1 6560 - 50 - P ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 5 2 [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
recons ideration, EPA is proposing two actions that would end EPA’s 1997 policy that allow s sources and permitting authorities to use a demonstration of compliance with the prevention of significant deterioration (PSD) requirements for particulate matter less than 10 micrometers (PM 10 ) as a surrogate for meeting the PSD re quirements for particulate matter less than 2.5 micrometers (PM2.5 ). First, in accordance with the Administrator’s commitment to the petitioner s in a letter dated April 24, 2009 , t he EPA is proposing to repeal the

“ grandfathering ” provision for PM2.5 cont ained in the federal PSD program. Second, EPA is proposing to end early the PM 10 Surrogate Policy applicable in states that have an approved PSD program in their S tate I mplementation P lan (“SIP - approved2

states”). DATES: Comments. Comments must be rece ived 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 PUBLI CATION IN THE FEDERAL REGISTER ] . ADDRESSES : Submit your comments, identified by Docket ID No. EPA- HQ - OAR- 200 3
- 0 062 , 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.3

Instructions : Direct your c omments 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 per sonal 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 pr otected 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.4

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 o n 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, 1 301 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 f or 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 P olicy Division, (C504
- 03) , U.S. Environmental Protection Agency, Research Triangle Park, NC, 27711 ; telephone number ( 919 ) 5 41
- 5593 ; fax number (919) 541
- 5509; or e - mail address: deroeck.dan@epa.gov . To reques t a public hearing or information pertaining to a public hearing on this document, contact Ms. Pamela Long, Air5

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 b y 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 ( N SR ) Implementation Rule, but have not yet received a final and effective permit authorizing the source to commence construct ion , and (2) those proposed new and modified major stationary sources , subject to a PSD program in SIP - approved states , that have no t yet received a final and effective permit authorizing the source to commence construction . EPA estimates that less than 20 prop osed new sources or modifications would be affected by the proposed repeal of the grandfathering provision. At least two pro ject s known to have been grandfathered have already received final permit s to construct (that are effective) prior to EPA taking action to6

stay the provision , but EPA is not proposing that this repeal would apply retroactively to such permits . The entiti es potentially affected by a proposal to end early the use of the PM 10 Surrogate Policy in SIP
- approved states, include proposed new and modified major stationary
sources in all industry groups. The majority of sources potentially affected are expected to be in the following groups: Industry group NAICS a Electric services 221111, 221112, 221113, 221119, 221121, 221122 Petroleum refining 32411 Industrial inorganic chemicals 325181, 32512, 325131, 325182, 211112, 325998, 331311, 325188 Indust rial organic chemicals 32511, 325132, 325192, 325188, 325193, 32512, 325199 Miscellaneous chemical pro 32552, 32592, 32591, 325182, 32551 ducts Natural gas liquids 211112 Natural gas transport 48621, 22121 Pulp and paper mills 32211, 32212 1, 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 Indust ry Classification System. Entities affected by th is propos al also include state and local reviewing authorities , and Indian country , where affected new and modified major stationary sources would locate .7

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
- 0 2), U.S. EPA, Office of Air Quality Planning and Standards, Research Triangle Park, North Carolina 27711, Attention: Docket ID EPA
- HQ - OAR- 200 3
- 0 062 . 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 info rmation 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 p art 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 to8

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 est imate 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, av oiding 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 electr onic 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 a9

public hearing on this document, contact Ms. Pamela Long, Air Quality Policy Divisi on, 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: l ong.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 ca n I find information about a possible Public Hearing? E. How is this preamble organized? II. Background A. Prevention of Signific ant 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 PM 10 Surrogate Policy I II . Transition to the PM2.5 Requirements for States Lacking EPA
Approved PSD P rograms A. What is the existing grandfathering provision for PM2.5 ? B. Petitioner’s 2008 Challen ge 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 PM 10 Surrogate Policy in SIP
- approved States A. What is the current status of the PM 10 Surrogate Policy in SIP - approved States? B. Petitioner’s 2009 Petition Seeking Reconsideration of the Cont inued Use of the PM 10 Surrogate Policy during the Three - year Transition Period C. Why is EPA Proposing to End the PM 10 Surrogate Policy in SIP - approved States?10

D. What are the Effects of Ending the PM 10 Surrogate Policy in SIP
- approved States? V. Statutory and E xecutive Order Review s 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 an d 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 Low Income Populations K. Determination Under Section 307(d) V I . 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. S ection 109 of the Act requires EPA to promulgate primary N ational Ambient A ir Quality S tandards (NAAQS or standards) to protect public health and secondary NAAQS to protect public welfare. Once we 1 have set these standards, states must develop, adopt, and submit to us for approval SIPs that contain emission limitations and other

1 In this proposal, the terms “we,” “us,” and “our,” refer to the EPA.11

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. Th e PSD program sets forth procedures for the preconstruction review and permitting of new and modified major stationary sources of air pollution locatin g 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 f ederal 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 dete rmined in advance of construction and is a pollutant
- sp ecific 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 analyse s 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 revie wing authority in non
- delegated states lacking SIP
approved programs and in Indian country.12

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 r egulated 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 perm it, 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 appl ied 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 permi t application before July 31, 1987 , but did not yet receive the PSD permit , are not required to meet the requirements for PM 10 ,13

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) . T he federal PS D 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 r equirements 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 submitte d 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 t he 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 provi de notice of the preliminary decision and an opportunity for comment by the14

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 reviewi ng 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 pre vent the permit from becoming final and effective until the appeal is resolved. B. Fine Particulate Matter and the NAAQS for PM2.5 Fine particles in the atmosphere are made up of a complex mixture of components. Common constituents include sulfate (SO 4 ); nitrate (NO 3 ); 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 part icles,” 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 gasoline15

engines). “Secondary” p articles (e.g., SO 4 and NO 3 ) 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 level s 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 restri cted 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, 19 97, 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 p er cubic meter (μg/m 3 ) and a 24
- hour standard at a level of 65 μg/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 design ed to protect against major environmental effects of PM2.5 such as visibility impairment, soiling, and materials damage.16

On October 17, 2006, we revised the primary and secondary NAAQS for PM2.5 and PM 10 . In that rulemaking, we reduced the 24
- hour NAAQ S for PM2.5 to 35 μg/m 3 and retained the existing annual PM2.5 NAAQS of 15 μg/m 3 . In addition, we retained PM 10 as the indicator for coarse PM, retained the existing PM 10 24
- hour NAAQS of 150 μg/m 3 , and revoked the annual PM 10 NAAQS (which had previously been set at 50 μg/m 3 ). 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 Th at 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 address ing PM2.5 . Sp ecifically,
s ection 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.17

BACT for each pollutant subject to PSD regulation. The 1997 guidance state s that sources are allowed to use implementation
o f a PM 10 program as a surrogate for meeting PM2.5 NSR requirements until certain difficulties concerning PM2.5 a re resolved, including the lack of necessary tools to calculate the emissions of PM2.5 and related precursors, the lack of adequate modeling tec hniques 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 i n both attainment and nonattainment areas . 73 FR 28321. The rule , with two exceptions, requir es that major stationary sources seeking permits must begin directly satisfying the PM2.5 requirements as o f the effective date of the new rule , rather than r ely ing on the 1997 PM 10 S urrogate P olicy . First, i n 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; simila r 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.18

Second, i n PM2.5 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 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 PM 2.5 nonattainment area. In the preamble t o 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 PM 10 Surrogate Policy for issuing construction permits. T he May 2008 final rule include d a grandfathering provision for PM2.5 in the federal PSD program at 40 CFR 52.21. This grandfathering provision applie d to sources that had applied for , but had not yet received , a final and effective PSD permit b efore 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 1,19

2005 notice of proposed rulemaking. Instead, t he November 2005 proposal provided that the revi sed 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 s tates with SIP
- approved PSD programs , the preamble to the May 2008 final rule state d that SIP - approved state s may continue to implement a PM 10 program as a surrogate to meet the PSD program requirements for PM2.5 pursuant to the 1997 [PM 10 Surrogate Policy]” for up to three years (until May 2011) or until the individual revised state PSD programs f or PM2.5 are approved by EPA, whichever comes first. See 73 FR 2834 1 . D. Case Law Relevant to the Use of t he PM 10 Surroga te Policy When EPA issued the PM 10 S urrogate P olicy in 1997, we stated that meeting the NSR program requirements for PM 10 may be use d as a surrogate for meeting the NSR program requirements for PM2.5 until certain t echnical difficulties concerning PM2.5 a re resolved. At that time, we did not identify criteria to be applied before the policy could be used for satisfying the PM2.5 requi rements . H owever, courts have issued a number of opinions that should be read as establishing guidelines for the use of an analy s is based on PM 10 as a s urrogate for meeting the PSD requirements for PM2.5 . Applicants and state permitting authorities seeki ng to rely on the PM 10 Surrogate Policy should consider these opinions in determining whether PM 10 serves as an20

adequate s urrogate 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 anal ysis 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 Environment al 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) (“Th e 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 addres sed when it was reasonable to use a surrogate in contexts different from the use of the PM 10 S urrogate P olicy , 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 a21

reasonable proxy for the pollutant or has a predictable correlation to the pollutant ) and that this principle applies where an applicant or permitting authority seeks to rely upon the PM 10 S urrogate P olicy in lieu of a PM2.5 analysis to obtain a PSD permit . Second, wi th respect to PM surrogacy in particular, there are specific issues raised in the case law that bear on whether PM 10 can be considered a reasonable surrogate for PM2.5. T he D.C. Circuit concluded that PM 10 was an arbitrary surrogate for a PM pollutant that is one fraction of PM 10 where the use of PM 10 as a surrogate for that fraction is “inherently confounded” by the presence of the other fraction of PM 10 . ATA v. EPA, 175 F.3d 1027, 1054 (D.C. Cir. 1999 ) (PM 10 is an arbitrary indicator for coarse PM (PM 10
- 2.5 ) because the amount of coarse PM within PM 10 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 instan ce provided a reasonable rationale for using PM 10 as a surrogate for a fraction of PM 10 . 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 are as th a n in rural areas, and (2) evidence of health effects from coarse PM in urban areas is stronger, EPA reasoned that setting a single PM 10 standard for both urban and rural areas would tend to require lower coarse PM concentrations in22

urban areas. The court considered the reasoning from the ATA case and accepted that the presence of PM2.5 in PM 10 will cause the amount of coarse PM in PM 10 to vary, but on the specific facts before it held that such variation was not arbitrary.) EPA believes that these c ases demonstrate the need for permit applicant s and permitting authorit ies to determine whether PM 10 is a reasonable surrogate for PM2.5 under the facts and circumstances of th e specific permit at issue, and not proceed on a general presumption that PM 10 i s a lways a good surrogate for PM2.5 . Thus, based on this case law, rather than simply assuming that using the 1997 PM 10 S urrogate P olicy is always an adequate alternative for satisfying the PM2.5 PSD requirements , permit applicants and permitting authorit ies seeking to apply the 1997 PM 10 S urrogate P olicy must ensure that the record for each permit supports using PM 10 as a surrogate for PM2.5 under the circumstances. Finally, this case law suggests that any person attempting to show that PM 10 is a reasonable surrogate for PM2.5 would need to address the differences between PM 10 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 f urther example, the particles that make up PM2.5 may be transported over long distances while coarse23

particles normally travel short er distances. 70 FR 65,984, 65,997
- 98 (November 1, 2005). Under the principles in the case law, any source or permitting a uthority seeking to use the PM 10 Surrogate Policy properly would need to consider the differences between PM 10 and PM2.5 and demonstrate that PM 10 is nonetheless an adequate surrogate for PM2.5 . 4 I II . Transition to the PM2.5 Requirements for S tates Lacking EPAA pproved PSD Programs A . What is the e xisting g randfathering p rovision 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 e ffective date of the May 2008 final rule must directly satisfy the requirements for PM2.5 rather than rely on the PM 10 S urrogate P olicy to satisfy those requirements . However, until the EPA recently stayed the provision for three months , t he grandfatherin g 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 PM 10 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 Surrog ate Policy in a PSD permit issued to Louisville Gas and Electric Company.24

continue having their application reviewed on the basis of the PM 10 S urroga te P olicy. 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) where by EPA grandfathered new and modified major stationary sources with permit applications based on PM from the then
- new PM 10 increment requirements established in 1987. Thus, applicants would not be expected to perform new analyses to establi sh 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 PM 10 S urrogate P olicy before the effective date of the new regulations . At the time the grandfathering pr ovision for PM2.5 was put in to 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 permit s after the July 15, 2008 effective date of the final rule. B. Petitioners ’ 2008 C hallenge to the G randfathering P rovision for PM2.5 On July 15, 2008, t he Natural Resources Defense Council and the Sierra Club jointly submitted a petition to the Administrator seeking reconsideration of fo ur provisions of the25

May 16 , 2 008 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 rat ionale 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 argue d that the technical difficulties with respect to PM2.5 monitoring, emissions estimation and modeling that led to the adoption of the 1997 PM 10 S urroga te P olicy 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 PM 10 S urroga te P olicy, and so there was no justification for the grandfathering provision. July 15 Petition at 8 . In sum, petitioners asserted that the grandfathering provision in26

§52.21(i)(1)(xi) was illegal and arbi trary, 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 P etition S eeking Reconsideration and a S tay of the Grandfathering P rovision for PM2.5 On February 10, 2009, the same petitioners submitted a second petition similar to the first to EPA . The second petition ma de the same arguments that were presented in the July 15, 2008 petition seeking rec onsideration and an administrative stay and sought reconsideration of both the May 2008 final rule and the January 2009 denial of p etitioners’ first petition for reconsideration . In response to th e February 2009 petition, on April 24, 2009, the Administra tor 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 repeal ing 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 PM 10 S urroga te P o licy in 1997.” F inally, the Administrator announced that she was administratively staying27

the grandfathering provision for three months under the authority of section 307(d)(7)(B) of the Act . Th at three - month administrative stay became effective on June 1, 2009
-- the da te 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, c onsistent 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 describ ed 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 ( se e 70 FR 66043 ) , and did not propose or seek comment on the continued application of the PM 10 S urroga te P olicy 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 by28

the federal PSD pr ogram to continue to use the PM 10 S urroga te P olicy after the effective date of the final rule. Moreo ver, we find that there is sufficient justification to propos e repeal ing the grandfathering provision . The impact of a repeal will be to require sources t hat 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 PM 10 S urroga te P olicy. However, EPA does not propose to interpret this proposed r epeal 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 le d to the adoption of the PM 10 S urroga te P olicy 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 procedur es 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 predi ct 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 are29

available, as are national inventories of PM2.5 emissions. While direct ana lysis of PM2.5 impacts may now be conducted,
n ot all technical difficulti es 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., SO 2 and NOx) emitted from indiv idual 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 cur rently 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 f or 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. Th is 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 emiss ions of PM2.5 from the proposed source or modification will cause or contribute to a violation of the NAAQS for PM2.5 , and is30

not a valid basis for using a PM 10 analysis as a surrogate to satisfy the PM2.5 requirements . E . What are the e ffects of repealin g the grandfathering provision for PM2.5 ? If EPA adopts a final rule to repeal the grandfathering provision, any PSD permit applica tions covered by the grandfathering provision that have not yet been approved and issued a final and effective PSD permit wi ll no t be able to rely on the PM 10 S urrogate P olicy 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 b y § 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 PM 10 surroga te 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 subsequ ent31

final rule would not impact any PSD permits that became final and effective in reliance o n the PM 10 S urroga te P olicy 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 C urrent status of the PM 10 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 tha t SIP - approved states may continue to implement a PM 10 program as a surrogate to meet the PSD program requirements for PM2.5 pursuant to the 1997 PM 10 Surrogate Policy. This continued use of the PM 10 Surrogate Policy was a transition measure , provided for SIP - approved states in conjunction with the three - year period provided under 40 CFR 51.166(a)(6)(i) to adopt and submit SIP revisions following the May 2008 rule. See 73 FR 28340
- 28341. Although the PM 10 Surrogate Policy is in effect, in light of the v arious relevant court decisions discussed above , it is prudent to conclude that the policy should not be read as allowing the automatic use of a PM 10 analysis as a surrogate for satisfyin g PM2.5 requirements . Moreover, t he PM 10 Surrogate Policy contains l imits within the policy itself. A s stated in the 1997 Seitz Memorandum , the PM 10 Surrogate Policy provided that, in view of significant technical difficulties that existed32

in 1997, EPA believed that PM 10 may properly be used as a surrogate for PM2.5 in me eting NSR requirements “until these difficulties are resolved.” S e itz 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 demonstr ation discussed previously, a source or permitting authority seeking to rely on the PM 10 Surrogate Policy should ident ify any technical difficulties that exist t o justify the application of the policy in each specific
case . B. Petitioners ’ 2009 P etition S eeking Reconsideration of the Continued Use of the PM 10 Surrogate Policy during the Three
- year Transition Period In their February 10, 2009 petition for reconsideration, t he Natural Resources Defense Council and Sierra Club argued, among other things, t hat the continued use of the PM 10 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 d irectly rather than relying on a PM 10 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 Propos ing to End t he PM 10 Surrogate Policy in SIP
-33

approved S tates ? In this action, EPA is proposing to end the PM 10 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 implement ation issues that led to the adoption of the PM 10 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 thes e 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. S ection III.D of this preamble , which discuss es our propo sal to repeal the grandfathering provision in the Federal PSD program , provides a more th o rough 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 t o 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 PM 10 Surrogate P olicy 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 is34

unable to implement a PSD program for the PM2.5 NAAQS based on these final rules, the State may continue to implement a PM 10 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 SIP
approved 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 defin ition, 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, s uch states may already have an EPA- approved SIP that authorizes the state to establ ish BACT limits for PM2.5 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 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 signifi cant emissions rate for PM2.5 . See , 73 FR at 28340. Assuming a state that has adopted EPA’s definition of “regulated NS R 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 implicati on 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 pr ogram for PM2.5 . In this context it would be helpful to hear commenters’ views on whether the legal authority of SIP
approved 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 PM 10 Surrogate Policy . To help EPA consider these issues, we are specifically seeking comment on several addition al 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 the36

PM 10 Surrogate P olicy is left i n place until May 2011 ?

- What implementation difficulties for state permitting authorities or PSD applicants seeking permits will result from ending the PM 10 Surrogate P olicy before the three
- year transition period ? In addition, EPA invites comments on an y other points that i nterested parties believe are relevant to whether the PM 10 Surrogate Policy continues to be necessary for implementing the Act’s PM2.5 requirements . D. What are the E ffects of E nding the PM 10 Surrogate Policy in SIP - approved States ? When the PM 10 Surrogate Policy ends in SIP
- approved states, the effects will be the same as those described previously in section III.E of this preamble, which discusses the effects of the proposed repeal of the grandfathering provision in states where the federal PSD program applies . If EPA decides to end the PM 10 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 wo uld be thereafter required to conduct permit
related analyses based on PM2.5 rather than PM 10 . EPA is taking comment on what kind of transition process, if any, should be allowed if EPA decides to end the PM 10 Surrogate Policy in the final rule .37

V. Statutory and Executive Order Reviews A. E xecutive 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 a ction. B. P aperwork 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 t o 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 PM 10 Surrogate Policy in SIP
- approved states . However, the OMB has previously approved the inf ormation 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 Act38

The Regulatory Flexibility Act (RFA) generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requi rements 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 organizatio ns, 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 regulations39

at 40 CFR 52.21 ( by repealing the grandfather ing provision that affects fewer than 2 0 sources ) , and to end early our policy of allowing SIP
- approved states to use the PM 10 Surrogate Policy. T h is do es not create any new requirements or burdens. No costs are associated with th i s amendment. We continu e 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 contain s no federal mandate under the provisions of Title II of the Unfu nded 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 af fects fewer than 20
sources ), and to end early our policy of allowing SIP
- approved states to use the PM 10 Surrogate Policy . Th erefore , this action is not subject to the requirements of sections 202 or 205 of UMRA. This action is also not subject to the re quirements of section 203 of UMRA because it contains no regulatory requirements that might significantly or uniquely affect small governments. E. E xecutive Order 13132 : Federalism40

This action does not have federalism impl ications . It will not have subs tantial 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 p roposes 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, E xecutive O rder 13132 does not apply to this proposed rule. In the spirit of E xecutive O rder 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 E xecutive O rder 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 from41

Environmental Health and Safety R isks EPA interprets E xecutive O rder 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 E xecutive O rder has the potential to in fluence the regulation. This action is not subject to E xecutive O rder 13045 because it does not establish an environmental standard intended to mitigate health or safety risks. In fact , t his action will help ensure that the health
based national standard s 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 PM 10 Surrogate Policy in SIP
- approved states. In both instances, only a por tion of the affected sources are involved in the production or distribution of energy. I. National Technology Transfer and Advancement Act42

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 conse nsus 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 bu siness 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 prop osed 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 Popul ations E xecutive O rder 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 pa rt of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and43

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 PM 10 Surrogate Policy in SIP
approved states . The affected sources, after further analysis and data collec tion, 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) o f 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 4 4 of 4 5 - 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 p ollution control, Environmental protection, Intergovernmental relations.

____________________________ Dated:

____________________________ Lisa P. Jackson, Administrator .45

F o r the reasons set out in the preamble, title 40, chapter I of the Code of F ederal Regulations is proposed to be amended as follows: PART 5 2— [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)(x i ).