Energy and Environment MonitorOn June 1, 2009 EPA provided notice that via a letter signed on April 24, 2009, EPA granted a petition for reconsideration dated February 10, 2009, submitted by Earthjustice on behalf of the National Resources Defense Council (NRDC) and the Sierra Club, with respect to the May 16, 2008 final rule implementing the New Source Review (NSR) program for fine particulate matter, that is, particles with an aerodynamic diameter less than or equal to a nominal 2.5 micrometers, generally referred to as “PM2.5”) (73 FR 28321-28350) which was effective July 15, 2008. In addition, EPA has administratively stayed one of the provisions to which the petitioners objected—a “grandfathering” provision for PM2.5 in the PSD program. EPA will publish notification in the Federal Register establishing a comment period and opportunity for a public hearing for the reconsideration proceeding.
Consistent with 40 CFR 52.21(i)(1)(x), wherein EPA grandfathered sources or modifications with pending permit applications based on PM from the PM10 requirements established in 1987, EPA will allow sources or modifications who previously submitted applications in accordance with the PM10 surrogate policy to remain subject to that policy for purposes of permitting if EPA or its delegate reviewing authority subsequently determines the application was complete as submitted. This is contingent upon the completed permit application being consistent with the requirements pursuant to the EPA memorandum entitled “Interim Implementation of New Source Review Requirements for PM2.5” (Oct. 23, 1997) recommending the use of PM10 as a surrogate for PM2.5. States were allowed to revise their PSD programs based on EPA’s 2008 final rule. Any sources with pending New Source Review permits involving PM 10 will be severely adversely affected by this abrupt reversal in EPA’s position.
This article was authored by Barbara D. Little, Jackson Kelly PLLC. For more information on the author see here.
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