EPA Proposes to Repeal PM10 Grandfathering Provision and End the PM10 Surrogate Policy

    On February 11, 2010, EPA proposed (75 Fed Reg 6827-6836) two actions that would end it’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, 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).  

Entities affected by this proposed action include 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 those proposed new and modified major stationary sources that are subject to a PSD program in SIP-approved States and 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. EPA is not proposing that the repeal would apply retroactively to any 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 groups Electric services, Petroleum refining, Industrial inorganic chemicals, Industrial organic chemicals, Miscellaneous chemical products, Natural gas liquids, Natural gas transport, Pulp and paper mills, Paper mills, Automobile manufacturing, and Pharmaceuticals. 

EPA notes that it knows 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. 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. 

EPA said further that 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. EPA states that it believes that the certainty outweighs “any burdens caused by any delay to the permit applicants that would be affected.” However, EPA solicits comments about any burdens that affected sources believe may be incurred. 

Finally, EPA notes that 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. 

 

Comments on the February 11 proposals must be received on or before March 15, 2010. If requests a public hearing, it will be held on February 26, 2010. If a hearing is held, the record for the hearing will remain open until March 29, 2010.  

This article was authored by Skipp Kropp, Jackson Kelly PLLC. For more information on the author see here.