[Federal Register Volume 75, Number 28 (Thursday, February 11, 2010)]
[Proposed Rules]
[Pages 6827-6836]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-2983]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[EPA-HQ-OAR-2003-0062: FRL-9113-2]
RIN 2060-AP75
Implementation of the New Source Review (NSR) Program for
Particulate Matter Less Than 2.5 Micrometers (PM2.5); Notice of
Proposed Rulemaking To Repeal Grandfathering Provision and End the PM10
Surrogate Policy
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: In this action, in response to a petition for reconsideration,
EPA is proposing two actions that would end EPA's 1997 policy that
allows sources and permitting authorities to use a demonstration of
compliance with the prevention of significant deterioration (PSD)
requirements for particulate matter less than 10 micrometers
(PM10) as a surrogate for meeting the PSD requirements for
particulate matter less than 2.5 micrometers (PM2.5). First,
in accordance with the Administrator's commitment to the petitioners in
a letter dated April 24, 2009, the EPA is proposing to repeal the
``grandfathering'' provision for 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 March 15, 2010.
Public Hearing. If anyone contacts EPA requesting the opportunity
to speak at a public hearing concerning the proposed regulation by
February 22, 2010, EPA will hold a public hearing on February 26, 2010.
If a hearing is held, the record for the hearing will remain open until
March 29, 2010.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OAR-2003-0062, by one of the following methods:
http://www.regulations.gov. Follow the online instructions
for submitting comments.
E-mail: [email protected].
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.,
[[Page 6828]]
Washington, DC 20460. Such deliveries are only accepted during the
Docket's normal hours of operation, and special arrangements should be
made for deliveries of boxed information.
Instructions: Direct your comments to the applicable docket. EPA's
policy is that all comments received will be included in the public
docket without change and may be made available online at http://www.regulations.gov, including any personal information provided,
unless the comment includes information claimed to be confidential
business information (CBI) or other information whose disclosure is
restricted by statute. Do not submit information that you consider to
be CBI or otherwise protected through http://www.regulations.gov or e-
mail. The http://www.regulations.gov Web site is an ``anonymous
access'' system, which means EPA will not know your identity or contact
information unless you provide it in the body of your comment. If you
send an e-mail comment directly to EPA without going through http://www.regulations.gov, your e-mail address will be automatically captured
and included as part of the comment that is placed in the public docket
and made available on the Internet. If you submit an electronic
comment, EPA recommends that you include your name and other contact
information in the body of your comment and with any disk or CD-ROM you
submit. If EPA cannot read your comment due to technical difficulties
and cannot contact you for clarification, EPA may not be able to
consider your comment. Electronic files should avoid the use of special
characters, any form of encryption, and be free of any defects or
viruses.
Docket: All documents in the docket are listed in the http://www.regulations.gov index. Although listed in the index, some
information is not publicly available, e.g., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, is not placed on the Internet and will be
publicly available only in hard copy form. Publicly available docket
materials are available either electronically through http://www.regulations.gov or in hard copy at the EPA Docket Center, Public
Reading Room, EPA West, Room 3334, 1301 Constitution Ave., NW.,
Washington, DC 20460. The Public Reading Room is open from 8:30 a.m. to
4:30 p.m., Monday through Friday, excluding legal holidays. The
telephone number for the Public Reading Room is (202) 566-1742, and the
telephone number for the Air Docket is (202) 566-1744.
Public Hearing. If a public hearing is held, it will be held at the
U.S. Environmental Protection Agency, 1200 Pennsylvania Avenue,
Washington, DC 20004.
FOR FURTHER INFORMATION CONTACT: Mr. Dan deRoeck, Air Quality Policy
Division, (C504-03), U.S. Environmental Protection Agency, Research
Triangle Park, NC, 27711; telephone number (919) 541-5593; fax number
(919) 541-5509; or e-mail address: [email protected].
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: [email protected].
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 about twenty-one proposed new sources or
modifications would be affected by the proposed repeal of the
grandfathering provision. At least two projects known to have been
grandfathered have already received final permits to construct (that
are effective) prior to EPA taking action to stay the provision, but
EPA is not proposing that this repeal would apply retroactively to such
permits.
The entities potentially affected by a proposal to end early the
use of the PM10 Surrogate Policy in SIP-approved States
include proposed new and modified major stationary sources in all
industry groups. The majority of sources potentially affected are
expected to be in the following groups:
------------------------------------------------------------------------
Industry group NAICS a
------------------------------------------------------------------------
Electric services...................... 221111, 221112, 221113, 221119,
221121, 221122.
Petroleum refining..................... 32411.
Industrial inorganic chemicals......... 325181, 32512, 325131, 325182,
211112, 325998, 331311,
325188.
Industrial organic chemicals........... 32511, 325132, 325192, 325188,
325193, 32512, 325199.
Miscellaneous chemical products........ 32552, 32592, 32591, 325182,
32551.
Natural gas liquids.................... 211112.
Natural gas transport.................. 48621, 22121.
Pulp and paper mills................... 32211, 322121, 322122, 32213.
Paper mills............................ 322121, 322122.
Automobile manufacturing............... 336111, 336112, 336712, 336211,
336992, 336322, 336312, 33633,
33634, 33635, 336399, 336212,
336213.
Pharmaceuticals........................ 325411, 325412, 325413, 325414.
------------------------------------------------------------------------
a North American Industry Classification System.
Entities affected by this 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 http://www.regulations.gov or e-mail. Send or deliver
information identified as CBI only to the following address: Mr.
Roberto Morales, OAQPS Document Control Officer (C404-02), U.S. EPA,
Office of Air Quality Planning and Standards, Research Triangle Park,
North Carolina 27711, Attention: Docket
[[Page 6829]]
ID EPA-HQ-OAR-2003-0062. Clearly mark the part or all of the
information that you claim to be CBI. For CBI information in a disk or
CD-ROM that you mail to EPA, mark the outside of the disk or CD-ROM as
CBI and then identify electronically within the disk or CD-ROM the
specific information that is claimed as CBI. In addition to one
complete version of the comment that includes information claimed as
CBI, a copy of the comment that does not contain the information
claimed as CBI must be submitted for inclusion in the public docket.
Information so marked will not be disclosed except in accordance with
procedures set forth in 40 CFR part 2.
2. Tips for Preparing Your Comments. When submitting your comments,
remember to:
Identify the rulemaking by docket number and other
identifying information (subject heading, Federal Register date and
page number).
Follow directions--The Agency may ask you to respond to
specific questions or organize comments by referencing a Code of
Federal Regulations (CFR) part or section number.
Explain why you agree or disagree, suggest alternatives,
and substitute language for your requested changes.
If you estimate potential costs or burdens, explain how
you arrived at your estimate in sufficient detail to allow for it to be
reproduced.
Provide specific examples to illustrate your concerns, and
suggest alternatives.
Explain your views as clearly as possible, avoiding the
use of profanity or personal threats.
Make sure to submit your comments by the comment period
deadline identified.
C. Where can I get a copy of this document and other related
information?
In addition to being available in the docket, an electronic copy of
this proposed rule will also be available on the World Wide Web.
Following signature by the EPA Administrator, a copy of this proposed
rule will be posted in the regulations and standards section of our NSR
home page located at http://www.epa.gov/nsr.
D. How can 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: [email protected].
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
A. What is the current status of the PM10 Surrogate
Policy in SIP-approved States?
B. Petitioner's 2009 Petition Seeking Reconsideration of the
Continued Use of the PM10 Surrogate Policy during the
Three-year Transition Period
C. Why is EPA proposing to end the PM10 Surrogate
Policy in SIP-approved States?
D. What are the effects of ending the PM10 Surrogate
Policy in SIP-approved States?
V. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review
B. Paperwork Reduction Act
C. Regulatory Flexibility Act
D. Unfunded Mandates Reform Act
E. Executive Order 13132--Federalism
F. Executive Order 13175--Consultation and Coordination With
Indian Tribal Governments
G. Executive Order 13045: Protection of Children from
Environmental Health and Safety Risks
H. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
I. National Technology Transfer and Advancement Act
J. Executive Order 12898: Federal Actions to Address
Environmental Justice in Minority Populations and Low-Income
Populations
K. Determination Under Section 307(d)
VI. Statutory Authority
II. Background
A. Prevention of Significant Deterioration (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
\1\ 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.
---------------------------------------------------------------------------
\1\ In this proposal, the terms ``we,'' ``us,'' and ``our,''
refer to the EPA.
---------------------------------------------------------------------------
Part C of title I of the Act contains the requirements for a
component of the major NSR program known as the PSD program. The PSD
program sets forth procedures for the preconstruction review and
permitting of new and modified major stationary sources of air
pollution locating in areas meeting the NAAQS (``attainment'' areas)
and areas for which there is insufficient information to classify an
area as either attainment or nonattainment (``unclassifiable'' areas).
In most States, EPA has approved a PSD permit program that is part of
the applicable SIP. The Federal PSD program at 40 CFR 52.21 applies in
States that lack a SIP-approved PSD permit program, and in Indian
country.\2\ The applicability of the PSD program to a new major
stationary source or major modification must be determined in advance
of construction and is a pollutant-specific determination. Once a major
new source or major modification is determined to be subject to the PSD
program (i.e., a PSD source), among other requirements, it must
undertake a series of analyses for each NSR regulated pollutant subject
to review to 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,''
[[Page 6830]]
additional review must be conducted to protect the Class I area's
increments and special attributes referred to as ``air quality related
values.''
---------------------------------------------------------------------------
\2\ We have delegated our authority to some States that lack an
approved PSD program in their SIPs but have requested the authority
to implement the Federal PSD program. The EPA remains the reviewing
authority in non-delegated States lacking SIP-approved programs and
in Indian country.
---------------------------------------------------------------------------
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.
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 ([mu]g/m\3\) and a 24-hour standard at
a level of 65 [mu]g/m\3\. At the time we established the primary
standards in 1997, we also established welfare-based (secondary)
standards identical to the primary standards. The secondary standards
are designed to protect against major environmental effects of
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 [mu]g/m\3\ and retained
the existing annual PM2.5 NAAQS of 15 [mu]g/m\3\. In
addition, we retained PM10 as the indicator for coarse PM,
retained the existing PM10 24-hour NAAQS of 150 [mu]g/m\3\,
and revoked the annual PM10 NAAQS (which had previously been
set at 50 [mu]g/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\ 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.
---------------------------------------------------------------------------
\3\ 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.
---------------------------------------------------------------------------
On May 16, 2008, EPA published a final rule containing requirements
for
[[Page 6831]]
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 section 112 of the Act); Mossville Environmental
Action Now v. EPA, 370 F. 3d 1232, 1242-43 (D.C. Cir. 2004) (EPA must
explain the correlation between the surrogate and the represented
pollutant that provides the basis for the surrogacy.); Bluewater
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, 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
[[Page 6832]]
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.\4\
---------------------------------------------------------------------------
\4\ Additional discussion about the relevant case law and EPA's
position on the use of PM10 as a surrogate for
PM2.5 for PSD permitting is contained in an
Administrative Order issued on August 12, 2009 responding to
petitioners' concerns about the use of the PM10 Surrogate
Policy in a PSD permit issued to Louisville Gas and Electric
Company.
---------------------------------------------------------------------------
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 Sec.
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
proposed and promulgated a second stay that will keep the
grandfathering provision stayed until June 22, 2010. See 74 FR 48153,
September 22, 2009.
D. Why is EPA proposing to repeal the grandfathering provision for
PM2.5?
In this notice, consistent with the Administrator's April 24, 2009
letter to the petitioners, we are proposing to repeal the
grandfathering provision in the Federal PSD program at 40 CFR
52.21(i)(1)(xi). As described above, the November 1, 2005, proposal
provided that the revised 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
[[Page 6833]]
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 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 Sec. 165(a)(3) of the Act, and (b) establish a BACT
emissions limitation for PM2.5 in the permit, as required by
Sec. 165(a)(4) of the Act. For any permit that previously was relying
on a PM10 surrogate analysis, additional information is
likely to be required to fulfill these requirements.
The EPA is aware of twenty-seven sources that had submitted PSD
permit applications under the Federal PSD program prior to July 15,
2008--the effective date of the PM2.5 NSR Implementation
Rule--but did not receive their permits by that date. Thus, these
applications were eligible to be grandfathered to use the
PM10 Surrogate Policy to satisfy the PM2.5
requirements. For at least six of these applications, the permit was
either issued or denied, or the project was cancelled, prior to June 1,
2009, when the administrative stay became effective. For most of the
remaining twenty-one applications, the sources have already directly
addressed, or are planning to directly address, the applicable
PM2.5 requirements in order to obtain a permit. At least two
of the sources are reportedly planning to take enforceable emissions
limitations on their PM2.5 emissions in order to avoid the
PSD requirements for PM2.5 altogether.
Should the additional information that these sources acquire and
analyze for PM2.5 result in the need to tighten the
conditions pertaining to the control of PM2.5 emissions in
any of the yet-issued permits, then direct environmental benefits would
result. In any event, ending the use of the PM10 Surrogate
Policy will provide desired certainty to the PM2.5
permitting process by ensuring that all permit applicants show that
their source does not cause or contribute to a violation of the
PM2.5 NAAQS and otherwise meets all of the requirements for
PM2.5, and not use PM10 surrogacy as means of
avoiding a real analysis demonstrating that the PM2.5
requirements are met. We believe this certainty would outweigh any
burdens caused by any delay to the permit applicants that would be
affected. Nevertheless, we are herein soliciting comments concerning
any such burdens that may be incurred by the affected sources to help
us evaluate this proposed repeal of the grandfathering provision for
PM2.5.
A repeal of the grandfathering provision in a subsequent final rule
would not impact any PSD permits that became final and effective in
reliance on the 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
[[Page 6834]]
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 the Sierra Club argued, among
other things, that the continued use of the PM10 Surrogate
Policy had the effect of waiving for up to three years the requirement
to assure compliance with the 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
[[Page 6835]]
EPA decides to end the PM10 Surrogate Policy in the final
rule.
V. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review
Under Executive Order (EO) 12866 (58 FR 51735, October 4, 1993),
this action is a ``significant regulatory action'' because it raises
novel legal or policy issues. Accordingly, EPA submitted this action to
the Office of Management and Budget (OMB) for review under EO 12866 and
any changes made in response to OMB recommendations have been
documented in the docket for this action.
B. Paperwork Reduction Act
This action does not impose any new information collection burden
that is not already accounted for in the approved information
collection request (ICR) for the NSR program. We are not proposing any
new paperwork requirements (e.g., monitoring, reporting, recordkeeping)
as part of this proposed action. This action proposes to amend one part
of the regulations at 40 CFR 52.21 by repealing the grandfathering
provision that affects about twenty-one sources, and to end the use of
the 1997 PM10 Surrogate Policy in SIP-approved States.
However, the approved ICR for the NSR program was prepared as if the
2008 rule that added PM2.5 to the NSR program would be fully
implemented immediately upon the effective date of the rule, without
any phase-in period during which the grandfathering provision or 1997
PM10 Surrogate Policy would apply. Thus, while this action
will result in increased permitting burden for those sources who would
have otherwise been able to use the grandfathering provision or
PM10 Surrogate Policy, this burden is already included in
the approved ICR. The OMB previously approved the information
collection requirements contained in the existing regulations (40 CFR
parts 51 and 52) under the provisions of the Paperwork Reduction Act,
44 U.S.C. 3501 et seq., and assigned OMB control number 2060-0003. The
OMB control numbers for EPA's regulations in 40 CFR are listed in 40
CFR part 9.
C. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) generally requires an agency
to prepare a regulatory flexibility analysis of any rule subject to
notice and comment rulemaking requirements under the Administrative
Procedure Act or any other statute unless the agency certifies that the
rule will not have a significant economic impact on a substantial
number of small entities. Small entities include small businesses,
small organizations, and small governmental jurisdictions.
For purposes of assessing the impacts of this proposal on small
entities, small entity is defined as: (1) A small business as defined
by the Small Business Administration's (SBA) regulations at 13 CFR
121.201; (2) a small governmental jurisdiction that is a government of
a city, county, town, school district or special district with a
population of less than 50,000; and (3) a small organization that is
any not-for-profit enterprise which is independently owned and operated
and is not dominant in its field.
After considering the economic impacts of this proposed rule on
small entities, I certify that this action will not have a significant
economic impact on a substantial number of small entities. This
proposed rule will not impose any new requirements on small entities.
We have determined that small businesses will not incur any adverse
impacts because EPA is taking this action to propose one amendment to
the regulations at 40 CFR 52.21 (by repealing the grandfathering
provision that affects about twenty-one sources), and to end early our
policy of allowing SIP-approved States to use the 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 about twenty-one 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 about
twenty-one sources), and to end early our policy allowing SIP-approved
States to use the PM10 Surrogate Policy. Thus, Executive
Order 13132 does not apply to this proposed rule.
In the spirit of Executive Order 13132, and consistent with EPA
policy to promote communications between EPA and State and local
governments, EPA specifically solicits comment on this proposed rule
from State and local officials.
F. Executive Order 13175: Consultation and Coordination With Indian
Tribal 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 a ``significant energy action'' as defined in
Executive Order
[[Page 6836]]
13211 (66 FR 28355 (May 22, 2001)), because it is not likely to have a
significant adverse effect on the supply, distribution, or use of
energy. EPA is proposing to amend one part of the regulations at 40 CFR
52.21 (expected to affect about twenty-one regulated entities), and to
end early the use of the PM10 Surrogate Policy in SIP-
approved States. In both instances, only a portion of the affected
sources are involved in the production or distribution of energy.
I. National Technology Transfer and Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (``NTTAA''), Public Law 104-113, 12(d) (15 U.S.C. 272 note)
directs EPA to use voluntary consensus standards in its regulatory
activities unless to do so would be inconsistent with applicable law or
otherwise impractical. Voluntary consensus standards are technical
standards (e.g., materials specifications, test methods, sampling
procedures, and business practices) that are developed or adopted by
voluntary consensus standards bodies. NTTAA directs EPA to provide
Congress, through OMB, explanations when the Agency decides not to use
available and applicable voluntary consensus standards.
This proposed rulemaking does not involve technical standards.
Therefore, EPA is not considering the use of any voluntary consensus
standards.
J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
Executive Order 12898 (59 FR 7629 (Feb. 16, 1994)) establishes
Federal executive policy on environmental justice. Its main provision
directs Federal agencies, to the greatest extent practicable and
permitted by law, to make environmental justice part of their mission
by identifying and addressing, as appropriate, disproportionately high
and adverse human health or environmental effects of their programs,
policies, and activities on minority populations and low-income
populations in the United States.
EPA has concluded that it is not practicable to determine whether
there would be disproportionately high and adverse human health or
environmental effects on minority and/or low income populations from
this proposed rule. The rule proposes only to amend to one part of the
regulations at 40 CFR 52.21 (by repealing the grandfathering provision
that affects about twenty-one sources), and to end early the
PM10 Surrogate Policy in SIP-approved States. The affected
sources, after further analysis and data collection, may receive
permitted emissions limits that are equally or more protective of
public health than would be likely in the absence of this proposed rule
change.
K. Determination Under Section 307(d)
Pursuant to sections 307(d)(1)(J) and 307(d)(1)(V) of the CAA, the
Administrator determines that this action is subject to the provisions
of section 307(d). Section 307(d)(1)(V) provides that the provisions of
section 307(d) apply to ``such other actions as the Administrator may
determine.''
VI. Statutory Authority
The statutory authority for this action is provided by section
301(a) of the CAA as amended (42 U.S.C. 7601(a)). This notice is also
subject to section 307(d) of the CAA (42 U.S.C. 7407(d)).
List of Subjects in 40 CFR Part 52
Administrative practices and procedures, Air pollution control,
Environmental protection, Intergovernmental relations.
Dated: February 4, 2010.
Lisa P. Jackson,
Administrator.
For the reasons set out in the preamble, title 40, chapter I of the
Code of Federal Regulations is proposed to be amended as follows:
PART 52--[AMENDED]
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401, et seq.
Sec. 52.21 [Amended]
2. In Sec. 52.21, remove paragraph (i)(1)(xi).
[FR Doc. 2010-2983 Filed 2-10-10; 8:45 am]
BILLING CODE 6560-50-P