However, on January 22, 2013, the U.S. Court of Appeals for the District of Columbia

16 Circuit vacated the SMC for PM2.5 and two provisions in EPA’s PSD regulations containing SILs

17 for PM2.5. (Sierra Club v. EPA, No. 10-1413 (D.C. Circuit), 2013 WL 216018). The Court

18 concluded that the PM2.5 SMC provisions (51.166(i)(5)(c) and 52.21(i)(5)(i)(c)) were

19 inconsistent with the requirements of Section 165(e)(2) of the CAA. The Court granted the

20 EPA’s request to remand and vacate the SIL provisions in Sections 51.166(k)(2) and 52.21(k)(2)

21 of the regulations so that the EPA could correct an error in these provisions that came to the

22 EPA’s attention after the court challenge was filed. The vacated provisions of the regulations

23 inadvertently restricted the discretion of permitting authorities to conduct or require more than a

screening analysis in some circumstances where the EPA had called 1 for permitting authorities to

2 consider whether additional analysis was needed to make the demonstration required by Section

3 165(a)(3) of the CAA.

4 Due to the court decision, the EPA will not rely, and advises permitting authorities with

5 SIP-approved PSD programs not to rely, on the SMCs for PM2.5 to exempt permit applicants

6 from compiling preconstruction monitoring data for PM2.5 in accordance with Sections

7 51.166(m) and 52.21(m) of the EPA’s regulation. 6 However, the EPA believes PSD permit

8 applicants may continue to meet the preconstruction monitoring requirements in these

9 regulations by using data from existing monitors that are determined by the applicable permitting

10 authority to be representative of background conditions in the affected area.7 The court decision

11 does not preclude the use of SILs for PM2.5, but requires that EPA correct the error in the SIL

12 regulations for PM2.5 at 51.166(k)(2) and 52.21(k)(2). In the interim, the EPA believes


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