1

6560-50-P

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

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

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 

PM10 Surrogate Policy

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

SUMMARY: In this action, in response to a petition for 

reconsideration, EPA is proposing two actions that would end 

EPA’s 1997 policy that allows sources and permitting authorities 

to use a demonstration of compliance with the prevention of 

significant deterioration (PSD) requirements for particulate 

matter less than 10 micrometers (PM10) as a surrogate for meeting 

the PSD requirements for particulate matter less than 2.5 

micrometers (PM2.5). First, in accordance with the 

Administrator’s commitment to the petitioners in a letter dated 

April 24, 2009, the EPA is proposing to repeal the 

“grandfathering” provision for PM2.5 contained in the federal PSD

program. Second, EPA is proposing to end early the PM10

Surrogate Policy applicable in states that have an approved PSD 

program in their State Implementation Plan (“SIP-approved 
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states”). 

DATES: Comments. Comments must be received on or before 

[INSERT DATE 30 DAYS AFTER PUBLICATION IN THE FEDERAL REGISTER]. 

Public Hearing. If anyone contacts EPA requesting the 

opportunity to speak at a public hearing concerning the proposed 

regulation by [INSERT DATE 10 DAYS AFTER DATE OF PUBLICATION IN 

THE FEDERAL REGISTER], EPA will hold a public hearing on [INSERT 

DATE 15 DAYS AFTER DATE OF PUBLICATION IN THE FEDERAL REGISTER]. 

If a hearing is held, the record for the hearing will remain 

open until [INSERT DATE 45 DAYS AFTER DATE OF PUBLICATION IN THE 

FEDERAL REGISTER].

ADDRESSES: Submit your comments, identified by Docket ID No. 

EPA-HQ-OAR-2003-0062, by one of the following methods:

• http://www.regulations.gov. Follow the online instructions 

for submitting comments.

• E-mail: a-and-r-docket@epa.gov. 

• Mail: Air and Radiation Docket, Environmental Protection 

Agency, Mail code 6102T, 1200 Pennsylvania Avenue, NW, 

Washington, DC 20460. Please include a total of two copies. 

• Hand Delivery: EPA Docket Center, Public Reading Room, EPA

West, Room 3334, 1301 Constitution Ave., NW, 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.
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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 www.regulations.gov or e-mail. 

The www.regulations.gov website 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 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.
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Docket: All documents in the docket are listed in the 

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 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 
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Quality Policy Division, Office of Air Quality Planning and 

Standards (C504-03), Environmental Protection Agency, Research 

Triangle Park, North Carolina 27711; telephone number (919) 541-

0641; fax number (919) 541-5509; e-mail address: 

long.pam@epa.gov.

SUPPLEMENTARY INFORMATION:

I. General Information

A. Does this action apply to me?

Entities affected by this proposed action include: (1) 

those proposed new and modified major stationary sources subject 

to the federal PSD program that submitted a complete application 

for a PSD permit before the July 15, 2008 effective date of the 

PM2.5 New Source Review (NSR) Implementation Rule, but have not 

yet received a final and effective permit authorizing the source 

to commence construction, and (2) those proposed new and 

modified major stationary sources, subject to a PSD program in 

SIP-approved states, that have not yet received a final and 

effective permit authorizing the source to commence 

construction. 

EPA estimates that less than 20 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 
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stay the provision, but EPA is not proposing that this repeal 

would apply retroactively to such permits.

The entities potentially affected by a proposal to end 

early the use of the PM10 Surrogate Policy in SIP-approved 

states, include proposed new and modified major stationary 

sources in all industry groups. The majority of sources 

potentially affected are expected to be in the following groups:

Industry group NAICSa

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

221122

Petroleum refining 32411

Industrial inorganic 

chemicals

325181, 32512, 325131, 325182, 211112, 

325998, 331311, 325188

Industrial organic 

chemicals

32511, 325132, 325192, 325188, 325193, 

32512, 325199

Miscellaneous chemical 

pro

32552, 32592, 32591, 325182, 32551ducts

Natural gas liquids 211112

Natural gas transport 48621, 22121

Pulp and paper mills 32211, 322121, 322122, 32213

Paper mills 322121, 322122

Automobile 

manufacturing 

336111, 336112, 336712, 336211, 336992, 

336322, 336312, 33633, 33634, 33635, 

336399, 336212, 336213

Pharmaceuticals 325411, 325412, 325413, 325414

a North American Industry Classification System.

Entities affected by this proposal also include state and 

local reviewing authorities, and Indian country, where affected 

new and modified major stationary sources would locate.
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B. What should I consider as I prepare my comments for EPA?

1. Submitting CBI. Do not submit information containing 

CBI to EPA through 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 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 
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specific questions or organize comments by referencing a

Code of Federal Regulations (CFR) part or section number.

 Explain why you agree or disagree, suggest alternatives, 

and substitute language for your requested changes.

 If you estimate potential costs or burdens, explain how you 

arrived at your estimate in sufficient detail to allow for 

it to be reproduced.

 Provide specific examples to illustrate your concerns, and 

suggest alternatives.

 Explain your views as clearly as possible, avoiding the use 

of profanity or personal threats.

 Make sure to submit your comments by the comment period 

deadline identified.

C. Where can I get a copy of this document and other related 

information?

In addition to being available in the docket, an electronic 

copy of this proposed rule will also be available on the World 

Wide Web. Following signature by the EPA Administrator, a copy 

of this proposed rule will be posted in the regulations and 

standards section of our NSR home page located at 

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

D. How can I find information about a possible Public Hearing?

To request a public hearing or information pertaining to a 
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public hearing on this document, contact Ms. Pamela Long, Air 

Quality Policy Division, Office of Air Quality Planning and 

Standards (C504-03), Environmental Protection Agency, Research 

Triangle Park, North Carolina 27711; telephone number (919) 541-

0641; fax number (919) 541-5509; e-mail address: 

long.pam@epa.gov.

E. How is this preamble organized?

I. General Information

A. Does this action apply to me?

B. What should I consider as I prepare my comments for EPA?

C. Where can I get a copy of this document and other 

related information?

D. How can I find information about a possible Public 

Hearing?

E. How is this preamble organized?

II. Background

A. Prevention of Significant Deterioration (PSD) Program

B. Fine Particulate Matter and the NAAQS for PM2.5

C. How is the PSD program for PM2.5 implemented?

D. Case Law Relevant to the Use of the PM10 Surrogate 

Policy

III. Transition to the PM2.5 Requirements for States Lacking EPAApproved PSD Programs

A. What is the existing grandfathering provision for PM2.5?

B. Petitioner’s 2008 Challenge to the Grandfathering 

Provision for PM2.5

C. Petitioner’s 2009 Petition Seeking Reconsideration and 

a Stay of the Grandfathering Provision for PM2.5

D. Why is EPA proposing to repeal the grandfathering 

provision for PM2.5?

E. What are the effects of repealing the grandfathering 

provision for PM2.5?

IV. Ending the PM10 Surrogate Policy in SIP-approved 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?
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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 Advancement Act

J. Executive Order 12898: Federal Actions to Address 

Environmental Justice in Minority Populations and LowIncome Populations

K. Determination Under Section 307(d)

VI. Statutory Authority

II. Background

A. Prevention of Significant Deterioration (PSD) Program 

The NSR provisions of the Clean Air Act (Act) are a 

combination of air quality planning and air pollution control 

technology program requirements for new and modified major 

stationary sources of air pollution. Section 109 of the Act 

requires EPA to promulgate primary National Ambient Air Quality 

Standards (NAAQS or standards) to protect public health and 

secondary NAAQS to protect public welfare. Once we1 have set 

these standards, states must develop, adopt, and submit to us 

for approval SIPs that contain emission limitations and other 

 

1 In this proposal, the terms “we,” “us,” and “our,” refer to the 

EPA.
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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 SIP-approved PSD permit program, and in Indian 

country.2 The applicability of the PSD program to a new major 

stationary source or major modification must be determined in 

advance of construction and is a pollutant-specific 

determination. Once a major new source or major modification is 

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

source), among other requirements, it must undertake a series of 

analyses for each NSR regulated pollutant subject to review to 

 

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 SIPapproved programs and in Indian country.
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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,” additional 

review must be conducted to protect the Class I area’s 

increments and special attributes referred to as “air quality 

related values.”

Under certain circumstances, EPA has previously allowed 

proposed new major sources and major modifications that have 

submitted a complete PSD permit application before the effective 

date of an amendment to the PSD regulations, but have not yet 

received a final and effective PSD permit, to continue relying

on information already in the application rather than 

immediately having to amend applications to demonstrate 

compliance with the new PSD requirements. In such a way, these 

proposed sources and modifications were “grandfathered” or

exempted from the new PSD requirements that would otherwise have 

applied to them. 

For example, the federal PSD regulations at 40 CFR 

52.21(i)(1)(x) provide that the owners or operators of proposed 

sources or modifications that submitted a complete permit 

application before July 31, 1987, but did not yet receive the 

PSD permit, are not required to meet the requirements for PM10, 
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but could instead satisfy the requirements for total suspended 

particulate matter that were previously in effect. 

In addition, EPA has allowed some grandfathering for permit 

applications submitted before the effective date of an amendment 

to the PSD regulations establishing new maximum allowable 

increases in pollutant concentrations (also known as PSD 

increments). The federal PSD regulations at 40 CFR 52.21(i)(10) 

provide that proposed sources or modifications that submitted a 

complete permit application before the effective date of the 

increment in the applicable implementation plan are not required 

to meet the increment requirements for particulate matter less 

than 10 microns, but could instead satisfy the increment 

requirements for total suspended particulate matter that were 

previously in effect. Also, 40 CFR 52.21(b)(i)(9) provides that 

sources or modifications that submitted a complete permit 

application before the provisions embodying the maximum 

allowable increase for nitrogen oxides (the NO2 increments) took 

effect, but did not yet receive a final and effective PSD 

permit, are not required to demonstrate compliance with the new 

increment requirements to be eligible to receive the permit. 

When the reviewing authority reaches a preliminary decision 

to authorize construction of a proposed major new source or 

major modification, the authority must provide notice of the 

preliminary decision and an opportunity for comment by the 
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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 oneseventh the average width of a human hair) is considered to be 

“fine particles,” and is also known as PM2.5. “Primary” 

particles are emitted directly into the air as a solid or liquid 

particle (e.g., elemental carbon from diesel engines or fire 

activities, or condensable organic particles from gasoline 
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engines). “Secondary” particles (e.g., SO4 and NO3) form in the 

atmosphere as a result of various chemical reactions.

The health effects associated with exposure to PM2.5 are 

significant. Epidemiological studies have shown a significant 

correlation between elevated PM2.5 levels and premature 

mortality. Other important effects associated with PM2.5

exposure include aggravation of respiratory and cardiovascular 

disease (as indicated by increased hospital admissions, 

emergency room visits, absences from school or work, and 

restricted activity days), lung disease, decreased lung 

function, asthma attacks, and certain cardiovascular problems. 

Individuals particularly sensitive to PM2.5 exposure include 

older adults, people with heart and lung disease, and children. 

On July 18, 1997, we revised the NAAQS for PM to add new 

standards for fine particles, using PM2.5 as the indicator. We 

established health-based (primary) annual and 24-hour standards 

for PM2.5. See 62 FR 38652. We set an annual standard at a 

level of 15 micrograms per cubic meter (μg/m3) and a 24-hour 

standard at a level of 65 μg/m3. At the time we established the 

primary standards in 1997, we also established welfare-based 

(secondary) standards identical to the primary standards. The 

secondary standards are designed to protect against major 

environmental effects of PM2.5 such as visibility impairment, 

soiling, and materials damage. 
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On October 17, 2006, we revised the primary and secondary 

NAAQS for PM2.5 and PM10. In that rulemaking, we reduced the 24-

hour NAAQS for PM2.5 to 35 μg/m3 and retained the existing annual 

PM2.5 NAAQS of 15 μg/m3. In addition, we retained PM10 as the 

indicator for coarse PM, retained the existing PM10 24-hour NAAQS 

of 150 μg/m3, and revoked the annual PM10 NAAQS (which had 

previously been set at 50 μg/m3). See 71 FR 61236.

C. How is the PSD program for PM2.5 implemented?

After we promulgated the NAAQS for PM2.5 in 1997, we issued 

a guidance document entitled “Interim Implementation for the New 

Source Review Requirements for PM2.5” (John S. Seitz, EPA, 

October 23, 1997).3 That guidance was designed to help states 

implement the Act requirements for PSD pertaining to the new 

PM2.5 NAAQS and PM2.5 as a regulated pollutant in light of known 

technical difficulties to addressing PM2.5. Specifically, 

section 165(a)(1) of the Act provides that no new or modified 

major source may be constructed without a PSD permit that meets 

all of the section 165(a) requirements with respect to the 

regulated pollutant. Moreover, section 165(a)(3) provides that 

the emissions from any such source may not cause or contribute 

to a violation of any NAAQS. Also, section 165(a)(4) requires 

 

3 Available in the docket for this rulemaking, ID No. EPA-HQ-OAR2003-0062, and at 

http:/www.epa.gov/region07/programs/artd/air/nsr/nsrmemos/pm25.p

df.
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BACT for each pollutant subject to PSD regulation. The 1997 

guidance states that sources are allowed to use implementation 

of a PM10 program as a surrogate for meeting PM2.5 NSR 

requirements until certain difficulties concerning PM2.5 are 

resolved, including the lack of necessary tools to calculate the 

emissions of PM2.5 and related precursors, the lack of adequate 

modeling techniques to project ambient impacts, and the lack of 

PM2.5 monitoring sites. 

On May 16, 2008, EPA published a final rule containing 

requirements for state and Tribal plans to implement the Act’s 

preconstruction review provisions for the 1997 PM2.5 NAAQS in 

both attainment and nonattainment areas. 73 FR 28321. The 

rule, with two exceptions, requires that major stationary 

sources seeking permits must begin directly satisfying the PM2.5

requirements as of the effective date of the new rule, rather 

than relying on the 1997 PM10 Surrogate Policy. First, in PM2.5

attainment (or unclassifiable) areas, the new PSD requirements 

under 40 CFR 51.166 set forth the PM2.5 requirements for states 

with 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.
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Second, in PM2.5 nonattainment areas, new requirements were 

added to 40 CFR 51.165 to enable states to address the PM2.5

NAAQS as part of a nonattainment NSR program. During the period 

of time allowed for states to amend their existing nonattainment 

NSR programs to address the new PM2.5 requirements, states are 

allowed to rely on the procedures under 40 CFR part 51 appendix 

S (“The Interpretative Rule”) to issue permits to new or 

modified major stationary sources proposing to locate in a PM2.5

nonattainment area. In the preamble to the May 2008 final rule, 

EPA indicated that in any state that was unable to apply the 

PM2.5 requirements of appendix S, EPA would act as the reviewing 

authority for the relevant PM2.5 portions of the nonattainment 

NSR permit. See 73 FR at 28342. 

As mentioned, there were two exceptions to the imposition 

of new PM2.5 requirements to replace the use of the 1997 PM10

Surrogate Policy for issuing construction permits. The May 2008 

final rule included a grandfathering provision for PM2.5 in the 

federal PSD program at 40 CFR 52.21. This grandfathering 

provision applied to sources that had applied for, but had not 

yet received, a final and effective PSD permit before the 

July 15, 2008 effective date of the May 2008 final rule. The 

relevant grandfathering provision is described in greater detail 

in section III.A of this preamble. This grandfathering 

provision had not been proposed for comment in the November 1, 
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2005 notice of proposed rulemaking. Instead, the November 2005 

proposal provided that the revised PM2.5 requirements when final, 

would take effect immediately in states where the federal PSD 

program applies. 70 FR 65986, November 1, 2005 at 66043. 

For states with SIP-approved PSD programs, the preamble to 

the May 2008 final rule stated that SIP-approved states may 

continue to implement a PM10 program as a surrogate to meet the 

PSD program requirements for PM2.5 pursuant to the 1997 [PM10

Surrogate Policy]” for up to three years (until May 2011) or 

until the individual revised state PSD programs for PM2.5 are 

approved by EPA, whichever comes first. See 73 FR 28341.

D. Case Law Relevant to the Use of the PM10 Surrogate Policy 

When EPA issued the PM10 Surrogate Policy in 1997, we stated 

that meeting the NSR program requirements for PM10 may be used as 

a surrogate for meeting the NSR program requirements for PM2.5

until certain technical difficulties concerning PM2.5 are 

resolved. At that time, we did not identify criteria to be 

applied before the policy could be used for satisfying the PM2.5

requirements. However, courts have issued a number of opinions 

that should be read as establishing guidelines for the use of an 

analysis based on PM10 as a surrogate for meeting the PSD 

requirements for PM2.5. Applicants and state permitting 

authorities seeking to rely on the PM10 Surrogate Policy should 

consider these opinions in determining whether PM10 serves as an 
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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 §112 of the Act); Mossville Environmental 

Action Now v. EPA, 370 F. 3d 1232, 1242-43 (D.C. Cir. 2004)(EPA 

must explain the correlation between the surrogate and the 

represented pollutant that provides the basis for the 

surrogacy.); Bluewater Network v. EPA, 370 F. 3d 1, 18 (D.C. 

Cir. 2004) (“The Agency reasonably determined that regulating 

[hydrocarbons] would control PM pollution both because HC itself 

contributes to such pollution, and because HC provides a good 

proxy for regulating fine PM emissions.”). Though these court 

opinions all addressed when it was reasonable to use a surrogate

in contexts different from the use of the PM10 Surrogate Policy, 

EPA believes that the overarching legal principle from these 

decisions is that a surrogate may be used only after it has been 

shown to be reasonable (such as where the surrogate is a 
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reasonable proxy for the pollutant or has a predictable 

correlation to the pollutant) and that this principle applies 

where an applicant or permitting authority seeks to rely upon 

the PM10 Surrogate Policy in lieu of a PM2.5 analysis to obtain a

PSD permit. 

Second, with respect to PM surrogacy in particular, there 

are specific issues raised in the case law that bear on whether 

PM10 can be considered a reasonable surrogate for PM2.5. The D.C. 

Circuit concluded that PM10 was an arbitrary surrogate for a PM 

pollutant that is one fraction of PM10 where the use of PM10 as a

surrogate for that fraction is “inherently confounded” by the 

presence of the other fraction of PM10. ATA v. EPA, 175 F.3d 

1027, 1054 (D.C. Cir. 1999) (PM10 is an arbitrary indicator for 

coarse PM (PM10-2.5) because the amount of coarse PM within PM10

will depend arbitrarily on the amount of fine PM (PM2.5)) In 

another case, however, the D.C. Circuit held that the facts and 

circumstances in that instance provided a reasonable rationale 

for using PM10 as a surrogate for a fraction of PM10. American 

Farm Bureau v. EPA, 559 F.3d 512, 534-35 (D.C. Cir. 2009) (where

the record demonstrated that (1) PM2.5 tends to be higher in 

urban areas than in rural areas, and (2) evidence of health 

effects from coarse PM in urban areas is stronger, EPA reasoned 

that setting a single PM10 standard for both urban and rural 

areas would tend to require lower coarse PM concentrations in 
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urban areas. The court considered the reasoning from the ATA

case and accepted that the presence of PM2.5 in PM10 will cause 

the amount of coarse PM in PM10 to vary, but on the specific 

facts before it held that such variation was not arbitrary.) 

EPA believes that these cases demonstrate the need for permit 

applicants and permitting authorities to determine whether PM10

is a reasonable surrogate for PM2.5 under the facts and 

circumstances of the specific permit at issue, and not proceed 

on a general presumption that PM10 is always a good surrogate for 

PM2.5.

Thus, based on this case law, rather than simply assuming 

that using the 1997 PM10 Surrogate Policy is always an adequate 

alternative for satisfying the PM2.5 PSD requirements, permit 

applicants and permitting authorities seeking to apply the 1997 

PM10 Surrogate Policy must ensure that the record for each permit 

supports using PM10 as a surrogate for PM2.5 under the 

circumstances.

Finally, this case law suggests that any person attempting 

to show that PM10 is a reasonable surrogate for PM2.5 would need 

to address the differences between PM10 and PM2.5. For example, 

emission controls used to capture coarse particles in some cases 

may be less effective in controlling PM2.5. 72 FR 20,586, 20,617 

(April 25, 2007). As a further example, the particles that make 

up PM2.5 may be transported over long distances while coarse 
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particles normally travel shorter distances. 70 FR 65,984, 

65,997-98 (November 1, 2005). Under the principles in the case 

law, any source or permitting authority seeking to use the PM10

Surrogate Policy properly would need to consider the differences 

between PM10 and PM2.5 and demonstrate that PM10 is nonetheless an 

adequate surrogate for PM2.5.

4

III. Transition to the PM2.5 Requirements for States Lacking 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 PM2.5 rather than rely on the PM10 Surrogate Policy to satisfy 

those requirements. However, until the EPA recently stayed the 

provision for three months, the grandfathering provision 

contained in the federal PSD program at 40 CFR 52.21(i)(1)(xi)

allowed sources that had not yet received final and effective

permits, but had submitted a complete PSD permit application 

before the effective date of the final rule for PM2.5, to 

 

4 Additional discussion about the relevant case law and EPA’s 

position on the use of PM10 as a surrogate for PM2.5 for PSD 

permitting is contained in an Administrative Order issued on 

August 12, 2009 responding to petitioners’ concerns about the 

use of the PM10 Surrogate Policy in a PSD permit issued to 

Louisville Gas and Electric Company. 
24

continue having their application reviewed on the basis of the 

PM10 Surrogate Policy. 

In the preamble to the final rule, EPA indicated that it 

believed that the PM2.5 grandfathering provision was consistent 

with the existing provision under 40 CFR 52.21(i)(1)(x) whereby

EPA grandfathered new and modified major stationary sources with 

permit applications based on PM from the then-new PM10 increment 

requirements established in 1987. Thus, applicants would not be 

expected to perform new analyses to establish compliance with 

the BACT and air quality requirements for PM2.5 in cases where

they had submitted their complete applications on the basis of 

the PM10 Surrogate Policy before the effective date of the new

regulations.

At the time the grandfathering provision for PM2.5 was put 

into effect, we estimate that less than twenty proposed new or 

modified major stationary sources were covered. Of these, at 

least two projects subsequently received final and effective PSD 

permits after the July 15, 2008 effective date of the final 

rule.

B. Petitioners’ 2008 Challenge to the Grandfathering Provision

for PM2.5

On July 15, 2008, the Natural Resources Defense Council and 

the Sierra Club jointly submitted a petition to the

Administrator seeking reconsideration of four provisions of the 
25

May 16, 2008 final rule, including the grandfathering provision

for PM2.5 under the federal PSD program. In the petition, the 

petitioners argued that “EPA unlawfully failed to present this 

grandfathering provision and accompanying rationale to the 

public for comment.” July 15 Petition at 6. Thus, petitioners 

argued, EPA had not given interested parties any notice of and 

the opportunity to comment on the grandfathering provision that 

EPA adopted in 40 CFR 52.21(i)(1)(xi) in the final rule. 

Moreover, with regard to the grandfathering provision itself, 

the petitioners questioned EPA’s authority to waive statutory 

requirements by establishing such a provision and argued that 

“Congress specifically addressed the issue of grandfathering in

section 168(b) and again allowed for the grandfathering of only 

those sources on which ‘construction has commenced’ before 

enactment of the 1997 Clean Air Act Amendments.” July 15

Petition at 7. Finally, petitioners argued that the technical 

difficulties with respect to PM2.5 monitoring, emissions 

estimation and modeling that led to the adoption of the 1997 PM10

Surrogate Policy no longer exist, and that those sources not 

falling within the grandfathering provision must conduct the 

required analyses for PM2.5 directly without relying on the PM10

Surrogate Policy, and so there was no justification for the 

grandfathering provision. July 15 Petition at 8. In sum, 

petitioners asserted that the grandfathering provision in 
26

§52.21(i)(1)(xi) was illegal and arbitrary, and requested that 

EPA stay the provision.

On January 14, 2009, EPA responded in a letter to the 

petitioners that the Agency was denying all aspects of the 

petition for reconsideration. 

C. Petitioners’ 2009 Petition Seeking Reconsideration and a

Stay of the Grandfathering Provision for PM2.5

On February 10, 2009, the same petitioners submitted a 

second petition similar to the first to EPA. The second 

petition made the same arguments that were presented in the July 

15, 2008 petition seeking reconsideration and an administrative 

stay and sought reconsideration of both the May 2008 final rule 

and the January 2009 denial of petitioners’ first petition for 

reconsideration. In response to the February 2009 petition, on 

April 24, 2009, the Administrator reversed the Agency’s earlier 

decision and agreed to reconsider each of the four challenged 

provisions. In addition, the Administrator indicated that the 

Agency intended to propose repealing the grandfathering 

provision “on the grounds that it was adopted without prior 

public notice and is no longer substantially justified in light 

of the resolution of the technical issues with respect to PM2.5

monitoring, emissions estimation, and air quality modeling that 

led to the PM10 Surrogate Policy in 1997.” Finally, the 

Administrator announced that she was administratively staying 
27

the grandfathering provision for three months under the 

authority of section 307(d)(7)(B) of the Act. That three-month 

administrative stay became effective on June 1, 2009 -- the date

the notice announcing the stay was published in the Federal 

Register -- and ended on September 1, 2009. (74 FR 26098). In 

order to allow additional time necessary to finalize this 

rulemaking, EPA has proposed separately to issue a second stay 

for nine additional months. See 74 FR 36427, July 23, 2009. 

D. Why is EPA proposing to repeal the grandfathering provision 

for PM2.5?

In this notice, consistent with the Administrator’s April 

24, 2009 letter to the petitioners, we are proposing to repeal 

the grandfathering provision in the federal PSD program at 40 

CFR 52.21(i)(1)(xi). As described above, the November 1, 2005 

proposal provided that the revised PM2.5 requirements would take 

effect immediately in states where the federal PSD program 

applies (see 70 FR 66043), and did not propose or seek comment 

on the continued application of the PM10 Surrogate Policy to 

sources that submitted an application before the effective date 

of the new rule but had not yet received a final and 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 
28

the federal PSD program to continue to use the PM10 Surrogate

Policy after the effective date of the final rule. Moreover, we 

find that there is sufficient justification to propose repealing

the grandfathering provision. The impact of a repeal will be to 

require sources that submitted a permit application before the 

effective date (July 15, 2008) of the May 16, 2008 final rule to

satisfy the PSD requirements for PM2.5 without reliance on the 

PM10 Surrogate Policy. However, EPA does not propose to 

interpret this proposed repeal to have any effect on permits 

that became final and effective before the stay of section 

52.21(i)(1)(xi) by the Administrator. 

Our proposal to repeal the grandfather provision rests 

primarily on the fact that the PM2.5 implementation issues that 

led to the adoption of the PM10 Surrogate Policy in 1997 have 

been largely resolved to a degree sufficient for the owners and 

operators of sources and permitting authorities to conduct 

meaningful permit-related PM2.5 analyses. For example, adequate 

procedures for the collection of ambient PM2.5 are now well 

established throughout the country and provide data useful for 

the purpose of PSD permitting. Also, air quality modeling of 

direct PM2.5 emissions can be accomplished using an EPA-approved 

model to predict ambient PM2.5 impacts caused by new and modified 

sources of PM2.5 emissions. Emissions factors for calculating 

PM2.5 emissions from various source categories and equipment are 
29

available, as are national inventories of PM2.5 emissions. 

While direct analysis of PM2.5 impacts may now be conducted, 

not all technical difficulties have been resolved. For example, 

EPA has not approved any models that can reliably predict the 

localized ambient PM2.5 impacts of precursors (e.g., SO2 and NOx) 

emitted from individual stationary sources. Some regional-scale 

photochemical transport models have been modified to provide the 

capability to track the transport and formation of primary and 

secondarily-formed PM2.5 from either single or multiple sources. 

The EPA is currently evaluating whether such source 

apportionment implementations in photochemical models are an 

appropriate option to estimate downwind transport and formation 

of PM2.5 from individual sources.

However, for the present, regional-scale models available 

for considering chemical transformations associated with the 

impacts of PM2.5 and its precursors are designed to account for 

impacts of multiple sources over relatively wide distances, and 

have not been approved by EPA for localized permitting purposes. 

This limitation results in underestimating the ambient impact of 

a single source that is emitting PM2.5 precursors in addition to 

direct PM2.5 emissions. However, this limitation does not 

preclude a permit applicant from determining whether the direct 

emissions of PM2.5 from the proposed source or modification will 

cause or contribute to a violation of the NAAQS for PM2.5, and is 
30

not a valid basis for using a PM10 analysis as a surrogate to 

satisfy the PM2.5 requirements.

E. What are the effects of repealing the grandfathering 

provision for PM2.5?

If EPA adopts a final rule to repeal the grandfathering 

provision, any PSD permit applications covered by the 

grandfathering provision that have not yet been approved and 

issued a final and effective PSD permit will not be able to rely 

on the PM10 Surrogate Policy to satisfy the PM2.5 requirements. 

Such applications will need to be re-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. We believe that the environmental benefits 

resulting from this action would outweigh any burdens caused by 

any delay to the few permit applicants that would be affected.

A repeal of the grandfathering provision in a subsequent 
31

final rule would not impact any PSD permits that became final 

and effective in reliance on the PM10 Surrogate Policy under the 

policy itself or the grandfathering provision that incorporated 

that policy by reference before the stay of that provision.

IV. Ending the PM10 Surrogate Policy in SIP-approved States

A. What is the Current status of the PM10 Surrogate Policy in 

SIP-approved States?

As described in section II.C of this preamble, the preamble 

to the May 2008 final NSR rule for PM2.5 stated that SIP-approved 

states may continue to implement a PM10 program as a surrogate to 

meet the PSD program requirements for PM2.5 pursuant to the 1997

PM10 Surrogate Policy. This continued use of the PM10 Surrogate 

Policy was a transition measure, provided for SIP-approved 

states in conjunction with the three-year period provided under 

40 CFR 51.166(a)(6)(i) to adopt and submit SIP revisions 

following the May 2008 rule. See 73 FR 28340-28341. 

Although the PM10 Surrogate Policy is in effect, in light of 

the various relevant court decisions discussed above, it is 

prudent to conclude that the policy should not be read as 

allowing the automatic use of a PM10 analysis as a surrogate for 

satisfying PM2.5 requirements. Moreover, the PM10 Surrogate 

Policy contains limits within the policy itself. As stated in 

the 1997 Seitz Memorandum, the PM10 Surrogate Policy provided 

that, in view of significant technical difficulties that existed 
32

in 1997, EPA believed that PM10 may properly be used as a 

surrogate for PM2.5 in meeting NSR requirements “until these 

difficulties are resolved.” Seitz Memorandum at 1. In the May 

2008 final rule, EPA noted that “these difficulties have largely 

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

addition to the case law demonstration discussed previously, a 

source or permitting authority seeking to rely on the PM10

Surrogate Policy should identify any technical difficulties that 

exist to justify the application of the policy in each specific 

case. 

B. Petitioners’ 2009 Petition Seeking Reconsideration of the 

Continued Use of the PM10 Surrogate Policy during the Three-year 

Transition Period

In their February 10, 2009 petition for reconsideration, 

the Natural Resources Defense Council and Sierra Club argued, 

among other things, that the continued use of the PM10 Surrogate 

Policy had the effect of waiving for up to three years the 

requirement to assure compliance with the PM2.5 NAAQS, and that 

applicants, states and EPA have the technical ability to address 

the PM2.5 requirements directly rather than relying on a PM10

analysis as a surrogate. February 2009 Petition at 4-6. As we

noted previously, the Administrator granted the February 2009 

petition for reconsideration in her April 24, 2009 letter.

C. Why is EPA Proposing to End the PM10 Surrogate Policy in SIP-
33

approved States?

In this action, EPA is proposing to end the PM10 Surrogate 

Policy before the end of the three-year transition period for 

revising SIPs (May 2011). The grounds for this proposal are 

that the PM2.5 implementation issues that led to the adoption of 

the PM10 Surrogate Policy in 1997 have been largely resolved to a 

degree sufficient for sources and permitting authorities to 

conduct meaningful permit-related PM2.5 analyses. EPA had 

previously concluded that these difficulties had been resolved 

to a degree sufficient for all federal PSD permit reviews to 

begin direct PM2.5-based assessments as of the July 15, 2008 

effective date of the May 2008 final rule. Section III.D of 

this preamble, which discusses our proposal to repeal the 

grandfathering provision in the Federal PSD program, provides a 

more thorough discussion of the status of technical difficulties 

associated with PM2.5 analyses. The EPA is seeking comments on 

whether the technical issues that gave rise to the PM10 Surrogate 

Policy in 1997 are sufficiently resolved that the policy is no 

longer needed either for federal or state permitting actions. 

As mentioned earlier, in the May 2008 final rule, EPA 

allowed states to continue using the PM10 Surrogate Policy on the 

grounds that states would need time to update their state laws 

and make SIP submissions to EPA. 73 FR at 28340-28341. In the 

final rule preamble, we said that “if a SIP-approved State is 
34

unable to implement a PSD program for the PM2.5 NAAQS based on 

these final rules, the State may continue to implement a PM10 

program as a surrogate to meet the PSD program requirements for 

PM2.5 pursuant to the 1997 guidance.” 73 FR at 28341. 

The existing provisions in many state implementation plans 

may already provide sufficient legal authority for several SIPapproved states to begin addressing PM2.5 directly when issuing 

PSD permits. For example, if the state has adopted EPA’s 

definition of “regulated NSR pollutant,” then PM2.5 falls within 

this definition, because PM2.5 is a “pollutant for which a 

national ambient air quality standard has been promulgated.” 40 

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

states may already have an EPA-approved SIP that authorizes the 

state to establish BACT limits for PM2.5 and to demonstrate that 

a source will not cause or contribute to a violation of the PM2.5

NAAQS using direct air quality modeling of the proposed unit’s 

direct emissions of PM2.5 to project the impact on the PM2.5

NAAQS.

One complication for states that seek to implement a full 

PM2.5 analysis immediately under their existing SIPs may be the 

absence of a significant emissions rate for PM2.5. See, 73 FR at

28340. Assuming a state that has adopted EPA’s definition of 

“regulated NSR pollutant” also applies EPA’s definition of 

“significant emissions rate,” then under the latter definition, 
35

any increase in emissions of PM2.5 will be deemed significant. 

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

significant implication of the latter may be that some sources 

making modifications that increase PM2.5 emissions in amounts 

less than 10 tons per year may have to undertake additional PSD 

review that would not be required if the state’s SIP included 

the significant emissions rate for PM2.5 set forth in EPA’s 

May 2008 final rule. 

The EPA requests comments on whether SIP-approved states 

should be considered “unable to implement a PSD program for the 

PM2.5 NAAQS” because they lack the legal authority to implement 

the PSD program for PM2.5. In this context it would be helpful 

to hear commenters’ views on whether the legal authority of SIPapproved states to implement a PM2.5 program is impeded by the 

absence of a significant emissions rate for PM2.5 or whether 

other factors present significant complications for states. 

The EPA also recognizes that there are other issues that 

could impact the decision to end the PM10 Surrogate Policy. To 

help EPA consider these issues, we are specifically seeking 

comment on several additional questions. These questions are as 

follows: 

- What are the environmental benefits or harms that will 

result from ending the policy before May 2011, and what are 

the environmental benefits or harms that will result if the 
36

PM10 Surrogate Policy is left in place until May 2011?

- What implementation difficulties for state permitting 

authorities or PSD applicants seeking permits will result 

from ending the PM10 Surrogate Policy before the three-year 

transition period?

In addition, EPA invites comments on any other points that 

interested parties believe are relevant to whether the PM10

Surrogate Policy continues to be necessary for implementing the 

Act’s PM2.5 requirements. 

D. What are the Effects of Ending the PM10 Surrogate Policy in 

SIP-approved States?

When the PM10 Surrogate Policy ends in SIP-approved states, 

the effects will be the same as those described previously in 

section III.E of this preamble, which discusses the effects of 

the proposed repeal of the grandfathering provision in states 

where the federal PSD program applies. If EPA decides to end 

the PM10 Surrogate Policy before the end of the original 

transition period in states with SIP-approved PSD programs, EPA 

is proposing that new and modified major sources seeking permits 

in such states would be thereafter required to conduct permitrelated analyses based on PM2.5 rather than PM10. EPA is taking 

comment on what kind of transition process, if any, should be 

allowed if EPA decides to end the PM10 Surrogate Policy in the 

final rule.
37

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. 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 fewer than 20 sources, and to end the use 

of the 1997 PM10 Surrogate Policy in SIP-approved states. 

However, the OMB has 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 has been 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
38

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-forprofit 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 
39

at 40 CFR 52.21 (by repealing the grandfathering provision that 

affects fewer than 20 sources), and to end early our policy of 

allowing SIP-approved states to use the PM10 Surrogate Policy. 

This does not create any new requirements or burdens. No costs 

are associated with this amendment.

We continue to be interested in the potential impacts of 

the proposed rule on small entities and welcome comments on 

issues related to such impacts.

D. Unfunded Mandates Reform Act

This action contains no federal mandate under the 

provisions of Title II of the Unfunded Mandates Reform Act of 

1995 (“URMA”), 2 U.S.C. 1531-1538 for state, local, and tribal 

governments or the private sector. This action only proposes to 

amend one part of the regulations at 40 CFR 52.21 (by repealing 

the grandfathering provision that affects fewer than 20 

sources), and to end early our policy of allowing SIP-approved 

states to use the PM10 Surrogate Policy. Therefore, this action

is not subject to the requirements of sections 202 or 205 of 

UMRA.

This action is also not subject to the requirements of 

section 203 of UMRA because it contains no regulatory 

requirements that might significantly or uniquely affect small 

governments.

E. Executive Order 13132: Federalism
40

This action does not have federalism implications. It will

not have substantial direct effects on the states, on the 

relationship between the national government and the states, or 

on the distribution of power and responsibilities among the 

various levels of government as specified in Executive Order 

13132. This action only proposes to amend one part of the 

regulations at 40 CFR 52.21 (by repealing the grandfathering 

provision for PM2.5 that affects fewer than 20 sources), and to 

end early our policy allowing SIP-approved states to use the 

PM10 Surrogate Policy. Thus, Executive Order 13132 does not 

apply to this proposed rule. 

In the spirit of Executive Order 13132, and consistent with 

EPA policy to promote communications between EPA and state and 

local governments, EPA specifically solicits comment on this 

proposed rule from state and local officials. 

F. Executive Order 13175: Consultation and Coordination with 

Indian Tribal Governments

This action does not have tribal implications, as specified 

in Executive Order 13175 (65 FR 67249, November 9, 2000.) This 

action will not impose any new obligations or enforceable duties 

on tribal governments. 

EPA specifically solicits additional comment on this 

proposed action from tribal officials. 

G. Executive Order 13045: Protection of Children from
41

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 healthbased national standards for PM2.5 are adequately protected 

against the adverse effects of PM2.5 emissions from new and 

modified sources of air pollution by ending the use of a 

surrogate analyses for PM2.5 impacts. 

H. Executive Order 13211: Actions Concerning Regulations That

Significantly Affect Energy Supply, Distribution, or Use

This action is not subject to Executive Order 13211 (66 FR 

28355 (May 22, 2001)), because it is not a significant 

regulatory action under Executive Order 12866. EPA is proposing 

to amend one part of the regulations at 40 CFR 52.21 (expected 

to affect fewer than 20 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
42

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. 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 
43

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 fewer than 

20 sources), and to end early the PM10 Surrogate Policy in SIPapproved 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)(E) 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)).
44

Page 44 of 45 - 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 PM10 Surrogate Policy

List of Subjects in 40 CFR Part 52 

Administrative practices and procedures, Air pollution 

control, Environmental protection, Intergovernmental relations.

____________________________

Dated:

____________________________

Lisa P. Jackson, 

Administrator.
45

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.

Subpart A—[Amended]

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