105–3901. 

Instructions: All comments 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 

Confidential Business Information (CBI) 

or other information whose disclosure is 

restricted by statute. Information that 

you consider CBI or otherwise protected 

should be clearly identified as such and 

should not be submitted through http:// 

www.regulations.gov or e-mail. http:// 

www.regulations.gov is an ‘‘anonymous 

access’’ system, and EPA will not know 

your identity or contact information 

unless you provide it in the body of 

your comment. If you send e-mail 

directly to EPA, your e-mail address 

will be automatically captured and 

included as part of the public comment. 

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. 

Docket: Generally, documents in the 

docket for this action are available 

electronically at http:// 

www.regulations.gov and in hard copy 

at EPA Region IX, 75 Hawthorne Street, 

San Francisco, California. While all 

documents in the docket are listed at 

http://www.regulations.gov, some 

information may be publicly available 

only at the hard copy location (e.g., 

copyrighted material, large maps), and 

some may not be publicly available in 

either location (e.g., CBI). To inspect the 

hard copy materials, please schedule an 

appointment during normal business 

hours with the contact listed in the FOR

FURTHER INFORMATION CONTACT section. 

FOR FURTHER INFORMATION CONTACT: Lily 

Wong, EPA Region IX, (415) 947–4114, 

wong.lily@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Throughout this document, ‘‘we,’’ ‘‘us’’ 

and ‘‘our’’ refer to EPA. 

I. Background 

On January 5, 2010 (75 FR 232), we 

published a finding that the State of 

California failed to submit State 

Implementation Plans (SIPs) to satisfy 

CAA section 185 for three 1-hour Ozone 

nonattainment areas: Sacramento Metro 

Area, Southeast Desert, and Los 

Angeles-South Coast Air Basin. As 

discussed in our January 2010 action, 

the finding regarding the Sacramento 

Metro Area addressed the Yolo/Solano 

Air Quality Management District, 

Feather River Air Quality Management 

District, Placer County Air Pollution 

Control District and El Dorado County 

Air Quality Management District. It did 

not address the Sacramento 

Metropolitan Air Quality Management 

District. This finding started a sanctions 

clock for imposition of offset sanctions 

18 months after January 5, 2010 and 

highway sanctions 6 months later, 

pursuant to section 179 of the CAA and 

our regulations at 40 CFR 52.31. 

On July 7, 2010 and in an update on 

April 13, 2011, the California Air 

Resources Board (CARB) submitted a 

request that EPA determine that the 

CAA section 185 obligation has been 

terminated for the Sacramento Metro 

Area. This termination determination 

request was supported by data 

demonstrating that the Sacramento 

Metro Area has attained the 1-hour 

Ozone standard based on the most 

recent three years of complete, qualityassured and certified data (2007–2009), 

and that the improvement in air quality 

resulted from permanent and 

enforceable emissions reductions. In the 

Proposed Rules section of today’s 

Federal Register, we have proposed 

approval of this submittal. Based on 

today’s proposed approval, we are 

taking this final rulemaking action, 

effective on publication, to defer 

imposition of sanctions that were 

triggered by our January 5, 2010 finding 

of failure to submit for the Sacramento 

Metro Area based on a finding that it is 

more likely than not that the 

Sacramento Metro Area is no longer 

obligated to submit a 185 program. 

EPA is providing the public with an 

opportunity to comment on this deferral 

of sanctions. If comments are submitted 

that change our assessment described in 

this final determination and the 

proposed CAA section 185 termination 

determination for the Sacramento Metro 

Area, we would take final action 

proposing to deny or denying the 

termination determination request and 

lifting this deferral of the sanctions. If 

no comments are submitted that change 

our assessment, then with regard to the 

finding of failure to submit discussed 

previously, any imposed sanctions 

would no longer apply and any sanction 

clocks would be permanently 

terminated on the effective date of a 

final CAA section 185 termination 

determination. 

II. EPA Action 

We are making an interim final 

determination to defer CAA section 179 

sanctions associated with the 

Sacramento Metro Area’s 1-hour Ozone 

CAA section 185 obligation based on 

our concurrent proposal to approve a 

CAA section 185 termination 

determination which would remove the 

obligation of the state to submit a 

section 185 SIP when finalized. 

Because EPA has preliminarily 

determined that the State is not 

obligated to submit the SIP that was the 

basis of EPA’s finding of failure to 

submit, relief from sanctions should be 

provided as quickly as possible. 

Therefore, EPA is invoking the good 

cause exception under the 

Administrative Procedure Act (APA) in 

not providing an opportunity for 

comment before this action takes effect 

(5 U.S.C. 553(b)(3)). However, by this 

action EPA is providing the public with 


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