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

notice is also subject to section 307(d)

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

List of Subjects

40 CFR Part 51

Administrative practices and

procedures, Air pollution control,

Carbon monoxide, Fugitive emissions,

Intergovernmental relation, Lead,

Nitrogen dioxide, Ozone, Particulate

matter, Reporting and recordkeeping

requirements, Sulfur oxides,

Transportation, Volatile organic

compounds.

40 CFR Part 52

Administrative practices and

procedures, Air pollution control,

Carbon monoxide, Fugitive emissions,

Intergovernmental relation, Lead,

Nitrogen dioxide, Ozone, Particulate

matter, Reporting and recordkeeping

requirements, Sulfur oxides,

Transportation, Volatile organic

compounds.

Dated: February 4, 2010.

Lisa P. Jackson,

Administrator.

[FR Doe. 2010-2965 Filed 2-10-10; 8:45 am]

BILLING CODE 6560-50-P

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 52

[EPA-R06-OAR-2006-0569; FRL-9112-2]

Approval of Air Quality Implementation

Plans; New Mexico; Albuquerque/

Bernalillo County

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Proposed rule.

SUMMARY: The EPA is proposing

revisions to the State Implementation

Plan submitted by the Governor of New

Mexico on May 24, 2006. The revisions

address Title 20 of the New Mexico

Administrative Code, Chapter 11, Part

102 (denoted 20.11.102 NMAC), which

apply to oxygenated fuels in the

Albuquerque/Bernalillo County area.

The revisions include editorial and

substantive changes that clarify the

requirements under 20.11.102 NMAC.

We are proposing to approve these

revisions in accordance with the

requirements of section 110 of the Clean

Air Act.

DATES: Written comments must be

received on or before March 15, 2010.

ADDRESSES: Comments may be mailed to

Mr. Guy Donaldson, Chief, Air Planning

Section (6PD-L), Environmental

Protection Agency, 1445 Ross Avenue,

Suite 1200, Dallas, Texas 75202-2733.

Comments may also be submitted

electronically or through hand delivery/

courier by following the detailed

instructions in the ADDRESSES section of

the direct final rule located in the rules

section of this Federal Register.

FOR FURTHER INFORMATION CONTACT:

Carrie Paige, Air Planning Section

(6PD-L), Environmental Protection

Agency, Region 6, 1445 Ross Avenue,

Suite 700, Dallas, Texas 75202-2733,

telephone (214) 665-6521; fax number

214-665-7263; e-mail address

paige.carrie@epa.gov.

SUPPLEMENTARY INFORMATION: In the

final rules section of this Federal

Register, EPA is approving the State's

SIP submittal as a direct final rule

without prior proposal because the

Agency views this as a noncontroversial

submittal and anticipates no adverse

comments. A detailed rationale for the

approval is set forth in the direct final

rule. If no relevant adverse comments

are received in response to this action,

no further activity is contemplated. If

EPA receives adverse comments, the

direct final rule will be withdrawn and

all public comments received will be

addressed in a subsequent final rule

based on this proposed rule. EPA will

not institute a second comment period.

Any parties interested in commenting

on this action should do so at this time.

Please note that if EPA receives adverse

comment on an amendment, paragraph,

or section of this rule and if that

provision may be severed from the

remainder of the rule, EPA may adopt

as final those provisions of the rule that

are not the subject of an adverse

comment.

For additional information, see the

direct final rule, which is located in the

rules section of this Federal Register.

Dated: January 15, 2010.

Al Armendariz,

Regional Administrator, Region 6.

[FR Doe. 2010-2791 Filed 2-10-10; 8:45 am]

BILLING CODE 6560-50-P

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 52

[EPA-HQ-OAR-2003-0062: FRL-9113-2]

RIN 2060-AP75

Implementation of the New Source

Review (NSR) Program for Particulate

Matter Less Than 2.5 Micrometers

(PM2.5); Notice of Proposed

Rulemaking To Repeal Grandfathering

Provision and End the PM10 Surrogate

Policy

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Proposed rule.

SUMMARY: In this action, in response to

a petition for reconsideration, EPA is

proposing two actions that would end

EPA's 1997 policy that allows sources

and permitting authorities to use a

demonstration of compliance with the

prevention of significant deterioration

(PSD) requirements for particulate

matter less than 10 micrometers (PM10 )

as a surrogate for meeting the PSD

requirements for particulate matter less

than 2.5 micrometers (PM2.

5). First, in

accordance with the Administrator's

commitment to the petitioners in a letter

dated April 24, 2009, the EPA is

proposing to repeal the "grandfathering"

provision for PM 2.

5 contained in the

Federal PSD program. Second, EPA is

proposing to end early the PM10

Surrogate Policy applicable in States

that have an approved PSD program in

their State Implementation Plan ("SIPapproved States").

DATES: Comments. Comments must be

received on or before March 15, 2010.

Public Hearing. If anyone contacts

EPA requesting the opportunity to speak

at a public hearing concerning the

proposed regulation by February 22,

2010, EPA will hold a public hearing on

February 26, 2010. If a hearing is held,

the record for the hearing will remain

open until March 29, 2010.

ADDRESSES: Submit your comments,

identified by Docket ID No. EPA-HQOAR-2003-0062, by one of the

following methods:

* http://www.regulations.gov. Follow

the online instructions for submitting

comments.

* E-mail: a-and-r-docket@epa.gov.

* Mail: Air and Radiation Docket,

Environmental Protection Agency, Mail

code 6102T, 1200 Pennsylvania Avenue,

NW., Washington, DC 20460. Please

include a total of two copies.

* Hand Delivery: EPA Docket Center,

Public Reading Room, EPA West, Room

3334, 1301 Constitution Ave., NW.,

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Washington, DC 20460. Such deliveries

are only accepted during the Docket's

normal hours of operation, and special

arrangements should be made for

deliveries of boxed information.

Instructions: Direct your comments to

the applicable docket. EPA's policy is

that all comments received will be

included in the public docket without

change and may be made available

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

including any personal information

provided, unless the comment includes

information claimed to be confidential

business information (CBI) or other

information whose disclosure is

restricted by statute. Do not submit

information that you consider to be CBI

or otherwise protected through http://

www.regulations.gov or e-mail. The

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

an "anonymous access" system, which

means EPA will not know your identity

or contact information unless you

provide it in the body of your comment.

If you send an e-mail comment directly

to EPA without going through http://

www.regulations.gov, your e-mail

address will be automatically captured

and included as part of the comment

that is placed in the public docket and

made available on the Internet. If you

submit an electronic comment, EPA

recommends that you include your

name and other contact information in

the body of your comment and with any

disk or CD-ROM you submit. If EPA

cannot read your comment due to

technical difficulties and cannot contact

you for clarification, EPA may not be

able to consider your comment.

Electronic files should avoid the use of

special characters, any form of

encryption, and be free of any defects or

viruses.

Docket: All documents in the docket

are listed in the http://

www.regulations.gov index. Although

listed in the index, some information is

not publicly available, e.g., CBI or other

information whose disclosure is

restricted by statute. Certain other

material, such as copyrighted material,

is not placed on the Internet and will be

publicly available only in hard copy

form. Publicly available docket

materials are available either

electronically through http://

www.regulations.gov or in hard copy at

the EPA Docket Center, Public Reading

Room, EPA West, Room 3334, 1301

Constitution Ave., NW., Washington,

DC 20460. The Public Reading Room is

open from 8:30 a.m. to 4:30 p.m.,

Monday through Friday, excluding legal

holidays. The telephone number for the

Public Reading Room is (202) 566-1742,

and the telephone number for the Air

Docket is (202) 566-1744.

Public Hearing. If a public hearing is

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

Environmental Protection Agency, 1200

Pennsylvania Avenue, Washington, DC

20004.

FOR FURTHER INFORMATION CONTACT: Mr.

Dan deRoeck, Air Quality Policy

Division, (C504-03), U.S.

Environmental Protection Agency,

Research Triangle Park, NC, 27711;

telephone number (919) 541-5593; fax

number (919) 541-5509; or e-mail

address: deroeck.dan@epa.gov.

To request a public hearing or

information pertaining to a public

hearing on this document, contact Ms.

Pamela Long, Air Quality Policy

Division, Office of Air Quality Planning

and Standards (C504-03),

Environmental Protection Agency,

Research Triangle Park, North Carolina

27711; telephone number (919) 541-

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

SUPPLEMENTARY INFORMATION:

I. General Information

A. Does this action apply to me?

Entities affected by this proposed

action include: (1) Those proposed new

and modified major stationary sources

subject to the Federal PSD program that

submitted a complete application for a

PSD permit before the July 15, 2008

effective date of the PM 2.5 New Source

Review (NSR) Implementation Rule, but

have not yet received a final and

effective permit authorizing the source

to commence construction, and (2) those

proposed new and modified major

stationary sources, subject to a PSD

program in SIP-approved States, that

have not yet received a final and

effective permit authorizing the source

to commence construction.

EPA estimates that about twenty-one

proposed new sources or modifications

would be affected by the proposed

repeal of the grandfathering provision.

At least two projects known to have

been grandfathered have already

received final permits to construct (that

are effective) prior to EPA taking action

to stay the provision, but EPA is not

proposing that this repeal would apply

retroactively to such permits.

The entities potentially affected by a

proposal to end early the use of the

PM10 Surrogate Policy in SIP-approved

States include proposed new and

modified major stationary sources in all

industry groups. The majority of sources

potentially affected are expected to be in

the following groups:

Industry group NAICSa

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

P e tro le u m refin ing .................................................................................... 3 2 4 1 1 .

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.

N a tu ra l g a s liq u id s .................................................................................... 2 1 1 1 12 .

N atural gas transport ................................................................................ 4862 1, 22 12 1.

Pulp and paper m ills ................................................................................. 32211, 322121, 322122, 32213.

P a pe r m ills ................................................................................................ 3 2 2 12 1 , 3 2 2 12 2 .

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

33634, 33635, 336399, 336212, 336213.

Pharm aceuticals ....................................................................................... 325411, 325412, 325413, 325414.

aNorth American Industry Classification System.

Entities affected by this proposal also B. What should I consider as I prepare

include State and local reviewing my comments for EPA?

authorities, and Indian country, where

affected new and modified major 1. Submitting CBL Do not submit statonar souceswoul locteinformation containing CBI to EPA

through http://www.regulations.gov or

e-mail. Send or deliver information

identified as CBI only to the following

address: Mr. Roberto Morales, OAQPS

Document Control Officer (C404-02),

U.S. EPA, Office of Air Quality Planning

and Standards, Research Triangle Park,

North Carolina 27711, Attention: Docket

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ID EPA-HQ-OAR-2003-0062. Clearly

mark the part or all of the information

that you claim to be CBI. For CBI

information in a disk or CD-ROM that

you mail to EPA, mark the outside of the

disk or CD-ROM as CBI and then

identify electronically within the disk or

CD-ROM the specific information that

is claimed as CBI. In addition to one

complete version of the comment that

includes information claimed as CBI, a

copy of the comment that does not

contain the information claimed as CBI

must be submitted for inclusion in the

public docket. Information so marked

will not be disclosed except in

accordance with procedures set forth in

40 CFR part 2.

2. Tips for Preparing Your Comments.

When submitting your comments,

remember to:

* Identify the rulemaking by docket

number and other identifying

information (subject heading, Federal

Register date and page number).

* Follow directions-The Agency

may ask you to respond to specific

questions or organize comments by

referencing a Code of Federal

Regulations (CFR) part or section

number.

* Explain why you agree or disagree,

suggest alternatives, and substitute

language for your requested changes.

* If you estimate potential costs or

burdens, explain how you arrived at

your estimate in sufficient detail to

allow for it to be reproduced.

* Provide specific examples to

illustrate your concerns, and suggest

alternatives.

* Explain your views as clearly as

possible, avoiding the use of profanity

or personal threats.

* Make sure to submit your

comments by the comment period

deadline identified.

C. Where can I get a copy of this

document and other related

information?

In addition to being available in the

docket, an electronic copy of this

proposed rule will also be available on

the World Wide Web. Following

signature by the EPA Administrator, a

copy of this proposed rule will be

posted in the regulations and standards

section of our NSR home page located

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

D. How can Ifind information about a

possible Public Hearing?

To request a public hearing or

information pertaining to a public

hearing on this document, contact Ms.

Pamela Long, Air Quality Policy

Division, Office of Air Quality Planning

and Standards (C504-03),

Environmental Protection Agency,

Research Triangle Park, North Carolina

27711; telephone number (919) 541-

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

E. How is this preamble organized?

I. General Information

A. Does this action apply to me?

B. What should I consider as I prepare my

comments for EPA?

C. Where can I get a copy of this document

and other related information?

D. How can I find information about a

possible Public Hearing?

E. How is this preamble organized?

II. Background

A. Prevention of Significant Deterioration

(PSD) Program

B. Fine Particulate Matter and the NAAQS

for PM2.

5

C. How is the PSD program for PM2.

5

implemented?

D. Case Law Relevant to the Use of the

PM10 Surrogate Policy

11. Transition to the PM 2.s Requirements for

States Lacking EPA-Approved PSD

Programs

A. What is the existing grandfathering

provision for PM2 .5?

B. Petitioner's 2008 Challenge to the

Grandfathering Provision for PM2.s

C. Petitioner's 2009 Petition Seeking

Reconsideration and a Stay of the

Grandfathering Provision for PM2 s

D. Why is EPA proposing to repeal the

grandfathering provision for PM2 .5?

E. What are the effects of repealing the

grandfathering provision for PM2 .5?

IV. Ending the PM1 o Surrogate Policy in SIPapproved States

A. What is the current status of the PM10

Surrogate Policy in SIP-approved States?

B. Petitioner's 2009 Petition Seeking

Reconsideration of the Continued Use of

the PM10 Surrogate Policy during the

Three-year Transition Period

C. Why is EPA proposing to end the PM10

Surrogate Policy in SIP-approved States?

D. What are the effects of ending the PM10

Surrogate Policy in SIP-approved States?

V. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory

Planning and Review

B. Paperwork Reduction Act

C. Regulatory Flexibility Act

D. Unfunded Mandates Reform Act

E. Executive Order 13132-Federalism

F. Executive Order 13175-Consultation

and Coordination With Indian Tribal

Governments

G. Executive Order 13045: Protection of

Children from Environmental Health and

Safety Risks

H. Executive Order 13211: Actions

Concerning Regulations That

Significantly Affect Energy Supply,

Distribution, or Use

I. National Technology Transfer and

Advancement Act

J. Executive Order 12898: Federal Actions

to Address Environmental Justice in

Minority Populations and Low-Income

Populations

K. Determination Under Section 307(d)

VI. Statutory Authority

II. Background

A. Prevention of Significant

Deterioration (PSI1) Program

The NSR provisions of the Clean Air

Act (Act) are a combination of air

quality planning and air pollution

control technology program

requirements for new and modified

major stationary sources of air pollution.

Section 109 of the Act requires EPA to

promulgate primary national ambient

air quality standards (NAAQS or

standards) to protect public health and

secondary NAAQS to protect public

welfare. Once we I have set these

standards, States must develop, adopt,

and submit to us for approval SIPs that

contain emission limitations and other

control measures to attain and maintain

the NAAQS and to meet the other

requirements of section 110(a) of the

Act.

Part C of title I of the Act contains the

requirements for a component of the

major NSR program known as the PSD

program. The PSD program sets forth

procedures for the preconstruction

review and permitting of new and

modified major stationary sources of air

pollution locating in areas meeting the

NAAQS ("attainment" areas) and areas

for which there is insufficient

information to classify an area as either

attainment or nonattainment

("unclassifiable" areas). In most States,

EPA has approved a PSD permit

program that is part of the applicable

SIP. The Federal PSD program at 40 CFR

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

Indian country.2 The applicability of the

PSD program to a new major stationary

source or major modification must be

determined in advance of construction

and is a pollutant-specific

determination. Once a major new source

or major modification is determined to

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

PSD source), among other requirements,

it must undertake a series of analyses for

each NSR regulated pollutant subject to

review to demonstrate that it will use

the best available control technology

(BACT) and will not cause or contribute

to a violation of any NAAQS or

increment. In cases where the source's

emissions of any NSR regulated

pollutant may adversely affect an area

specially classified as "Class I,"

1 In this proposal, the terms "we," "us," and "our,"

refer to the EPA.

2 We have delegated our authority to some States

that lack an approved PSD program in their SIPs but

have requested the authority to implement the

Federal PSD program. The EPA remains the

reviewing authority in non-delegated States lacking

SIP-approved programs and in Indian country.

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additional review must be conducted to

protect the Class I area's increments and

special attributes referred to as "air

quality related values."

Under certain circumstances, EPA has

previously allowed proposed new major

sources and major modifications that

have submitted a complete PSD permit

application before the effective date of

an amendment to the PSD regulations,

but have not yet received a final and

effective PSD permit, to continue

relying on information already in the

application rather than immediately

having to amend applications to

demonstrate compliance with the new

PSD requirements. In such a way, these

proposed sources and modifications

were "grandfathered" or exempted from

the new PSD requirements that would

otherwise have applied to them.

For example, the Federal PSD

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

provide that the owners or operators of

proposed sources or modifications that

submitted a complete permit

application before July 31, 1987, but did

not yet receive the PSD permit, are not

required to meet the requirements for

PM1 o, but could instead satisfy the

requirements for total suspended

particulate matter that were previously

in effect.

In addition, EPA has allowed some

grandfathering for permit applications

submitted before the effective date of an

amendment to the PSD regulations

establishing new maximum allowable

increases in pollutant concentrations

(also known as PSD increments). The

Federal PSD regulations at 40 CFR

52.21(i)(10) provide that proposed

sources or modifications that submitted

a complete permit application before the

effective date of the increment in the

applicable implementation plan are not

required to meet the increment

requirements for particulate matter less

than 10 microns, but could instead

satisfy the increment requirements for

total suspended particulate matter that

were previously in effect. Also, 40 CFR

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

modifications that submitted a complete

permit application before the provisions

embodying the maximum allowable

increase for nitrogen oxides (the NO 2

increments) took effect, but did not yet

receive a final and effective PSD permit,

are not required to demonstrate

compliance with the new increment

requirements to be eligible to receive the

permit.

When the reviewing authority reaches

a preliminary decision to authorize

construction of a proposed major new

source or major modification, the

authority must provide notice of the

preliminary decision and an

opportunity for comment by the general

public, industry, and other persons that

may be affected by the emissions of the

proposed major source or major

modification. After considering these

comments, the reviewing authority may

issue a final determination on the

construction permit in accordance with

the PSD regulations. However, under

EPA regulations at 40 CFR part 124 and

similar State regulations, an

administrative appeal of a permitting

determination may prevent the permit

from becoming final and effective until

the appeal is resolved.

B. Fine Particulate Matter and the

NAAQS for PM2.

5

Fine particles in the atmosphere are

made up of a complex mixture of

components. Common constituents

include sulfate (SO4); nitrate (NO3);

ammonium; elemental carbon; a great

variety of organic compounds; and

inorganic material (including metals,

dust, sea salt, and other trace elements)

generally referred to as "crustal"

material, although it may contain

material from other sources. Airborne

particulate matter with a nominal

aerodynamic diameter of 2.5

micrometers or less (a micrometer is

one-millionth of a meter, and 2.5

micrometers is less than one-seventh the

average width of a human hair) is

considered to be "fine particles," and is

also known as PM 2.

5. "Primary" particles

are emitted directly into the air as a

solid or liquid particle (e.g., elemental

carbon from diesel engines or fire

activities, or condensable organic

particles from gasoline engines).

"Secondary" particles (e.g., SO 4 and

NO3) form in the atmosphere as a result

of various chemical reactions.

The health effects associated with

exposure to PM 2.5 are significant.

Epidemiological studies have shown a

significant correlation between elevated

PM 2.

5 levels and premature mortality.

Other important effects associated with

PM 2.

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

PM 2.

5 exposure include older adults,

people with heart and lung disease, and

children.

On July 18, 1997, we revised the

NAAQS for PM to add new standards

for fine particles, using PM 2.

5 as the

indicator. We established health-based

(primary) annual and 24-hour standards

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

annual standard at a level of 15

micrograms per cubic meter (pg/m 3) and

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

M 3 . At the time we established the

primary standards in 1997, we also

established welfare-based (secondary)

standards identical to the primary

standards. The secondary standards are

designed to protect against major

environmental effects of PM 2.5 such as

visibility impairment, soiling, and

materials damage.

On October 17, 2006, we revised the

primary and secondary NAAQS for

PM 2.5 and PM10 . In that rulemaking, we

reduced the 24-hour NAAQS for PM 2.

5

to 35 pg/ms and retained the existing

annual PM 2.5 NAAQS of 15 pg/m 3. In

addition, we retained PM1 o as the

indicator for coarse PM, retained the

existing PM10 24-hour NAAQS of 150

pg/mt , and revoked the annual PM10

NAAQS (which had previously been set

at 50 pg/m3). See 71 FR 61236.

C. How is the PSD program for PM2 .

5

implemented?

After we promulgated the NAAQS for

PM 2.5 in 1997, we issued a guidance

document entitled "Interim

Implementation for the New Source

Review Requirements for PM 2.5" (John S.

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

guidance was designed to help States

implement the Act requirements for

PSD pertaining to the new PM 2.

5

NAAQS and PM 2.

5 as a regulated

pollutant in light of known technical

difficulties to addressing PM 2.

5.

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

provides that no new or modified major

source may be constructed without a

PSD permit that meets all of the section

165(a) requirements with respect to the

regulated pollutant. Moreover, section

165(a)(3) provides that the emissions

from any such source may not cause or

contribute to a violation of any NAAQS.

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

for each pollutant subject to PSD

regulation. The 1997 guidance states

that sources are allowed to use

implementation of a PMo program as a

surrogate for meeting PM 2.

5 NSR

requirements until certain difficulties

concerning PM2.5 are resolved,

including the lack of necessary tools to

calculate the emissions of PM 2.

5 and

related precursors, the lack of adequate

modeling techniques to project ambient

impacts, and the lack of PM 2.

5

monitoring sites.

On May 16, 2008, EPA published a

final rule containing requirements for

3 Available in the docket for this rulemaking, ID

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

www.epa.gov/regiono 7programs/artd/air/nsr/

nsrmemos/pm25.pdf.

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State and Tribal plans to implement the

Act's preconstruction review provisions

for the 1997 PM 2.

5 NAAQS in both

attainment and nonattainment areas. 73

FR 28321. The rule, with two

exceptions, requires that major

stationary sources seeking permits must

begin directly satisfying the PM 2.

5

requirements as of the effective date of

the new rule, rather than relying on the

1997 PM1 o Surrogate Policy. First, in

PM 2.5 attainment (or unclassifiable)

areas, the new PSD requirements under

40 CFR 51.166 set forth the PM 2.5

requirements for States with SIPapproved programs to include in their

State PSD programs; similar

requirements were added to 40 CFR

52.21-the Federal PSD program-for

EPA (or, where applicable, delegated

State agencies) to use for implementing

the new PM 2.5 requirements in States

lacking approved PSD programs in their

SIPs.

Second, in PM 2.5 nonattainment areas,

new requirements were added to 40 CFR

51.165 to enable States to address the

PM 2.

5 NAAQS as part of a

nonattainment NSR program. During the

period of time allowed for States to

amend their existing nonattainment

NSR programs to address the new PM 2.

5

requirements, States are allowed to rely

on the procedures under 40 CFR part 51

appendix S ("The Interpretative Rule")

to issue permits to new or modified

major stationary sources proposing to

locate in a PM 2.

5 nonattainment area. In

the preamble to the May 2008 final rule,

EPA indicated that, in any State that

was unable to apply the PM 2.

5

requirements of appendix S, EPA would

act as the reviewing authority for the

relevant PM2.5 portions of the

nonattainment NSR permit. See 73 FR at

28342.

As mentioned, there were two

exceptions to the imposition of new

PM 2.5 requirements to replace the use of

the 1997 PM1 o Surrogate Policy for

issuing construction permits. The May

2008 final rule included a

grandfathering provision for PM 2.

5 in the

Federal PSD program at 40 CFR 52.21.

This grandfathering provision applied to

sources that had applied for, but had not

yet received, a final and effective PSD

permit before the July 15, 2008 effective

date of the May 2008 final rule. The

relevant grandfathering provision is

described in greater detail in section

III.A of this preamble. This

grandfathering provision had not been

proposed for comment in the November

1, 2005 notice of proposed rulemaking.

Instead, the November 2005 proposal

provided that the revised PM 2.

5

requirements when final would take

effect immediately in States where the

Federal PSD program applies. 70 FR

65986, November 1, 2005 at 66043.

For States with SIP-approved PSD

programs, the preamble to the May 2008

final rule stated that SIP-approved

States may continue to implement a

PM1 O program as a surrogate to meet the

PSD program requirements for PM 2.

5

pursuant to the 1997 [PMo Surrogate

Policy]" for up to three years (until May

2011) or until the individual revised

State PSD programs for PM 2.

5 are

approved by EPA, whichever comes

first. See 73 FR 28341.

D. Case Law Relevant to the Use of the

PMo Surrogate Policy

When EPA issued the PMo Surrogate

Policy in 1997, we stated that meeting

the NSR program requirements for PM 1o

may be used as a surrogate for meeting

the NSR program requirements for PM 2.5

until certain technical difficulties

concerning PM 2.5 are resolved. At that

time, we did not identify criteria to be

applied before the policy could be used

for satisfying the PM 2.5 requirements.

However, courts have issued a number

of opinions that should be read as

establishing guidelines for the use of an

analysis based on PMo as a surrogate

for meeting the PSD requirements for

PM 2.

5 . Applicants and State permitting

authorities seeking to rely on the PM1 o

Surrogate Policy should consider these

opinions in determining whether PM 10

serves as an adequate surrogate for

meeting the PM2 .

5 requirements in the

case of the specific permit application at

issue.

First, courts have held that a surrogate

may be used only after it has been

shown to be reasonable to do so. See,

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

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

principle that EPA may use a surrogate

if it is "reasonable" to do so and

applying analysis from National Lime

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

Cir. 2000) that is applicable to

determining whether use of a surrogate

is reasonable in setting emissions

limitations for hazardous air pollutants

under section 112 of the Act); Mossville

Environmental Action Now v. EPA, 370

F. 3d 1232, 1242-43 (D.C. Cir. 2004)

(EPA must explain the correlation

between the surrogate and the

represented pollutant that provides the

basis for the surrogacy.); Bluewater

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

Cir. 2004) ("The Agency reasonably

determined that regulating

[hydrocarbons] would control PM

pollution both because HC itself

contributes to such pollution, and

because HC provides a good proxy for

regulating fine PM emissions."). Though

these court opinions all addressed when

it was reasonable to use a surrogate in

contexts different from the use of the

PM10 Surrogate Policy, EPA believes

that the overarching legal principle from

these decisions is that a surrogate may

be used only after it has been shown to

be reasonable (such as where the

surrogate is a reasonable proxy for the

pollutant or has a predictable

correlation to the pollutant) and that

this principle applies where an

applicant or permitting authority seeks

to rely upon the PM1o Surrogate Policy

in lieu of a PM 2.

5 analysis to obtain a

PSD permit.

Second, with respect to PM surrogacy

in particular, there are specific issues

raised in the case law that bear on

whether PMo can be considered a

reasonable surrogate for PM 2.

5. The D.C.

Circuit concluded that PMo was an

arbitrary surrogate for a PM pollutant

that is one fraction of PM10 where the

use of PMo as a surrogate for that

fraction is "inherently confounded" by

the presence of the other fraction of

PM1 o. ATA v. EPA, 175 F.3d 1027, 1054

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

indicator for coarse PM (PMo 2.5)

because the amount of coarse PM within

PM1 o will depend arbitrarily on the

amount of fine PM (PM 2.5)). In another

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

the facts and circumstances in that

instance provided a reasonable rationale

for using PMo as a surrogate for a

fraction of PMo. American Farm

Bureau v. EPA, 559 F.3d 512, 534-35

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

demonstrated that (1) PM 2.

5 tends to be

higher in urban areas than in rural areas,

and (2) evidence of health effects from

coarse PM in urban areas is stronger,

EPA reasoned that setting a single PM1 o

standard for both urban and rural areas

would tend to require lower coarse PM

concentrations in urban areas. The court

considered the reasoning from the ATA

case and accepted that the presence of

PM 2.5 in PMo will cause the amount of

coarse PM in PMo to vary, but on the

specific facts before it held that such

variation was not arbitrary.) EPA

believes that these cases demonstrate

the need for permit applicants and

permitting authorities to determine

whether PMo is a reasonable surrogate

for PM 2.

5 under the facts and

circumstances of the specific permit at

issue, and not proceed on a general

presumption that PM1 o is always a good

surrogate for PM 2.5.

Thus, based on this case law, rather

than simply assuming that using the

1997 PMo Surrogate Policy is always an

adequate alternative for satisfying the

PM 2.5 PSD requirements, permit

applicants and permitting authorities

seeking to apply the 1997 PM1 0

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Surrogate Policy must ensure that the

record for each permit supports using

PM10 as a surrogate for PM 2.

5 under the

circumstances.

Finally, this case law suggests that

any person attempting to show that

PM1 o is a reasonable surrogate for PM 2.

5

would need to address the differences

between PM10 and PM 2.5. For example,

emission controls used to capture coarse

particles in some cases may be less

effective in controlling PM 2.5. 72 FR

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

further example, the particles that make

up PM 2.5 may be transported over long

distances while coarse particles

normally travel shorter distances. 70 FR

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

Under the principles in the case law,

any source or permitting authority

seeking to use the PM1o Surrogate Policy

properly would need to consider the

differences between PM1 o and PM 2.5 and

demonstrate that PM1 o is nonetheless an

adequate surrogate for PM 2.

5.

4

III. Transition to the PM2.

5

Requirements for States Lacking EPAApproved PSD Programs

A. What is the existing grandfathering

provision for PM2.

5 ?

As described in section II.C of this

preamble, new and modified major

stationary sources applying for permits

under the Federal PSD program after the

July 15, 2008 effective date of the May

2008 final rule must directly satisfy the

requirements for PM 2.

5 rather than rely

on the PM10 Surrogate Policy to satisfy

those requirements. However, until the

EPA recently stayed the provision for

three months, the grandfathering

provision contained in the Federal PSD

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

allowed sources that had not yet

received final and effective permits, but

had submitted a complete PSD permit

application before the effective date of

the final rule for PM 2.

5, to continue

having their application reviewed on

the basis of the PM10 Surrogate Policy.

In the preamble to the final rule, EPA

indicated that it believed that the PM 2.

5

grandfathering provision was consistent

with the existing provision under 40

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

grandfathered new and modified major

stationary sources with permit

applications based on PM from the thennew PM10 increment requirements

established in 1987. Thus, applicants

would not be expected to perform new

4 Additional discussion about the relevant case

law and EPA's position on the use of PM1 o as a

surrogate for PM2 .5 for PSD permitting is contained

in an Administrative Order issued on August 12,

2009 responding to petitioners' concerns about the

use of the PM 10 Surrogate Policy in a PSD permit

issued to Louisville Gas and Electric Company.

analyses to establish compliance with

the BACT and air quality requirements

for PM 2.

5 in cases where they had

submitted their complete applications

on the basis of the PMo Surrogate

Policy before the effective date of the

new regulations.

At the time the grandfathering

provision for PM 2.

5 was put into effect,

we estimate that less than twenty

proposed new or modified major

stationary sources were covered. Of

these, at least two projects subsequently

received final and effective PSD permits

after the July 15, 2008 effective date of

the final rule.

B. Petitioners' 2008 Challenge to the

Grandfathering Provision for PM2.

5

On July 15, 2008, the Natural

Resources Defense Council and the

Sierra Club jointly submitted a petition

to the Administrator seeking

reconsideration of four provisions of the

May 16, 2008 final rule, including the

grandfathering provision for PM 2.

5

under the Federal PSD program. In the

petition, the petitioners argued that

"EPA unlawfully failed to present this

grandfathering provision and

accompanying rationale to the public for

comment." July 15 Petition at 6. Thus,

petitioners argued, EPA had not given

interested parties any notice of and the

opportunity to comment on the

grandfathering provision that EPA

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

final rule. Moreover, with regard to the

grandfathering provision itself, the

petitioners questioned EPA's authority

to waive statutory requirements by

establishing such a provision and

argued that "Congress specifically

addressed the issue of grandfathering in

section 168(b) and again allowed for the

grandfathering of only those sources on

which 'construction has commenced'

before enactment of the 1997 Clean Air

Act Amendments." July 15 Petition at 7.

Finally, petitioners argued that the

technical difficulties with respect to

PM 2.

5 monitoring, emissions estimation

and modeling that led to the adoption

of the 1997 PM10 Surrogate Policy no

longer exist, and that those sources not

falling within the grandfathering

provision must conduct the required

analyses for PM 2.5 directly without

relying on the PM10 Surrogate Policy,

and so there was no justification for the

grandfathering provision. July 15

Petition at 8. In sum, petitioners

asserted that the grandfathering

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

and arbitrary, and requested that EPA

stay the provision.

On January 14, 2009, EPA responded

in a letter to the petitioners that the

Agency was denying all aspects of the

petition for reconsideration.

C. Petitioners' 2009 Petition Seeking

Reconsideration and a Stay of the

Grandfathering Provision for PM2.

5

On February 10, 2009, the same

petitioners submitted a second petition

similar to the first to EPA. The second

petition made the same arguments that

were presented in the July 15, 2008

petition seeking reconsideration and an

administrative stay and sought

reconsideration of both the May 2008

final rule and the January 2009 denial

of petitioners' first petition for

reconsideration. In response to the

February 2009 petition, on April 24,

2009, the Administrator reversed the

Agency's earlier decision and agreed to

reconsider each of the four challenged

provisions. In addition, the

Administrator indicated that the Agency

intended to propose repealing the

grandfathering provision "on the

grounds that it was adopted without

prior public notice and is no longer

substantially justified in light of the

resolution of the technical issues with

respect to PM 2.5 monitoring, emissions

estimation, and air quality modeling

that led to the PM10 Surrogate Policy in

1997." Finally, the Administrator

announced that she was

administratively staying the

grandfathering provision for three

months under the authority of section

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

effective on June 1, 2009-the date the

notice announcing the stay was

published in the Federal Register-and

ended on September 1, 2009. (74 FR

26098). In order to allow additional time

necessary to finalize this rulemaking,

EPA proposed and promulgated a

second stay that will keep the

grandfathering provision stayed until

June 22, 2010. See 74 FR 48153,

September 22, 2009.

D. Why is EPA proposing to repeal the

grandfathering provision for PM2.5?

In this notice, consistent with the

Administrator's April 24, 2009 letter to

the petitioners, we are proposing to

repeal the grandfathering provision in

the Federal PSD program at 40 CFR

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

November 1, 2005, proposal provided

that the revised PM 2.5 requirements

would take effect immediately in States

where the Federal PSD program applies

(see 70 FR 66043), and did not propose

or seek comment on the continued

application of the PM1 o Surrogate Policy

to sources that submitted an application

before the effective date of the new rule

but had not yet received a final and

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effective PSD permit. On review of the

reconsideration petition, we agree with

the petitioners that it was not

appropriate to adopt the grandfathering

provision without providing for public

notice and comment on the concept of

allowing certain sources covered by the

Federal PSD program to continue to use

the PM1 o Surrogate Policy after the

effective date of the final rule.

Moreover, we find that there is

sufficient justification to propose

repealing the grandfathering provision.

The impact of a repeal will be to require

sources that submitted a permit

application before the effective date

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

rule to satisfy the PSD requirements for

PM 2.5 without reliance on the PM10

Surrogate Policy. However, EPA does

not propose to interpret this proposed

repeal to have any effect on permits that

became final and effective before the

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

Administrator.

Our proposal to repeal the grandfather

provision rests primarily on the fact that

the PM 2.

5 implementation issues that led

to the adoption of the PM1o Surrogate

Policy in 1997 have been largely

resolved to a degree sufficient for the

owners and operators of sources and

permitting authorities to conduct

meaningful permit-related PM 2.

5

analyses. For example, adequate

procedures for the collection of ambient

PM 2.5 are now well established

throughout the country and provide

data useful for the purpose of PSD

permitting. Also, air quality modeling of

direct PM 2.

5 emissions can be

accomplished using an EPA-approved

model to predict ambient PM 2.

5 impacts

caused by new and modified sources of

PM 2.

5 emissions. Emissions factors for

calculating PM 2.

5 emissions from

various source categories and

equipment are available, as are national

inventories of PM 2.5 emissions.

While direct analysis of PM2.5 impacts

may now be conducted, not all technical

difficulties have been resolved. For

example, EPA has not approved any

models that can reliably predict the

localized ambient PM 2.

5 impacts of

precursors (e.g., S0 2 and NOx) emitted

from individual stationary sources.

Some regional-scale photochemical

transport models have been modified to

provide the capability to track the

transport and formation of primary and

secondarily-formed PM 2.

5 from either

single or multiple sources. The EPA is

currently evaluating whether such

source apportionment implementations

in photochemical models are an

appropriate option to estimate

downwind transport and formation of

PM2.5 from individual sources.

However, for the present, regionalscale models available for considering

chemical transformations associated

with the impacts of PM2.5 and its

precursors are designed to account for

impacts of multiple sources over

relatively wide distances, and have not

been approved by EPA for localized

permitting purposes. This limitation

results in underestimating the ambient

impact of a single source that is emitting

PM 2.

5 precursors in addition to direct

PM 2.

5 emissions. However, this

limitation does not preclude a permit

applicant from determining whether the

direct emissions of PM 2.5 from the

proposed source or modification will

cause or contribute to a violation of the

NAAQS for PM 2.5, and is not a valid

basis for using a PM1 o analysis as a

surrogate to satisfy the PM 2.5

requirements.

E. What are the effects of repealing the

grandfathering provision for PM2 .

5?

If EPA adopts a final rule to repeal the

grandfathering provision, any PSD

permit applications covered by the

grandfathering provision that have not

yet been approved and issued a final

and effective PSD permit will not be

able to rely on the PM1 o Surrogate

Policy to satisfy the PM2 .5 requirements.

Such applications will need to be

evaluated for PM2 .5 to ensure that the

applicable administrative record for the

permit application is sufficient to

demonstrate compliance with the PSD

requirements for PM2 .

5, including

analyses necessary to (a) demonstrate

that the emissions increase from the

proposed new or modified major

stationary source will not cause or

contribute to a violation of the PM2 .5

NAAQS, as required by § 165(a)(3) of

the Act, and (b) establish a BACT

emissions limitation for PM2 .

5 in the

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

Act. For any permit that previously was

relying on a PM10 surrogate analysis,

additional information is likely to be

required to fulfill these requirements.

The EPA is aware of twenty-seven

sources that had submitted PSD permit

applications under the Federal PSD

program prior to July 15, 2008-the

effective date of the PM2 .5 NSR

Implementation Rule-but did not

receive their permits by that date. Thus,

these applications were eligible to be

grandfathered to use the PMo Surrogate

Policy to satisfy the PM2 .5 requirements.

For at least six of these applications, the

permit was either issued or denied, or

the project was cancelled, prior to June

1, 2009, when the administrative stay

became effective. For most of the

remaining twenty-one applications, the

sources have already directly addressed,

or are planning to directly address, the

applicable PM 2.5 requirements in order

to obtain a permit. At least two of the

sources are reportedly planning to take

enforceable emissions limitations on

their PM 2.

5 emissions in order to avoid

the PSD requirements for PM 2.

5

altogether.

Should the additional information

that these sources acquire and analyze

for PM 2.

5 result in the need to tighten

the conditions pertaining to the control

of PM 2.5 emissions in any of the yetissued permits, then direct

environmental benefits would result. In

any event, ending the use of the PM10

Surrogate Policy will provide desired

certainty to the PM 2.

5 permitting process

by ensuring that all permit applicants

show that their source does not cause or

contribute to a violation of the PM 2.

5

NAAQS and otherwise meets all of the

requirements for PM 2.

5, and not use

PM10 surrogacy as means of avoiding a

real analysis demonstrating that the

PM 2.5 requirements are met. We believe

this certainty would outweigh any

burdens caused by any delay to the

permit applicants that would be

affected. Nevertheless, we are herein

soliciting comments concerning any

such burdens that may be incurred by

the affected sources to help us evaluate

this proposed repeal of the

grandfathering provision for PM 2.

5.

A repeal of the grandfathering

provision in a subsequent final rule

would not impact any PSD permits that

became final and effective in reliance on

the PMo Surrogate Policy under the

policy itself or the grandfathering

provision that incorporated that policy

by reference before the stay of that

provision.

IV. Ending the PM10 Surrogate Policy in

SIP-Approved States

A. What is the current status of the PMo

Surrogate Policy in SIP-approved

States?

As described in section II.C of this

preamble, the preamble to the May 2008

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

implement a PM10 program as a

surrogate to meet the PSD program

requirements for PM2 .

5 pursuant to the

1997 PM10 Surrogate Policy. This

continued use of the PM1 o Surrogate

Policy was a transition measure,

provided for SIP-approved States in

conjunction with the three-year period

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

adopt and submit SIP revisions

following the May 2008 rule. See 73 FR

28340-28341.

Although the PM10 Surrogate Policy is

in effect, in light of the various relevant

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court decisions discussed above, it is

prudent to conclude that the policy

should not be read as allowing the

automatic use of a PM1o analysis as a

surrogate for satisfying PM 2.5

requirements. Moreover, the PM10

Surrogate Policy contains limits within

the policy itself. As stated in the 1997

Seitz Memorandum, the PM1 o Surrogate

Policy provided that, in view of

significant technical difficulties that

existed in 1997, EPA believed that PM1o

may properly be used as a surrogate for

PM 2.5 in meeting NSR requirements "until these difficulties are resolved."

Seitz Memorandum at 1. In the May

2008 final rule, EPA noted that "these

difficulties have largely been resolved."

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

addition to the case law demonstration

discussed previously, a source or

permitting authority seeking to rely on

the PM1 o Surrogate Policy should

identify any technical difficulties that

exist to justify the application of the

policy in each specific case.

B. Petitioners' 2009 Petition Seeking

Reconsideration of the Continued Use of

the PM10 Surrogate Policy During the

Three-year Transition Period

In their February 10, 2009, petition for

reconsideration, the Natural Resources

Defense Council and the Sierra Club

argued, among other things, that the

continued use of the PM10 Surrogate

Policy had the effect of waiving for up

to three years the requirement to assure

compliance with the PM 2.5 NAAQS, and

that applicants, States and EPA have the

technical ability to address the PM 2.

5

requirements directly rather than

relying on a PM10 analysis as a

surrogate. February 2009 Petition at 4-

6. As we noted previously, the

Administrator granted the February

2009 petition for reconsideration in her

April 24, 2009, letter.

C. Why is EPA proposing to end the

PM10 Surrogate Policy in SIP-approved

States?

In this action, EPA is proposing to

end the PM10 Surrogate Policy before

the end of the three-year transition

period for revising SIPs (May 2011). The

grounds for this proposal are that the

PM 2.5 implementation issues that led to

the adoption of the PM10 Surrogate

Policy in 1997 have been largely

resolved to a degree sufficient for

sources and permitting authorities to

conduct meaningful permit-related

PM 2.5 analyses. EPA had previously

concluded that these difficulties had

been resolved to a degree sufficient for

all Federal PSD permit reviews to begin

direct PM 2.

5-based assessments as of the

July 15, 2008, effective date of the May

2008 final rule. Section III.D of this

preamble, which discusses our proposal

to repeal the grandfathering provision in

the Federal PSD program, provides a

more thorough discussion of the status

of technical difficulties associated with

PM 2.

5 analyses. The EPA is seeking

comments on whether the technical

issues that gave rise to the PM 10

Surrogate Policy in 1997 are sufficiently

resolved that the policy is no longer

needed either for Federal or State

permitting actions.

As mentioned earlier, in the May 2008

final rule, EPA allowed States to

continue using the PM10 Surrogate

Policy on the grounds that States would

need time to update their State laws and

make SIP submissions to EPA. 73 FR at

28340-28341. In the final rule preamble,

we said that "if a SIP-approved State is

unable to implement a PSD program for

the PM 2.5 NAAQS based on these final

rules, the State may continue to

implement a PM1o program as a

surrogate to meet the PSD program

requirements for PM 2.

5 pursuant to the

1997 guidance." 73 FR at 28341.

The existing provisions in many State

implementation plans may already

provide sufficient legal authority for

several SIP-approved States to begin

addressing PM 2.

5 directly when issuing

PSD permits. For example, if the State

has adopted EPA's definition of

"regulated NSR pollutant," then PM 2.5

falls within this definition, because

PM 2.

5 is a "pollutant for which a

national ambient air quality standard

has been promulgated." 40 CFR

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

Therefore, such States may already have

an EPA-approved SIP that authorizes

the State to establish BACT limits for

PM 2.

5 and to demonstrate that a source

will not cause or contribute to a

violation of the PM 2.5 NAAQS using

direct air quality modeling of the

proposed unit's direct emissions of

PM 2.

5 to project the impact on the PM 2.5

NAAQS.

One complication for States that seek

to implement a full PM 2.

5 analysis

immediately under their existing SIPs

may be the absence of a significant

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

28340. Assuming a State that has

adopted EPA's definition of "regulated

NSR pollutant" also applies EPA's

definition of "significant emissions

rate," then under the latter definition,

any increase in emissions of PM2 .

5 will

be deemed significant. 40 CFR

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

The most significant implication of the

latter may be that some sources making

modifications that increase PM 2.5

emissions in amounts less than 10 tons

per year may have to undertake

additional PSD review that would not

be required if the State's SIP included

the significant emissions rate for PM 2.

5

set forth in EPA's May 2008 final rule.

The EPA requests comments on

whether SIP-approved States should be

considered "unable to implement a PSD

program for the PM 2.

5 NAAQS" because

they lack the legal authority to

implement the PSD program for PM 2.

5.

In this context it would be helpful to

hear commenters' views on whether the

legal authority of SIP-approved States to

implement a PM 2.5 program is impeded

by the absence of a significant emissions

rate for PM 2.

5 or whether other factors

present significant complications for

States.

The EPA also recognizes that there are

other issues that could impact the

decision to end the PM 10 Surrogate

Policy. To help EPA consider these

issues, we are specifically seeking

comment on several additional

questions. These questions are as

follows:

-What are the environmental benefits

or harms that will result from ending

the policy before May 2011, and what

are the environmental benefits or

harms that will result if the PM10

Surrogate Policy is left in place until

May 2011?

-What implementation difficulties for

State permitting authorities or PSD

applicants seeking permits will result

from ending the PM10 Surrogate

Policy before the three-year transition

period?

In addition, EPA invites comments on

any other points that interested parties

believe are relevant to whether the PMo

Surrogate Policy continues to be

necessary for implementing the Act's

PM 2.5 requirements.

D. What are the effects of ending the

PM10 Surrogate Policy in SIP-approved

States?

When the PM10 Surrogate Policy ends

in SIP-approved States, the effects will

be the same as those described

previously in section III.E of this

preamble, which discusses the effects of

the proposed repeal of the

grandfathering provision in States

where the Federal PSD program applies.

If EPA decides to end the PM10

Surrogate Policy before the end of the

original transition period in States with

SIP-approved PSD programs, EPA is

proposing that new and modified major

sources seeking permits in such States

would be thereafter required to conduct

permit-related analyses based on PM 2.

5

rather than PM1 o. EPA is taking

comment on what kind of transition

process, if any, should be allowed if

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EPA decides to end the PM10 Surrogate

Policy in the final rule.

V. Statutory and Executive Order

Reviews

A. Executive Order 12866: Regulatory

Planning and Review

Under Executive Order (EO) 12866

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

action is a "significant regulatory action"

because it raises novel legal or policy

issues. Accordingly, EPA submitted this

action to the Office of Management and

Budget (OMB) for review under EO

12866 and any changes made in

response to OMB recommendations

have been documented in the docket for

this action.

B. Paperwork Reduction Act

This action does not impose any new

information collection burden that is

not already accounted for in the

approved information collection request

(ICR) for the NSR program. We are not

proposing any new paperwork

requirements (e.g., monitoring,

reporting, recordkeeping) as part of this

proposed action. This action proposes to

amend one part of the regulations at 40

CFR 52.21 by repealing the

grandfathering provision that affects

about twenty-one sources, and to end

the use of the 1997 PM1o Surrogate

Policy in SIP-approved States. However,

the approved ICR for the NSR program

was prepared as if the 2008 rule that

added PM 2.

5 to the NSR program would

be fully implemented immediately upon

the effective date of the rule, without

any phase-in period during which the

grandfathering provision or 1997 PM10

Surrogate Policy would apply. Thus,

while this action will result in increased

permitting burden for those sources who

would have otherwise been able to use

the grandfathering provision or PM10

Surrogate Policy, this burden is already

included in the approved ICR. The OMB

previously approved the information

collection requirements contained in the

existing regulations (40 CFR parts 51

and 52) under the provisions of the

Paperwork Reduction Act, 44 U.S.C.

3501 et seq., and assigned OMB control

number 2060-0003. The OMB control

numbers for EPA's regulations in 40

CFR are listed in 40 CFR part 9.

C. Regulatory Flexibility Act

The Regulatory Flexibility Act (RFA)

generally requires an agency to prepare

a regulatory flexibility analysis of any

rule subject to notice and comment

rulemaking requirements under the

Administrative Procedure Act or any

other statute unless the agency certifies

that the rule will not have a significant

economic impact on a substantial

number of small entities. Small entities

include small businesses, small

organizations, and small governmental

jurisdictions.

For purposes of assessing the impacts

of this proposal on small entities, small

entity is defined as: (1) A small business

as defined by the Small Business

Administration's (SBA) regulations at 13

CFR 121.201; (2) a small governmental

jurisdiction that is a government of a

city, county, town, school district or

special district with a population of less

than 50,000; and (3) a small

organization that is any not-for-profit

enterprise which is independently

owned and operated and is not

dominant in its field.

After considering the economic

impacts of this proposed rule on small

entities, I certify that this action will not

have a significant economic impact on

a substantial number of small entities.

This proposed rule will not impose any

new requirements on small entities. We

have determined that small businesses

will not incur any adverse impacts

because EPA is taking this action to

propose one amendment to the

regulations at 40 CFR 52.21 (by

repealing the grandfathering provision

that affects about twenty-one sources),

and to end early our policy of allowing

SIP-approved States to use the PM1o

Surrogate Policy. This does not create

any new requirements or burdens. No

costs are associated with this

amendment.

We continue to be interested in the

potential impacts of the proposed rule

on small entities and welcome

comments on issues related to such

impacts.

D. Unfunded Mandates Reform Act

This action contains no Federal

mandate under the provisions of Title II

of the Unfunded Mandates Reform Act

of 1995 ("URMA"), 2 U.S.C. 1531-1538

for State, local, and tribal governments

or the private sector. This action only

proposes to amend one part of the

regulations at 40 CFR 52.21 (by

repealing the grandfathering provision

that affects about twenty-one sources),

and to end early our policy of allowing

SIP-approved States to use the PMo

Surrogate Policy. Therefore, this action

is not subject to the requirements of

sections 202 or 205 of UMRA.

This action is also not subject to the

requirements of section 203 of UMRA

because it contains no regulatory

requirements that might significantly or

uniquely affect small governments.

E. Executive Order 13132: Federalism

This action does not have Federalism

implications. It will not have substantial

direct effects on the States, on the

relationship between the national

government and the States, or on the

distribution of power and

responsibilities among the various

levels of government as specified in

Executive Order 13132. This action only

proposes to amend one part of the

regulations at 40 CFR 52.21 (by

repealing the grandfathering provision

for PM 2.

5 that affects about twenty-one

sources), and to end early our policy

allowing SIP-approved States to use the

PM10 Surrogate Policy. Thus, Executive

Order 13132 does not apply to this

proposed rule.

In the spirit of Executive Order 13132,

and consistent with EPA policy to

promote communications between EPA

and State and local governments, EPA

specifically solicits comment on this

proposed rule from State and local

officials.

F. Executive Order 13175: Consultation

and Coordination With Indian Tribal

Governmen ts

This action does not have tribal

implications, as specified in Executive

Order 13175 (65 FR 67249, November 9,

2000.) This action will not impose any

new obligations or enforceable duties on

tribal governments.

EPA specifically solicits additional

comment on this proposed action from

tribal officials.

G. Executive Order 13045: Protection of

Children From Environmental Health

and Safety Risks

EPA interprets Executive Order 13045

(62 FR 19885, April 23, 1997) as

applying only to those regulatory

actions that concern health or safety

risks, such that the analysis required

under section 5-501 of the Executive

Order has the potential to influence the

regulation. This action is not subject to

Executive Order 13045 because it does

not establish an environmental standard

intended to mitigate health or safety

risks. In fact, this action will help

ensure that the health-based national

standards for PM 2.5 are adequately

protected against the adverse effects of

PM 2.5 emissions from new and modified

sources of air pollution by ending the

use of a surrogate analyses for PM 2.

5

impacts.

H. Executive Order 13211: Actions

Concerning Regulations That

Significantly Affect Energy Supply,

Distribution, or Use

This action is not a "significant energy

action" as defined in Executive Order

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

because it is not likely to have a

significant adverse effect on the supply,

distribution, or use of energy. EPA is

proposing to amend one part of the

regulations at 40 CFR 52.21 (expected to

affect about twenty-one regulated

entities), and to end early the use of the

PM10 Surrogate Policy in SIP-approved

States. In both instances, only a portion

of the affected sources are involved in

the production or distribution of energy.

I. National Technology Transfer and

Advancement Act

Section 12(d) of the National

Technology Transfer and Advancement

Act of 1995 ("NTTAA"), Public Law

104-113, 12(d) (15 U.S.C. 272 note)

directs EPA to use voluntary consensus

standards in its regulatory activities

unless to do so would be inconsistent

with applicable law or otherwise

impractical. Voluntary consensus

standards are technical standards (e.g.,

materials specifications, test methods,

sampling procedures, and business

practices) that are developed or adopted

by voluntary consensus standards

bodies. NTTAA directs EPA to provide

Congress, through OMB, explanations

when the Agency decides not to use

available and applicable voluntary

consensus standards.

This proposed rulemaking does not

involve technical standards. Therefore,

EPA is not considering the use of any

voluntary consensus standards.

J. Executive Order 12898: Federal

Actions To Address Environmental

Justice in Minority Populations and

Low-Income Populations

Executive Order 12898 (59 FR 7629

(Feb. 16, 1994)) establishes Federal

executive policy on environmental

justice. Its main provision directs

Federal agencies, to the greatest extent

practicable and permitted by law, to

make environmental justice part of their

mission by identifying and addressing,

as appropriate, disproportionately high

and adverse human health or

environmental effects of their programs,

policies, and activities on minority

populations and low-income

populations in the United States.

EPA has concluded that it is not

practicable to determine whether there

would be disproportionately high and

adverse human health or environmental

effects on minority and/or low income

populations from this proposed rule.

The rule proposes only to amend to one

part of the regulations at 40 CFR 52.21

(by repealing the grandfathering

provision that affects about twenty-one

sources), and to end early the PM10

Surrogate Policy in SIP-approved States.

The affected sources, after further

analysis and data collection, may

receive permitted emissions limits that

are equally or more protective of public

health than would be likely in the

absence of this proposed rule change.

K. Determination Under Section 307(d)

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

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

Administrator determines that this

action is subject to the provisions of

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

provides that the provisions of section

307(d) apply to "such other actions as

the Administrator may determine."

VI. Statutory Authority

The statutory authority for this action

is provided by section 301(a) of the CAA

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

notice is also subject to section 307(d)

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

List of Subjects in 40 CFR Part 52

Administrative practices and

procedures, Air pollution control,

Environmental protection,

Intergovernmental relations.

Dated: February 4, 2010.

Lisa P. Jackson,

Administrator.

For the reasons set out in the

preamble, title 40, chapter I of the Code

of Federal Regulations is proposed to be

amended as follows:

PART 52-[AMENDED]

1. The authority citation for part 52

continues to read as follows:

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

§ 52.21 [Amended]

2. In § 52.21, remove paragraph (G)(1) (xi).-

[FR Doe. 2010-2983 Filed 2-10-10; 8:45 am]

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