E8-13340. 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 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: [e-mail].

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 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, [phone], or by e-mail at [e-mail].

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 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 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 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 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 Register, 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 Register 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 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 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 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 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 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 PM_2.5 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 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 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. 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 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.

Footnotes

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.