	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 (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 [insert date 30
days from date of publication].  

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

 www.regulations.gov.  Follow the on-line instructions for submitting
comments.

B.    	E-mail:    HYPERLINK "mailto:fernandez.cristina@epa.gov" 
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   HYPERLINK "http://www.regulations.gov" 
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 or e-mail. 
The www.regulations.gov website 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  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
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 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   HYPERLINK "mailto:quinto.rose@epa.gov"  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 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 section 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  SEQ CHAPTER \h \r 1  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
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, “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 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.)    SEQ CHAPTER \h \r 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.    SEQ CHAPTER \h \r 1
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 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 (µg/m3) based on a 3-year
average of annual mean PM2.5 concentrations, and a twenty-four hour
standard of 65 µg/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 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 µg/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 µg/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
(µg/m3)

Location	AQS site ID	1997 24-Hour Attainment Standard	2004 – 2006

Design Values	2005 – 2007 

Design Values

Carlisle/Cumberland County	42-041-0101	65	38	36

Harrisburg/Dauphin County	42-043-0401	65	38	38



TABLE 2.  Design Values for the 1997 Annual PM2.5 NAAQS for
Harrisburg-Lebanon-Carlisle, Pennsylvania in micrograms per cubic meter
(µg/m3)

Location	AQS site ID	1997 Annual Attainment Standard	2004 – 2006

Design Values	2005 – 2007

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



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 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 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 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 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.

                                                                        
                      /s/

________June_4, 2008_______________      ____________________________

Dated:                                                      	 William T.
Wisniewski, Acting,

                                                                 	
Regional Administrator,

                                                                 	
Region III.

 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.”

   The statement is accurate as to NSR requirements.

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