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 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.

	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   HYPERLINK
"http://www.regulations.gov"  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.

	Docket:  All documents in the docket are listed in the   HYPERLINK
"http://www.regulations.gov"  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:   HYPERLINK
"mailto:deroeck.dan@epa.gov"  deroeck.dan@epa.gov .  

	To request a public hearing or information pertaining to a public
hearing on this document, contact Ms. Pamela Long, Air Quality Policy
Division, Office of Air Quality Planning and Standards (C504-03),
Environmental Protection Agency, Research Triangle Park, North Carolina
27711; telephone number (919) 541-0641; fax number (919) 541-5509;
e-mail address:   HYPERLINK "mailto:long.pam@epa.gov"  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 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. 

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

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

	To request a public hearing or information pertaining to a public
hearing on this document, contact Ms. Pamela Long, Air Quality Policy
Division, Office of Air Quality Planning and Standards (C504-03),
Environmental Protection Agency, Research Triangle Park, North Carolina
27711; telephone number (919) 541-0641; fax number (919) 541-5509;
e-mail address:   HYPERLINK "mailto:long.pam@epa.gov"  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
EPA-Approved PSD Programs

	A.  What is the existing grandfathering provision for PM2.5? 	B. 
Petitioner’s 2008 Challenge to the Grandfathering 	Provision for PM2.5


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

What is the current status of the PM10 Surrogate Policy in SIP-approved
States?

Petitioner’s 2009 Petition Seeking Reconsideration of the Continued
Use of the PM10 Surrogate Policy during the Three-year Transition Period

Why is EPA Proposing to End the PM10 Surrogate Policy in SIP-approved
States?

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 Low-Income Populations

K.  Determination Under Section 307(d)

VI. Statutory Authority

II. Background

A.  Prevention of Significant Deterioration (PSD) Program  

	The NSR provisions of the Clean Air Act (Act) are a combination of air
quality planning and air pollution control technology program
requirements for new and modified major stationary sources of air
pollution.  Section 109 of the Act requires EPA to promulgate primary
National Ambient Air Quality Standards (NAAQS or standards) to protect
public health and secondary NAAQS to protect public welfare.  Once we
have set these standards, states must develop, adopt, and submit to us
for approval SIPs that contain emission limitations and other control
measures to attain and maintain the NAAQS and to meet the other
requirements of section 110(a) of the Act.  

	  SEQ CHAPTER \h \r 1 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.  The applicability of the PSD program to a new major
stationary source or major modification must be determined in advance of
construction and is a pollutant-specific determination.  Once a major
new source or major modification is determined to be subject to the PSD
program (i.e., a PSD source), among other requirements, it must
undertake a series of analyses for each NSR regulated pollutant subject
to review to demonstrate that it will use the best available control
technology (BACT) and will not cause or contribute to a violation of any
NAAQS or increment.  In cases where the source’s emissions of any NSR
regulated pollutant may adversely affect an area specially classified as
“Class I,” 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, 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. 

	  SEQ CHAPTER \h \r 1 When the reviewing authority reaches a
preliminary decision to authorize construction of a proposed major new
source or major modification, the authority must provide notice of the
preliminary decision and an opportunity for comment by the general
public, industry, and other persons that may be affected by the
emissions of the proposed major source or major modification.  After
considering these comments, the reviewing authority may issue a final
determination on the construction permit in accordance with the PSD
regulations.  However, under EPA regulations at 40 CFR part 124 and
similar state regulations, an administrative appeal of a permitting
determination may prevent the permit from becoming final and effective
until the appeal is resolved.  

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

	Fine particles in the atmosphere are made up of a complex mixture of
components.  Common constituents include sulfate (SO4); nitrate (NO3);
ammonium; elemental carbon; a great variety of organic compounds; and
inorganic material (including metals, dust, sea salt, and other trace
elements) generally referred to as “crustal” material, although it
may contain material from other sources.  Airborne particulate matter 
with a nominal aerodynamic diameter of 2.5 micrometers or less (a
micrometer is one-millionth of a meter, and 2.5 micrometers is less than
one-seventh the average width of a human hair) is considered to be
“fine particles,” and is also known as 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 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.  

	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).  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 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.

	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, 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 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 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,   SEQ CHAPTER \h \r 1 559 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 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 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. 

III. Transition to the PM2.5 Requirements for States Lacking
EPA-Approved PSD Programs

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

	As described in section II.C of this preamble, new and modified major
stationary sources applying for permits under the federal PSD program
after the July 15, 2008 effective date of the May 2008 final rule must
directly satisfy the requirements for 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 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 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 §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 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 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 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
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 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 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-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 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 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 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, 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 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 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 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
permit-related 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.

V.	Statutory and Executive Order Reviews  

A.  Executive Order 12866: Regulatory Planning and Review

 	Under Executive Order (EO) 12866   SEQ CHAPTER \h \r 1 (58 FR 51735,
October 4, 1993), this action is a "significant regulatory action”
because  SEQ CHAPTER \h \r 1  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

The Regulatory Flexibility Act (RFA) generally requires an agency to
prepare a regulatory flexibility analysis of any rule subject to notice
and comment rulemaking requirements under the Administrative Procedure
Act or any other statute unless the agency certifies that the rule will
not have a significant economic impact on a substantial number of small
entities.  Small entities include small businesses, small organizations,
and small governmental jurisdictions.

For purposes of assessing the impacts of this proposal on small
entities, small entity is defined as: (1) a small business as defined by
the Small Business Administration’s (SBA) regulations at 13 CFR
121.201; (2) a small governmental jurisdiction that is a government of a
city, county, town, school district or special district with a
population of less than 50,000; and (3) a small organization that is any
not-for-profit enterprise which is independently owned and operated and
is not dominant in its field.

After considering the economic impacts of this proposed rule on small
entities, I certify that this action will not have a significant
economic impact on a substantial number of small entities.  This
proposed rule will not impose any new requirements on small entities. 
We have determined that small businesses will not incur any adverse
impacts because EPA is taking this action to propose one amendment to
the regulations at 40 CFR 52.21 (by repealing the grandfathering
provision that affects 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

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 Environmental
Health and Safety Risks

EPA interprets Executive Order 13045 (62 FR 19885,     April 23, 1997)
as applying only to those regulatory actions that concern health or
safety risks, such that the analysis required under section 5-501 of the
Executive Order has the potential to influence the regulation.  This
action is not subject to Executive Order 13045 because it does not
establish an environmental standard intended to mitigate health or
safety risks.  In fact, this action will help ensure that the
health-based national standards for 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

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
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 SIP-approved states.  The affected sources, after further
analysis and data collection, may receive permitted emissions limits
that are equally or more protective of public health than would be
likely in the absence of this proposed rule change. 

K.  Determination Under Section 307(d)

Pursuant to sections 307(d)(1)(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)).

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.

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).

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

 We have delegated our authority to some states that lack an approved
PSD program in their SIPs but have requested the authority to implement
the federal PSD program.  The EPA remains the reviewing authority in
non-delegated states lacking SIP-approved programs and in Indian
country.

 Available in the docket for this rulemaking, ID No.
EPA-HQ-OAR-2003-0062, and at
http:/www.epa.gov/region07/programs/artd/air/nsr/nsrmemos/pm25.pdf.

 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.  

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