[Federal Register Volume 85, Number 34 (Thursday, February 20, 2020)]
[Notices]
[Pages 9928-9930]
[FR Doc No: 2020-03345]

-----------------------------------------------------------------------

DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

[Docket No. FMCSA-2013-0107; FMCSA-2013-0109; FMCSA-2017-0253]

Qualification of Drivers; Exemption Applications; Epilepsy and
Seizure Disorders

AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.

ACTION: Notice of renewal of exemptions; request for comments.

-----------------------------------------------------------------------

SUMMARY: FMCSA announces its decision to renew exemptions for four
individuals from the requirement in the Federal Motor Carrier Safety
Regulations (FMCSRs) that interstate commercial motor vehicle (CMV)
drivers have ``no established medical history or clinical diagnosis of
epilepsy or any other condition which is likely to cause loss of
consciousness or any loss of ability to control a CMV.'' The exemptions
enable these individuals who have had one or more seizures and are
taking anti-seizure medication to continue to operate CMVs in
interstate commerce.

DATES: Each group of renewed exemptions were applicable on the dates
stated in the discussions below and will expire on the dates stated in
the discussions below. Comments must be received on or before March 23,
2020.

ADDRESSES: You may submit comments identified by the Federal Docket
Management System (FDMS) Docket No. FMCSA-2013-0107, Docket No. FMCSA-
2013-0109, or Docket No. FMCSA-2017-0253 using any of the following
methods:
     Federal eRulemaking Portal: Go to http://www.regulations.gov/docket?D=FMCSA-2013-0107 or http://www.regulations.gov/docket?D=FMCSA-2013-0109 or http://www.regulations.gov/docket?D=FMCSA-2017-0253. Follow the online
instructions for submitting comments.
     Mail: Docket Operations; U.S. Department of
Transportation, 1200 New Jersey Avenue SE, West Building Ground Floor,
Room W12-140, Washington, DC 20590-0001.
     Hand Delivery: West Building Ground Floor, Room W12-140,
1200 New Jersey Avenue SE, Washington, DC, between 9 a.m. and 5 p.m.,
ET, Monday through Friday, except Federal Holidays.
     Fax:<PHONE_NUMBER>.
    To avoid duplication, please use only one of these four methods.
See the ``Public Participation'' portion of the SUPPLEMENTARY
INFORMATION section for instructions on submitting comments.

FOR FURTHER INFORMATION CONTACT: Ms. Christine A. Hydock, Chief,
Medical Programs Division,<PHONE_NUMBER><EMAIL_ADDRESS>FMCSA,
Department of Transportation, 1200 New Jersey Avenue SE, Room W64-224,
Washington, DC 20590-0001. Office hours are from 8:30 a.m. to 5 p.m.,
ET, Monday through Friday, except Federal holidays. If you have
questions regarding viewing or submitting material to the docket,
contact Docket Operations,<PHONE_NUMBER>.

SUPPLEMENTARY INFORMATION:

I. Public Participation

A. Submitting Comments

    If you submit a comment, please include the docket number for this
notice (Docket No. FMCSA-2013-0107; FMCSA-2013-0109; or FMCSA-2017-
0253), indicate the specific section of this document to which each
comment applies, and provide a reason for each suggestion or
recommendation. You may submit your comments and material online or by
fax, mail, or hand delivery, but please use only one of these means.
FMCSA recommends that you include your name and a mailing

address, an email address, or a phone number in the body of your
document so that FMCSA can contact you if there are questions regarding
your submission.
    To submit your comment online, go to http://www.regulations.gov/docket?D=FMCSA-2013-0107 or http://www.regulations.gov/docket?D=FMCSA-2013-0109 or http://www.regulations.gov/docket?D=FMCSA-2017-0253. Click
on the ``Comment Now!'' button and type your comment into the text box
on the following screen. Choose whether you are submitting your comment
as an individual or on behalf of a third party and then submit.
    If you submit your comments by mail or hand delivery, submit them
in an unbound format, no larger than 8\1/2\ by 11 inches, suitable for
copying and electronic filing. If you submit comments by mail and would
like to know that they reached the facility, please enclose a stamped,
self-addressed postcard or envelope.
    FMCSA will consider all comments and material received during the
comment period.

B. Viewing Documents and Comments

    To view comments, as well as any documents mentioned in this notice
as being available in the docket, go to http://www.regulations.gov/docket?D=FMCSA-2013-0107 or http://www.regulations.gov/docket?D=FMCSA-2013-0109 or http://www.regulations.gov/docket?D=FMCSA-2017-0253 and
choose the document to review. If you do not have access to the
internet, you may view the docket online by visiting Docket Operations
in Room W12-140 on the ground floor of the DOT West Building, 1200 New
Jersey Avenue SE, Washington, DC 20590, between 9 a.m. and 5 p.m., ET,
Monday through Friday, except Federal holidays.

C. Privacy Act

    In accordance with 5 U.S.C. 553(c), DOT solicits comments from the
public to better inform its rulemaking process. DOT posts these
comments, without edit, including any personal information the
commenter provides, to www.regulations.gov, as described in the system
of records notice (DOT/ALL-14 FDMS), which can be reviewed at
www.transportation.gov/privacy.

II. Background

    Under 49 U.S.C. 31136(e) and 31315(b), FMCSA may grant an exemption
from the FMCSRs for no longer than a 5-year period if it finds such
exemption would likely achieve a level of safety that is equivalent to,
or greater than, the level that would be achieved absent such
exemption. The statute also allows the Agency to renew exemptions at
the end of the 5-year period. FMCSA grants medical exemptions from the
FMCSRs for a 2-year period to align with the maximum duration of a
driver's medical certification.
    The physical qualification standard for drivers regarding epilepsy
found in 49 CFR 391.41(b)(8) states that a person is physically
qualified to drive a CMV if that person has no established medical
history or clinical diagnosis of epilepsy or any other condition which
is likely to cause the loss of consciousness or any loss of ability to
control a CMV.
    In addition to the regulations, FMCSA has published advisory
criteria\1\ to assist medical examiners (MEs) in determining whether
drivers with certain medical conditions are qualified to operate a CMV
in interstate commerce.
---------------------------------------------------------------------------

    \1\ These criteria may be found in APPENDIX A TO PART 391--
MEDICAL ADVISORY CRITERIA, section H. Epilepsy: Sec.  391.41(b)(8),
paragraphs 3, 4, and 5, which is available on the internet at
https://www.gpo.gov/fdsys/pkg/CFR-2015-title49-vol5/pdf/CFR-2015-title49-vol5-part391-appA.pdf.
---------------------------------------------------------------------------

    The four individuals listed in this notice have requested renewal
of their exemptions from the epilepsy and seizure disorders prohibition
in Sec.  391.41(b)(8), in accordance with FMCSA procedures.
Accordingly, FMCSA has evaluated these applications for renewal on
their merits and decided to extend each exemption for a renewable 2-
year period.

III. Request for Comments

    Interested parties or organizations possessing information that
would otherwise show that any, or all, of these drivers are not
currently achieving the statutory level of safety should immediately
notify FMCSA. The Agency will evaluate any adverse evidence submitted
and, if safety is being compromised or if continuation of the exemption
would not be consistent with the goals and objectives of 49 U.S.C.
31136(e) and 31315(b), FMCSA will take immediate steps to revoke the
exemption of a driver.

IV. Basis for Renewing Exemptions

    In accordance with 49 U.S.C. 31136(e) and 31315(b), each of the
four applicants has satisfied the renewal conditions for obtaining an
exemption from the epilepsy and seizure disorders prohibition. The four
drivers in this notice remain in good standing with the Agency, have
maintained their medical monitoring and have not exhibited any medical
issues that would compromise their ability to safely operate a CMV
during the previous 2-year exemption period. In addition, for
Commercial Driver's License (CDL) holders, the Commercial Driver's
License Information System and the Motor Carrier Management Information
System are searched for crash and violation data. For non-CDL holders,
the Agency reviews the driving records from the State Driver's
Licensing Agency. These factors provide an adequate basis for
predicting each driver's ability to continue to safely operate a CMV in
interstate commerce. Therefore, FMCSA concludes that extending the
exemption for each renewal applicant for a period of 2 years is likely
to achieve a level of safety equal to that existing without the
exemption.
    In accordance with 49 U.S.C. 31136(e) and 31315(b), the following
groups of drivers received renewed exemptions in the month of February
and are discussed below.
    As of February 14, 2020, and in accordance with 49 U.S.C. 31136(e)
and 31315(b), the following two individuals have satisfied the renewal
conditions for obtaining an exemption from the epilepsy and seizure
disorders prohibition in the FMCSRs for interstate CMV drivers: John
Johnson (WI) and George Webb (MA).
    The drivers were included in docket numbers FMCSA-2013-0107 and
FMCSA-2013-0109. Their exemptions are applicable as of February 14,
2020, and will expire on February 14, 2022.
    As of February 19, 2020, and in accordance with 49 U.S.C. 31136(e)
and 31315(b), the following two individuals have satisfied the renewal
conditions for obtaining an exemption from the epilepsy and seizure
disorders prohibition in the FMCSRs for interstate CMV drivers: Anthony
Kornuszko (PA) and Jeffrey Mills (NC).
    The drivers were included in docket number FMCSA-2017-0253. Their
exemptions are applicable as of February 19, 2020, and will expire on
February 19, 2022.

V. Conditions and Requirements

    The exemptions are extended subject to the following conditions:
(1) Each driver must remain seizure-free and maintain a stable
treatment during the 2-year exemption period; (2) each driver must
submit annual reports from their treating physicians attesting to the
stability of treatment and that the driver has remained seizure-free;
(3) each driver must undergo an annual medical examination by a
certified ME, as defined by Sec.  390.5; and (4) each driver

must provide a copy of the annual medical certification to the employer
for retention in the driver's qualification file, or keep a copy of
his/her driver's qualification file if he/she is self-employed. The
driver must also have a copy of the exemption when driving, for
presentation to a duly authorized Federal, State, or local enforcement
official. The exemption will be rescinded if: (1) The person fails to
comply with the terms and conditions of the exemption; (2) the
exemption has resulted in a lower level of safety than was maintained
before it was granted; or (3) continuation of the exemption would not
be consistent with the goals and objectives of 49 U.S.C. 31136(e) and
31315(b).

VI. Preemption

    During the period the exemption is in effect, no State shall
enforce any law or regulation that conflicts with this exemption with
respect to a person operating under the exemption.

VII. Conclusion

    Based on its evaluation of the four exemption applications, FMCSA
renews the exemptions of the aforementioned drivers from the epilepsy
and seizure disorders prohibition in Sec.  391.41(b)(8). In accordance
with 49 U.S.C. 31136(e) and 31315(b), each exemption will be valid for
2 years unless revoked earlier by FMCSA.

    Issued on: February 11, 2020.
Larry W. Minor,
Associate Administrator for Policy.
[FR Doc. 2020-03345 Filed 2-19-20; 8:45 am]
 BILLING CODE 4910-EX-P


[Federal Register Volume 81, Number 110 (Wednesday, June 8, 2016)]
[Proposed Rules]
[Pages 36842-36848]
[FR Doc No: 2016-13606]

=======================================================================
-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R04-OAR-2016-0247; FRL-9947-40-Region 4]

Air Plan Approval; South Carolina; Prong 4--2008 Ozone, 2010 NO2,
SO2, and 2012 PM2.5

AGENCY: Environmental Protection Agency.

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: The Environmental Protection Agency (EPA) is proposing to
conditionally approve the portions of revisions to the South Carolina
State Implementation Plan (SIP), submitted by the South Carolina
Department of Health and Environmental Control (SC DHEC), addressing
the Clean Air Act (CAA or Act) visibility transport (prong 4)
infrastructure SIP requirements for the 2008 8-hour Ozone, 2010 1-hour
Nitrogen Dioxide (NO2), 2010 1-hour Sulfur Dioxide
(SO2), and 2012 annual Fine Particulate Matter
(PM2.5) National Ambient Air Quality Standards (NAAQS). The
CAA requires that each state adopt and submit a SIP for the
implementation, maintenance, and enforcement of each NAAQS promulgated
by EPA, commonly referred to as an ``infrastructure SIP.''
Specifically, EPA is proposing to conditionally approve the prong 4
portions of South Carolina's July 17, 2008, 8-hour Ozone infrastructure
SIP submission; April 30, 2014, 2010 1-hour NO2
infrastructure SIP submission; May 8, 2014, 2010 1-hour SO2
infrastructure SIP submission; and December 18, 2015, 2012 annual
PM2.5 infrastructure SIP submission. All other applicable
infrastructure requirements for these SIP submissions have been or will
be addressed in separate rulemakings.

DATES: Comments must be received on or before July 8, 2016.

ADDRESSES: Submit your comments, identified by Docket ID No EPA-R04-
OAR-2016-0247 at http://www.regulations.gov. Follow the online
instructions for submitting comments. Once submitted, comments cannot
be edited or removed from Regulations.gov. EPA may publish any comment
received to its public docket. Do not submit electronically any
information you consider to be Confidential Business Information (CBI)
or other information whose disclosure is restricted by statute.
Multimedia submissions (audio, video, etc.) must be accompanied by a
written comment. The written comment is considered the official comment
and should include discussion of all points you wish to make. EPA will
generally not consider comments or comment contents located outside of
the primary submission (i.e. on the web, cloud, or other file sharing
system). For additional submission methods, the full EPA public comment
policy, information about CBI or multimedia submissions, and general
guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT: Sean Lakeman of the Air Regulatory
Management Section, Air Planning and Implementation Branch, Air,
Pesticides and Toxics Management Division, U.S. Environmental
Protection Agency, Region 4, 61 Forsyth Street SW., Atlanta, Georgia
30303-8960. Mr. Lakeman can be reached by telephone at<PHONE_NUMBER>
or via electronic mail at<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:

I. Background

    By statute, SIPs meeting the requirements of sections 110(a)(1) and
(2) of the CAA are to be submitted by states within three years after
promulgation of a new or revised NAAQS to provide for the
implementation, maintenance, and enforcement of the new or revised
NAAQS. EPA has historically referred to these SIP submissions made for
the purpose of satisfying the requirements of sections 110(a)(1) and
110(a)(2) as ``infrastructure SIP'' submissions. Sections 110(a)(1) and
(2) require states to address basic SIP elements such as the
requirements for monitoring, basic program requirements, and legal

authority that are designed to assure attainment and maintenance of the
newly established or revised NAAQS. More specifically, section
110(a)(1) provides the procedural and timing requirements for
infrastructure SIPs. Section 110(a)(2) lists specific elements that
states must meet for the infrastructure SIP requirements related to a
newly established or revised NAAQS. The contents of an infrastructure
SIP submission may vary depending upon the data and analytical tools
available to the state, as well as the provisions already contained in
the state's implementation plan at the time in which the state develops
and submits the submission for a new or revised NAAQS.
    Section 110(a)(2)(D) has two components: 110(a)(2)(D)(i) and
110(a)(2)(D)(ii). Section 110(a)(2)(D)(i) includes four distinct
components, commonly referred to as ``prongs,'' that must be addressed
in infrastructure SIP submissions. The first two prongs, which are
codified in section 110(a)(2)(D)(i)(I), are provisions that prohibit
any source or other type of emissions activity in one state from
contributing significantly to nonattainment of the NAAQS in another
state (prong 1) and from interfering with maintenance of the NAAQS in
another state (prong 2). The third and fourth prongs, which are
codified in section 110(a)(2)(D)(i)(II), are provisions that prohibit
emissions activity in one state from interfering with measures required
to prevent significant deterioration of air quality in another state
(prong 3) or from interfering with measures to protect visibility in
another state (prong 4). Section 110(a)(2)(D)(ii) requires SIPs to
include provisions ensuring compliance with sections 115 and 126 of the
Act, relating to interstate and international pollution abatement.
    Through this action, EPA is proposing to conditionally approve the
prong 4 portions of South Carolina's infrastructure SIP submissions for
the 2008 8-hour Ozone, 2010 1-hour NO2, 2010 1-hour
SO2, and 2012 annual PM2.5 NAAQS as discussed in
section IV of this document.\1\ All other applicable infrastructure SIP
requirements for these SIP submissions have been or will be addressed
in separate rulemakings. A brief background regarding the NAAQS
relevant to this proposal is provided below. For comprehensive
information on these NAAQS, please refer to the Federal Register
notices cited in the following subsections.
---------------------------------------------------------------------------

    \1\ Under CAA section 110(k)(4), EPA may conditionally approve a
SIP revision based on a commitment from a state to adopt specific
enforceable measures by a date certain, but not later than one year
from the date of approval. If the state fails to meet the commitment
within one year of the final conditional approval, the conditional
approval automatically becomes a disapproval on that date and EPA
will issue a finding of disapproval.
---------------------------------------------------------------------------

a. 2008 8-Hour Ozone NAAQS

    On March 12, 2008, EPA revised the 8-hour Ozone NAAQS to 0.075
parts per million. See 73 FR 16436 (March 27, 2008). States were
required to submit infrastructure SIP submissions for the 2008 8-hour
Ozone NAAQS to EPA no later than March 12, 2011. South Carolina
submitted its infrastructure SIP submission on July 17, 2012, for the
2008 8-hour Ozone NAAQS.

b. 2010 1-Hour NO2 NAAQS

    On January 22, 2010, EPA established a new 1-hour primary NAAQS for
NO2 at a level of 100 parts per billion, based on a 3-year
average of the 98th percentile of the yearly distribution of 1-hour
daily maximum concentrations. See 75 FR 6474 (February 9, 2010). States
were required to submit infrastructure SIP submissions for the 2010 1-
hour NO2 NAAQS to EPA no later than January 22, 2013. South
Carolina submitted its infrastructure SIP submission on April 30, 2014,
for the 2010 1-hour NO2 NAAQS.

c. 2010 1-Hour SO2 NAAQS

    On June 2, 2010, EPA revised the primary SO2 NAAQS to an
hourly standard of 75 parts per billion based on a 3-year average of
the annual 99th percentile of 1-hour daily maximum concentrations. See
75 FR 35520 (June 22, 2010). States were required to submit
infrastructure SIP submissions for the 2010 1-hour SO2 NAAQS
to EPA no later than June 2, 2013. South Carolina submitted its
infrastructure SIP submission on May 8, 2014, for the 2010 1-hour
SO2 NAAQS.

d. 2012 Annual PM2.5 NAAQS

    On December 14, 2012, EPA revised the primary annual
PM2.5 NAAQS to 12 micrograms per cubic meter ([mu]g/m\3\).
See 78 FR 3086 (January 15, 2013). States were required to submit
infrastructure SIP submissions for the 2012 PM2.5 NAAQS to
EPA no later than December 14, 2015. South Carolina submitted its
infrastructure SIP submission on December 18, 2015, for the 2012
PM2.5 NAAQS.

II. What is EPA's approach to the review of infrastructure SIP
submissions?

    The requirement for states to make a SIP submission of this type
arises out of section 110(a)(1). Pursuant to section 110(a)(1), states
must make SIP submissions ``within 3 years (or such shorter period as
the Administrator may prescribe) after the promulgation of a national
primary ambient air quality standard (or any revision thereof),'' and
these SIP submissions are to provide for the ``implementation,
maintenance, and enforcement'' of such NAAQS. The statute directly
imposes on states the duty to make these SIP submissions, and the
requirement to make the submissions is not conditioned upon EPA's
taking any action other than promulgating a new or revised NAAQS.
Section 110(a)(2) includes a list of specific elements that ``each such
plan'' submission must address.
    EPA has historically referred to these SIP submissions made for the
purpose of satisfying the requirements of section 110(a)(1) and (2) as
``infrastructure SIP'' submissions. Although the term ``infrastructure
SIP'' does not appear in the CAA, EPA uses the term to distinguish this
particular type of SIP submission from submissions that are intended to
satisfy other SIP requirements under the CAA, such as ``nonattainment
SIP'' or ``attainment plan SIP'' submissions to address the
nonattainment planning requirements of part D of Title I of the CAA,
``regional haze SIP'' submissions required by EPA rule to address the
visibility protection requirements of section 169A of the CAA, and
nonattainment new source review permit program submissions to address
the permit requirements of CAA, Title I, part D.
    Section 110(a)(1) addresses the timing and general requirements for
infrastructure SIP submissions and section 110(a)(2) provides more
details concerning the required contents of these submissions. The list
of required elements provided in section 110(a)(2) contains a wide
variety of disparate provisions, some of which pertain to required
legal authority, some of which pertain to required substantive program
provisions, and some of which pertain to requirements for both
authority and substantive program provisions.\2\ EPA therefore believes
that while the timing requirement in section 110(a)(1) is unambiguous,
some of the other statutory provisions are ambiguous. In particular,
EPA believes that the list of required elements for infrastructure SIP
submissions provided in section

110(a)(2) contains ambiguities concerning what is required for
inclusion in an infrastructure SIP submission.
---------------------------------------------------------------------------

    \2\ For example: Section 110(a)(2)(E)(i) provides that states
must provide assurances that they have adequate legal authority
under state and local law to carry out the SIP; Section 110(a)(2)(C)
provides that states must have a SIP-approved program to address
certain sources as required by part C of Title I of the CAA; and
section 110(a)(2)(G) provides that states must have legal authority
to address emergencies as well as contingency plans that are
triggered in the event of such emergencies.
---------------------------------------------------------------------------

    The following examples of ambiguities illustrate the need for EPA
to interpret some section 110(a)(1) and section 110(a)(2) requirements
with respect to infrastructure SIP submissions for a given new or
revised NAAQS. One example of ambiguity is that section 110(a)(2)
requires that ``each'' SIP submission must meet the list of
requirements therein, while EPA has long noted that this literal
reading of the statute is internally inconsistent and would create a
conflict with the nonattainment provisions in part D of Title I of the
CAA, which specifically address nonattainment SIP requirements.\3\
Section 110(a)(2)(I) pertains to nonattainment SIP requirements and
part D addresses when attainment plan SIP submissions to address
nonattainment area requirements are due. For example, section 172(b)
requires EPA to establish a schedule for submission of such plans for
certain pollutants when the Administrator promulgates the designation
of an area as nonattainment, and section 107(d)(1)(B) allows up to two
years or in some cases three years, for such designations to be
promulgated.\4\ This ambiguity illustrates that rather than apply all
the stated requirements of section 110(a)(2) in a strict literal sense,
EPA must determine which provisions of section 110(a)(2) are applicable
for a particular infrastructure SIP submission.
---------------------------------------------------------------------------

    \3\ See, e.g., ``Rule To Reduce Interstate Transport of Fine
Particulate Matter and Ozone (Clean Air Interstate Rule); Revisions
to Acid Rain Program; Revisions to the NOX SIP Call;
Final Rule,'' 70 FR 25162, at 25163-65 (May 12, 2005) (explaining
relationship between timing requirement of section 110(a)(2)(D)
versus section 110(a)(2)(I)).
    \4\ EPA notes that this ambiguity within section 110(a)(2) is
heightened by the fact that various subparts of part D set specific
dates for submission of certain types of SIP submissions in
designated nonattainment areas for various pollutants. Note, e.g.,
that section 182(a)(1) provides specific dates for submission of
emissions inventories for the ozone NAAQS. Some of these specific
dates are necessarily later than three years after promulgation of
the new or revised NAAQS.
---------------------------------------------------------------------------

    Another example of ambiguity within section 110(a)(1) and (2) with
respect to infrastructure SIPs pertains to whether states must meet all
of the infrastructure SIP requirements in a single SIP submission, and
whether EPA must act upon such SIP submission in a single action.
Although section 110(a)(1) directs states to submit ``a plan'' to meet
these requirements, EPA interprets the CAA to allow states to make
multiple SIP submissions separately addressing infrastructure SIP
elements for the same NAAQS. If states elect to make such multiple SIP
submissions to meet the infrastructure SIP requirements, EPA can elect
to act on such submissions either individually or in a larger combined
action.\5\ Similarly, EPA interprets the CAA to allow it to take action
on the individual parts of one larger, comprehensive infrastructure SIP
submission for a given NAAQS without concurrent action on the entire
submission. For example, EPA has sometimes elected to act at different
times on various elements and sub-elements of the same infrastructure
SIP submission.\6\
---------------------------------------------------------------------------

    \5\ See, e.g., ``Approval and Promulgation of Implementation
Plans; New Mexico; Revisions to the New Source Review (NSR) State
Implementation Plan (SIP); Prevention of Significant Deterioration
(PSD) and Nonattainment New Source Review (NNSR) Permitting,'' 78 FR
4339 (January 22, 2013) (EPA's final action approving the structural
PSD elements of the New Mexico SIP submitted by the State separately
to meet the requirements of EPA's 2008 PM2.5 NSR rule),
and ``Approval and Promulgation of Air Quality Implementation Plans;
New Mexico; Infrastructure and Interstate Transport Requirements for
the 2006 PM2.5 NAAQS,'' 78 FR 4337 (January 22, 2013)
(EPA's final action on the infrastructure SIP for the 2006
PM2.5 NAAQS).
    \6\ On December 14, 2007, the State of Tennessee, through the
Tennessee Department of Environment and Conservation, made a SIP
revision to EPA demonstrating that the State meets the requirements
of sections 110(a)(1) and (2). EPA proposed action for
infrastructure SIP elements (C) and (J) on January 23, 2012 (77 FR
3213) and took final action on March 14, 2012 (77 FR 14976). On
April 16, 2012 (77 FR 22533) and July 23, 2012 (77 FR 42997), EPA
took separate proposed and final actions on all other section
110(a)(2) infrastructure SIP elements of Tennessee's December 14,
2007 submittal.
---------------------------------------------------------------------------

    Ambiguities within section 110(a)(1) and (2) may also arise with
respect to infrastructure SIP submission requirements for different
NAAQS. Thus, EPA notes that not every element of section 110(a)(2)
would be relevant, or as relevant, or relevant in the same way, for
each new or revised NAAQS. The states' attendant infrastructure SIP
submissions for each NAAQS therefore could be different. For example,
the monitoring requirements that a state might need to meet in its
infrastructure SIP submission for purposes of section 110(a)(2)(B)
could be very different for different pollutants, because the content
and scope of a state's infrastructure SIP submission to meet this
element might be very different for an entirely new NAAQS than for a
minor revision to an existing NAAQS.\7\
---------------------------------------------------------------------------

    \7\ For example, implementation of the 1997 PM2.5
NAAQS required the deployment of a system of new monitors to measure
ambient levels of that new indicator species for the new NAAQS.
---------------------------------------------------------------------------

    EPA notes that interpretation of section 110(a)(2) is also
necessary when EPA reviews other types of SIP submissions required
under the CAA. Therefore, as with infrastructure SIP submissions, EPA
also has to identify and interpret the relevant elements of section
110(a)(2) that logically apply to these other types of SIP submissions.
For example, section 172(c)(7) requires attainment plan SIP submissions
required by part D to meet the ``applicable requirements'' of section
110(a)(2); thus, attainment plan SIP submissions must meet the
requirements of section 110(a)(2)(A) regarding enforceable emission
limits and control measures and section 110(a)(2)(E)(i) regarding air
agency resources and authority. By contrast, it is clear that
attainment plan SIP submissions required by part D would not need to
meet the portion of section 110(a)(2)(C) that pertains to the PSD
program required in part C of Title I of the CAA, because PSD does not
apply to a pollutant for which an area is designated nonattainment and
thus subject to part D planning requirements. As this example
illustrates, each type of SIP submission may implicate some elements of
section 110(a)(2) but not others.
    Given the potential for ambiguity in some of the statutory language
of section 110(a)(1) and section 110(a)(2), EPA believes that it is
appropriate to interpret the ambiguous portions of section 110(a)(1)
and section 110(a)(2) in the context of acting on a particular SIP
submission. In other words, EPA assumes that Congress could not have
intended that each and every SIP submission, regardless of the NAAQS in
question or the history of SIP development for the relevant pollutant,
would meet each of the requirements, or meet each of them in the same
way. Therefore, EPA has adopted an approach under which it reviews
infrastructure SIP submissions against the list of elements in section
110(a)(2), but only to the extent each element applies for that
particular NAAQS.
    Historically, EPA has elected to use guidance documents to make
recommendations to states for infrastructure SIPs, in some cases
conveying needed interpretations on newly arising issues and in some
cases conveying interpretations that have already been developed and
applied to individual SIP submissions for particular elements.\8\ EPA
most recently

issued guidance for infrastructure SIPs on September 13, 2013 (2013
Guidance).\9\ EPA developed this document to provide states with up-to-
date guidance for infrastructure SIPs for any new or revised NAAQS.
Within this guidance, EPA describes the duty of states to make
infrastructure SIP submissions to meet basic structural SIP
requirements within three years of promulgation of a new or revised
NAAQS. EPA also made recommendations about many specific subsections of
section 110(a)(2) that are relevant in the context of infrastructure
SIP submissions.\10\ The guidance also discusses the substantively
important issues that are germane to certain subsections of section
110(a)(2). EPA interprets section 110(a)(1) and (2) such that
infrastructure SIP submissions need to address certain issues and need
not address others. Accordingly, EPA reviews each infrastructure SIP
submission for compliance with the applicable statutory provisions of
section 110(a)(2), as appropriate.
---------------------------------------------------------------------------

    \8\ EPA notes, however, that nothing in the CAA requires EPA to
provide guidance or to promulgate regulations for infrastructure SIP
submissions. The CAA directly applies to states and requires the
submission of infrastructure SIP submissions, regardless of whether
or not EPA provides guidance or regulations pertaining to such
submissions. EPA elects to issue such guidance in order to assist
states, as appropriate.
    \9\ ``Guidance on Infrastructure State Implementation Plan (SIP)
Elements under Clean Air Act Sections 110(a)(1) and 110(a)(2),''
Memorandum from Stephen D. Page, September 13, 2013.
    \10\ EPA's September 13, 2013, guidance did not make
recommendations with respect to infrastructure SIP submissions to
address section 110(a)(2)(D)(i)(I). EPA issued the guidance shortly
after the U.S. Supreme Court agreed to review the D.C. Circuit
decision in EME Homer City, 696 F.3d 7 (D.C. Cir. 2012) which had
interpreted the requirements of section 110(a)(2)(D)(i)(I). In light
of the uncertainty created by ongoing litigation, EPA elected not to
provide additional guidance on the requirements of section
110(a)(2)(D)(i)(I) at that time. As the guidance is neither binding
nor required by statute, whether EPA elects to provide guidance on a
particular section has no impact on a state's CAA obligations.
---------------------------------------------------------------------------

    As an example, section 110(a)(2)(E)(ii) is a required element of
section 110(a)(2) for infrastructure SIP submissions. Under this
element, a state must meet the substantive requirements of section 128,
which pertain to state boards that approve permits or enforcement
orders and heads of executive agencies with similar powers. Thus, EPA
reviews infrastructure SIP submissions to ensure that the state's
implementation plan appropriately addresses the requirements of section
110(a)(2)(E)(ii) and section 128. The 2013 Guidance explains EPA's
interpretation that there may be a variety of ways by which states can
appropriately address these substantive statutory requirements,
depending on the structure of an individual state's permitting or
enforcement program (e.g., whether permits and enforcement orders are
approved by a multi-member board or by a head of an executive agency).
However they are addressed by the state, the substantive requirements
of Section 128 are necessarily included in EPA's evaluation of
infrastructure SIP submissions because section 110(a)(2)(E)(ii)
explicitly requires that the state satisfy the provisions of section
128.
    As another example, EPA's review of infrastructure SIP submissions
with respect to the PSD program requirements in section 110(a)(2)(C),
(D)(i)(II), and (J) focuses upon the structural PSD program
requirements contained in part C and EPA's PSD regulations. Structural
PSD program requirements include provisions necessary for the PSD
program to address all regulated sources and NSR pollutants, including
Greenhouse Gases. By contrast, structural PSD program requirements do
not include provisions that are not required under EPA's regulations at
40 CFR 51.166 but are merely available as an option for the state, such
as the option to provide grandfathering of complete permit applications
with respect to the PM2.5 NAAQS. Accordingly, the latter
optional provisions are types of provisions EPA considers irrelevant in
the context of an infrastructure SIP action.
    For other section 110(a)(2) elements, however, EPA's review of a
state's infrastructure SIP submission focuses on assuring that the
state's implementation plan meets basic structural requirements. For
example, section 110(a)(2)(C) includes, inter alia, the requirement
that states have a program to regulate minor new sources. Thus, EPA
evaluates whether the state has an EPA-approved minor new source review
program and whether the program addresses the pollutants relevant to
that NAAQS. In the context of acting on an infrastructure SIP
submission, however, EPA does not think it is necessary to conduct a
review of each and every provision of a state's existing minor source
program (i.e., already in the existing SIP) for compliance with the
requirements of the CAA and EPA's regulations that pertain to such
programs.
    With respect to certain other issues, EPA does not believe that an
action on a state's infrastructure SIP submission is necessarily the
appropriate type of action in which to address possible deficiencies in
a state's existing SIP. These issues include: (i) Existing provisions
related to excess emissions from sources during periods of startup,
shutdown, or malfunction (SSM) that may be contrary to the CAA and
EPA's policies addressing such excess emissions; \11\ (ii) existing
provisions related to ``director's variance'' or ``director's
discretion'' that may be contrary to the CAA because they purport to
allow revisions to SIP-approved emissions limits while limiting public
process or not requiring further approval by EPA; and (iii) existing
provisions for PSD programs that may be inconsistent with current
requirements of EPA's ``Final NSR Improvement Rule,'' 67 FR 80186
(December 31, 2002), as amended by 72 FR 32526 (June 13, 2007) (NSR
Reform). Thus, EPA believes that it may approve an infrastructure SIP
submission without scrutinizing the totality of the existing SIP for
such potentially deficient provisions and may approve the submission
even if it is aware of such existing provisions.\12\ It is important to
note that EPA's approval of a state's infrastructure SIP submission
should not be construed as explicit or implicit re-approval of any
existing potentially deficient provisions that relate to the three
specific issues just described.
---------------------------------------------------------------------------

    \11\ Subsequent to issuing the 2013 Guidance, EPA's
interpretation of the CAA with respect to the approvability of
affirmative defense provisions in SIPs has changed. See ``State
Implementation Plans: Response to Petition for Rulemaking;
Restatement and Update of EPA's SSM Policy Applicable to SIPs;
Findings of Substantial Inadequacy; and SIP Calls To Amend
Provisions Applying to Excess Emissions During Periods of Startup,
Shutdown and Malfunction,'' 80 FR 33839 (June 12, 2015). As a
result, EPA's 2013 Guidance (p. 21 & n.30) no longer represents the
EPA's view concerning the validity of affirmative defense
provisions, in light of the requirements of section 113 and section
304.
    \12\ By contrast, EPA notes that if a state were to include a
new provision in an infrastructure SIP submission that contained a
legal deficiency, such as a new exemption or affirmative defense for
excess emissions during SSM events, then EPA would need to evaluate
that provision for compliance against the rubric of applicable CAA
requirements in the context of the action on the infrastructure SIP.
---------------------------------------------------------------------------

    EPA's approach to review of infrastructure SIP submissions is to
identify the CAA requirements that are logically applicable to that
submission. EPA believes that this approach to the review of a
particular infrastructure SIP submission is appropriate, because it
would not be reasonable to read the general requirements of section
110(a)(1) and the list of elements in section 110(a)(2) as requiring
review of each and every provision of a state's existing SIP against
all requirements in the CAA and EPA regulations merely for purposes of
assuring that the state in question has the basic structural elements
for a functioning SIP for a new or revised NAAQS. Because SIPs have
grown by accretion over the decades as statutory and regulatory
requirements under the CAA have evolved, they may

include some outmoded provisions and historical artifacts. These
provisions, while not fully up to date, nevertheless may not pose a
significant problem for the purposes of ``implementation, maintenance,
and enforcement'' of a new or revised NAAQS when EPA evaluates adequacy
of the infrastructure SIP submission. EPA believes that a better
approach is for states and EPA to focus attention on those elements of
section 110(a)(2) of the CAA most likely to warrant a specific SIP
revision due to the promulgation of a new or revised NAAQS or other
factors.
    For example, EPA's 2013 Guidance gives simpler recommendations with
respect to carbon monoxide than other NAAQS pollutants to meet the
visibility requirements of section 110(a)(2)(D)(i)(II), because carbon
monoxide does not affect visibility. As a result, an infrastructure SIP
submission for any future new or revised NAAQS for carbon monoxide need
only state this fact in order to address the visibility prong of
section 110(a)(2)(D)(i)(II).
    Finally, EPA believes that its approach with respect to
infrastructure SIP requirements is based on a reasonable reading of
section 110(a)(1) and (2) because the CAA provides other avenues and
mechanisms to address specific substantive deficiencies in existing
SIPs. These other statutory tools allow EPA to take appropriately
tailored action, depending upon the nature and severity of the alleged
SIP deficiency. Section 110(k)(5) authorizes EPA to issue a ``SIP
call'' whenever the Agency determines that a state's SIP is
substantially inadequate to attain or maintain the NAAQS, to mitigate
interstate transport, or to otherwise comply with the CAA.\13\ Section
110(k)(6) authorizes EPA to correct errors in past actions, such as
past approvals of SIP submissions.\14\ Significantly, EPA's
determination that an action on a state's infrastructure SIP submission
is not the appropriate time and place to address all potential existing
SIP deficiencies does not preclude EPA's subsequent reliance on
provisions in section 110(a)(2) as part of the basis for action to
correct those deficiencies at a later time. For example, although it
may not be appropriate to require a state to eliminate all existing
inappropriate director's discretion provisions in the course of acting
on an infrastructure SIP submission, EPA believes that section
110(a)(2)(A) may be among the statutory bases that EPA relies upon in
the course of addressing such deficiency in a subsequent action.\15\
---------------------------------------------------------------------------

    \13\ For example, EPA issued a SIP call to Utah to address
specific existing SIP deficiencies related to the treatment of
excess emissions during SSM events. See ``Finding of Substantial
Inadequacy of Implementation Plan; Call for Utah State
Implementation Plan Revisions,'' 74 FR 21639 (April 18, 2011).
    \14\ EPA has used this authority to correct errors in past
actions on SIP submissions related to PSD programs. See ``Limitation
of Approval of Prevention of Significant Deterioration Provisions
Concerning Greenhouse Gas Emitting-Sources in State Implementation
Plans; Final Rule,'' 75 FR 82536 (December 30, 2010). EPA has
previously used its authority under section 110(k)(6) of the CAA to
remove numerous other SIP provisions that the Agency determined it
had approved in error. See, e.g., 61 FR 38664 (July 25, 1996) and 62
FR 34641 (June 27, 1997) (corrections to American Samoa, Arizona,
California, Hawaii, and Nevada SIPs); 69 FR 67062, November 16, 2004
(corrections to California SIP); and 74 FR 57051 (November 3, 2009)
(corrections to Arizona and Nevada SIPs).
    \15\ See, e.g., EPA's disapproval of a SIP submission from
Colorado on the grounds that it would have included a director's
discretion provision inconsistent with CAA requirements, including
section 110(a)(2)(A). See, e.g., 75 FR 42342 at 42344 (July 21,
2010) (proposed disapproval of director's discretion provisions); 76
FR 4540 (January 26, 2011) (final disapproval of such provisions).
---------------------------------------------------------------------------

III. What are the Prong 4 requirements?

    Section 110(a)(2)(D)(i)(II) includes a requirement that a state's
implementation plan contain provisions prohibiting sources in that
state from emitting pollutants in amounts that interfere with any other
state's efforts to protect visibility under part C of Title I of the
CAA (which includes sections 169A and 169B). The 2013 Guidance states
that these prong 4 requirements can be satisfied by approved SIP
provisions that EPA has found to adequately address any contribution of
that state's sources to impacts on visibility program requirements in
other states. The 2013 Guidance also states that EPA interprets this
prong to be pollutant-specific, such that the infrastructure SIP
submission need only address the potential for interference with
protection of visibility caused by the pollutant (including precursors)
to which the new or revised NAAQS applies.
    The 2013 Guidance delineates two ways in which a state's
infrastructure SIP may satisfy prong 4. The first way is through an air
agency's confirmation in its infrastructure SIP submission that it has
an EPA-approved regional haze SIP that fully meets the requirements of
40 CFR 51.308 or 51.309. 40 CFR 51.308 and 51.309 specifically require
that a state participating in a regional planning process include all
measures needed to achieve its apportionment of emission reduction
obligations agreed upon through that process. A fully approved regional
haze SIP will ensure that emissions from sources under an air agency's
jurisdiction are not interfering with measures required to be included
in other air agencies' plans to protect visibility.
    Alternatively, in the absence of a fully approved regional haze
SIP, a state may meet the requirements of prong 4 through a
demonstration in its infrastructure SIP submission that emissions
within its jurisdiction do not interfere with other air agencies' plans
to protect visibility. Such an infrastructure SIP submission would need
to include measures to limit visibility-impairing pollutants and ensure
that the reductions conform with any mutually agreed regional haze
reasonable progress goals for mandatory Class I areas in other states.

IV. What is EPA's analysis of how South Carolina addressed Prong 4?

    South Carolina's July 17, 2012, 2008 8-hour Ozone submission; April
30, 2014, 2010 1-hour NO2 submission; May 8, 2014, 2010 1-
hour SO2 submission; and December 18, 2015, 2012 annual
PM2.5 submission cite to the State's regional haze SIP as
satisfying prong 4 requirements.\16\ However, as explained below, EPA
has not yet fully approved South Carolina's regional haze SIP because
the SIP relies on the Clean Air Interstate Rule (CAIR) to satisfy the
nitrogen oxides (NOX) and SO2 Best Available
Retrofit Technology (BART) requirements for the CAIR-subject electric
generating units (EGUs) in the State and the requirement for a long-
term strategy sufficient to achieve the state-adopted reasonable
progress goals.\17\
---------------------------------------------------------------------------

    \16\ The April 30, 2014, 2010 1-hour NO2 submission;
May 8, 2014, 2010 1-hour SO2 submission; and December 18,
2015 also cite to the State's December 2012 regional haze progress
report.
    \17\ CAIR, promulgated in 2005, required 27 states and the
District of Columbia to reduce emissions of NOX and
SO2 that significantly contribute to, or interfere with
maintenance of, the 1997 NAAQS for fine particulates and/or ozone in
any downwind state. CAIR imposed specified emissions reduction
requirements on each affected State, and established several EPA-
administered cap and trade programs for EGUs that States could join
as a means to meet these requirements.
---------------------------------------------------------------------------

    EPA demonstrated that CAIR achieved greater reasonable progress
toward the national visibility goal than BART for NOX and
SO2 at BART-eligible EGUs in CAIR affected states, and
revised the regional haze rule to provide that states participating in
CAIR's cap-and-trade programs need not require affected BART-eligible
EGUs to install, operate, and maintain BART for emissions of
SO2 and NOX. See 70 FR 39104 (July 6, 2005). As a
result, a number of states in the CAIR region designed their regional
haze SIPs to rely

on CAIR as an alternative to NOX and SO2 BART for
CAIR-subject EGUs. These states also relied on CAIR as an element of a
long-term strategy for achieving their reasonable progress goals.
    The United States Court of Appeals for the District of Columbia
Circuit (D.C. Circuit) initially vacated CAIR in 2008,\18\ but
ultimately remanded the rule to EPA without vacatur to preserve the
environmental benefits provided by CAIR.\19\ On August 8, 2011 (76 FR
48208), acting on the D.C. Circuit's remand, EPA promulgated the Cross-
State Air Pollution Rule (CSAPR) to replace CAIR and thus to address
the interstate transport of emissions contributing to nonattainment and
interfering with maintenance of the two air quality standards covered
by CAIR as well as the 2006 PM2.5 NAAQS.
---------------------------------------------------------------------------

    \18\ North Carolina v. EPA, 531 F.3d 896 (D.C. Cir. 2008).
    \19\ North Carolina v. EPA, 550 F.3d 1176 (D.C. Cir. 2008).
---------------------------------------------------------------------------

    Due to CAIR's status as a temporary measure following the D.C.
Circuit's 2008 ruling, EPA could not fully approve regional haze SIP
revisions to the extent that they relied on CAIR to satisfy the BART
requirement and the requirement for a long-term strategy sufficient to
achieve the state-adopted reasonable progress goals. On these grounds,
EPA finalized a limited disapproval of South Carolina's regional haze
SIP on June 7, 2012 (77 FR 33642), triggering the requirement for EPA
to promulgate a Federal Implementation Plan (FIP) unless South Carolina
submitted and EPA approved a SIP revision that corrected the
deficiencies. EPA finalized a limited approval of South Carolina's
regional haze SIP on June 28, 2012 (77 FR 38509), as meeting the
remaining applicable regional haze requirements set forth in the CAA
and the regional haze rule.
    Numerous parties filed petitions for review of CSAPR in the D.C.
Circuit, and on August 21, 2012, the court issued its ruling, vacating
and remanding CSAPR to EPA and ordering continued implementation of
CAIR. EME Homer City Generation, L.P. v. EPA, 696 F.3d 7, 38 (D.C. Cir.
2012). The D.C. Circuit's vacatur of CSAPR was reversed by the United
States Supreme Court on April 29, 2014, and the case was remanded to
the D.C. Circuit to resolve remaining issues in accordance with the
high court's ruling. EPA v. EME Homer City Generation, L.P., 134 S. Ct.
1584 (2014). On remand, the D.C. Circuit affirmed CSAPR in most
respects, but invalidated without vacating some of the CSAPR budgets as
to a number of states. EME Homer City Generation, L.P. v. EPA, 795 F.3d
118 (D.C. Cir. 2015). The remanded budgets include the Phase 2
SO2 emissions budget for South Carolina.\20\
---------------------------------------------------------------------------

    \20\ The D.C. Circuit also invalidated the Phase 2 ozone season
NOX budget for South Carolina. EPA has proposed to
address the court's remand of the Phase 2 ozone season
NOX budgets in a notice of proposed rulemaking published
on December 3, 2015 (80 FR 75706).
---------------------------------------------------------------------------

    Although South Carolina's infrastructure SIP revisions cite to the
regional haze program as satisfying the requirements of Prong 4, the
State may not currently rely on its regional haze SIP to satisfy these
requirements because the regional haze SIP is not fully approved. In
addition, these revisions do not otherwise demonstrate that emissions
within the State's jurisdiction do not interfere with other states'
plans to protect visibility. Therefore, on April 19, 2016, South
Carolina submitted a commitment letter to EPA requesting conditional
approval of the prong 4 portions of the aforementioned infrastructure
SIP revisions.\21\ In this letter, South Carolina commits to satisfy
the prong 4 requirements for the 2008 8-hour ozone NAAQS, 2010 1-hour
NO2 NAAQS, 2010 1-hour SO2 NAAQS, and 2012
PM2.5 NAAQS by providing a SIP revision that adopts
provisions for participation in the CSAPR annual NOX and
annual SO2 trading programs, including annual NOX
and annual SO2 budgets that are at least as stringent as the
budgets codified for South Carolina at 40 CFR 97.710(a) (SO2
Group 2 trading budgets) and 40 CFR 97.410(a) (NOX Annual
trading budgets). South Carolina will rely on this SIP revision
adopting such budgets to submit a concurrent SIP revision specifically
addressing the visibility requirements of prong 4. In its commitment
letter, South Carolina commits to providing these two concurrent SIP
revisions within one year of EPA's final conditional approval of the
prong 4 portions of the infrastructure SIP revisions and provides an
anticipated schedule for these revisions. If the revised infrastructure
SIP revision relies on a fully approvable regional haze SIP, South
Carolina also commits to providing the necessary regional haze SIP
revision to EPA within one year of EPA's final conditional approval.
---------------------------------------------------------------------------

    \21\ South Carolina's April 19, 2016, commitment letter is
available in the docket for today's proposed action.
---------------------------------------------------------------------------

    If South Carolina meets its commitment within one year of final
conditional approval, the prong 4 portions of the conditionally
approved infrastructure SIP submissions will remain a part of the SIP
until EPA takes final action approving or disapproving the new SIP
revision(s). However, if the State fails to submit these revisions
within the one-year timeframe, the conditional approval will
automatically become a disapproval one year from EPA's final
conditional approval and EPA will issue a finding of disapproval. EPA
is not required to propose the finding of disapproval. If the
conditional approval is converted to a disapproval, the final
disapproval triggers the FIP requirement under CAA section 110(c).

V. Proposed Action

    As described above, EPA is proposing to conditionally approve the
prong 4 portions of South Carolina's July 17, 2008 8-hour Ozone
infrastructure SIP submission; April 30, 2014, 2010 1-hour
NO2 infrastructure SIP submission; May 8, 2014, 2010 1-hour
SO2 infrastructure SIP submission; and December 18, 2015,
2012 annual PM2.5 infrastructure SIP submission. All other
applicable infrastructure requirements for these SIP submissions have
been or will be addressed in separate rulemakings.

VI. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP
submission that complies with the provisions of the Act and applicable
federal regulations. See 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in
reviewing SIP submissions, EPA's role is to approve state choices,
provided that they meet the criteria of the CAA. Accordingly, this
proposed action merely approves state law as meeting federal
requirements and does not impose additional requirements beyond those
imposed by state law. For that reason, this proposed action:
     Is not a ``significant regulatory action'' subject to
review by the Office of Management and Budget under Executive Orders
12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21,
2011);
     does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
     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);
     does not have Federalism implications as specified in
Executive

Order 13132 (64 FR 43255, August 10, 1999);
     is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
     is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
     is not subject to requirements of Section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the CAA; and
     does not provide EPA with the discretionary authority to
address, as appropriate, disproportionate human health or environmental
effects, using practicable and legally permissible methods, under
Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, this proposed action for the state of South Carolina
does not have Tribal implications as specified by Executive Order 13175
(65 FR 67249, November 9, 2000). The Catawba Indian Nation Reservation
is located within the State of South Carolina. Pursuant to the Catawba
Indian Claims Settlement Act, South Carolina statute 27-16-120, ``all
state and local environmental laws and regulations apply to the
[Catawba Indian Nation] and Reservation and are fully enforceable by
all relevant state and local agencies and authorities.'' However, EPA
has determined that because this proposed rule does not have
substantial direct effects on an Indian Tribe because, as noted above,
this action is not approving any specific rule, but rather proposing
that South Carolina's already approved SIP meets certain CAA
requirements. EPA notes this action will not impose substantial direct
costs on Tribal governments or preempt Tribal law.

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, Nitrogen dioxide, Ozone,
Particulate matter, Reporting and recordkeeping requirements, Volatile
organic compounds.

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

    Dated: May 26, 2016.
Heather McTeer Toney,
Regional Administrator, Region 4.
[FR Doc. 2016-13606 Filed 6-7-16; 8:45 am]
 BILLING CODE 6560-50-P


  SEQ CHAPTER \h \r 1 UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

NATIONAL EXPOSURE RESEARCH LABORATORY

Human Exposure and Atmospheric Sciences Division

Research Triangle Park, NC 27711

REPORT FROM THE ELECTRON MICROSCOPY LABORATORY

DATE: 	9/7/06

PROJECT:	Arsenic in Paint Flaked from CCA-Treated and Untreated Wood

ANALYSIS:	Scanning Electron Microscopy/Energy-Dispersive X-ray
Spectrometry

ANALYST:	Robert Willis

Sample Description

Two samples of paint flakes were provided for SEM analysis: sample 10U
(from untreated wood) and sample 9T (from CCA-treated wood). Pieces of
each sample were mounted flat on 13mm tacky carbon tabs affixed to
standard aluminum SEM stubs. Both the exterior faces (side exposed to
the air) and the interior faces (in contact with the wood) were examined
by SEM. In addition, pieces of each sample were mounted vertically in
order to examine cross-sections of both samples. All samples were coated
with ~ 200 Å of carbon to minimize sample charging during the SEM
analysis.

SEM Analysis

Samples were manually examined using a LEO/Zeiss Model 440 SEM equipped
with a PGT IMIX energy-dispersive X-ray spectrometer (EDX) for providing
elemental composition information on individual particles. (EDX does not
allow for determining oxidation states of metals.) Operating parameters
were: 20 keV electron beam energy and 0.3 nA beam current. Particle
images were collected using both a secondary electron (SE) detector and
a backscattered electron (BSE) detector.

Results

Individual arsenic-bearing particles (or particle inclusions) on the
order of a micron in size were found on both surfaces of sample 9T using
the BSE detector. This detector responds to the effective atomic number
of the feature being analyzed, so that particles of high atomic number
appear much brighter than those of lower atomic number. Arsenic-bearing
particles show up bright against the lower atomic number paint matrix
(see Figure 1) which is dominated by titanium dioxide and aluminum
silicate. The presence of arsenic was confirmed by the EDX spectra
(Figures 2, 4, 5). Almost all arsenic-bearing particles showed a similar
composition characterized by high Fe, possibly Ti, and small amounts of
Cr, Cu, and As. (Since TiO2 was ubiquitous in the paint, it is possible
that the Ti observed in the EDX spectra of the As-rich particles was
essentially “matrix background” contributed by neighboring or
underlying paint particles.) The source of the iron which was always
appeared in association with the arsenic is unknown, but it is known
that iron oxide has an affinity for binding to arsenic (Shibata et al.,
2006 and references therein).

Although As-rich particles were found on both the exterior and interior
surfaces of 9T samples, my qualitative observation is that more
particles were found on the interior surface. A more quantitative
analysis would be needed to confirm this however. The interior surfaces
of the paint flakes which were in contact with the CCA-treated wood
showed numerous wood fibers attached to the paint. Some of the
arsenic-bearing particles appeared in proximity to wood fibers and may
be physically associated with the wood fibers (Figure 3, top) while
other arsenic particles were not found physically near wood fibers,
including all the arsenic-rich particles found on the exterior surfaces
(Figure 3, bottom).

Arsenic was not detected in the “bulk matrix” of sample 9T, i.e.,
collecting x-ray spectra at random locations on the paint flake did not
yield detectable arsenic signals. One cannot conclude, however, that
arsenic is not present throughout the sample. If it is present, then its
bulk concentration is below the EDX detection limit (~ 1 wt %). Also,
arsenic-rich particles smaller than about 100 nm may have gone
undetected at the magnifications used in this analysis.

No arsenic-bearing particles were observed in the 10U (untreated)
samples.

References

Shibata, T.; Solo-Gabriele, H.; Dubey, B.; Tonwsend, T.; Jacobi, G.
Arsenic leaching from mulch made from recycled construction and
demolition wood and impacts of iron-oxide colorants. Environ. Sci.
Technol. 2006, 40, 5102-5107.

Figure 1. Top: Low mag BSE image of sample 9T showing bright As-bearing
particle in center. Bottom: The same particle at higher magnification
imaged with SE detector. Surrounding features are TiO2-rich associated
with paint. Scale bar indicates that particle size is ~ 2 µm.

Figure 2. Top: EDX spectrum of As-bearing particle in Figure 1. Spectrum
is dominated by Fe, Si, Ti, and O. Bottom: expanded spectrum showing Cr,
Cu and As. Arsenic has x-ray peaks at 10.5 and 11.7 keV. Arsenic was
always associated with Cr, Cu and high Fe.

Figure 3. Top: As-rich particle located on wood fiber (bright feature
running NW to SE through image) on interior surface of sample 9T.
Bottom: As-rich particle on exterior surface of 9T surrounded by
sub-micron particles of paint pigment.

Figure 4. Image and spectrum of As-bearing particle in sample 9T.

Figure 5. Image and spectrum of As-bearing particle in sample 9T

Figure 6. Top: As-bearing agglomeration in sample 9T. Bottom: Lower-mag
BSE image showing a line of bright As-bearing particles running slightly
downhill from left to right across the center of the image. All of the
bright, angular features are As-bearing.