**ENVIRONMENTAL PROTECTION AGENCY**

**40 CFR Part 52**

**\[EPA-R03-OAR-2008-0257; FRL- \]**

**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.

**SUMMARY:** EPA is proposing to determine that the
Harrisburg-Lebanon-Carlisle, Pennsylvania nonattainment area for the
1997 fine particle (PM~2.5~) National Ambient Air Quality Standard
(NAAQS) has attained the 1997 PM~2.5~ 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 PM~2.5~ 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 PM~2.5~ 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 PM~2.5~ NAAQS.

**DATES:** Written comments must be received on or before \[[insert date
30 days from date of publication]{.underline}\].

**ADDRESSES:** Submit your comments, identified by Docket ID Number
**EPA-R03-OAR-2008-0257** by one of the following methods:

A.  [www.regulations.gov]{.underline}. Follow the on-line instructions
    for submitting comments.

B. E-mail: <fernandez.cristina@epa.gov>.

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 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 [www.regulations.gov](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 [www.regulations.gov]{.underline} or e-mail. The
[www.regulations.gov]{.underline} website is an Aanonymous 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
[www.regulations.gov]{.underline}, 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
[www.regulations.gov]{.underline} 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
[www.regulations.gov]{.underline} 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 <quinto.rose@epa.gov>.

**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 PM~2.5~ nonattainment area has attained the 1997 PM~2.5~
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 PM~2.5~ NAAQS since the 2004 --
2006 monitoring period, and monitoring data that continue to show
attainment of the 1997 PM~2.5~ 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 PM~2.5~ NAAQS.

**II. What is the Effect of This Action?**

If this determination is made final, under the provisions of EPA's
PM~2.5~ implementation rule (see 40 CFR section 51.1004(c)), the
requirements for the Harrisburg-Lebanon-Carlisle, Pennsylvania PM~2.5~
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 PM~2.5~ NAAQS would be suspended for so long as
the area continues to attain the 1997 PM~2.5~ 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 PM~2.5~ NAAQS; (2) continue until such
time, if any, that EPA subsequently determines that the area has
violated the 1997 PM~2.5~ 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 PM~2.5~ NAAQS; and (4) remain in effect regardless of
whether EPA designates this area as a nonattainment area for purposes of
the 2006 PM~2.5~ 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 PM~2.5~ 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 PM~2.5~ NAAQS. Recently EPA noted that certain language in
the preamble of its PM~2.5~ implementation rule, 72 FR 20586, 20603
(April 25, 2007), contradicts the regulatory text in 40 CFR section
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, "PM~2.5~ 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 PM~2.5~ 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 PM~2.5~ NAAQS shall be
suspended....'

Section 51.1010 provides in part: 'For each PM~2.5~ 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 PM~2.5~ implementation rule, including a
response to comments, contains 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."

EPA further stated that its "memorandum does not change the regulation
published in the [Federal]{.underline} [Register]{.underline} 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]{.underline}, 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]{.underline}, 562 F.2d 1310,
1316 (D.C. Cir. 1977) **(**citing [Yazoo Railroad Co. v.
Thomas]{.underline}, 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 PM~2.5~
nonattainment area to make RACT submissions related to attainment of the
1997 PM~2.5~ nonattainment NAAQS would be suspended for so long as the
area continues to attain the 1997 PM~2.5~ NAAQS.

If this rulemaking is finalized and EPA subsequently determines, after
notice-and-comment rulemaking in the [Federal]{.underline}
[Register]{.underline}, that the area has violated the 1997 PM~2.5~
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]{.underline}
[Register]{.underline} notice, that the air quality data

show attainment of the 1997 PM~2.5~ 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 PM~2.5~ 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 PM~2.5~ area has attained
the 1997 PM~2.5~ NAAQS. The 1997 PM~2.5~ NAAQS became effective on July
18, 1997 (62 FR 36852) and are set forth at 40 CFR section 50.7. The
2006 PM~2.5~ 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 PM~2.5~ NAAQS. EPA has not made any designation
determination for the Harrisburg-Lebanon-Carlisle, Pennsylvania area
based on the 2006 PM~2.5~ 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
PM~2.5~ NAAQS for the Harrisburg-Lebanon-Carlisle, Pennsylvania area.
Conversely, any future designation determination of the
Harrisburg-Lebanon-Carlisle, Pennsylvania area, based on the 2006
PM~2.5~ 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 PM~2.5~ 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 PM~2.5~ NAAQS would
remain suspended, regardless of whether EPA designates this area as a
nonattainment area for purposes of the 2006 PM~2.5~ 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 PM~2.5~
NAAQS at 15.0 micrograms per cubic meter (µg/m3) based on a 3-year
average of annual mean PM~2.5~ concentrations, and a twenty-four hour
standard of 65 µg/m3 based on a 3-year average of the 98^th^ 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 PM~2.5~ 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 PM~2.5~ 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 PM~2.5~
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 PM~2.5~, consistent
with the requirements contained in 40 CFR part 50 and recorded in the
EPA AQS database for the Harrisburg-Lebanon-Carlisle, Pennsylvania
PM~2.5~ nonattainment area from 2004 through the present time. On the
basis of that review, EPA has concluded that this area attained the 1997
PM~2.5~ 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 PM~2.5~ NAAQS.

Under EPA regulations at 40 CFR Part 50, section 50.7:

\(1\) The annual primary and secondary PM~2.5~ 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 µg/m3.

\(2\) The 24-hour primary and secondary PM~2.5~ standards are met when
the 98^th^ percentile 24-hour concentration, as determined in accordance
with 40 CFR Part 50, Appendix N, is less than or equal to 65 µg/m3.

Table 1 shows the design values for the 1997 24-hour PM~2.5~ 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 PM~2.5~ NAAQS for these same monitors and the
same 3-year periods.

TABLE 1. Design Values for the 1997 24-Hour PM~2.5~ NAAQS for
Harrisburg-Lebanon-Carlisle, Pennsylvania in micrograms per cubic meter
(µg/m3)

+--------------------+-----------+------------+----------+----------+
| Location           | AQS site  | 1997       | 2004 --  | 2005 --  |
|                    | ID        | 24-Hour    | 2006     | 2007     |
|                    |           | Attainment |          |          |
|                    |           | Standard   | Design   | Design   |
|                    |           |            | Values   | Values   |
+--------------------+-----------+------------+----------+----------+
| C                  | 42        | 65         | 38       | 36       |
| arlisle/Cumberland | -041-0101 |            |          |          |
| County             |           |            |          |          |
+--------------------+-----------+------------+----------+----------+
| Harrisburg/Dauphin | 42        | 65         | 38       | 38       |
| County             | -043-0401 |            |          |          |
+--------------------+-----------+------------+----------+----------+

TABLE 2. Design Values for the 1997 Annual PM~2.5~ NAAQS for
Harrisburg-Lebanon-Carlisle, Pennsylvania in micrograms per cubic meter
(µg/m3)

+--------------------+-----------+------------+----------+----------+
| Location           | AQS site  | 1997       | 2004 --  | 2005 --  |
|                    | ID        | Annual     | 2006     | 2007     |
|                    |           | Attainment |          |          |
|                    |           | Standard   | Design   | Design   |
|                    |           |            | Values   | Values   |
+--------------------+-----------+------------+----------+----------+
| C                  | 42        | 15.0       | 14.4     | 13.9     |
| arlisle/Cumberland | -041-0101 |            |          |          |
| County             |           |            |          |          |
+--------------------+-----------+------------+----------+----------+
| Harrisburg/Dauphin | 42        | 15.0       | 15.0     | 14.6     |
| County             | -043-0401 |            |          |          |
+--------------------+-----------+------------+----------+----------+

EPA's reviews of these data indicate that the
Harrisburg-Lebanon-Carlisle, Pennsylvania nonattainment area has met and
continues to meet the 1997 PM~2.5~ 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 PM~2.5~ NAAQS has attained
the 1997 PM~2.5~ NAAQS and continues to attain the standard based on
data through 2008. As provided in 40 CFR section 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 PM~2.5~ NAAQS so long as the area continues to attain the
1997 PM~2.5~ 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]{.underline}
[seq.]{.underline}). 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 status of an area, to use voluntary consensus standards in
place of promulgated air quality standards and monitoring procedures
other wise 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]{.underline} [seq]{.underline}.)

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]{.underline}.

/s/

[\_\_\_\_\_\_\_\_June_4, 2008]{.underline}\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

Dated: William T. Wisniewski, Acting,

Regional Administrator,

Region III.

[^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.