[Federal Register Volume 73, Number 115 (Friday, June 13, 2008)]
[Proposed Rules]
[Pages 33754-33758]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-13340]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R03-OAR-2008-0257; FRL-8579-8]


Approval and Promulgation of Air Quality Implementation Plans; 
Pennsylvania; Determination of Attainment of the Fine Particle Standard

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to determine that the Harrisburg-Lebanon-
Carlisle, Pennsylvania nonattainment area for the 1997 fine particle 
(PM2.5) National Ambient Air Quality Standard (NAAQS) has 
attained the 1997 PM2.5 NAAQS. This proposed determination 
is based upon quality assured, quality controlled, and certified 
ambient air monitoring data that show that the area has monitored 
attainment of the 1997 PM2.5 NAAQS since the 2004-2006 
monitoring period, and continues to monitor attainment of the standard 
based on 2005-2007 data. In addition, quality controlled and quality 
assured monitoring data for 2008 that are available in the EPA Air 
Quality System (AQS) database, but not yet certified, show this area 
continues to attain the 1997 PM2.5 NAAQS. If this proposed 
determination is made final, the requirements for this area to submit 
an attainment demonstration and associated reasonably available 
measures, a reasonable further progress plan, contingency measures, and 
other planning State Implementation Plans (SIPs) related to attainment 
of the standard shall be suspended for so long as the area continues to 
attain the 1997 PM2.5 NAAQS.

DATES: Written comments must be received on or before July 14, 2008.

ADDRESSES: Submit your comments, identified by Docket ID Number EPA-
R03-OAR-2008-0257 by one of the following methods:
    A. http://www.regulations.gov. Follow the on-line instructions for 
submitting comments.
    B. E-mail: [email protected].
    C. Mail: EPA-R03-OAR-2008-0257, Cristina Fernandez, Chief, Air 
Quality Planning Branch, Mailcode 3AP21, U.S. Environmental Protection 
Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103.
    D. Hand Delivery: At the previously-listed EPA Region III address. 
Such deliveries are only accepted during the Docket's normal hours of 
operation, and

[[Page 33755]]

special arrangements should be made for deliveries of boxed 
information.
    Instructions: Direct your comments to Docket ID No. EPA-R03-OAR-
2008-0257. 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 electronic docket are listed in the 
http://www.regulations.gov index. Although listed in the index, some 
information is not publicly available, i.e., 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 in http://www.regulations.gov or in hard copy during normal business hours at the 
Air Protection Division, U.S. Environmental Protection Agency, Region 
III, 1650 Arch Street, Philadelphia, Pennsylvania 19103.

FOR FURTHER INFORMATION CONTACT: Rose Quinto, (215) 814-2182, or by e-
mail at [email protected].

SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we'', 
``us'', or ``our'' is used, we mean EPA.
    Organization of this document. The following outline is provided to 
aid in locating information in this preamble.

I. What Action Is EPA Taking?
II. What Is the Effect of This Action?
III. What Is the Background for This Action?
IV. What Is EPA's Analysis of the Relevant Air Quality Data?
V. Proposed Action
VI. Statutory and Executive Order Reviews

I. What Action Is EPA Taking?

    EPA is proposing to determine that the Harrisburg-Lebanon-Carlisle, 
Pennsylvania PM2.5 nonattainment area has attained the 1997 
PM2.5 NAAQS. This determination is based upon quality 
assured, quality controlled, and certified ambient air monitoring data 
that show the area has monitored attainment of the 1997 
PM2.5 NAAQS since the 2004-2006 monitoring period, and 
monitoring data that continue to show attainment of the 1997 
PM2.5 NAAQS based on the 2005-2007 data. In addition, 
quality controlled and quality assured monitoring data for 2008 that 
are available in the EPA AQS database, but not yet certified, show this 
area continues to attain the 1997 PM2.5 NAAQS.

II. What Is the Effect of This Action?

    If this determination is made final, under the provisions of EPA's 
PM2.5 implementation rule (see 40 CFR 51.1004(c)), the 
requirements for the Harrisburg-Lebanon-Carlisle, Pennsylvania 
PM2.5 nonattainment area to submit an attainment 
demonstration and associated reasonably available control measures, a 
reasonable further progress plan, contingency measures, and any other 
planning SIPs related to attainment of the 1997 PM2.5 NAAQS 
would be suspended for so long as the area continues to attain the 1997 
PM2.5 NAAQS.
    As further discussed below, the proposed determination would: (1) 
For the Harrisburg-Lebanon-Carlisle, Pennsylvania nonattainment area, 
suspend the requirements to submit an attainment demonstration and 
associated reasonably available control measures (RACM) (including 
reasonably available control technologies (RACT)), a reasonable further 
progress plan (RFP), contingency measures, and any other planning SIPs 
related to attainment of the 1997 PM2.5 NAAQS; (2) continue 
until such time, if any, that EPA subsequently determines that the area 
has violated the 1997 PM2.5 NAAQS; (3) be separate from, and 
not influence or otherwise affect, any future designation determination 
or requirements for the Harrisburg-Lebanon-Carlisle, Pennsylvania area 
based on the 2006 PM2.5 NAAQS; and (4) remain in effect 
regardless of whether EPA designates this area as a nonattainment area 
for purposes of the 2006 PM2.5 NAAQS. Furthermore, as 
described below, any such final determination would not be equivalent 
to the redesignation of the area to attainment based on the 1997 
PM2.5 NAAQS.
    In accordance with 40 CFR section 51.1004(c) (72 FR 20586, 20665), 
this proposed determination would suspend the requirement for the 
Harrisburg-Lebanon-Carlisle, Pennsylvania nonattainment area to submit 
an attainment demonstration and associated RACM, including RACT, 
related to the 1997 PM2.5 NAAQS. Recently EPA noted that 
certain language in the preamble of its PM2.5 implementation 
rule, 72 FR 20586, 20603 (April 25, 2007), contradicts the regulatory 
text in 40 CFR 51.1004(c). On May 22, 2008, EPA issued a memorandum 
``to eliminate any confusion that could result from this erroneous 
statement.'' Memorandum from William T. Harnett, Director, Air Quality 
Policy Division to Regional Air Division Directors, ``PM2.5 
Clean Data Policy Clarification.'' This memorandum stated:
    ``Section 51.1004(c) provides that: `Upon a determination by EPA 
that an area designated nonattainment for the PM2.5 NAAQS 
has attained the standard, the requirements for such area to submit 
attainment demonstrations and associated reasonably available control 
measures, reasonable further progress plans, contingency measures, and 
other planning SIPs related to attainment of the PM2.5 NAAQS 
shall be suspended. * * *'
    Section 51.1010 provides in part: `For each PM2.5 
nonattainment area, the State shall submit with the attainment 
demonstration a SIP revision demonstrating that it has adopted all 
reasonably available control measures (including RACT for stationary 
sources) necessary to demonstrate attainment as expeditiously as 
practicable and to meet any RFP requirements.'
    Thus the regulatory text defines RACT as included in RACM, and 
provides that it is only required insofar as it is necessary to advance 
attainment. See also section 51.1010(b). As a result, when an area is 
attaining the standard, the suspension of the RACM requirement pursuant 
to 51.1004(c) necessarily includes the suspension of the RACT 
requirement.
    However, the preamble to the PM2.5 implementation rule, 
including a response to comments, contains

[[Page 33756]]

language that is at odds with the explicit provisions of the regulatory 
text. The preamble states that `The EPA wishes to clarify that the 
Clean Data Policy does not provide for suspension of the requirements 
for NSR nor for RACT.' 72 FR 20603 (April 25, 2007.) \1\ Thus, the 
preamble erroneously states that SIP submissions to meet RACT 
obligations are not suspended, while the regulatory text provides that 
RACT, as a subset of RACM, is suspended when an area is attaining the 
standard.\2\ The purpose of this section of the preamble was to correct 
a misstatement in the preamble to the proposed rule concerning the 
status of NSR requirements in areas subject to the Agency's Clean Data 
Policy and to respond to comments on that policy. When this preamble 
text was drafted, EPA was considering several formulations of RACT, 
some of which would have resulted in a freestanding RACT requirement 
beyond RACM for certain areas. 72 FR 20610-20612. Those options were 
not selected in the final rulemaking, which adopted the formulation 
found in section 51.1010. EPA thus adopted a combined approach to RACT 
and RACM. Accordingly, pursuant to section 51.1004(c), areas with clean 
data are not required to make a RACT submission. However, the contrary 
draft preamble language inadvertently was not revised to conform to the 
regulatory option that had been selected. Thus, the preamble language 
is irreconcilable with and was never intended to interpret the 
regulatory text that was chosen for the final rule.''
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    \1\ On the same page, in a response to a comment, EPA states: 
``The Clean Data Policy does not waive requirements for NSR nor for 
RACT.''
    \2\ The statement is accurate as to NSR requirements.
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    EPA further stated that its ``memorandum does not change the 
regulation published in the Federal Register on April 25, 2007. Because 
the promulgated regulation is clear, we believe it is clear that the 
preamble statement is an error. National Wildlife Federation v. EPA, 
286 F.3d 554 (D.C. Cir. 2002) (a regulation is controlling over the 
language of a preamble.). Cf. Association of American R.Rs. v. Costle, 
562 F.2d 1310, 1316 (D.C. Cir. 1977) (citing Yazoo Railroad Co. v. 
Thomas, 132 U.S. 174, 188 (1889)) (`Where the enacting or operative 
parts of a statute are unambiguous, the meaning of the statute cannot 
be controlled by language in the preamble.') However, because the 
preamble statement could cause confusion, we are issuing this 
memorandum to explain the misstatement in the preamble and that the 
regulatory text is controlling.''
    Consequently, if this proposed determination is made final, the 
requirement for the Harrisburg-Lebanon-Carlisle, Pennsylvania 
PM2.5 nonattainment area to make RACT submissions related to 
attainment of the 1997 PM2.5 nonattainment NAAQS would be 
suspended for so long as the area continues to attain the 1997 
PM2.5 NAAQS.
    If this rulemaking is finalized and EPA subsequently determines, 
after notice-and-comment rulemaking in the Federal Register, that the 
area has violated the 1997 PM2.5 NAAQS, the basis for the 
suspension of the specific requirements, set forth at 40 CFR section 
51.1004(c), would no longer exist, and the area would thereafter have 
to address the pertinent requirements.
    The determination that EPA proposes with this Federal Register 
notice, that the air quality data show attainment of the 1997 
PM2.5 NAAQS, is not equivalent to the redesignation of the 
area to attainment. This proposed action, if finalized, would not 
constitute a redesignation to attainment under section 107(d)(3) of the 
Clean Air Act (CAA), because we would not yet have an approved 
maintenance plan for the area as required under section 175A of the 
CAA, nor a determination that the area has met the other requirements 
for redesignation. The designation status of the area would remain 
nonattainment for the 1997 PM2.5 NAAQS until such time as 
EPA determines that it meets the CAA requirements for redesignation to 
attainment.
    This proposed action, if finalized, is limited to a determination 
that the Harrisburg-Lebanon-Carlisle, Pennsylvania PM2.5 
area has attained the 1997 PM2.5 NAAQS. The 1997 
PM2.5 NAAQS became effective on July 18, 1997 (62 FR 36852) 
and are set forth at 40 CFR section 50.7. The 2006 PM2.5 
NAAQS, which became effective on December 18, 2006 (71 FR 61144) are 
set forth at 40 CFR section 50.13. EPA is currently in the process of 
making designation determinations, as required by CAA section 
107(d)(1), for the 2006 PM2.5 NAAQS. EPA has not made any 
designation determination for the Harrisburg-Lebanon-Carlisle, 
Pennsylvania area based on the 2006 PM2.5 NAAQS. This 
proposed determination, and any final determination, will have no 
effect on, and is not related to, any future designation determination 
that EPA may make based on the 2006 PM2.5 NAAQS for the 
Harrisburg-Lebanon-Carlisle, Pennsylvania area. Conversely, any future 
designation determination of the Harrisburg-Lebanon-Carlisle, 
Pennsylvania area, based on the 2006 PM2.5 NAAQS, will not 
have any effect on the determination proposed by this notice.
    If this proposed determination is made final and the Harrisburg-
Lebanon-Carlisle, Pennsylvania area continues to demonstrate attainment 
with the 1997 PM2.5 NAAQS, the requirements for the 
Harrisburg-Lebanon-Carlisle, Pennsylvania area to submit an attainment 
demonstration and associated reasonably available control measures, a 
reasonable further progress plan, contingency measures, and any other 
planning SIPs related to attainment of the 1997 PM2.5 NAAQS 
would remain suspended, regardless of whether EPA designates this area 
as a nonattainment area for purposes of the 2006 PM2.5 
NAAQS. Once the area is designated for the 2006 NAAQS, it will have to 
meet all applicable requirements for that designation.

III. What Is the Background for This Action?

    On July 18, 1997 (62 FR 36852), EPA established a health-based 
PM2.5 NAAQS at 15.0 micrograms per cubic meter ([mu]g/m3) 
based on a 3-year average of annual mean PM2.5 
concentrations, and a twenty-four hour standard of 65 [mu]g/m3 based on 
a 3-year average of the 98th percentile of 24-hour concentrations. EPA 
established the standards based on significant evidence and numerous 
health studies demonstrating that serious health effects are associated 
with exposures to particulate matter. The process for designating areas 
following promulgation of a new or revised NAAQS is contained in 
section 107(d)(1) of the CAA. EPA and State air quality agencies 
initiated the monitoring process for the 1997 PM2.5 NAAQS in 
1999, and developed all air quality monitors by January 2001. On 
January 5, 2005 (70 FR 944), EPA published its air quality designations 
and classifications for the 1997 PM2.5 NAAQS based upon air 
quality monitoring data from those monitors for calendar years 2001-
2003. These designations became effective on April 5, 2005. The 
Harrisburg-Lebanon-Carlisle, Pennsylvania (Cumberland, Dauphin, and 
Lebanon Counties) area was designated nonattainment for the 1997 
PM2.5 NAAQS (see 40 CFR part 81).

IV. What Is EPA's Analysis of the Relevant Air Quality Data?

    EPA has reviewed the ambient air monitoring data for 
PM2.5, consistent with the requirements contained in 40 CFR 
part 50 and recorded in the EPA

[[Page 33757]]

AQS database for the Harrisburg-Lebanon-Carlisle, Pennsylvania 
PM2.5 nonattainment area from 2004 through the present time.
    On the basis of that review, EPA has concluded that this area 
attained the 1997 PM2.5 NAAQS since the 2004-2006 monitoring 
period, and continues to monitor attainment of the NAAQS based on 2005-
2007 data. In addition, quality controlled and quality assured 
monitoring data for 2008 that are available in the EPA AQS database, 
but not yet certified, show this area continues to attain the 1997 
PM2.5 NAAQS.
    Under EPA regulations at 40 CFR Part 50, section 50.7:
    (1) The annual primary and secondary PM2.5 standards are 
met when the annual arithmetic mean concentration, as determined in 
accordance with 40 CFR Part 50, Appendix N, is less than or equal to 
15.0 [mu]g/m3.
    (2) The 24-hour primary and secondary PM2.5 standards 
are met when the 98th percentile 24-hour concentration, as determined 
in accordance with 40 CFR Part 50, Appendix N, is less than or equal to 
65 [mu]g/m3.
    Table 1 shows the design values for the 1997 24-hour 
PM2.5 NAAQS for Harrisburg-Lebanon-Carlisle, Pennsylvania 
nonattainment area monitors for the years 2004-2006 and 2005-2007. 
Table 2 shows the design values for the 1997 annual PM2.5 
NAAQS for these same monitors and the same 3-year periods.

    Table 1.--Design Values for the 1997 24-Hour PM2.5 NAAQS for Harrisburg-Lebanon-Carlisle, Pennsylvania in
                                      Micrograms per Cubic Meter ([mu]g/m3)
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                                                                   1997 24-Hour
                    Location                        AQS site ID     attainment       2004-2006       2005-2007
                                                                     standard      design values   design values
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Carlisle/Cumberland County......................     42-041-0101              65              38              36
Harrisburg/Dauphin County.......................     42-043-0401              65              38              38
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    Table 2.--Design Values for the 1997 Annual PM2.5 NAAQS for Harrisburg-Lebanon-Carlisle, Pennsylvania in
                                      Micrograms per Cubic Meter ([mu]g/m3)
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                                                                    1997 Annual
                    Location                        AQS site ID     attainment       2004-2006       2005-2007
                                                                     standard      design values   design values
----------------------------------------------------------------------------------------------------------------
Carlisle/Cumberland County......................     42-041-0101            15.0            14.4            13.9
Harrisburg/Dauphin County.......................     42-043-0401            15.0            15.0            14.6
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    EPA's reviews of these data indicate that the Harrisburg-Lebanon-
Carlisle, Pennsylvania nonattainment area has met and continues to meet 
the 1997 PM2.5 NAAQS. EPA is soliciting public comments on 
the issues discussed in this document. These comments will be 
considered before taking final action.

V. Proposed Action

    EPA is proposing to determine that the Harrisburg-Lebanon-Carlisle, 
Pennsylvania nonattainment area for the 1997 PM2.5 NAAQS has 
attained the 1997 PM2.5 NAAQS and continues to attain the 
standard based on data through 2008. As provided in 40 CFR 51.1004(c), 
if EPA finalizes this determination, it would suspend the requirements 
for this area to submit an attainment demonstration and associated 
reasonably available control measures, a reasonable further progress 
plan, contingency measures, and any other planning SIPs related to 
attainment of the 1997 PM2.5 NAAQS so long as the area 
continues to attain the 1997 PM2.5 NAAQS.

VI. Statutory and Executive Order Reviews

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
proposed action is not a ``significant regulatory action'' and 
therefore is not subject to review by the Office of Management and 
Budget. For this reason, this action is not subject to Executive Order 
13211, ``Actions Concerning Regulations That Significantly Affect 
Energy Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). This 
action proposes to make a determination based on air quality data, and 
would, if finalized, result in the suspension of certain Federal 
requirements. Accordingly, the Administrator certifies that this rule 
will not have a significant economic impact on a substantial number of 
small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et. 
seq.). Because this rule proposes to make a determination based on air 
quality data, and would, if finalized, result in the suspension of 
certain Federal requirements, it does not contain any unfunded mandate 
or significantly or uniquely affect small governments, as described in 
the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4).
    This proposed rule also does not have tribal applications because 
it will not have a substantial direct effect on one or more Indian 
tribes, on the relationship between the Federal Government and Indian 
tribes, or on the distribution of power and responsibilities between 
the Federal Government and Indian tribes, as specified by Executive 
Order 13175 (65 FR 67249, November 9, 2000). This proposed action also 
does not have Federalism implications because it does 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 (64 FR 43255, August 10, 1999), 
because it merely proposes to make a determination based on air quality 
data and would, if finalized result in the suspension of certain 
Federal requirements, and does not alter the relationship or the 
distribution of power and responsibilities established in the CAA. This 
proposed rule also is not subject to Executive Order 13045 ``Protection 
of Children from Environmental Health Risks'' (62 FR 19885, April 23, 
1997) because it proposes to determine that air quality in the affected 
area is meeting Federal standards.
    The requirements of section 12(d) of the National Technology 
Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply 
because it would be inconsistent with applicable law for EPA, when 
determining the attainment

[[Page 33758]]

status of an area, to use voluntary consensus standards in place of 
promulgated air quality standards and monitoring procedures otherwise 
satisfy the provisions of the CAA.
    This proposed rule does not impose an information collection burden 
under the provisions of the Paper Reduction Act of 1995 (44 U.S.C. 3501 
et seq.)
    Under Executive Order 12898, EPA finds that this rule, pertaining 
to Pennsylvania's determination of attainment of the fine particle 
standard for Harrisburg-Lebanon-Carlisle area, involves a proposed 
determination of attainment based on air quality data and will not have 
disproportionately high and adverse human health or environmental 
effects on any communities in the area, including minority and low-
income communities.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Particulate 
matter, Reporting and recordkeeping requirements.

    Authority: 42 U.S.C. 7401 et. seq.

    Dated: June 4, 2008.
William T. Wisniewski,
Acting Regional Administrator, Region III.
[FR Doc. E8-13340 Filed 6-12-08; 8:45 am]
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