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Proposed Rule2022-27557

Adoption and Submittal of State Plans for Designated Facilities: Implementing Regulations Under Clean Air Act Section 111(d)

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Published

December 23, 2022

Issuing agencies

Environmental Protection Agency

Abstract

This action proposes amendments to the implementing regulations that govern the processes and timelines for state and Federal plans that implement emission guidelines under Clean Air Act (CAA) section 111(d). The proposed amendments include revisions to the timing requirements for state plan submittal, the Environmental Protection Agency (EPA)'s action on state plan submissions, the EPA's promulgation of a Federal plan, and for when states must establish increments of progress. These proposed amendments address the vacatur of certain timing requirements by the United States Court of Appeals for the District of Columbia Circuit (D.C. Circuit) in American Lung Association. v. EPA. The EPA is also proposing to add regulatory mechanisms to improve flexibility and efficiency in the submission, review, approval, revision, and implementation of state plans. This action further proposes new requirements for meaningful engagement with pertinent stakeholders as part of state plan development, including, but not limited to, industry, small businesses, and communities most affected by and vulnerable to the impacts of the plan. This action additionally proposes clarifying requirements for states' consideration of `remaining useful life and other factors' (RULOF) in applying a standard of performance. This action proposes to amend the definition of standard of performance and provide clarification associated with CAA section 111(d) compliance flexibilities, including trading or averaging. Finally, this action proposes requirements for the electronic submission of state plans and several other clarifications and minor revisions.

Full Text

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<title>Federal Register, Volume 87 Issue 246 (Friday, December 23, 2022)</title>
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[Federal Register Volume 87, Number 246 (Friday, December 23, 2022)]
[Proposed Rules]
[Pages 79176-79212]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-27557]

[[Page 79175]]

Vol. 87

Friday,

No. 246

December 23, 2022

Part III

Environmental Protection Agency

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40 CFR Part 60

Adoption and Submittal of State Plans for Designated Facilities:
Implementing Regulations Under Clean Air Act Section 111(d); Proposed
Rule

Federal Register / Vol. 87 , No. 246 / Friday, December 23, 2022 /
Proposed Rules

[[Page 79176]]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 60

[EPA-HQ-OAR-2021-0527; FRL-8606-02-OAR]
RIN 2060-AV48

Adoption and Submittal of State Plans for Designated Facilities:
Implementing Regulations Under Clean Air Act Section 111(d)

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: This action proposes amendments to the implementing
regulations that govern the processes and timelines for state and
Federal plans that implement emission guidelines under Clean Air Act
(CAA) section 111(d). The proposed amendments include revisions to the
timing requirements for state plan submittal, the Environmental
Protection Agency (EPA)'s action on state plan submissions, the EPA's
promulgation of a Federal plan, and for when states must establish
increments of progress. These proposed amendments address the vacatur
of certain timing requirements by the United States Court of Appeals
for the District of Columbia Circuit (D.C. Circuit) in American Lung
Association. v. EPA. The EPA is also proposing to add regulatory
mechanisms to improve flexibility and efficiency in the submission,
review, approval, revision, and implementation of state plans. This
action further proposes new requirements for meaningful engagement with
pertinent stakeholders as part of state plan development, including,
but not limited to, industry, small businesses, and communities most
affected by and vulnerable to the impacts of the plan. This action
additionally proposes clarifying requirements for states' consideration
of `remaining useful life and other factors' (RULOF) in applying a
standard of performance. This action proposes to amend the definition
of standard of performance and provide clarification associated with
CAA section 111(d) compliance flexibilities, including trading or
averaging. Finally, this action proposes requirements for the
electronic submission of state plans and several other clarifications
and minor revisions.

DATES:
Comments. Comments must be received on or before February 27, 2023.
Public hearing: The EPA will hold a virtual public hearing on
January 24, 2023. See SUPPLEMENTARY INFORMATION for additional
information on the hearing.

ADDRESSES: You may send comments, identified by Docket ID No. EPA-HQ-
OAR-2021-0527, by any of the following methods:
<bullet> Federal eRulemaking Portal: <a href="https://www.regulations.gov/">https://www.regulations.gov/</a>
(our preferred method). Follow the online instructions for submitting
comments.
<bullet> Email: <a href="/cdn-cgi/l/email-protection#36571b5758521b441b5259555d53427653465718515940">[email&#160;protected]</a>. Include Docket ID No. EPA-
HQ-OAR-2021-0527 in the subject line of the message.
<bullet> Fax: (202) 566-9744. Attention Docket ID No. EPA-HQ-OAR-
2021-0527.
<bullet> Mail: U.S. Environmental Protection Agency, EPA Docket
Center, Docket ID No. EPA-HQ-OAR-2021-0527, Mail Code 28221T, 1200
Pennsylvania Avenue NW, Washington, DC 20460.
<bullet> Hand/Courier Delivery: EPA Docket Center, WJC West
Building, Room 3334, 1301 Constitution Avenue NW, Washington, DC 20004.
The Docket Center's hours of operation are 8:30 a.m.-4:30 p.m., Monday-
Friday (except Federal holidays).
Instructions: All submissions received must include the Docket ID
No. for this rulemaking. Comments received may be posted without change
to <a href="https://www.regulations.gov/">https://www.regulations.gov/</a>, including any personal information
provided. For detailed instructions on sending comments and additional
information on the rulemaking process, see the SUPPLEMENTARY
INFORMATION section of this document.

FOR FURTHER INFORMATION CONTACT: For questions about this proposed
action, contact Dr. Michelle Bergin, Sector Policies and Programs
Division (Mail Code D205-01), Office of Air Quality Planning and
Standards, U.S. Environmental Protection Agency, Research Triangle
Park, North Carolina 27711; telephone number: (919) 541-2627; fax
number: (919) 541-4991; and email address: <a href="/cdn-cgi/l/email-protection#e4868196838d8aca898d878c81888881a4819485ca838b92">[email&#160;protected]</a>.

SUPPLEMENTARY INFORMATION:
Participation in virtual public hearing. The public hearing will be
held via virtual platform on January 24, 2023, and will convene at 11
a.m. Eastern Time (ET) and conclude at 7 p.m. ET. If the EPA receives a
high volume of registrations for the public hearing, we may continue
the public hearing on January 25, 2023. On each hearing day, the EPA
may close a session 15 minutes after the last pre-registered speaker
has testified if there are no additional speakers. The EPA will
announce any further details at <a href="https://www.epa.gov/stationary-sources-air-pollution/adoption-and-submittal-state-plans-designated-facilities-40-cfr">https://www.epa.gov/stationary-sources-air-pollution/adoption-and-submittal-state-plans-designated-facilities-40-cfr</a>.
Upon publication of this document in the Federal Register, the EPA
will begin pre-registering speakers for the hearing. The EPA will
accept registrations on an individual basis. To register to speak at
the virtual hearing, please use the online registration form available
at <a href="https://www.epa.gov/stationary-sources-air-pollution/adoption-and-submittal-state-plans-designated-facilities-40-cfr">https://www.epa.gov/stationary-sources-air-pollution/adoption-and-submittal-state-plans-designated-facilities-40-cfr</a> or contact the
public hearing team at (888) 372-8699 or by email at
<a href="/cdn-cgi/l/email-protection#d98a89899da9acbbb5b0bab1bcb8abb0b7be99bca9b8f7beb6af">[email&#160;protected]</a>. The last day to pre-register to speak at the
hearing will be January 19, 2023. Prior to the hearing, the EPA will
post a general agenda that will list pre-registered speakers in
approximate order at: <a href="https://www.epa.gov/stationary-sources-air-pollution/adoption-and-submittal-state-plans-designated-facilities-40-cfr">https://www.epa.gov/stationary-sources-air-pollution/adoption-and-submittal-state-plans-designated-facilities-40-cfr</a>.
The EPA will make every effort to follow the schedule as closely as
possible on the day of the hearing; however, please plan for the
hearings to run either ahead of schedule or behind schedule.
Each commenter will have 4 minutes to provide oral testimony. The
EPA encourages commenters to submit a copy of their oral testimony as
written comments to the rulemaking docket.
The EPA may ask clarifying questions during the oral presentations
but will not respond to the presentations at that time. Written
statements and supporting information submitted during the comment
period will be considered with the same weight as oral testimony and
supporting information presented at the public hearing.
The EPA does not intend to publish a document in the Federal
Register announcing updates. While the EPA expects the hearing to go
forward as described in this section, please monitor <a href="https://www.epa.gov/stationary-sources-air-pollution/adoption-and-submittal-state-plans-designated-facilities-40-cfr">https://www.epa.gov/stationary-sources-air-pollution/adoption-and-submittal-state-plans-designated-facilities-40-cfr</a> for any updates to the
information described in this document, including information about the
public hearing, or contact the public hearing team at (888) 372-8699 or
by email at <a href="/cdn-cgi/l/email-protection#0556555541757067696c666d6064776c6b62456075642b626a73">[email&#160;protected]</a>.
If you require the services of a translator or a special
accommodation such as audio description, please pre-register for the
hearing with the public hearing team and describe your needs by January
9, 2023. The EPA may not be able to arrange accommodations without
advanced notice.
Docket. The EPA has established a docket for this rulemaking under
Docket ID No. EPA-HQ-OAR-2021-0527. All

[[Page 79177]]

documents in the docket are listed in the <a href="http://Regulations.gov">Regulations.gov</a> index.
Although listed in the index, some information is not publicly
available, e.g., Confidential Business Information (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. Publicly available
docket materials are available either electronically in <a href="http://Regulations.gov">Regulations.gov</a>
or in hard copy at the EPA Docket Center, Room 3334, WJC West Building,
1301 Constitution Avenue NW, Washington, DC. The Public Reading Room is
open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding
legal holidays. The telephone number for the Public Reading Room is
(202) 566-1744, and the telephone number for the EPA Docket Center is
(202) 566-1742.
Instructions. Direct your comments to Docket ID No. EPA-HQ-OAR-
2021-0527. The EPA's policy is that all comments received will be
included in the public docket without change and may be made available
online at <a href="http://www.regulations.gov">http://www.regulations.gov</a>, including any personal
information provided, unless the comment includes information claimed
to be CBI or other information whose disclosure is restricted by
statute. Do not submit electronically through <a href="https://www.regulations.gov/">https://www.regulations.gov/</a> any information that you consider to be CBI or
other information whose disclosure is restricted by statute. See
Submitting CBI for instructions for submitting this type of
information.
The EPA may publish any comment received to its public docket.
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. The 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 <a href="https://www.epa.gov/dockets/commenting-epa-dockets">https://www.epa.gov/dockets/commenting-epa-dockets</a>.
The <a href="http://www.regulations.gov/">http://www.regulations.gov/</a> website allows you to submit your
comment anonymously, which means the EPA will not know your identity or
contact information unless you provide it in the body of your comment.
If you send an email comment directly to the EPA without going through
<a href="https://www.regulations.gov/">https://www.regulations.gov/</a>, your email 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, the EPA recommends that you include your name and
other contact information in the body of your comment and with any
digital storage media you submit. If the EPA cannot read your comment
due to technical difficulties and cannot contact you for clarification,
the EPA may not be able to consider your comment. Electronic files
should not include special characters or any form of encryption and be
free of any defects or viruses. For additional information about the
EPA's public docket, visit the EPA Docket Center homepage at <a href="https://www.epa.gov/dockets">https://www.epa.gov/dockets</a>.
Throughout this proposal, the EPA is soliciting comment on numerous
aspects of the proposed rulemaking. The EPA has indexed each explicit
comment solicitation with an alpha-numeric identifier (e.g., ``C-1'',
``C-2'', ``C-3'', . . .) to provide a framework for effective and
efficient provision of comments. The EPA asks that commenters include
the corresponding identifier when providing comments relevant to that
solicitation in either a heading, or within the text of each comment
(e.g., ``In response to solicitation of comment C-1, . . .'') to make
clear which comment solicitation is being addressed. The identifiers
are helpful to the Agency for purposes of organizing its responses, but
do not necessarily comprise an exhaustive index of issues on which the
EPA is soliciting comment and which the public may address in their
comments. The EPA is soliciting comment on the issues described in this
proposal.
Submitting CBI. Do not submit information containing CBI to the EPA
through <a href="https://www.regulations.gov/">https://www.regulations.gov/</a>. Clearly mark the part or all of
the information that you claim to be CBI. For CBI information on any
digital storage media that you mail to the EPA, mark the outside of the
digital storage media as CBI, note the docket ID, and then identify
electronically within the digital storage media the specific
information that is claimed as CBI. In addition to one complete version
of the comments that includes information claimed as CBI, you must
submit a copy of the comments that does not contain the information
claimed as CBI directly to the public docket through the procedures
outlined in Instructions section of this document. If you submit any
digital storage media that does not contain CBI, mark the outside of
the digital storage media clearly that it does not contain CBI and note
the docket ID. Information not marked as CBI will be included in the
public docket and the EPA's electronic public docket without prior
notice. Information marked as CBI will not be disclosed except in
accordance with procedures set forth in 40 CFR part 2.
Our preferred method to receive CBI is for it to be transmitted
electronically using email attachments, File Transfer Protocol (FTP),
or other online file sharing services (e.g., Dropbox, OneDrive, Google
Drive). Electronic submissions must be transmitted directly to the
OAQPS CBI Office using the email address, <a href="/cdn-cgi/l/email-protection#d3bcb2a2a3a0b0b1ba93b6a3b2fdb4bca5">[email&#160;protected]</a>, and should
include clear CBI markings and note the docket ID, as described above.
If assistance is needed with submitting large electronic files that
exceed the file size limit for email attachments, and if you do not
have your own file sharing service, please email <a href="/cdn-cgi/l/email-protection#a7c8c6d6d7d4c4c5cee7c2d7c689c0c8d1">[email&#160;protected]</a> to
request a file transfer link. If sending CBI information through the
postal service, please send it to the following address: OAQPS Document
Control Officer (C404-02), OAQPS, U.S. Environmental Protection Agency,
Research Triangle Park, North Carolina 27711, Attention Docket ID No.
EPA-HQ-OAR-2021-0527. The mailed CBI material should be double wrapped
and clearly marked. Any CBI markings should not show through the outer
envelope.
Preamble acronyms and abbreviations. We use multiple acronyms and
terms in this preamble. While this list may not be exhaustive, to ease
the reading of this preamble and for reference purposes, the EPA
defines the following terms and acronyms here:

ACE Affordable Clean Energy Rule
ALA American Lung Association
BSER Best System of Emission Reduction
CAA Clean Air Act
CBI confidential business information
CDC Centers for Disease Control and Prevention
CDX Central Data Exchange
CFR Code of Federal Regulations
EG Emission Guideline
EGU electric generating unit
EPA Environmental Protection Agency
FIP Federal Implementation Plan
ICR Information Collection Request
NAAQS National Ambient Air Quality Standards
OAQPS Office of Air Quality Planning and Standards
OMB Office of Management and Budget
PRA Paperwork Reduction Act
PM2.5 fine particulate matter
RFA Regulatory Flexibility Act
RIN Regulatory Information Number
RULOF remaining useful life and other factors
SIP State Implementation Plan
SPeCS State Planning Electronic Collaboration System

[[Page 79178]]

SSM startup, shutdown, and malfunctions
TAR Tribal Authority Rule
TIP Tribal Implementation Plan
UMRA Unfunded Mandates Reform Act
U.S.C. United States Code

Organization of this document. The information in this preamble is
organized as follows:

I. General Information
A. Does this action apply to me?
B. Where can I get a copy of this document and other related
information?
II. Background
A. What is the statutory authority for this action?
B. What is the background for this action?
III. What actions are we proposing?
A. Revised Implementing Timelines
B. Federal Plan Authority and Timeline Upon Failure To Submit a
Plan
C. Requirement for Outreach and Meaningful Engagement
D. Regulatory Mechanisms for State Plan Implementation
E. Remaining Useful Life and Other Factors (RULOF) Provisions
F. Provision for Electronic Submission of State Plans
G. Other Proposed Modifications and Clarifications
IV. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review and
Executive Order 13563: Improving Regulation and Regulatory Review
B. Paperwork Reduction Act (PRA)
C. Regulatory Flexibility Act (RFA)
D. Unfunded Mandates Reform Act (UMRA)
E. Executive Order 13132: Federalism
F. Executive Order 13175: Consultation and Coordination With
Indian Tribal Governments
G. Executive Order 13045: Protection of Children From
Environmental Health Risks and Safety Risks
H. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
I. National Technology Transfer and Advancement Act (NTTAA)
J. Executive Order 12898: Federal Actions To Address
Environmental Justice in Minority Populations and Low-Income
Populations
K. Determination Under Section CAA 307(d)

I. General Information

A. Does this action apply to me?

This action applies to states in the development and submittal of
state plans pursuant to CAA section 111(d), and to the EPA in
promulgating a Federal plan pursuant to CAA section 111(d). After the
EPA promulgates a final emission guideline (EG), each state that has
one or more designated facilities must develop, adopt, and submit to
the EPA, a state plan under CAA section 111(d). The term ``designated
facility'' means ``any existing facility . . . which emits a designated
pollutant and which would be subject to a standard of performance for
that pollutant if the existing facility were an affected facility.''
See 40 CFR 60.21a(b). If a state fails to submit a plan or the EPA
determines that a state plan is not satisfactory, the EPA has the
authority to establish a Federal CAA section 111(d) plan in such
instances.
Under the Tribal Authority Rule (TAR), eligible tribes may seek
approval to implement a plan under CAA section 111(d) in a manner
similar to a state. See 40 CFR part 49, subpart A. Tribes may, but are
not required to, seek approval for treatment in a manner similar to a
state for purposes of developing a Tribal Implementation Plan (TIP)
implementing an EG. If a tribe obtains approval and submits a TIP, the
EPA will use similar timelines and criteria and will follow similar
procedures as those for state plans. Tribes that choose to develop
plans will have the same flexibilities available to states in this
process. The TAR authorizes tribes to submit CAA programs; however, it
does not require tribes to develop CAA programs. Tribes may implement
those programs, or even portions of programs, that are most relevant to
the air quality needs of tribes. If a tribe does not seek and obtain
the authority from the EPA to establish a TIP, the EPA has the
authority to establish a Federal CAA section 111(d) plan for designated
facilities that are located in areas of Indian country. A Federal plan
would apply to all designated facilities located in the areas of Indian
country covered by the Federal plan unless and until the EPA approves a
TIP applicable to those facilities.

B. Where can I get a copy of this document and other related
information?

In addition to being available in the docket, an electronic copy of
this action is available on the internet. Following signature by the
EPA Administrator, the EPA will post a copy of this proposed action at
<a href="https://www.epa.gov/stationary-sources-air-pollution/adoption-and-submittal-state-plans-designated-facilities-40-cfr">https://www.epa.gov/stationary-sources-air-pollution/adoption-and-submittal-state-plans-designated-facilities-40-cfr</a>. Following
publication in the Federal Register, the EPA will post the Federal
Register version of the proposal and key technical documents at this
same website.
A memorandum showing the rule edits that would be necessary to
incorporate the changes to 40 CFR part 60 subpart Ba proposed in this
action is available in the docket (Docket ID No. EPA-HQ-OAR-2021-0527).
Following signature by the EPA Administrator, the EPA also will post a
copy of this document to <a href="https://www.epa.gov/stationary-sources-air-pollution/adoption-and-submittal-state-plans-designated-facilities-40-cfr">https://www.epa.gov/stationary-sources-air-pollution/adoption-and-submittal-state-plans-designated-facilities-40-cfr</a>.

II. Background

A. What is the statutory authority for this action?

The statutory authority for this action is provided by sections 301
and 111 of the CAA (42 U.S.C. 7411 and 7601). Section 301 of the CAA
contains general provisions for the administration of the CAA. As
described further in the next section, CAA section 111 requires the EPA
to establish emission standards for certain stationary sources that, in
the Administrator's judgment, ``cause[ ], or contribute[ ]
significantly to, air pollution which may reasonably be anticipated to
endanger public health or welfare.'' CAA section 111(b) provides the
EPA's authority to regulate new and modified sources, while CAA section
111(d) directs the EPA to ``prescribe regulations which shall establish
a procedure'' for states to establish standards for existing sources of
certain air pollutants to which a standard of performance would apply
if such existing source were a new source. The EPA addresses its
obligation under CAA section 111(d) to establish a procedure for states
to submit plans both through its promulgation of the general
implementing regulations addressed by this action as well as through
promulgation of EGs for specific source categories.

B. What is the background for this action?

Clean Air Act section 111(d) governs the establishment of standards
of performance for existing stationary sources. CAA section 111(d)
directs the EPA to ``prescribe regulations which shall establish a
procedure similar to that provided by [CAA section 110]'' for states to
submit state plans to establish standards of performance for existing
sources of certain air pollutants to which a standard of performance
would apply if such an existing source were a new source under CAA
section 111(b). Therefore, an existing source can only be regulated
under CAA section 111(d) if it belongs to a source category that is
regulated under CAA section 111(b). The EPA's implementing regulations
use the term ``designated facility'' to identify those existing
sources. See 40 CFR 60.21a(b).
CAA section 111(b)(1)(A) requires that a source category be
included on the list for regulation if, ``in [the EPA

[[Page 79179]]

Administrator's] judgment it causes, or contributes significantly to,
air pollution which may reasonably be anticipated to endanger public
health or welfare.'' Once a source category is listed, CAA section
111(b)(1)(B) requires that the EPA propose and then promulgate
``standards of performance'' for new sources in such source category.
CAA section 111(a)(1) defines a ``standard of performance'' as ``a
standard for emissions of air pollutants which reflects the degree of
emission limitation achievable through the application of the best
system of emission reduction which (taking into account the cost of
achieving such reduction and any non-air quality health and
environmental impact and energy requirements) the Administrator
determines has been adequately demonstrated.'' This provision requires
the EPA to determine both the best system of emission reduction (BSER)
for the regulated source category and the degree of emission limitation
achievable through application of the BSER. The EPA must then, under
CAA section 111(b)(1)(B), promulgate standards of performance for new
sources that reflect that level of stringency.
Once the EPA promulgates standards of performance for new sources
within a particular source category, the EPA is required, in certain
circumstances, to regulate emissions from designated (existing)
facilities in that same source category.\1\ Under CAA section 111(d),
the Agency has, to date, issued EGs regulating five pollutants from six
source categories that remain in effect (i.e., sulfuric acid plants
(acid mist), phosphate fertilizer plants (fluorides), primary aluminum
plants (fluorides), kraft pulp plants (total reduced sulfur), municipal
solid waste landfills (landfill gases)), and fossil-fuel fired electric
generating units (carbon dioxide). See ``Phosphate Fertilizer Plants;
Final Guideline Document Availability,'' 42 FR 12022 (March 1, 1977);
``Standards of Performance for New Stationary Sources; Emission
Guideline for Sulfuric Acid Mist,'' 42 FR 55796 (October 18, 1977);
``Kraft Pulp Mills, Notice of Availability of Final Guideline
Document,'' 44 FR 29828 (May 22, 1979); ``Primary Aluminum Plants;
Availability of Final Guideline Document,'' 45 FR 26294 (April 17,
1980); ``Emission Guidelines and Compliance Times for Municipal Solid
Waste Landfills,'' 81 FR 59276 (August 29, 2016); ``Repeal of the Clean
Power Plan; Emission Guidelines for Greenhouse Gas Emissions From
Existing Electric Utility Generating Units; Revisions to Emission
Guidelines Implementing Regulations,'' 84 FR 32520 (July 8, 2019)
(Affordable Clean Energy (ACE) Rule).2 3 On November 15,
2021, the EPA proposed EGs to regulate greenhouse gas emissions (in the
form of methane limitations) from sources in the oil and natural gas
industry. 86 FR 63110. In addition, the Agency has regulated additional
pollutants for solid waste incineration units under CAA section 129 in
accordance with CAA section 111(d).\4\
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\1\ In accordance with CAA section 111(d), states are required
to submit plans pursuant to these regulations to establish standards
of performance for existing sources for any air pollutant: (1) the
emission of which is subject to a Federal New Source Performance
Standard; and (2) which is neither a pollutant regulated under CAA
section 108(a) (i.e., criteria air pollutants such as ground-level
ozone and particulate matter, and their precursors, like volatile
organic compound) or a hazardous air pollutant regulated [from the
same source category] under CAA section 112. See also definition of
``designated pollutant'' in 40 CFR 60.21a(a).
\2\ The EPA has also issued several EGs that have subsequently
been repealed or vacated by the courts. The EPA regulated mercury
from coal-fired electric power plants in a 2005 rule that was
vacated by the D.C. Circuit, ``Standards of Performance for New and
Existing Stationary Sources: Electric Utility Steam Generating
Units; Final Rule,'' 70 FR 28606 (May 18, 2005) (Clean Air Mercury
Rule), vacated by New Jersey v. EPA, 517 F.3d 574 (D.C. Cir. 2008).
The EPA also issued CAA section 111(d) EGs regulating GHG emissions
from fossil fuel-fired electric power plants in a 2015 rule ``Carbon
Pollution Emission Guidelines for Existing Stationary Sources:
Electric Utility Generating Units; Final Rule,'' 80 FR 64662
(October 23, 2015) (Clean Power Plan). The EPA subsequently repealed
and replaced the 2015 rule with the ACE Rule.
\3\ The ACE Rule was initially vacated by Am. Lung Ass'n v. EPA,
985 F.3d 914 (D.C. Cir. 2021). The Supreme Court subsequently
reversed and remanded the D.C. Circuit's opinion, West Virginia v.
EPA, 142 S. Ct. 2587 (June 30, 2022). On October 27, 2022, the D.C.
Circuit amended its judgement and recalled the partial mandate
vacating the ACE Rule, effectively reinstating ACE. Order, ALA v.
EPA, No. 19-1140, ECF No. 1970895.
\4\ CAA Section 129 directs the EPA Administrator to develop
regulations under CAA section 111 limiting emissions of nine air
pollutants from four categories of solid waste incineration units.
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The mechanism for regulating designated facilities under CAA
section 111(d) differs from the mechanism for regulating new facilities
under CAA section 111(b). Pursuant CAA section 111(b), the EPA
promulgates standards of performance that are directly applicable to
new, modified, and reconstructed facilities in a specified source
category. In contrast, CAA section 111(d) operates together with CAA
section 111(a)(1) to collectively establish and define roles and
responsibilities for both the EPA and the states in the regulation of
designated facilities. Under the regulatory framework for designated
facilities, states are authorized to establish standards of
performance. However, such standards of performance must reflect the
degree of emission limitation achievable through the application of the
BSER \5\ that the EPA has determined for the designated facilities in
the source category. As with standards of performance under CAA section
111(b), the requirement for the EPA to determine the BSER derives from
the definition of ``standard of performance'' under CAA section
111(a)(1). Further, CAA section 111(d)(1) requires the EPA's
regulations to permit states, in applying a standard of performance to
particular sources, to take into account the source's remaining useful
life and other factors, a process addressed in more detail in section
III.E of this preamble.
---------------------------------------------------------------------------

\5\ In this proposal, the EPA is also referring to ``the degree
of emission limitation achievable through application of the BSER''
as the presumptive level of stringency.
---------------------------------------------------------------------------

The EPA addresses its obligation under CAA section 111(d) to
establish a procedure for states to submit plans both through its
promulgation of general implementing regulations for section 111(d) as
well as through promulgation of EGs for specific source categories.
While CAA section 111(d)(1) authorizes states to develop state plans
that establish standards of performance and provides states with
certain discretion in determining the appropriate standards, CAA
section 111(d)(2) provides the EPA a specific oversight role with
respect to such state plans. This latter provision authorizes the EPA
to prescribe a Federal plan for a state ``in cases where the state
fails to submit a satisfactory plan.'' The states must therefore submit
their plans to the EPA, and the EPA must evaluate each state plan to
determine whether each plan is ``satisfactory.'' If a state fails to
submit a plan or the EPA determines that a state plan is not
satisfactory, CAA section 111(d)(2) gives the EPA the ``same
authority'' to prescribe a Federal plan in such instances as it has to
promulgate a Federal Implementation Plan (FIP) under CAA section
110(c).
In 1975, the EPA issued the first general implementing regulations
to prescribe the process for the adoption and submittal of state plans
for designated facilities under CAA section 111(d) (codified at 40 CFR
part 60, subpart B (subpart B)). 40 FR 53340 (November 17, 1975).
Responding to the direction to ``establish a procedure similar to that
provided by'' CAA section 110, in promulgating subpart B the EPA
aligned the timing requirements for state and Federal plans under CAA
section 111(d) with the then-applicable timeframes for State

[[Page 79180]]

Implementation Plans (SIPs) and FIPs prescribed in CAA section 110, as
established by the 1970 CAA Amendments. The implementing regulations
were not significantly revised after their original promulgation in
1975 \6\ until 2019, when the EPA promulgated a new set of implementing
regulations codified at 40 CFR part 60, subpart Ba. 84 FR 32520 (July
8, 2019) (subpart Ba).
---------------------------------------------------------------------------

\6\ In 2012, the EPA revised several provisions of subpart B,
mainly to include allowance systems as a form of an emission
standard. 77 FR 9303 (February 16, 2012).
---------------------------------------------------------------------------

In promulgating subpart Ba in 2019, the EPA intended to update and
modernize the implementing regulations to align the procedures for CAA
section 111(d) state and Federal plans with CAA amendments made after
subpart B was first promulgated in 1975. Notably, subpart B did not
align either with CAA section 111(d) as amended by Congress in 1977 or
with the timelines in CAA section 110 as amended by Congress in 1990.
The EPA therefore considered it appropriate to update the implementing
regulations for CAA section 111(d) to mirror changes to CAA section
110, given that section 111(d)(1) of the CAA directs the EPA to
``prescribe regulations which shall establish a procedure similar to
that provided by section 110'' of the CAA for states to submit plans to
the EPA. In promulgating subpart Ba, the EPA directly aligned the
timing requirements for CAA section 111(d) state and Federal plans (40
CFR 60.23a(a)(1) and 60.27a(c), respectively) with the timing
requirements for SIPs and FIPs under CAA section 110 (see CAA section
110(a)(1) and 110(c)(1), respectively).
In promulgating subpart Ba, the EPA also added the definition of
``standard of performance'' (40 CFR 60.21a(f)) (defined under subpart B
as ``emission standard'' (40 CFR 60.21(f))) and the remaining useful
life provision (40 CFR 60.24a(e)) (referred under subpart B as the
variance provision (40 CFR 60.24(d))). The EPA further added required
minimum administrative and technical criteria for inclusion by state
plans (40 CFR 60.27a(g)). Applying these criteria, the EPA determines
whether a state plan or portion of a plan submitted is complete
(referred to as a completeness review). Once a state plan or portion of
a plan is determined to be complete, the EPA will approve or disapprove
the plan or portions of the plan. For details on the EPA's rationale
for the promulgation of these provisions see 84 FR 32520 (July 8,
2019).
Subpart Ba is applicable to any final EG published or ongoing after
July 8, 2019. However, in this action, the EPA is proposing to amend
subpart Ba to be applicable only to any final EG published after July
8, 2019 (see section III.G.2.i of this preamble). This includes, if
finalized, the proposed EGs to regulate greenhouse gas emissions from
sources in the oil and natural gas industry, to the extent the final EG
does not contain EG-specific requirements superseding subpart Ba. 86 FR
63110, November 15, 2021. Subpart B (pre-2019) continues to apply to
EGs promulgated prior to July 8, 2019, and to EGs issued pursuant to
CAA section 129.
In January 2021, the D.C. Circuit vacated several provisions of
subpart Ba, all of which relate to timelines for state plans and
Federal plans. Am. Lung Ass'n v. EPA, 985 F.3d 914, 991. (D.C. Cir.
2021) (ALA).\7\ In this vacatur, the court identified several flaws in
the EPA's rationale for extending CAA section 111(d) state and Federal
plan timelines. First, the court found that the EPA erred in adopting
the timelines for SIPs and FIPs in CAA section 110 without meaningfully
addressing the differences in the scale of effort required for
development and evaluation of CAA section 110 SIPs, as compared with
the scale of effort needed for CAA section 111(d) state plans. Id. at
992-93. The court also concluded that in promulgating the timelines in
subpart Ba, the EPA failed to justify why the shorter deadlines under
subpart B were unworkable. Id. at 993. Further, the court held that the
EPA was required to consider the effect of its subpart Ba timelines on
public health and welfare, consistent with the statutory purpose of CAA
section 111(d). In the court's view, the EPA's ``complete failure to
say anything at all about the public health and welfare implications of
the extended timeframes'' meant that the EPA failed to consider an
important aspect of the problem. Id. at 992 (citing Motor Vehicle Mfrs.
Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co. 463 U.S. 29, 43
(1983)).
---------------------------------------------------------------------------

\7\ The Supreme Court subsequently reversed and remanded the
D.C. Circuit's opinion. West Virginia v. EPA, 142 S.Ct. 2587 (June
30, 2022). However, no Petitioner sought certiorari on, and the West
Virginia decision did not implicate, the D.C. Circuit's vacatur of
portions of subpart Ba. See Amended Judgment, ALA v. EPA, No. 19-
1140 (D.C. Cir. October 27, 2022), ECF No. 1970898 (ordering that
petitions for review challenging the timing portion of implementing
regulations be granted).
---------------------------------------------------------------------------

Based on these reasons, the court vacated the timeline for state
plan submissions after publication of a final EG (40 CFR 60.23a(a)(1)),
the EPA's deadline for taking action on state plan submissions (40 CFR
60.27a(b)), the EPA's deadline for promulgating a Federal plan (40 CFR
60.27a(c)), and the timeline associated with requirements for
increments of progress (40 CFR 60.24a(d)). Because of the vacatur,
subpart Ba currently does not provide generally applicable timelines
for state plan submissions, the deadline for the EPA's promulgation of
a Federal plan, and the timeline associated with requirements for
increments of progress. The EPA notes that while it is proposing
generally applicable timelines for the implementing regulations, a
particular EG may include its own specific timelines. 40 CFR
60.20a(a)(1).

III. What actions are we proposing?

The EPA is proposing several revisions to subpart Ba both to
address the vacatur of the timing provisions by the D.C. Circuit in
ALA, and to further improve the state and Federal plan development and
implementation process. In response to the ALA decision, this action
proposes timeframes for (1) state plan submittal, (2) the EPA's action
on state plan submissions, (3) the EPA's promulgation of a Federal
plan, and (4) requirements to establish increments of progress (see
section III.A of this preamble). This action further proposes to revise
the timeframe for the EPA's determination of completeness on a state
plan submission. Additionally, the EPA is proposing to revise the
conditions under which the EPA must promulgate a Federal plan in
instances where a state has not submitted a complete plan (see section
III.B of this preamble).
The EPA is also proposing to enhance requirements for reasonable
notice and opportunity for public participation in subpart Ba to
require that states, as part of the state plan development or revision
process, undertake outreach and meaningful engagement with a broad
range of pertinent stakeholders. Pertinent stakeholders include
communities most affected by and vulnerable to the impacts of the plan
or plan revision (see section III.C of this preamble). Increased
vulnerability may be attributable, among other reasons, to both an
accumulation of negative and lack of positive environmental, health,
economic, or social conditions within these populations or communities.
To improve flexibility and efficiency in the submission, review,
approval, and implementation of state plans, the EPA is proposing to
include the following regulatory mechanisms in subpart Ba, all of which
currently exist under CAA section 110: (1) partial

[[Page 79181]]

approval/disapproval, (2) conditional approval, (3) allowance for
parallel processing, (4) a mechanism for the EPA to call for plan
revisions, and (5) an error correction mechanism (see section III.D).
The EPA is also proposing revisions to properly implement the
remaining useful life and other factors (RULOF) provision of the
statute. These revisions are intended to provide clarity and
consistency for states and the EPA in considering RULOF when applying
standards of performance to individual sources, while still fulfilling
the statutory purpose of CAA section 111(d) (see sections III.E of this
preamble). The EPA is also proposing to require electronic submissions
of state plans (see section III.F of this preamble).
Finally, this action proposes clarifying amendments to the subpart
Ba definition of standard of performance and proposes to amend the
Agency's interpretation of CAA section 111(d) with respect to
permissible compliance (see section III.G of this preamble). In
particular, the EPA is proposing to determine that, under appropriate
circumstances, the EPA may approve state plans that authorize sources
to meet their emission limits in the aggregate, such as through
standards that permit compliance via trading or averaging. In doing so,
the EPA is also proposing to conclude that CAA section 111 does not
limit the BSER to controls that can be applied at and to the source.
The EPA is also proposing several additional minor clarifications or
revisions as described in section III.G of this preamble.
The EPA recognizes that, under certain circumstances, some
provisions of the implementing regulations may not fit the needs of a
specific EG. Therefore, the implementing regulations provide that each
EG may include specific implementing provisions in addition to or that
supersede the requirements of subpart Ba. 40 CFR 60.20a(a)(1). The EPA
will address unusual circumstances or facts that are not accommodated
by the general provisions of subpart Ba through a specific EG as the
time and processes needed for development and adoption of state plans
to implement the EG may be affected by unusual characteristics of a
source category. An example of an EG where the EPA is proposing to
supersede certain requirements of subpart Ba to address the specific
facts and circumstances of the source category (including to diverge
from some of the general requirements proposed in this action) is the
proposed EGs to regulate greenhouse gas emissions (in the form of
methane limitations) from sources in the oil and natural gas
industry.\8\
---------------------------------------------------------------------------

\8\ For example, see supplemental notice of proposed rulemaking
titled ``Standards of Performance for New, Reconstructed, and
Modified Sources and Emissions Guidelines for Existing Sources: Oil
and Natural Gas Sector Climate Review,'' where, due to the size and
variety of emission sources in the oil and gas sector, the EPA has
proposed to permit states 18 months to submit state plans rather
than the general 15 months proposed here.
---------------------------------------------------------------------------

The EPA notes that the remaining provisions in subpart Ba were not
affected by the ALA decision and remain legally effective. This
includes 40 CFR 60.20a(a), which makes subpart Ba applicable to any
final EG published after July 8, 2019. 40 CFR 60.20a(a). Therefore, the
revisions to subpart Ba proposed in this action, if finalized, would
apply to any EG published after July 8, 2019. The EPA is not soliciting
comment on this action as it applies to any specific EG or source
category. The EPA is only soliciting comment on the proposed changes to
subpart Ba as specifically described in this preamble. The EPA is not
reopening any other provisions of subpart Ba not addressed by these
proposed changes. The EPA will only consider comments that pertain to
the topics discussed in this action.

A. Revised Implementing Timelines

As described in section II.A. of this preamble above, the subpart
Ba timing requirements were vacated by the D.C. Circuit in the ALA
decision. These vacated timing requirements are: the timeline for state
plan submissions, the timeline for the EPA to act on a state plan, the
timeline for the EPA to promulgate a Federal plan, and the timeline
that dictates when state plans must include increments of progress.
These timelines are all critical to ensuring that the emission
reductions anticipated by the EPA in an EG become federally enforceable
measures and are timely implemented by the designated facilities. The
EPA is proposing revised timelines for these key aspects of
implementation that both appropriately accommodate the process required
by states and the EPA to develop and evaluate plans to effectuate the
EG and are consistent with the objective of CAA section 111(d) to
ensure that designated facilities control emissions of pollutants that
the EPA has determined may be reasonably anticipated to endanger public
health or welfare. These timelines will be applicable to any final EG
published after July 8, 2019, including those currently proposed to
regulate greenhouse gas emissions (in the form of methane limitations)
from sources in the oil and natural gas industry, to the extent the
final EG does not contain EG-specific requirements superseding subpart
Ba. 86 FR 63110, November 15, 2021.
As described in greater detail above in section II of this
preamble, the D.C. Circuit's vacatur of the extended timelines in
subpart Ba was based both on the EPA's failure to substantiate the
necessity for the additional time at each step of the administrative
process, and the EPA's failure to address how those extended
implementation timelines would impact public health and welfare.
Accordingly, the EPA has evaluated these factors and is proposing
timelines, as described in the following sections, based on the minimum
administrative time reasonably necessary for each step in the
implementation process, thus minimizing impacts on public health and
welfare while accommodating the time needed for states to develop an
effective plan. This approach addresses both aspects of the ALA
decision because the EPA and states will take no longer than necessary
to develop and adopt plans that impose requirements consistent with the
overall objectives of CAA section 111(d).
The EPA is proposing the following timelines to replace those
vacated in ALA, as discussed in further detail in this preamble: 15
months for state plan submissions after publication of a final EG; 12
months for the EPA to take final action on a state plan after
submission; 12 months for the EPA to promulgate a Federal plan either
after the state plan deadline if a state has failed to submit a
complete plan, or after the EPA's disapproval of a state plan
submission; and, requiring state plans to include increments of
progress if the plan requires final compliance with standards of
performance later than 16 months after the plan submission deadline. A
summary of the timelines is shown in Table 1.

[[Page 79182]]

Table 1--Proposed Subpart Ba Timelines Compared With Those Vacated From Subpart Ba and With Those From Subpart B
----------------------------------------------------------------------------------------------------------------
2022 Subpart Ba Subpart Ba (2019)
Process step proposal vacated timelines Subpart B (1975)
----------------------------------------------------------------------------------------------------------------
State Plan submittal after effective 15 months.............. 36 months.............. 9 months.
date of EG.
State Plan completeness determination 2 months after State 6 months after State N/A.
Plan submission. Plan submission.
State Plan evaluation................ 12 months after 12 months after 4 months after State
completeness. completeness. Plan submittal
deadline.
EPA Federal Plan promulgation........ 12 months after failure 24 months after finding 6 months after State
to submit or of failure to submit Plan submittal
disapproval. or disapproval. deadline.
Requirements for Increments of If compliance is >16 If compliance is >24 If compliance is >12
Progress after submittal deadline. months. months. months.
----------------------------------------------------------------------------------------------------------------

The EPA acknowledges these deadlines are not identical to those for
SIPs under CAA section 110. This is consistent with the requirement of
CAA section 111(d) that the EPA to promulgate a procedure ``similar''
to that of CAA section 110, rather than an identical procedure. This is
also consistent with the ALA decision, which requires the EPA to
``engage meaningfully with the different scale'' of CAA section 111(d)
and 110 plans. Am. Lung Ass'n v. EPA, 985 F.3d 914, 993 (D.C. Cir.
2021). Accordingly, the EPA evaluated each step of the implementation
process to independently determine the appropriate duration of time to
accomplish the given step as part of the overall process, and the
timelines proposed in these implementing regulations represent what the
EPA has determined will be necessary for the implementation of most
EGs. An EG for a typical source category or pollutant, for which the
proposed timelines would be appropriate, might include: an inventory of
designated facilities; a well-defined BSER and presumptive level of
stringency so that states need to do little analytical work to
establish standards of performance; an EPA-provided model rule; and
state plan requirements that do not significantly deviate from these
general implementing regulations.
The EPA recognizes that there may be EGs for pollutants or source
categories that require exceptions or accommodations to these general
requirements. Examples of circumstances that may require an exception
could include EGs that require states to perform extensive engineering
and/or economic analyses for their plan; EGs with an exceptional need
to expedite implementation (e.g., immediate impact for health and
welfare impacts); EGs that apply to an extraordinary number of
designated facilities; or EGs that are novel and/or unusually complex.
For situations like these, 40 CFR 60.20a(a)(1) provides that an EG may
supersede any aspect of the implementing regulations, including the
implementation timelines. It is within the EPA's discretion to
determine whether a proposed change in implementation time may be
justified within an individual EG based on these or other appropriate
factors. For EGs that supersede implementation timelines, the EPA is
proposing to require that the EPA both provide a justification for the
differing timelines and address how the change in timeline will impact
health and welfare. The EPA is not in this action seeking comment on
whether to supersede the presumptive subpart Ba timelines for any
particular EG.
1. State Plan Submission Timelines
This section discusses the EPA's proposal for the duration of time
states will have to submit plans to the EPA following the publication
of a final EG. Under CAA section 111(d), it is first the EPA's
responsibility to establish a BSER and a presumptive level of
stringency via a promulgated EG. It is then each state's obligation to
submit a plan to the EPA which establishes standards of performance for
each designated facility. The EPA is proposing to require that each
state adopt and submit to the Administrator, within 15 months after
publication of a final EG, a plan for the control of the designated
pollutant(s) to which the EG applies.
The implementing regulations promulgated under subpart B currently
provide that states have 9 months to submit a state plan after
publication of a final EG. 40 CFR 60.23(a)(1). In 2019, the EPA
promulgated subpart Ba and provided 3 years for states to submit plans,
consistent with the timelines provided for submission of SIPs pursuant
to CAA section 110(a)(1). This 3-year timeframe was vacated in the ALA
decision, and thus currently there is no applicable deadline for state
plan submissions required under EGs subject to subpart Ba. In
evaluating the appropriate timeline for plan submittal to replace the
vacated provision, the EPA reviewed steps that states need to carry out
to develop, adopt, and submit a state plan to the EPA, and its history
in implementing EGs under the timing provisions of subpart B. The EPA
further evaluated statutory deadlines, contents, and processes for
relatively comparable state plans under CAA section 129, and attainment
planning SIPs pursuant CAA sections 189(a)(2)(B) and 189(b)(2)) for the
2012 National Ambient Air Quality Standards (NAAQS) for fine
particulate matter (PM<INF>2.5</INF>). 78 FR 3085 (January 15, 2013).
In developing a CAA section 111(d) state plan, a state must
consider multiple components in meeting applicable requirements.
Subpart Ba specifies the elements that must be included in a state plan
submission (see 40 CFR 60.24a, 60.25a, 60.26a) and certain processes
that a state plan must undergo in adopting and submitting a plan (see
40 CFR 60.23a). In addition to the requirements of these implementing
regulations, there are also state-specific processes applicable to the
development and adoption of a state plan. In particular, the component
that the EPA expects to take the most time and have the most
variability from state to state is the administrative process (e.g.,
through legislative processes, regulation, or permits) that establishes
standards of performance. State rulemaking usually involves several
phases, including providing notice that the agency is considering
adopting the rule; taking public comment; and approving or adopting the
final rule. The final process required to formally adopt a rule is
different in many states.\9\

[[Page 79183]]

Considering this variability, 15 months should adequately accommodate
the differences in state processes necessary for the development of a
state plan that meets applicable requirements. The EPA evaluated data
from previously implemented EGs, and the statutory deadlines and data
from analogous programs (i.e., CAA sections 129 and 189), as described
below, to help inform this proposed 15-month timeline. The EPA solicits
comment on whether the proposed 15-month timeline adequately
accommodates state-level administrative processes in developing and
adopting plans without substantially or unnecessarily delaying emission
reductions that are protective of public health or welfare (Comment A1-
1).
---------------------------------------------------------------------------

\9\ In many states, the agency must submit its rule to a
particular independent commission or the legislature for review and
approval before the rule is finally adopted. Generally, adopted
rules are filed with a state entity, such as the Secretary of State,
and eventually published in a register and placed into the state's
administrative code. State law establishes when an adopted rule is
effective.
---------------------------------------------------------------------------

As previously described, subpart B provides 9 months for states to
submit plans after publication of a final EG. The EPA's review of
state's timeliness for submitting CAA section 111(d) plans under the 9-
month timeline indicates that most states either did not submit plans
or submitted plans that were substantially late.\10\ We note that the
plans submitted under subpart B were not subject to the additional
requirements the EPA is proposing for meaningful engagement and
consideration of RULOF, respectively described in sections III.C and
III.E of this preamble. For these reasons, the EPA finds that 9 months
is not a suitable amount of time for most states to adequately develop
a plan for an EG.
---------------------------------------------------------------------------

\10\ The EPA reviewed the information available in 40 CFR part
62. The supporting information reviewed is available at Docket ID
No. EPA-HQ-OAR-2021-0527. Part 62 codifies the Administrator's
approval and disapproval of state plans for the control of
pollutants and facilities under CAA section 111(d), and under CAA
section 129 as applicable, and the Administrator's promulgation of
such plans or portions of plans thereof.
---------------------------------------------------------------------------

To help inform what is an appropriate proposal for the state plan
submission deadline, the EPA also reviewed CAA section 129's statutory
deadline and requirements for state plans, and the timeliness and
responsiveness of states under CAA section 129 EGs. CAA section 129
references CAA section 111(d) in many instances, creating considerable
overlap in the functionality of the programs. Notably, existing solid
waste incineration units are subject to the requirements of both CAA
sections 129 and 111(d). CAA section 129(b)(1). The processes for CAA
sections 111(d) and 129 are very similar in that states are required to
submit plans to implement and enforce the EPA's EGs. However, there are
some key distinctions between the two programs, most notably that CAA
section 129(b)(2) specifies that state plans be submitted no later than
1 year from the promulgation of a corresponding EG, whereas the statute
does not specify a particular timeline for state plan submissions under
CAA section 111(d) and is instead governed by the EPA's implementing
regulations (i.e., subparts B and Ba). Moreover, CAA section 129 plans
are required by statute to be at least as protective as the EPA's EGs.
However, CAA section 111(d) permits states to take into account
remaining useful life and other factors, which suggests that the
development of a CAA section 111(d) plan could involve more complicated
analyses than a CAA section 129 plan (see section III.E for more
information on RULOF provisions). The contrast between the CAA section
129 plans and CAA section 111(d) plans suggests that in determining the
timeframe for CAA section 111(d) plan submissions the EPA should
provide for a longer timeframe than the 1-year timeframe the statute
provides under CAA section 129.
The EPA found that a considerable number of states have not made
required state plan submissions in response to a CAA section 129 EG. In
instances where states submitted CAA section 129 plans, a significant
number of states submitted plans between 14 to 17 months after the
promulgated EG.\11\ This suggests that states will typically need more
than 1 year to develop a state plan to implement an EG, particularly
for a program that permits more source-specific analysis than under CAA
section 129 as CAA section 111(d) does.
---------------------------------------------------------------------------

\11\ The EPA reviewed the information available in 40 CFR part
62. The supporting information reviewed is available at Docket ID
No. EPA-HQ-OAR-2021-0527. Part 62 codifies the Administrator's
approval and disapproval of state plans for the control of
pollutants and facilities under CAA section 111(d), and under CAA
section 129 as applicable.
---------------------------------------------------------------------------

In the 2019 promulgation of subpart Ba, the EPA mirrored CAA
section 110 by giving states 3 years to submit plans. As previously
described, the court partly faulted the EPA for adopting the CAA
section 110 timelines without accounting for the differences in scale
and scope between CAA section 110 and 111(d) plans. The EPA has now
more closely evaluated the statutory deadlines and requirements in the
CAA section 110 implementation context to determine what is feasible
for a CAA section 111(d) state plan submission timeline. The EPA
specifically focused on statutory SIP submission deadline and
requirements in the context of attainment plans for the 2012
PM<INF>2.5</INF> NAAQS under CAA section 189. CAA section 189(a)(2)(B)
requires states to submit attainment planning SIPs within 18 months
after an area is designated nonattainment. The 2012 PM<INF>2.5</INF>
NAAQS attainment plans were, in most cases, more complicated for states
to develop when compared to a typical plan under CAA sections 111(d).
For example, attainment plans require states to determine how to
control a variety of sources, based on extensive modeling and analyses,
in order to bring a nonattainment area into attainment of the NAAQS by
a specified attainment date. Under CAA section 111(d), it is clear
which designated facilities must be subject to a state plan, and the
standards of performance for these sources must reflect the level of
stringency determined by the EG unless a state chooses to account for
RULOF. As further described in section III.E of this preamble,
accounting for RULOF is expected to be a limited, rather than broadly
used, exception. The difference in complexity between the CAA section
189 plan requirements and the CAA section 111(d) plan requirements
suggests that a timeline shorter than 18 months is more appropriate for
development of CAA 111(d) state plans submissions.
Thus, based on the EPA's evaluation of states' responsiveness to
previous CAA section 111(d) EGs, the contrast between the development
of CAA section 111(d) plans and CAA section 129 plans, and the relative
difference in complexity between attainment plan requirements under CAA
section 189 and CAA section 111(d) state plan requirements, the EPA is
proposing to require that state plans under CAA section 111(d) be due
15 months after publication of a final EG. This proposed timeframe is
substantially shorter than the 3 years deadline vacated by the D.C.
Circuit; however, the timeline should provide states adequate time to
adopt and submit approvable plans without extending the timing such
that significant adverse impacts to health and welfare are likely to
occur from the foregone emission reductions during the state planning
process. Allowing states sufficient time to develop feasible
implementation plans for their designated facilities that adequately
address public health and environmental objectives also ultimately
helps ensure more timely implementation of an EG, and therefore
achievement in actual emission reductions, than would an unattainable
deadline that may result in the failure of states to submit plans and
requiring the development and implementation a of Federal plan. The EPA
is soliciting comment on the proposed state plan submission timeline
and the analysis

[[Page 79184]]

supporting the EPA's proposed determination regarding the amount of
time reasonably necessary for plan development and submission. The EPA
is also soliciting comment on whether the EPA should consider any other
factors in setting this timeline (Comment A1-2).
The EPA recognizes that the court, in ALA, faulted the Agency for
failing to consider the potential impacts to public health and welfare
associated with extending planning deadlines. The EPA does not
interpret the court's direction to require a quantitative measure of
impact, but rather consideration of the importance of the public health
and welfare goals when determining appropriate deadlines for
implementation of regulations under CAA section 111(d). Because 15
months is the generally expeditious period of time in which the EPA
finds that most states can create and submit a plan per the EPA's
corresponding emission guidelines that is both comprehensive and
legally sound, it follows that the EPA has appropriately considered the
potential impacts to public health and welfare associated with this
extension of time by providing no more time than the states reasonably
need to ensure a plan is comprehensive and timely. To the extent the
EPA considers deviating from these expeditious timeframes in
promulgating an EG in the future, the EPA will consider the public
health and welfare impacts associated with the change, consistent with
the court's direction in ALA, particularly where the EPA is providing
additional time for state plan development.
While the EPA is proposing and soliciting comment on all components
of the implementation timelines proposed in this action, the EPA is
especially interested in comments regarding the proposed state plan
submission timeline. The EPA acknowledges that there are a number of
individual state-specific factors that can affect the amount of time
required for the development and submission of state plans. The EPA is
therefore soliciting specific comments on details of state plan
development and adoption processes and how those should inform a state
plan submission deadline, including whether there are reasons why the
EPA should consider either a longer or a shorter timeframe (Comment A1-
3).
As discussed in section III.C of this preamble below, the EPA is
proposing to revise subpart Ba to include a requirement for states to
undertake outreach and meaningful engagement with pertinent
stakeholders as part of the state plan development process. The EPA
solicits comment on how much, if any, time this additional engagement
will take in the state plan development process (Comment A1-4). The EPA
recognizes that the time needed to conduct meaningful engagement will
be highly dependent on the number and location of designated facilities
addressed by an EG, as well as on the type of health or environmental
impacts of the associated emissions. If stakeholder and public
involvement required by the proposed amendments does not generate a
large number of specific and unique comments, data, or other
considerations, then the level of effort states will employ to review
them will be lower in comparison to when meaningful engagement comments
are voluminous. Also, to the extent that states already employ
significant engagement with pertinent stakeholders, the proposed
meaningful engagement amendments would not result in additional costs,
while other states that do not have engagement procedures already in
place may be required to increase their level of effort to engage with
pertinent stakeholders.
In section III.E of this preamble, the EPA is also proposing
revisions to the RULOF provision. These proposed revisions would
clarify the procedures for considering RULOF by establishing a robust
analytical framework that would require a state to provide a sufficient
justification when applying a standard of performance that is less
stringent than the EPA's presumptive level of stringency, thereby
allowing the EPA to readily determine if the state's plan is
satisfactory and therefore approvable. The proposed state plan
submission timeline of 15 months should adequately provide time for
states to conduct the analyses required by this provision; however, the
EPA is soliciting comment on whether states will need additional time
in the plan development to account for instances where RULOF is
considered. The EPA is specifically requesting comment on how much
additional time might be required for this consideration and how that
additional time fits within the entire process of state plan
development (Comment A1-5).
The proposed state plan submission timeline should be generally
achievable by states. The EPA notes it is obligated to promulgate a
Federal plan for states that have not submitted a plan by the
submission deadline. Once the obligation to promulgate a Federal plan
is triggered, it can only be tolled by the EPA's approval of a state
plan. If a Federal plan is promulgated, a state may still submit a plan
to replace the Federal plan. A Federal plan under CAA section 111(d) is
a means to ensure timely implementation of EGs, and a state may choose
to accept a Federal plan for their sources rather than submit a state
plan. While the EPA encourages states to timely submit plans for EGs,
there are no sanctions associated with failing to timely submit an
approvable plan or with the implementation of a Federal plan.\12\
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\12\ CAA section 179 provides that sanctions should be applied
in states that fail to submit approvable SIPs for certain specified
requirements for NAAQS implementation. The EPA has not promulgated
any similar sanctions provisions governing the submission of state
plans pursuant to section 111(d).
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2. Timeline for the EPA To Determine Completeness of State Plans
Once a state plan has been submitted to the EPA, the EPA reviews
the plan for ``completeness'' to determine whether the plan includes
certain elements necessary to ensure that the EPA can substantively
evaluate the plan. The EPA determines completeness by comparing the
state's submission against the administrative and technical criteria
specified in subpart Ba to see if the submission contains the elements
specified therein (see 40 CFR 60.27a(g) for completeness criteria). In
the 2019 promulgation of subpart Ba, the timeline provided for the EPA
to determine the completeness of a state plan mirrored the language in
CAA section 110(k)(1)(B): ``Within 60 days of the Administrator's
receipt of a plan or plan revision, but no later than 6 months after
the date, if any, by which a State is required to submit the plan or
revision, the Administrator shall determine whether the minimum
criteria [for completeness] have been met.''
After a state plan is complete through either an affirmative
determination or by operation of law, the EPA will act on the state
plan submission through notice-and-comment rulemaking. The proposed
timeline for the EPA to act on a state plan submission can be found in
section III.A.3 of this preamble below.
If a state plan submission does not contain the elements required
by the completeness criteria, the EPA would find that the state has
failed to submit a complete plan and notify the state through a letter.
The determination of incompleteness treats the state as if the state
has made no submission at all. The determination that a submission is
incomplete and that the state has failed to submit a plan is
ministerial in nature and requires no exercise of discretion or
judgment on the Agency's part.
As part of the EPA's overall effort to set implementation timelines
under

[[Page 79185]]

CAA section 111(d) that are as expeditious as possible, the EPA is
proposing to revise the timing element of the completeness review in
subpart Ba. In light of the ministerial nature of the completeness
determination, the EPA proposes to provide a maximum of 60 days from
receipt of the state plan submission for the EPA to make a
determination of completeness. The EPA is additionally proposing to
provide that any state plan or plan revision submitted to the EPA that
has not received a completeness determination within 60 days of
receipt, shall on that date be deemed, by operation of law, to meet the
completeness criteria, which will trigger the EPA's obligation to take
substantive action on the state plan. Sixty days provides an
expeditious timeframe for the EPA to evaluate state plans for
completeness and to notify the states of the determination. Because the
EPA may be required to evaluate up to 50 state plans during this
period, in addition to plans submitted by territories, tribes and local
governments, the EPA does not find that this timeframe could reasonably
be shortened any further. The EPA is soliciting comment on the
appropriateness of providing a 60-day timeline for the EPA to conclude
its completeness review (Comment A2-1).
The EPA notes that, because the EPA's finding of a plan as
incomplete puts a state in the legal status of not having submitted a
plan at all, the status and potential delinquency of a state's plan is
evaluated against the state plan submission deadline. If the EPA
determines that a plan is incomplete and this occurs at some point
after the state plan submission deadline, the EPA treats the state as
if the state has made no submission at all and thus the EPA's authority
to provide a Federal plan is triggered. If a state submits a plan prior
to the state plan submission deadline and the EPA also makes a
determination that the plan is incomplete prior to the state plan
submission deadline, the EPA will treat the state as if the state has
made no submission at all, but this determination does not yet trigger
further action by the EPA. Instead, because the state still has an
opportunity to submit a complete plan before the state plan submission
deadline, the EPA's authority to promulgate a Federal plan is only
triggered if the state fails to timely submit a new plan to replace the
incomplete plan by the state plan deadline.
3. Timeline for the EPA's Action on State Plans
After a state plan has been determined to be complete or is deemed
complete by operation of law, the EPA must evaluate and determine
whether the plan or plan revision is approvable, in part or in whole
(see section III.D.1 of this preamble for discussion on proposed
partial plan approvals). In order to determine whether it is
appropriate to approve or disapprove a state plan, CAA section 111(d)
provides that the EPA must evaluate whether the plan is
``satisfactory,'' that is, whether the components of the plan meet all
the requirements of the statute, these implementing regulations, and
the corresponding EG, through a proposed notice-and-comment rulemaking.
After the EPA reviews comments on the proposed action, the EPA will
finalize its action to approve or disapprove the plan. If the EPA
approves a state plan, the standards of performance and other
components of that state plan become federally enforceable. If the
state plan is disapproved, in part or in whole, the EPA is obligated to
promulgate a Federal plan for designated facilities within that state
(see section III.A.4 of this preamble below for the EPA's timeline to
publish a Federal plan).
Subpart B requires the EPA to take action on applicable state plans
(e.g., approve or disapprove) within 4 months after the date required
for submission. 40 CFR 60.27(b). In the development of subpart Ba, the
EPA contended that 4 months was an inadequate time to review and take
action on state plans and therefore instead provided a deadline of 12
months for final action on a state plan (mirroring the maximum time
permitted under CAA section 110(k)(1)(2) for the EPA's action on
complete SIPs). 84 FR 32520, July 8, 2019. In the ALA decision, the
D.C. Circuit vacated this revised timeline in subpart Ba on the basis
that the EPA did not adequately justify the extended timeframes and did
not consider the public health and welfare impacts of extending the
implementation times. As is discussed below, the EPA has now closely
evaluated the process, steps, and timeframes for the EPA to
substantively review and act upon each state plan submission through a
public notice-and-comment rulemaking process. After considering the
time anticipated to be necessary for generally expeditious EPA action
on state plans, the EPA is again proposing to require that it must take
final action on a state plan or plan revision submission within 12
months after a plan is determined to be complete or becomes complete by
operation of law.\13\
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\13\ The deadlines for the EPA action under subpart Ba would
apply to any state plan submission regardless of when it is
submitted.
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The first step of the EPA acting on a plan is that once a state
plan submittal has been deemed ``complete'' under 40 CFR 60.27a(g), an
intra-agency workgroup reviews the plan components to determine whether
they conform to the applicable regulatory requirements. The workgroup
may require a broad range of expertise in legal, technical, and policy
areas, potentially including attorneys, engineers, scientists,
economists, air monitoring experts, health and welfare analysts, and/or
policy analysts from across a variety of EPA programs. After review and
coordination, the workgroup then develops recommendations for approval
or disapproval of each plan component and presents them to Agency
decision-makers for review. Once the Agency completes its internal
decision-making process, the workgroup proceeds to prepare a written
notice of proposed rulemaking. The notice of proposed rulemaking
contains the EPA's legal, policy, and technical bases for its proposed
action on a state plan submission, which must be thoroughly developed
and explained in writing to provide clear and concise information and
reasoning to support the public in understanding the Agency's decision
and the justification for that decision, and so that the public may
provide informed comments on the proposal. The EPA may further develop
technical support documents as record support for the proposal. The
draft proposed rulemaking and any record support then undergo a multi-
layered review process across EPA offices and levels of management
before being processed for signature. The process to evaluate the state
plan, draft a proposed action on a CAA section 111(d) state plan, and
get the proposed action edited, reviewed, and signed typically requires
a minimum of between 6 to 8 months to complete. The signed notice of
proposed rulemaking is then submitted for publication in the Federal
Register, which may require several weeks processing prior to
publication.
The publication of the proposed rulemaking triggers the start of a
public comment period of at least 30 days with possible extension if
requested. Because of the types of sources and pollutants regulated
under CAA section 111(d), the EPA reasonably anticipates that many of
its proposed actions on state plans will garner significant public
interest from individuals, industry, states, and

[[Page 79186]]

environmental and public health advocates. After completion of the
comment period, the EPA then reviews all comments and determines
whether, based on any comment, it should alter its proposed action or
further augment the legal, policy, and technical rationales supporting
that action. Comments received on a proposed action may include
technical information that was not available to the EPA at the time of
proposal. In the event technical data are received as part of comments
on the proposed action, the EPA would then be required to review the
new data and evaluate whether and how it should affect the EPA's
proposed conclusions regarding the state plan. If a substantive comment
is raised that merits reconsideration of the EPA's proposed action, the
EPA may determine that it is necessary to revise and repropose its
action on the state plan or it may go to the state for more information
to help the Agency determine how to proceed.
Once this review of comments is complete, the workgroup drafts and
presents updated recommendations for action for internal review and
consideration by Agency decision-makers. Once the Agency completes its
internal decision-making process, the workgroup then drafts a notice of
final rulemaking on the plan submission, which includes responses to
comments, any necessary record support, and may also include final
regulatory text. The draft final action is then reviewed by senior
management and other interested EPA offices within the Agency prior to
signature of the final rulemaking approving or disapproving, in whole
or in part, a state plan. It is reasonable to permit at least 4 to 7
months for evaluation of the comments received, any necessary technical
analysis, decision-making, and drafting and review of the final action.
The duration of each step in this deliberative process varies. The
amount of time the EPA needs to review a state plan submission and the
time it needs to finalize a notice of proposed rulemaking, depends in
part on the plan's complexity and the nature of the technical, policy,
and legal issues that it implicates. For example, a state plan
submission that invokes RULOF for several designated facilities is more
complex and time consuming to review than a plan that simply
establishes standards of performance reflecting the presumptive level
of stringency for all sources. Similarly, the amount of time needed to
respond to comments and issue a final rulemaking depends in part on the
number and type of comments received on the EPA's proposed rulemaking.
Additionally, the EPA reasonably anticipates that it will be required
to review multiple plan submissions at a given time, and these phases
of review for a given plan are impacted by the EPA's review of other
state plan submissions, as the EPA will need to assure its review
across multiple plans and regional offices is consistent from a legal,
technical, and policy perspective.
The EPA finds 12 months is a reasonably expeditious timeframe to
accommodate the EPA to act on a state plan or plan revision submission
and the considerations described above, while ensuring that an EG is
expeditiously implemented. The process and steps described above
highlight the fact that it would be unreasonable, if not impossible, to
accomplish all of the steps in a legally and technically sound manner
within a 4-month timeframe as required under subpart B. Particularly,
the EPA's proposed action has to be open for public comment for at
least 30 days, therefore the 4-month timeline provided in subpart B
only gives the EPA 3 months to do the substantive work of both the
proposed and final actions, including evaluating the state plan
submission, drafting preamble notices, responding to comments, and
developing record support at both the proposed and final action stages.
A 12-month timeframe after a plan is determined to be complete more
reasonably accommodates the process and steps described above.\14\
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\14\ While the EPA would have the discretion to act on a state's
submission more quickly than 12 months where specific circumstances
allow (e.g., where there are no public comments on the proposed
action), the EPA does not believe that it would be reasonably
possible to act significantly more quickly than 12 months in most
cases.
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The EPA recognizes that the court in ALA faulted the Agency for
failing to consider the potential impacts to public health and welfare
associated with extending planning deadlines. The EPA does not
interpret the court's direction to require a quantitative measure of
impact, but rather consideration of the importance of the public health
and welfare goals of CAA section 111(d) when determining appropriate
deadlines. Because 12 months is an adequate period of time in which the
EPA can both expeditiously act on a plan submission and ensure that its
action is technically and legally sound, it follows that the EPA has
appropriately considered the potential impacts to public health and
welfare associated with this extension of time by providing no more
time than the EPA reasonably needs to ensure a plan submission contains
appropriate and protective emission reduction measures. If the EPA does
not have adequate time to evaluate a state plan submission, its ability
to ensure the plan contains appropriate measures to satisfactorily
implement and enforce the standards necessary to comply with the EG may
be compromised, which would in turn compromise the EPA's ability to
ensure that the public health and welfare objectives of the EG are
satisfied.
The EPA is soliciting comment regarding its rationale for proposing
a 12-month timeframe for the EPA's action on a complete state plan or
plan revision submission, including whether there are reasons that the
EPA should consider either a longer or a shorter timeframe (Comment A3-
1). The EPA notes that this timeframe for the EPA's action on complete
state plan submission would apply to any final EG regulating greenhouse
gas emissions from sources in the oil and natural gas industry. 86 FR
63110, November 15, 2021.
4. Timeline for the EPA To Promulgate a Federal Plan
CAA section 111(d)(2) provides that the EPA has the same authority
to prescribe a Federal plan for a state that fails to submit a
satisfactory plan as it does for promulgating a FIP under CAA section
110(c). Accordingly, the EPA's obligation to promulgate a Federal plan
is triggered in three situations: where a state does not submit a plan
by the plan submission deadline; where the EPA determines a portion or
all of a state plan submission did not meet the completeness criteria
and the time period for state plan submission has elapsed and,
therefore, the state is treated as having not submitted a required
plan; and where the EPA disapproves a state's plan. 40 CFR 20.27a(c).
In the first two instances of triggering a Federal plan, the EPA is
proposing to require that its timeline to promulgate a Federal plan for
those states would begin the day after the state plan is due.\15\ In
the third instance, the

[[Page 79187]]

EPA is proposing to require that its timeline to promulgate a Federal
plan would begin at its disapproval of the state's plan.
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\15\ The EPA has discretion to address its obligation to
promulgate a Federal plan in a variety of ways for states that do
not have an approved state plan. For example the EPA may initially
promulgate a single Federal plan that applies to all appropriate
states and then update that Federal plan as necessary to accommodate
the inclusion of other states that trigger the need for a Federal
plan in the future (e.g., a Federal plan that applies to states that
fail to submit a plan can be updated to include applicability for
states that later have a plan disapproved); or the EPA may
promulgate Federal plans each time its authority to do so has been
triggered (e.g., the EPA will promulgate a Federal plan for all
states that fail to submit a plan and another Federal plan for all
states that have their plan disapproved).
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The original implementing regulations in subpart B provided the EPA
with 6 months to promulgate a Federal plan once its obligation to do so
was triggered. 40 CFR 60.27(d). When the EPA promulgated subpart Ba in
2019, it concluded that this amount of time was insufficient and
consequently extended the time for the EPA to promulgate a Federal plan
to 24 months, mirroring the timeframe permitted for promulgation of a
FIP under CAA section 110. 84 FR 32520, July 8, 2019. In the ALA
decision, the D.C. Circuit vacated this revised timeline in subpart Ba
on the basis that the EPA did not adequately justify the extended
timeframe and did not consider the health and welfare impacts of
extending the implementation timeframe.
In this action, the EPA reevaluated the process, steps, and
timeframes for the EPA to promulgate a Federal plan through a public
notice-and-comment rulemaking process.\16\ Based on this assessment as
presented below, the EPA is proposing to require that it promulgate a
Federal plan within 12 months after either the date required for
submission of a state plan (for states that fail to submit a complete
plan) or the date the EPA disapproves a state's plan. The EPA is also
proposing a change to the trigger for the EPA's obligation and timeline
to provide a Federal plan for states that do not submit a timely plan
and that discussion is found in section III.B of this preamble.
---------------------------------------------------------------------------

\16\ The EPA reviewed the information available in 40 CFR part
62 associated with the promulgation of Federal Plans under CAA
section 111(d). The supporting information reviewed is available at
Docket ID No. EPA-HQ-OAR-2021-0527. Under the provisions of CAA
section 111 and subpart B, the EPA promulgated Federal plans for
municipal solid waste landfills EG 40 CFR part 60 subpart Cc
(Federal plan codified at 40 CFR part 62 subpart GGG) and municipal
solid waste landfills EG 40 CFR part 60 subpart Cf (Federal plan
codified at 40 CFR part 62 subpart OOO).
The EPA also reviewed information available in 40 CFR part 62
associated with the promulgation of Federal Plans under CAA 129. The
supporting information reviewed is available at Docket ID No. EPA-
HQ-OAR-2021-0527. Under the provisions of CAA sections 111 and 129
and subpart B, the EPA has promulgated Federal plans for large
municipal waste combustors EG 40 CFR part 60 subpart Cb (Federal
plan codified at 40 CFR part 62 subpart FFF); small municipal waste
combustors EG 40 CFR part 60 subpart BBBB (Federal plan codified at
40 CFR part 62 subpart JJJ); hospital, medical, and infectious waste
incinerators EG 40 CFR part 60 subpart Ce (Federal plan codified at
40 CFR part 62 subpart HHH); commercial and industrial solid waste
incinerators EG 40 CFR part 60 subpart DDDD (Federal plan codified
at 40 CFR part 62 subpart III) and sewage sludge incinerators EG 40
CFR part 60 subpart MMMM (Federal plan codified at 40 CFR part 62
subpart LLL).
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A Federal plan must meet the requirements of CAA section 111(d) and
therefore contain the same components as a state plan, namely standards
of performance for designated facilities and measures that provide for
the implementation and enforcement of such standards. CAA section
111(d)(2)(B) also explicitly requires the EPA to consider RULOF in
promulgating a standard of performance under a Federal plan.
Additionally, Federal plans containing standards of performance are
subject to the procedural requirements of CAA section 307(d), such as
the requirements for proposed rulemaking and opportunity for public
hearing. CAA section 307(d)(1)(C). 40 CFR 60.27a implements these
various statutory requirements and contains general regulatory
requirements for the EPA's promulgation of a Federal plan. To meet
these applicable requirements, the process, and steps for the EPA to
promulgate a Federal plan is described in the following paragraphs.
Once the EPA's obligation to promulgate a Federal plan is
triggered, the EPA establishes an intra-agency workgroup to develop the
rulemaking action to address that obligation. The workgroup first
develops recommendations for the components of the Federal plan to be
proposed, and on legal, policy, and technical rationales that support
the recommendations. These components are identified in subpart Ba as
well as in the corresponding EG and are generally the same as those
required for a state plan. One of these fundamental components is the
determination of standards of performance for designated facilities.
Based on the requirements of CAA sections 111(d) and 111(a)(1), these
standards must generally reflect the presumptive level of stringency
the EPA determines as part of the EG. Depending on the form of the
presumptive level of stringency given in a particular EG, the EPA may
need to do additional work to calculate standards of performance that
reflect this level of stringency. For example, an EG may provide the
presumptive level of stringency as numerical emission rates, which a
Federal plan could adopt as the requisite standards of performance.
However, if an EG provides the presumptive level of stringency in a
form other than numerical standards, the EPA may need to calculate
appropriate standards of performance in the context of a Federal plan.
Further, CAA section 111(d)(2) requires the EPA to consider RULOF for
sources in the source category in setting standards of performance as
part of a Federal plan which requires the EPA, at least, to identify
and evaluate the remaining useful lives, among other appropriate
factors, and accordingly establish corresponding standards of
performance. The development of a Federal plan may also necessitate a
determination of appropriate testing, monitoring, reporting, and
recordkeeping requirements to implement the standard if the EG does not
provide presumptive requirements to address those aspects of
implementation. Further, the EPA will need to consider associated
compliance times for designated facilities in circumstances where they
are not provided by an EG, or in cases where a standard of performance
is adjusted to account for RULOF. There may also be situations where
increments of progress are warranted, and the EPA will correspondingly
need to identify and determine the appropriate increments of progress.
The development of a Federal plan with these components will also
include the element of meaningful engagement, as being proposed in this
action and further described in section III.C of this preamble.
Once the recommendations for each component are developed, the
workgroup presents them to Agency decision-makers for review. After the
Agency completes its internal decision-making process, the workgroup
proceeds to prepare a written notice of proposed rulemaking. The
proposal must include the following elements, as required by CAA
section 307(d)(3): the factual data on which the proposed rulemaking is
based; the methodology used in obtaining the data and in analyzing the
data; and the major legal interpretations and policy considerations
underlying the proposed rulemaking. These elements must be thoroughly
developed and explained in the proposal to meaningfully provide the
public adequate information to comment on the proposal. The EPA may
further develop a technical support document as record support for the
proposal.
The draft proposed rulemaking and any record support are then
reviewed by the relevant EPA offices and processed for signature. The
signed notice of proposed rulemaking is then submitted for publication
in the Federal Register. To develop the proposed Federal plan
rulemaking, establish unique standards for RULOF, allow review of
materials by senior management, go through an interagency review
process and have the package signed typically requires a

[[Page 79188]]

minimum of between six to 9 months to complete.
As previously noted, the EPA's promulgation of a Federal plan is
subject to the requirements of CAA section 307(d), which includes
providing the public with an opportunity to provide an oral
presentation at a public hearing. CAA section 307(d)(5). The Federal
Register Act requires the EPA to provide sufficient notice of a public
hearing, which (in the absence of a different time specifically
prescribed by the relevant Act of Congress) is satisfied if the EPA
provides at least 15 days' notice. 44 U.S.C. 1508. Section 307(d)(5) of
the CAA further provides that the EPA must keep the record for the
proposed action open for public comment for 30 days after any public
hearing for the submission of rebuttal and supplemental information.
Because the EPA reasonably expects to provide notice of the required
public hearing at the time its proposed action is published in the
Federal Register, in order to allow for both a 15-day notice of the
public hearing and a subsequent 30-day comment period on the open
record, the EPA should allow for at least 45 days for public comment on
the notice of proposed action.
As with state plans, because of the types of sources and pollutants
regulated under CAA section 111(d), the EPA reasonably anticipates that
many of its proposed actions on a Federal plan will garner significant
public interest from individuals, industry, states, and environmental
and public health advocates. After completion of the comment period,
the EPA then reviews all comments and determines whether, based on any
comment, it should alter any components of the proposed Federal plan,
or further augment the legal, policy, and technical rationales
supporting that proposed action. Additionally, in the EPA's experience,
comments may include technical information that was not in front of the
Agency at the time of proposal. In the event technical data are
received as part of comments on the proposed action, the EPA would then
be required to review the new data and evaluate whether and how it
should affect the EPA's proposed Federal plan. If a substantive comment
is raised that merits reconsideration of any component in the proposed
Federal plan, the EPA would need to repropose the plan.
Once this review of comments is complete, the workgroup drafts and
presents updated recommendations for internal review and decision
making. Once the Agency completes its internal decision-making process,
the workgroup then drafts a notice of final rulemaking, which includes
responses to comments and any necessary record support, and final
regulatory text as the Federal plan directly regulates certain
designated facilities. The draft final action is then reviewed by
relevant offices within the Agency prior to signature of the final rule
promulgating the Federal plan. The EPA typically anticipates that the
process of reviewing comments received, making corresponding changes to
the rulemaking, and promulgating the final Federal plan to be between 4
and 8 months.
The duration of each step in this deliberative process varies. The
amount of time the EPA needs to develop, propose, and finalize a
Federal plan depends in part of the plan's complexity and the nature of
the technical, policy, and legal issues that it implicates. For
example, some states needing a Federal plan may have thousands, if not
hundreds of thousands, of designated facilities that the EPA will need
to establish standards of performance and implementation measures for,
while other Federal plans may be significantly smaller in scale.
Similarly, the amount of time needed to respond to comments and issue a
final rule depends in part on the number and type of comments received
on the EPA's proposed rulemaking. Additionally, the EPA reasonably
anticipates that it may need to promulgate a Federal plan for multiple
states at a given time, which can amplify the amount of time and work
needed.
The EPA has determined that 12 months reasonably accommodates the
amount of time that the EPA needs to undertake the process, steps, and
the considerations described above, while ensuring that an EG is
expeditiously implemented. The process and steps described above that
must be taken in promulgating a Federal plan highlight the fact that it
would be unreasonable, if not an impossibility, to accomplish all of
the steps in a legally and technically sound manner within a 6-month
timeframe as required under subpart B.\17\
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\17\ While the EPA would have the discretion to promulgate a
Federal plan more quickly than 12 months where specific
circumstances allow (e.g., where there are no public comments on the
proposed action), the EPA does not believe that would be reasonably
possible to act significantly more quickly than 12 months in most
cases.
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As with the EPA's proposal for its timeline to act on state plan
submissions, 12 months is generally the period of time in which the EPA
can both expeditiously act on a plan submission and ensure it is
technically and legally sound. Therefore, this extension of time
considers potential impacts to public health and welfare by giving the
EPA a reasonably expeditious timeframe to promulgate a Federal plan
that contains appropriate and protective emission reduction measures.
This is especially true in the context of a Federal plan, where there
is otherwise no state plan in place that is adequately protective of
public health and welfare. If the EPA does not have adequate time to
promulgate a Federal plan, its ability to ensure the plan contains
appropriate measures to satisfactorily implement and enforce the
standards necessary to comply with the EG may be compromised, which
would in turn compromise the EPA's ability to ensure that the public
health and welfare objectives of the EG are satisfied.
The EPA is soliciting comment regarding its rationale for proposing
a 12-month timeframe for the EPA's promulgation of a Federal plan,
including whether there are reasons why the EPA should consider either
a longer or a shorter timeframe (Comment A4-1). The EPA notes that this
timeframe for the EPA's promulgation of a Federal plan would apply to
any final EG regulating greenhouse gas emissions from sources in the
oil and natural gas industry. 86 FR 63110, November 15, 2021.
The EPA notes that a state may submit a plan to replace a Federal
plan, even after the state plan submission deadline. However, once the
EPA's authority and obligation to promulgate a Federal plan has been
triggered, the act of a state submitting a plan alone does not abrogate
the EPA's authority or obligatory timeline to promulgate a Federal
plan. Only an approved state plan can supplant an already promulgated
Federal plan or abrogate the EPA's responsibility to timely promulgate
a Federal plan. Where a state submits a late plan, that may have the
practical effect of concurrent timelines for promulgation of the
Federal plan and the EPA's action on that late state plan; the EPA is
not obligated to act on a late state plan prior to promulgating a
Federal plan (40 CFR 60.27a(d)).
5. Timeline for Increments of Progress
As part of the EPA's statutory responsibility to determine the BSER
and related presumptive level of stringency, the EPA also determines in
an EG ``the time within which compliance with standards of performance
can be achieved.'' 40 CFR 60.22a(b)(5). As previously described, while
it is the states' responsibility to provide standards of performance,
those

[[Page 79189]]

standards of performance must reflect the presumptive level of
stringency, unless a state chooses to account for RULOF for a
particular source. Accordingly, states also have an obligation to
include the corresponding compliance schedules as part of their state
plans.\18\ Specifically the standards and compliance schedules ``shall
be no less stringent than the corresponding emission guideline'' (40
CFR 60.24a(c)) unless the RULOF provision is invoked (see section III.E
of this preamble for discussion of proposed revisions to this
provision). These compliance schedules are an integral component to
realizing the emission reductions required by an EG to address the
health and welfare impacts from a relevant source category and
pollutant. The sooner that the standards are implemented, the more
quickly the public health and welfare benefits of those reductions can
be achieved.
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\18\ ``Each plan shall include standards of performance and
compliance schedules.'' 40 CFR 60.24a(a).
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In the 1975 subpart B implementing regulations for CAA section
111(d), the EPA required that any compliance schedule extending more
than 12 months from the date required for submittal of the plan must
include legally enforceable increments of progress to achieve
compliance for each designated facility or category of facilities. 40
CFR 60.24(e). In the 2019 promulgation of subpart Ba, the EPA modified
this requirement to apply to any compliance schedule extending more
than 24 months from the state plan submittal deadline to align with the
extended timeline for state plan submissions. As discussed previously,
the D.C. Circuit vacated the extended implementation timelines in
subpart Ba, including the timeline for increments of progress.\19\
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\19\ Petitioners did not challenge, and the court did not
vacate, the substantive requirement for increments of progress.
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Both subparts B and Ba require that standards of performance are
implemented in a timely manner through provisions that require legally
enforceable increments of progress if the compliance schedule extends
beyond a specific time frame.\20\ In the definition of ``increments of
progress'', the EPA provides requirements for legally enforceable
increments of progress that states must include as a part of the
standard of performance for a given designated facility.\21\ The use of
increments of progress will vary from EG to EG based on the source
category and type of regulation. There are also situations that may
lead the EPA to limit or prohibit the use of increments of progress in
a particular EG based on the nature of the BSER and presumptive
standards, for example if the overall implementation timeline for a
particular EG is relatively short. The EPA may alternatively provide
presumptive increments of progress for a specific EG. The EPA will
address these circumstances as appropriate in a specific EG, if the
general requirements for increments of progress of subpart Ba need to
be superseded.
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\20\ Subpart Ba at 40 CFR 60.24a(a) and 60.24a(d), and subpart B
at 40 CFR 60.24(a) and 60.24(e)(1).
\21\ 40 CFR 60.21a(h) defines ``increments of progress'' and
requires states to include the following steps: (1) Submittal of a
final control plan for the designated facility to the appropriate
air pollution control agency; (2) Awarding of contracts for emission
control systems or for process modifications, or issuance of orders
for the purchase of component parts to accomplish emission control
or process modification; (3) Initiation of on-site construction or
installation of emission control equipment or process change; (4)
Completion of on-site construction or installation of emission
control equipment or process change; and (5) Final compliance.
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Because increments of progress are important to expeditiously
addressing public health and welfare, the EPA is proposing to generally
require that any compliance schedule extending more than 16 months from
the date required for submittal of a state plan must include legally
enforceable increments of progress to achieve compliance for each
designated facility or category of facilities. This proposed time
period accounts for the 60-day completeness review following a state
plan submittal and the 12-month period for the state plan review
proposed in this action, and further provides a 2-month buffer for the
case of a state plan approval by the EPA (approval occurring 14 months
after the plan submission deadline) before increments of progress are
required. While this time period of 16 months is longer than the 12
months previously provided under subpart B, it is significantly shorter
than the 24 months vacated from subpart Ba. Additionally, the time
between a state plan approval and the initiation of requirements for
increments of progress is less than both the 8 months previously
provided by subpart B and less than the 6-month buffer provided by the
vacated subpart Ba timeline. Providing a 2-month buffer after approval
of plans but before the increments of progress are required allows for
the owner or operators of designated facilities reasonable time to
initiate actions associated with the increments of progress before
these are required.
This proposed timeline for increments of progress will ensure
standards of performance are implemented as expeditiously as possible
so that the intended emission reductions are achieved, and the public
health and welfare are protected. The EPA solicits comment on the
proposed requirement that CAA 111(d) plans include increments of
progress for any compliance schedule extending more than 16 months from
the state plan submission deadline, and whether a different timeline
for increments of progress should be considered. If another timeline is
considered, the EPA requests specific comments on why this other
timeline is more appropriate than 16 months (Comment A5-1).

B. Federal Plan Authority and Timeline Upon Failure To Submit a Plan

In subpart Ba, the EPA incorporated language from CAA sections
110(c)(1)(A) and 110(k)(1)(B) addressing the circumstances which
trigger the EPA's authority for promulgating a Federal plan.
Specifically, the EPA adopted language at 40 CFR 60.27a(c)(1), which
requires the EPA to promulgate a Federal plan after it finds that a
state fails to submit a required plan or plan revision or finds that
the plan or plan revision does not satisfy the completeness criteria
under 40 CFR 60.27a(g). The EPA is currently required, under 40 CFR
60.27a(g), to determine whether completeness criteria have been met no
later than 6 months after the date by which a state is required to
submit a plan. These current provisions under subpart Ba taken together
mean that, no later than 6 months after the state plan submission
deadline has passed, the EPA must make a determination (often referred
to as a ``finding of failure to submit'') as to whether any states have
failed to submit a plan that meets the completeness criteria, and such
finding is what triggers the EPA's obligation and timeline to
promulgate a Federal plan.\22\
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\22\ Note that this procedure does not address circumstances
when the EPA promulgates a Federal plan for states whose plan is
disapproved. In these circumstances, the EPA's disapproval itself is
the conclusion that the state plan submission was unsatisfactory and
triggers the EPA's obligation and timeline to promulgate a Federal
plan.
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The EPA acknowledges that in the CAA section 110 context, it has
not always timely met its obligation to issue a finding of failure to
submit, which further delays the timing for when the EPA promulgates a
FIP to achieve the necessary emission reductions. Accordingly, the EPA
finds that there is an opportunity to streamline the process in the CAA
section 111(d) context to ensure that the emission reductions
anticipated by the promulgation of the EG are realized in a timely way
through

[[Page 79190]]

the promulgation of any necessary Federal plan. Rather than requiring
the EPA to affirmatively issue a finding of failure to submit before
the EPA's obligation to issue a Federal plan is triggered, the EPA is
proposing that the EPA's timeline for issuing a Federal plan for any
state that has not submitted a complete plan will be triggered by the
state plan submission deadline, consistent with the requirements under
subpart B. In this proposed change for subpart Ba, the EPA's obligation
and timeline to promulgate a Federal plan starts the day after state
plans are due. Accordingly, based on the proposed timeline described in
section III.A.4 of this preamble above, the EPA is proposing that the
EPA will have 12 months from the state plan deadline to promulgate a
Federal plan for states that do not submit a plan. Note, the EPA is
also proposing 12 months to promulgate a Federal plan for states whose
plans are disapproved, but in those instances the EPA's obligation and
timeline to provide a Federal plan is based on its disapproval of a
state plan.
As part of this proposal to trigger the timeline for the EPA to
promulgate a Federal plan based on the state plan submission date
instead of from when the EPA makes a finding of failure to submit, the
EPA considered the value and role of such finding. A finding of failure
to submit was intended to serve three purposes under subpart Ba,
consistent with its purpose under CAA section 110: to notify the public
of the status of state plan submissions (i.e., providing transparency
to the process); to notify states that the EPA has not received a plan;
and to formally start the clock for the EPA to promulgate a Federal
plan. While these concepts are generally an important part of the
overall Federal plan development and implementation process, the EPA
finds that in the CAA section 111(d) context there is minimal value in
coupling the notification aspects of a finding of failure with the
initiation of the clock for the EPA to promulgate a Federal plan. These
aspects are not inextricably linked to one another in that nothing
necessitates a finding of failure to submit as the vehicle that
triggers the timeline for the EPA to promulgate a Federal plan. By
decoupling the timeline from the finding of failure to submit, the
timeline to provide a Federal plan by the EPA can be triggered without
the interim step and potential lag associated with a finding of failure
to submit. By removing this interim process for promulgating a Federal
plan, the EPA will be required to promulgate the Federal plan more
expeditiously, and, in turn, overall implementation of the
corresponding EG will be timelier. This proposal is also consistent
with the spirit of the ALA decision, where the D.C. Circuit emphasized
the need for implementation timelines that consider potential impacts
on public health and welfare. By expeditiously and efficiently
promulgating a Federal plan and by removing an interim step of a
finding of failure, the EPA is further addressing the potential impacts
of implementation times on health and welfare.
The EPA notes that its proposal does not affect the EPA's
obligation under CAA section 110(c) to promulgate a FIP within 2 years
of making a finding that a state has failed to submit a complete SIP.
In the case of the CAA section 110, the obligation for the EPA to first
make a finding of failure to submit is derived from the statute,
whereas nothing in CAA section 111(d) obligates the EPA to make such a
finding before promulgating a Federal plan. CAA section 111(d)(1)
directs the EPA to promulgate a process ``similar'' to that of CAA
section 110, rather than a process that is identical. Therefore, the
fact that a finding of failure to submit serves as the legal predicate
for the EPA's obligation to issue a FIP under CAA section 110 does not
mean that the EPA is also required to treat such a finding as a legal
predicate for a Federal plan under CAA section 111(d). While a finding
of failure to submit has value in notifying states and the public of
the status of plans, the EPA does not find that it is integral to the
timing of promulgating a Federal plan for states that do not submit
plans. The EPA is therefore proposing to retain the requirement to make
a finding of failure to submit, though this finding will no longer be
considered the event that triggers the timeline for the EPA's issuance
of a Federal plan. The EPA will make this finding by publishing a
notice in the Federal Register anytime between the deadline for state
plan submissions and the EPA's promulgation of a Federal plan. The EPA
is soliciting comment on its proposal to link the authority and
timeline for a Federal plan to the state plan deadline rather than to a
finding of failure to submit (Comment B-1).
This proposed change is consistent with the requirements that
applied to the EPA's issuance of CAA section 111(d) plans under subpart
B before subpart Ba was issued in 2019. In subpart B (i.e., the
previously applicable implementing regulations for CAA section 111(d)
EGs and currently applicable implementing regulations for CAA section
129 EGs), the EPA's obligation to promulgate a Federal plan is
triggered by the state plan deadline. The EPA is proposing to revise 40
CFR 60.27a(c)(1) to adopt similar language from subpart B under 40 CFR
60.27(d). The EPA is seeking comment on its proposal to link the
authority and timeline for a Federal plan to the state plan deadline
particularly based on experiences with the application of subpart B's
Federal plan authority to CAA section 129 implementation and other
Federal plans issued under CAA section 111(d) where the authority and
timeline for a Federal plan are based on the state plan deadline
(Comment B-2).

C. Requirement for Outreach and Meaningful Engagement

The fundamental purpose of CAA section 111 is to reduce emissions
from certain stationary sources that cause or significantly contribute
to air pollution which may reasonably be anticipated to endanger public
health or welfare. Therefore, a key consideration in the state's
development of a state plan, in any significant plan revision,\23\ and
in the EPA's development of a Federal plan pursuant to an EG
promulgated under CAA section 111(d) is the potential impact of the
proposed plan requirements on public health and welfare. A robust and
meaningful public participation process during plan development is
critical to ensuring that the full range of these impacts are
understood and considered.
---------------------------------------------------------------------------

\23\ Significant state plan revision includes, but is not
limited to, any revision to standards of performance or to measures
that provide for the implementation or enforcement of such
standards.
---------------------------------------------------------------------------

States often rely primarily on public hearings as the foundation of
their public engagement in their state plan development process because
a public hearing is explicitly required pursuant to the applicable
regulations. The existing provisions in subpart Ba (40 CFR 60.23a(c)
through (f)) detail the public participation requirements associated
with the development of a state plan. Per these implementing
regulations, states must provide certain notice of, and conduct one or
more public hearings on, their state plan before such plan is adopted
and submitted to the EPA for review and action.\24\ However, robust and
meaningful public involvement in the development of a plan should
sometimes go beyond the minimum requirement to hold a public hearing
depending on who is most affected by and vulnerable to the impacts
being addressed by the plan. The CAA section 111(d) program addresses
existing

[[Page 79191]]

facilities; however, communities may not have had a voice when the
source was originally constructed, or previous outreach may have
focused largely on engaging the sources and the industry itself.
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\24\ States may cancel a public hearing if no request for one is
received during the required notification period. 40 CFR 60.23a(e).
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In this action, the EPA is proposing to strengthen the public
participation provisions in subpart Ba by requiring meaningful
engagement with pertinent stakeholders in the state's development of a
state plan, in any significant plan revision, and in the EPA's
development of a Federal plan pursuant to an EG promulgated under CAA
section 111(d). In particular, the EPA is proposing to add the
requirement for meaningful engagement with pertinent stakeholders into
40 CFR 60.23a(i) and 60.27a(f) and to define meaningful engagement and
pertinent stakeholders in 40 CFR 60.21a.
The EPA is proposing to define meaningful engagement as it applies
to this subpart as ``. . . timely engagement with pertinent stakeholder
representation in the plan development or plan revision process. Such
engagement must not be disproportionate in favor of certain
stakeholders. It must include the development of public participation
strategies to overcome linguistic, cultural, institutional, geographic,
and other barriers to participation to assure pertinent stakeholder
representation, recognizing that diverse constituencies may be present
within any particular stakeholder community. It must include early
outreach, sharing information, and soliciting input on the state
plan.'' The EPA is proposing to define that pertinent stakeholders ``.
. . include, but are not limited to, industry, small businesses, and
communities most affected by and vulnerable to the impacts of the plan
or plan revision.''
In particular, pertinent stakeholders include those who are most
affected by and vulnerable to the health or environmental impacts of
pollution from the designated facilities addressed by the plan or plan
revision. Increased vulnerability of communities may be attributable
to, among other reasons, both an accumulation of negative and lack of
positive environmental, health, economic, or social conditions within
these populations or communities. Examples of such communities have
historically included, but are not limited to, communities of color
(often referred to as ``minority'' communities), low-income
communities, Tribal and indigenous populations, and communities in the
United States that potentially experience disproportionate health or
environmental harms and risks as a result of greater vulnerability to
environmental hazards. Sensitive populations (e.g., infants and
children, pregnant women, the elderly, individuals with disabilities
exacerbated by environmental hazards) may also be most affected by and
vulnerable to the impacts of the plan or plan revision depending on the
pollutants or other factors addressed by an EG. An example of greater
vulnerability to environmental hazards more generally is populations
lacking the resources and representation to combat the effects of
climate change, which could include populations exposed to greater
drought or flooding, or damaged crops, food, and water supplies.
Tribal communities or communities in neighboring states may also be
impacted by a state plan and, if so, should be identified as pertinent
stakeholders. In addition, to the extent a designated facility would
qualify for a less stringent standard through consideration of RULOF as
described in section III.E.8 of this preamble, the state, must identify
and engage with the communities most affected by and vulnerable to the
health and environmental impacts from the designated facility
considered in a state plan for RULOF provisions. The EPA expects that
the inclusion of the definitions of meaningful engagement and pertinent
stakeholders in subpart Ba provide the States specificity around the
meaningful engagement requirement while allowing for flexibility in the
implementation of such requirements.
The requirement for meaningful engagement will ensure that states
share relevant information with and solicit input from pertinent
stakeholders at critical junctures during plan development, which helps
ensure that a plan is adequately addressing the potential impacts to
public health and welfare that are the core concern of CAA section 111.
Meaningful engagement can provide valuable information regarding health
and welfare impacts experienced by the public (e.g., reoccurring
respiratory illness, missed work or school days due to illness
associated with pollution, and other impacts) and allow regulatory
authorities to explore additional options to improve public health and
welfare. Because the CAA section 111(d) program is designed to address
widely varying types of air pollutants that may have very different
types of impacts, from highly localized to regional or global, ensuring
fair and balanced participation among a broad set of pertinent
stakeholders is critical. Early engagement is especially important for
those stakeholders directly impacted by a particular state plan. In
particular, the processes for meaningful engagement must allow for fair
and balanced participation and must allow communities most affected by
and vulnerable to the impacts of a plan an opportunity to be informed
of and weigh in on that plan.
The EPA's authority for proposing to strengthen the public
participation provisions by requiring meaningful engagement is provided
by the authority of both CAA sections 111(d) and 301(a)(1). Under CAA
section 111(d), one of the EPA's obligations is to promulgate a process
``similar'' to that of CAA section 110 under which states submit plans
that implement emission reductions consistent with the BSER. CAA
section 110(a)(1) requires states to adopt and submit SIPs after
``reasonable notice and public hearings.'' The Act does not define what
constitutes ``reasonable notice and public hearings'' under CAA section
110, and therefore the EPA may reasonably interpret this requirement in
promulgating a process under which states submit state plans.
Subpart Ba currently includes certain requirements for notice and
public hearing under 40 CFR 60.23a(c) through (f). The notice
requirements include prominent advertisement to the public of the date,
time, and place of the public hearing, 30 days prior to the date of
such hearing, and the advertisement requirement may be satisfied
through the internet. Id. at (d). A state may choose to cancel a public
hearing if no request for one is received during the required
notification period.
The EPA recognizes that a fundamental purpose of the Act's notice
and public hearing requirements is for all affected members of the
public, and not just a particular subset, to participate in pollution
control planning processes that impact their health and welfare.\25\
Accordingly, in order for a meaningful opportunity for the public to
participate in hearings over CAA section 111(d) state plans, the notice
of such hearings must be reasonably adequate in its ability to reach
affected members of the public. Many states provide for notification of
public engagement through the internet, however there cannot be a
presumption that such notification is adequate in reaching all those
who are impacted by a CAA section 111(d) state plan and would

[[Page 79192]]

benefit the most from participating in a public hearing. For example,
data shows that as many as 30 million Americans do not have access to
broadband infrastructure that delivers even minimally sufficient
speeds, and that 25 percent of adults ages 65 and older report never
going online.\26\ Examples of prominent advertisement for a public
hearing, in addition to notice through the internet, may include notice
through newspapers, libraries, schools, hospitals, travel centers,
community centers, places of worship, gas stations, convenience stores,
casinos, smoke shops, Tribal Assistance for Needy Families offices,
Indian Health Services, clinics, and/or other community health and
social services as appropriate for the emission guideline addressed.
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\25\ Consistent with this principle of providing reasonable
notice under the CAA, under programs other than CAA section 111(d),
the EPA similarly requires states to provide specific notice to an
area affected by a particular proposed action. See, e.g., 40 CFR
51.161(b)(1) requiring specific notice for an area affected by a
state or local agency's analysis of the effect on air quality in the
context of the New Source Review program; 40 CFR 51.102(d)(2), (4),
and (5) requiring specific notice for an area affected by a CAA
section 110 SIP submission.
\26\ FACT SHEET: Biden-Harris Administration Mobilizes Resources
to Connect Tribal Nations to Reliable, High-Speed internet (December
22, 2021). <a href="https://www.whitehouse.gov/briefing-room/statements-releases/2021/12/22/fact-sheet-biden-harris-administration-mobilizes-resources-to-connect-tribal-nations-to-reliable-high-speed-internet/">https://www.whitehouse.gov/briefing-room/statements-releases/2021/12/22/fact-sheet-biden-harris-administration-mobilizes-resources-to-connect-tribal-nations-to-reliable-high-speed-internet/</a>; 7 percent of Americans don't use the internet. Who
are they? Pew Research Center (April 2, 2021), <a href="https://www.pewresearch.org/fact-tank/2021/04/02/7-of-americans-dont-use-the-internet-who-are-they/">https://www.pewresearch.org/fact-tank/2021/04/02/7-of-americans-dont-use-the-internet-who-are-they/</a>.
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Given the public health and welfare objectives of CAA section
111(d) in regulating specific existing sources, it is reasonable to
require meaningful engagement as part of the state plan development
public participation process in order to further these objectives.
Additionally, CAA section 301(a)(1) provides that the EPA is authorized
to prescribe such regulations ``as are necessary to carry out [its]
functions under [the CAA].'' The proposed meaningful engagement
requirement would effectuate the EPA's function under CAA section
111(d) in prescribing a process under which states submit plans to
implement the statutory directives of this section. Therefore, the EPA
is proposing additional meaningful engagement requirements in subpart
Ba to ensure that pertinent stakeholders have reasonable notice of
relevant information and the opportunity to participate in the state
plan development throughout the process.
During the state plan process, the EPA expects states to identify
the pertinent stakeholders, utilizing additional guidance that will be
provided by applicable EG. In particular, the EG will provide
information on impacts of designated pollutant emissions that EPA
expects will assist the states in the identification of their pertinent
stakeholders. As part of efforts to ensure meaningful engagement,
states will share information and solicit input on plan development and
on any accompanying assessments. This engagement will help ensure that
plans achieve the appropriate level of emission reductions, that
communities most affected by and vulnerable to the health and
environmental impacts from the designated facilities share in the
benefits of the state plan, and that these communities are protected
from being adversely impacted by the plan. In addition, the EPA
recognizes that emissions from the designated facilities could cross
state and/or Tribal borders, and therefore may affect communities in
neighboring states or Tribal lands. The EPA is soliciting comment on
the proposed definitions of pertinent stakeholders and of meaningful
engagement (Comment C-1) and on the proposed meaningful engagement
requirement (Comment C-2). The EPA is also soliciting comment on how
meaningful engagement should apply to pertinent stakeholders inside and
outside of the borders of the state that is developing a state plan,
for example if a state should coordinate with the neighboring state
and/or Tribes for outreach or directly contact the affected communities
(Comment C-3).
To ensure that a robust and meaningful public engagement process
occurs as the states develop their CAA section 111(d) plans, the EPA is
also proposing to amend the requirements in 40 CFR 60.27a(g) to include
as part of the completeness criteria the requirements for states to
demonstrate in their plan submittal how they provided meaningful
engagement with the pertinent stakeholders. The state would be required
to provide, in their plan submittal, evidence of meaningful engagement,
including a list of the pertinent stakeholders, a summary of engagement
conducted, and a summary of the stakeholder input provided. The EPA
would evaluate the states' demonstrations regarding meaningful public
engagement as part of its completeness evaluation of a state plan
submittal. If a state plan submission does not meet the required
elements for notice and opportunity for public participation, including
requirements for meaningful engagement, this may be grounds for the EPA
to find the submission incomplete or to disapprove the plan. The EPA is
soliciting comment on the proposed inclusion of meaningful engagement
in completeness criteria for state plan submission, (Comment C-4), as
well as requesting examples or models of meaningful engagement
performed by states, including best practices and challenges (Comment
C-5).
The EPA further notes that the implementing regulations allow a
state to request the approval of different state procedures for public
participation pursuant 40 CFR 60.23a(h). The EPA proposes to require
that such alternate state procedures do not supersede the meaningful
engagement requirements, so that a state would still be required to
comply with the meaningful participation requirements even if they
apply for a different procedure than the other public notice and
hearing requirements under 40 CFR 60.23a. The EPA is also proposing
under 40 CFR 60.23a(i)(1) that states may apply for, and the EPA may
approve, alternate meaningful engagement procedures if, in the
judgement of the Administrator, the procedures, although different from
the requirements of this subpart, in fact provide for adequate notice
to and meaningful participation of the public. The EPA is soliciting
comment on the distinction between request for approval of alternate
state procedures to meet public notice and hearing requirements from
those to meet meaningful engagement, and comment on the consideration
of request for approval of alternate meaningful engagement procedures
(Comment C-6).

D. Regulatory Mechanisms for State Plan Implementation

CAA section 111(d)(1) requires the EPA to promulgate regulations
that establish a procedure ``similar'' to that provided by CAA section
110 for each state to ``submit to [the EPA] a state plan which . . .
establishes standards of performance . . . and . . . provides for the
implementation and enforcement of such standards.'' The EPA reasonably
interprets this provision, particularly the ``similar'' clause, as
referring to all the procedural provisions provided in CAA section 110
which serve the same purposes of providing useful flexibilities for
states' and EPA's actions that help ensure emission reductions are
appropriately and timely implemented.
The EPA is proposing to incorporate five regulatory mechanisms as
amendments to the implementing regulations under 40 CFR part 60,
subpart Ba, governing the processes under which states submit plans and
the EPA acts on those plans. The regulatory mechanisms that are being
proposed in this action include: (1) partial approval and disapproval
of state plans by the EPA; (2) conditional approval of state plans by
the EPA; (3) parallel processing of plans by the EPA and states; (4) a
mechanism for a state plan call by the EPA of previously approved state
plan revisions; and (5) an error correction mechanism for the EPA to
revise its

[[Page 79193]]

prior action on a state plan.\27\ These mechanisms update the
implementing regulations to better align with the flexible procedural
tools that Congress added into section 110 of the CAA in the 1990
Amendments. The EPA is proposing to adopt and incorporate the
mechanisms into subpart Ba as the EPA has interpreted and applied them
in the context of CAA section 110.
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\27\ These regulatory mechanisms were proposed to be added to
subpart B in 2015 and largely received support from states, the
public, and stakeholders, but were never finalized. 80 FR 64965
(October 23, 2015).
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The interpretation that CAA section 111(d)(1) authorizes the EPA to
adopt procedures ``similar'' to those under CAA section 110 for the
overall state plan process, and not just the initial plan submission
process, is strengthened by the provisions in CAA section 111(d)(2),
which provide that the EPA has the ``same'' authority to enforce state
plan requirements as it does for SIPs under CAA sections 113 and 114,
and to promulgate a Federal plan for a state that has failed to submit
a satisfactory plan, as under CAA section 110(c). This is because, read
together, CAA section 111(d)(1) and (2) provide the set of essential
procedural requirements for state and Federal plans that generally
reflect the essential procedural requirements for SIPs and FIPs in
section 110.\28\ In that context, it is reasonable to read CAA section
111(d)(1) as authorizing the EPA to promulgate procedures for section
111(d) that are comparable to CAA section 110 procedures for the
overall state plan process, which is associated with those
requirements.
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\28\ Compare CAA section 111(d)(1) (requiring states to submit
state plans that include specified types of measures that, in turn,
meet minimum EPA requirements) and section 111(d)(2) (indicating
that the EPA must review and approve or disapprove state plans,
requiring the EPA to promulgate a Federal plan if the state does not
submit a satisfactory plan, authorizing the EPA to enforce state
plan measures) with section 110(a)(1)-(2) (requiring states to
submit SIPs that include specified types of measures that in turn
meet minimum EPA requirements), section 110(k) (requiring the EPA to
review and approve or disapprove SIPs), section 110(c) (requiring
the EPA to promulgate a FIP if the state does not submit a plan or
the EPA disapproves the state plan) and 113(a)(1) (authorizing the
EPA to enforce SIP measures).
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The availability of these five regulatory mechanisms would
streamline the state plan review and approval process, accommodate
variable state processes, facilitate cooperative federalism, further
protect public health and welfare, and generally enhance the
implementation of the CAA section 111(d) program. Together, these
mechanisms provide greater flexibility, reduce processing time, and
have proven to be very useful tools for the review and processing of
CAA section 110 SIPs. The EPA is seeking comment from all stakeholders
on the incorporation of these five proposed mechanisms into subpart Ba
(Comment D-1).
1. Partial Approval and Disapproval
The EPA is proposing a provision similar to that under CAA section
110(k)(3) for the EPA to partially approve and partially disapprove
severable portions of a state plan submitted under CAA section 111(d).
Under CAA section 110(k)(3), ``[i]f a portion of the plan revision
meets all the applicable requirements of this chapter, the
Administrator may approve the plan revision in part and disapprove the
plan revision in part. The plan revision shall not be treated as
meeting the requirements of this chapter until the Administrator
approves the entire plan revision as complying with the applicable
requirements of this chapter.'' Subpart Ba currently authorizes the EPA
to ``approve or disapprove [the state] plan or revision or each portion
thereof.'' (40 CFR 60.27a(b)). The EPA proposes to revise this
provision so that it is similar to CAA section 110(k)(3), providing
clarity on the EPA's authority to partially approve plans and the
circumstances under which it may be used.
Pursuant to this proposal, the EPA may partially approve or
partially disapprove a state plan when portions of the plan are
approvable, but a discrete, severable portion is not. In such cases,
the purposes of a CAA section 111(d) EG would be better served by
allowing the state to move forward with implementing those portions of
the plan that are approvable, rather than to disapprove the full plan.
This mechanism is consistent with the ALA decision's emphasis on
ensuring timely mitigation of harms to public health and welfare, as
problematic parts of a state plan submission would not stall the
implementation of emission reductions at designated facilities for
which a portion of a plan could be approved, thus efficiently reducing
the time from EG promulgation to implementation of emission reductions
at those facilities.
As proposed, the portion of a state plan that the EPA may partially
approve must be ``severable.'' A portion is severable when: (1) the
approvable portion of the plan does not depend on or affect the portion
of the plan that cannot be approved, and (2) approving a portion of the
plan without approving the remainder does not alter the approved
portion of a state plan in any way that renders it more stringent than
the state's intent. See Bethlehem Steel v. Gorsuch, 742 F.2d 1028, 1034
(7th Cir. 1984). The EPA's proposed decision to partially approve and
partially disapprove a plan must go through notice and comment
rulemaking. As a result, the public will have an opportunity to submit
comment on the appropriateness and legal application of this mechanism
on a particular state plan submission. A partial disapproval of a plan
submission would have the same legal effect as a full disapproval for
purposes of the EPA's authority under CAA section 111(d)(2)(A) to
promulgate, for the partially disapproved portion of the plan, a
Federal plan for the state. See section III.A.4 of this preamble for
proposed timelines for promulgation of a Federal plan. If the EPA does
promulgate a Federal plan for a partially disapproved portion, the
state may, at any time, submit a revised plan to replace that portion.
If the state does so, and the EPA approves the revised plan, then the
EPA would withdraw the Federal plan for that state.
This partial approval/disapproval mechanism also enables states to
submit, and authorizes the EPA to approve or disapprove, state plans
that are partial in nature and to address only certain elements of a
broader program. For example, with this mechanism, states would be able
to submit partial plans intended to replace discrete portions of a
Federal plan, where appropriate. As proposed, partial submittals must
meet all completeness criteria.
The EPA is soliciting comment on the reasonableness and
appropriateness of this proposed partial approval/disapproval mechanism
as described in this section (Comment D1-1).
2. Conditional Approval
The EPA is proposing a mechanism analogous to the authority under
CAA section 110(k)(4) to grant the EPA the ability to conditionally
approve a state plan under CAA section 111(d). Under CAA section
110(k)(4), ``[t]he Administrator may approve a plan revision based on a
commitment of the State to adopt specific enforceable measures by a
date certain, but not later than 1 year after the date of approval of
the plan revision. Any such conditional approval shall be treated as a
disapproval if the State fails to comply with such commitment.'' This
provision authorizes the EPA to conditionally approve a plan submission
that substantially meets the requirements of an EG but that requires
some additional, specified revisions to be fully

[[Page 79194]]

approvable. For the EPA to conditionally approve a submission, the
state Governor or their designee must commit to adopt and submit
specific enforceable provisions to remedy the stipulated plan
deficiency. The provisions required to be submitted by the state
pursuant to a conditional approval would be treated as an obligation to
submit a plan revision and be subject to the same processes and
timeframes for the EPA action as other plan revisions (e.g.,
completeness determination, approval and/or disapproval). The EPA
proposes that the state be required to commit to adopt and submit the
necessary revisions to the EPA no later than 1 year from the effective
date of the conditional approval.
As proposed, if the state fails to meet its commitment to submit
the measures within 1 year, the conditional approval automatically
converts to a disapproval. If a conditionally approved state plan
converts to a disapproval due to either the failure of the state to
submit the required measures or if the EPA finds the submitted measures
to be unsatisfactory, such disapproval would be grounds for
implementation of a Federal plan under CAA section 111(d)(2)(A). The
EPA will publish a notice in the Federal Register and, if appropriate,
on the public website established for the EG notifying the public that
the conditional approval is converted to a disapproval. As described in
section III.A.4 of this preamble, the EPA will promulgate a Federal
plan within 12 months of state's failure to submit the required
measures or the EPA's disapproval of measures submitted to address the
conditional approval.
Incorporating this mechanism under the implementing regulations for
CAA section 111(d) would have the benefit of allowing a state with a
substantially complete and approvable program to begin implementing it,
while also promptly making specific changes that ensure it fully meets
the requirements of CAA section 111(d) and of the applicable EGs.
The EPA solicits comment on this proposed mechanism, including the
timeframe for state adoption and submission of revisions to address the
deficiencies that serve as the basis for the conditional approval
(Comment D2-1), and the process and timing for promulgating a Federal
plan if approvable revisions are not submitted (Comment D2-2).
3. Parallel Processing
The EPA is proposing to include a mechanism similar to that for
SIPs under 40 CFR part 51 appendix V, section 2.3.1., for parallel
processing a plan that does not meet all of the administrative
completeness criteria under 40 CFR 60.27a(g)(2). This streamlined
process allows the EPA to propose approval of such a plan in parallel
with the state completing its process to fully adopt the plan in
accordance with the required administrative completeness criteria, and
then allows the EPA to finalize approval once those criteria have been
fully satisfied.
In order to parallel process a plan, the EPA proposes to require
that the state must meet the following requirements. The state must
submit the proposed plan with a letter requesting the EPA propose
approval through parallel processing in lieu of the letter required
under 40 CFR 60.27a(g)(2)(i). Further, a state would be temporarily
exempt from the administrative completeness criteria as defined by 40
CFR 60.27a(g)(2) regarding legal adoption of the plan (40 CFR
60.27a(g)(2)(ii) and (v)) and from public participation criteria (40
CFR 60.27a(g)(2)(vi), (vii), and (viii)), including the meaningful
engagement criteria proposed in this action (see III.C of this preamble
above, proposed at 40 CFR 60.27a(g)(2)(ix)), as appropriate. However,
as with parallel processing for SIPs under 40 CFR part 51 appendix V,
the EPA proposes to require that, in lieu of these administrative
criteria, the state must include a schedule for final adoption or
issuance of the plan and a copy of the proposed/draft regulation or the
document indicating the proposed changes to be made, where applicable.
Note that a proposed plan submitted for parallel processing must still
meet all the criteria for technical completeness as defined by 40 CFR
60.27a(g)(3) and meet all other administrative completeness criteria as
defined by 40 CFR 60.27a(g)(2). If these conditions are met, the
submitted plan may be considered for purposes of the EPA's initial plan
evaluation and proposed rulemaking action.
The exceptions to the administrative criteria described above only
apply to the EPA's proposed action. If the EPA has proposed approval
through parallel processing, the state must still submit a fully
adopted and final plan that meets all of the completeness criteria
under 40 CFR 60.27a(g) before the EPA can finalize its approval,
including the requirements for legal adoption and public engagement. If
the state finalizes and submits to the EPA a plan that includes changes
from the plan the EPA has proposed for approval under parallel
processing, the EPA will evaluate those changes for significance. If
any such changes are found by the EPA to be significant (e.g., changes
to the stringency or applicability of a particular standard of
performance), then the state submittal would be treated as an initial
submission and the EPA would be required to re-propose its action on
the final plan and to provide an opportunity for public comment.
Note further that once the state plan submission deadline passes,
the EPA retains the authority to initiate development of a Federal plan
at any time for a state that has not submitted a complete plan, even if
a state has requested parallel processing and the EPA has proposed an
action. The EPA intends to continue working collaboratively with states
who are in the process of adopting and submitting state plans but notes
that states must remain mindful of regulatory deadlines for CAA section
111(d) plan submissions even when seeking to use the parallel
processing mechanism.
The EPA is requesting comment on the reasonableness of its proposal
to add a parallel processing mechanism to subpart Ba (Comment D3-1),
including the conditions under which a state may request parallel
processing (Comment D3-2) and the conditions under which the EPA may
allow for parallel processing (Comment D3-3).
4. State Plan Call
Under CAA section 110(k)(5), the EPA may call for a revision of a
state plan ``[w]henever the Administrator finds that the . . . plan . .
. is substantially inadequate to . . . comply with any requirement of
[the Act].'' The EPA is proposing to add a mechanism analogous to this
``SIP call'' provision to subpart Ba under CAA section 111(d) which
would authorize the EPA to find that a previously approved state plan
does not meet the applicable requirements of the CAA or of the relevant
EG and to call for a plan revision. This mechanism is a useful tool for
ensuring that state plans continue to meet the requirements of the EGs
and of the CAA over time. This is particularly important because EGs
that achieve emission reductions from specific source categories may be
implemented over many years.
The proposed state plan call mechanism would permit EPA to require
a state to submit a revised state plan whenever it finds an approved
CAA section 111(d) plan is ``substantially inadequate'' to comply with
applicable requirements of the statute, the implementing regulations,
and/or the applicable EG. The EPA finds that a plan call would be
generally appropriate under two circumstances.

[[Page 79195]]

The first is when legal or technical conditions arise after the EPA's
approval of a state plan that undermines the basis for the approval.
Under these conditions, the approved plan could be considered
substantially inadequate and require revision to align with current
conditions. For example, a court decision subsequent to the approval of
a plan may render that plan substantially inadequate to meet applicable
requirements resulting from the change in law.\29\ Additionally, the
EPA may determine that technical conditions, such as design
assumptions, about control measures that were the basis for a state
plan approval later prove to be inaccurate, meaning that the plan would
be substantially inadequate to achieve the emission reductions required
by the EG and therefore the plan should be revised.\30\ In response to
a state plan call under such legal or technical circumstances, a state
would be required to submit a plan revision so that the state plan is
substantially adequate to meet applicable requirements, such as by
updating a provision affected by a court decision or by revising
control measures to achieve the required emission reductions.
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\29\ An example of this circumstance in the context of CAA
section 110 is the 2015 ``SSM SIP Call'', which required states to
correct previously approved SIP provisions based on subsequent court
decisions regarding startup, shutdown, and malfunctions (SSM)
operations. 80 FR 33840, June 12, 2015.
\30\ For example, the 1998 ``NO<INF>X</INF> SIP call'' required
states to submit SIP revisions addressing NO<INF>X</INF> emissions
found, after SIP approvals, to significantly impact the attainment
of air quality standards in other states due to atmospheric
transport. 63 FR 57356, October 27, 1998.
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The second circumstance under which the EPA could apply the state
plan call mechanism is when a state fails to adequately implement an
approved state plan. In this case, the approved state plan facially
meets all applicable requirements, but a failure in implementation
(e.g., due to changes in available funding, resources, or legal
authority at the state level) renders the plan substantially inadequate
to meet the requirements of the EG and CAA section 111(d). In this
circumstance, a state, in response to a plan call, would either be
required to submit a plan revision that aligns with the state's actual
implementation of the plan or to provide demonstration that the plan is
being adequately implemented as approved.
Under the proposed state plan call provision, consistent with the
SIP call process under CAA section 110(k)(5), after the EPA finds that
a state's approved section 111(d) plan is substantially inadequate to
comply with applicable requirements, the EPA shall publish notice of
its finding in the Federal Register. The plan call notice will identify
the plan inadequacies leading to the plan call and establish reasonable
deadlines for submission of plan revisions and/or for demonstration of
appropriate implementation of the approved plan.\31\
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\31\ If the EPA has promulgated a Federal plan to implement an
EG that does not contain the deficiency, a potential corrective
action could include a plan revision to adopt the Federal plan.
---------------------------------------------------------------------------

The EPA is further proposing to require that any deadline it
establishes for the submission of a state plan revision shall not
exceed 12 months after the date of the call for plan revisions. The EPA
proposes to determine that, while this period is less than the time
allotted for the submission of a full state plan (proposed in III.A.1
of this preamble above as 15 months), it provides a reasonable
timeframe for public outreach and state processes while ensuring the
deficiency is expeditiously corrected to address any outstanding public
health and welfare concerns associated with a deficient plan,
consistent with the ALA decision. The deadline for submission of state
plan revisions to address the identified inadequacies will start when
notice of the action is published in the Federal Register.
Any failure of a state to submit necessary revisions by the date
set in the call for state plan revisions constitutes a failure to
submit a required plan submission. Therefore, pursuant to CAA section
111(d)(2)(A), the EPA would have the authority to promulgate a Federal
plan for the state within 12 months, as proposed in section III.A.4 of
this preamble, after the necessary revisions are due. If the state
fails to submit a plan revision, to make an adequate demonstration
within the prescribed time, or if the EPA disapproves a submission,
then the EPA will promulgate a Federal plan addressing the deficiency
for sources within that state.\32\
---------------------------------------------------------------------------

\32\ If the EPA has promulgated a Federal plan to implement an
EG that does not contain the deficiency, the EPA could apply the
existing Federal plan to the state if appropriate.
---------------------------------------------------------------------------

The EPA solicits comment on the proposed state plan call mechanism
as described in this section (Comment D4-1), including the
circumstances of use (Comment D4-2), the process of notification
(Comment D4-3), and the proposed maximum deadline for submission of
plan revisions (Comment D4-4).
5. Error Correction
Under CAA section 110(k)(6), the EPA may, on its own, revise its
prior action on a state plan under certain circumstances: ``[w]henever
the Administrator determines that the Administrator's action approving,
disapproving, or promulgating any plan or plan revision (or part
thereof) . . . was in error, the Administrator may in the same manner
as the approval, disapproval, or promulgation revise such action as
appropriate without requiring any further submission from the State.''
The EPA is proposing to add a mechanism analogous to this `error
correction' provision to subpart Ba under CAA section 111(d).
This error correction provision would authorize the EPA to revise
its prior action when the EPA determines its own action on the state
plan was in error. Specifically, this provision would allow the EPA to
revise its prior action in the same manner as used for the original
action (e.g., through rulemaking) without requiring any further
submissions from the state. In this manner, the proposed error
correction mechanism does away with unnecessary burdens on states to
respond to an error made by the EPA, such as submitting a plan revision
and the public participation related requirements under 40 CFR 60.23a
(e.g., providing notice and holding a public hearing).
CAA section 110(k)(6) is phrased broadly, and its legislative
history makes clear that it ``explicitly authorizes EPA on its own
motion to make a determination to correct any errors it may make in
taking any action, such as . . . approving or disapproving any plan.''
See House Report No. 101-490 at 220. The circumstances that may give
rise to an error that the EPA may correct with this mechanism depend on
the specific facts and plan at issue, and the use of the mechanism is
more appropriately justified on a case-by-case basis. The EPA has
previously used CAA section 110(k)(6) for correction of technical or
clerical errors,\33\ for removal of substantive provisions from an EPA-
approved state plan that did not relate to attainment of the NAAQS or
other CAA program,\34\ and when EPA, in error and without knowledge,
approved a SIP that did not meet applicable requirements at the time of

[[Page 79196]]

approval.\35\ These examples are not the only circumstances when the
EPA has used CAA section 110(k)(6) in the past and do not limit the EPA
for circumstances of error correction under section 111(d) in the
future.
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\33\ For example, see 74 FR 57051, November 3, 2009, for
correction of clerical and typographical errors in a portion of an
Arizona SIP.
\34\ For example, see 85 FR 73636, November 19, 2020, for
removal of an air pollution nuisance rule from an Ohio SIP and 86 FR
24505, May 7, 2021, for removal of asbestos requirements from a
Kentucky SIP.
\35\ For example, see 86 FR 23054, April 30, 2021, for error
correction with respect to Kentucky's ``good neighbor obligations''
and SIP disapproval.
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While the EPA maintains that this proposed error mechanism would be
available for acting on state plans when appropriate, the EPA expects
that it will work with states, as it has done previously in the SIP
context, to correct any deficiencies in their plans. The EPA is
soliciting comment on this error correction mechanism (Comment D5-1)
and the conditions under which it may be applied (Comment D5-2). The
EPA is seeking comment on these five proposed mechanisms from all
stakeholders.

E. Remaining Useful Life and Other Factors (RULOF) Provisions

The EPA is proposing revisions to 40 CFR 60.24a(e) in order to
provide clear requirements for the consideration of RULOF in state
plans that propose to set a less stringent standard for a particular
source.\36\ This provision currently allows states to consider RULOF to
apply a less stringent standard of performance for a designated
facility or class of facilities if they demonstrate one of the three
following circumstances: unreasonable cost of control resulting from
plant age, location, or basic process design; physical impossibility of
installing necessary control equipment; or other factors specific to
the facility (or class of facilities) that make application of a less
stringent standard or final compliance time significantly more
reasonable. The implementing regulations also specify that, absent such
a demonstration, the state's standards of performance must be ``no less
stringent than the corresponding'' EG. 40 CFR 60.24a(c). This proposal
would largely retain this provision, including the three circumstances
under which a less stringent standard of performance may be applied,
and provide further clarification of what a state must demonstrate in
order to invoke RULOF when submitting a state plan. Specifically, the
proposal would require the state to demonstrate that a particular
facility cannot reasonably achieve the degree of emission limitation
achievable through application of the BSER, based on one or more of the
three circumstances. The EPA is also proposing to clarify the third
circumstance by specifying that a state may apply a less stringent
standard if the state demonstrates, to the EPA's satisfaction, that
factors specific to the facility are fundamentally different than those
considered by the EPA in determining the BSER.
---------------------------------------------------------------------------

\36\ The court's vacatur in ALA did not impact 40 CFR 60.24a(e).
---------------------------------------------------------------------------

Section III.E.1 of this preamble describes the statutory and
regulatory background, and section III.E.2 of this preamble explains
the agency's rationale for its revisions. Sections III.E.3-8 of this
preamble describe further proposed additions to the RULOF provision in
cases where states seek to apply a standard that is less stringent than
the degree of emission limitation achievable through application of the
BSER. These proposed additions include requirements for the calculation
of a less stringent standard, contingency requirements in cases where
an operating condition is the basis for RULOF, and the consideration of
impacted communities. Finally, section III.E.9 of this preamble
describes proposed revisions to address cases where states seek to
apply a more stringent standard.
1. Statutory and Regulatory Background
Under CAA section 111(d), the EPA is required to promulgate
regulations under which states submit plans establishing standards of
performance for designated facilities. While states establish the
standards of performance, there is a fundamental obligation under CAA
section 111(d) that such standards reflect the degree of emission
limitation achievable through the application of the BSER, as
determined by the EPA. As previously described, this obligation derives
from the definition of ``standard of performance'' under CAA section
111(a)(1). The EPA identifies the degree of emission limitation
achievable through application of the BSER as part of its EG. 40 CFR
60.22a(b)(5). While standards of performance must generally reflect the
degree of emission limitation achievable through application of the
BSER, CAA section 111(d)(1) also requires that the EPA regulations
permit the states, in applying a standard of performance to a
particular designated facility, to take into account the designated
facility's RULOF.
The 1970 version of CAA section 111(d) made no reference to the
consideration of RULOF in the context of standards for existing
sources. In the 1975 regulations promulgating subpart B, however, the
EPA included a so-called variance provision. For health-based
pollutants, states could apply a standard of performance less stringent
than the EPA's EGs based on cost, physical impossibility, and other
factors specific to a designated facility that make the application of
a less stringent standard significantly more reasonable. 40 CFR
60.24(f). For welfare-based pollutants, states could apply a less
stringent standard by balancing the requirements of an EG ``against
other factors of public concern.'' 40 CFR 60.24(d). As part of the 1977
CAA amendments, Congress amended CAA section 111(d)(1) to require that
the EPA's regulations under this section ``shall permit the State in
applying a standard of performance to any particular source under a
plan submitted under this paragraph to take into consideration, among
other factors, the remaining useful life of the existing source to
which such standard applies.'' At the time, the EPA considered the
variance provision under subpart B to meet this requirement and did not
revise the provision subsequent to the 1977 CAA amendments until
promulgating new implementing regulations in 2019 under subpart Ba. As
part of the 2019 revisions, the EPA removed the health and welfare-
based pollutants distinction and collapsed the associated requirements
of the previous variance provision into a single, new RULOF provision.
40 CFR 60.24a(e).\37\
---------------------------------------------------------------------------

\37\ Petitioners did not challenge, and the court in ALA did not
vacate, the new RULOF provision under 40 CFR 60.24a(e).
---------------------------------------------------------------------------

2. Rationale for the Proposed Revisions
As previously described, the statute expressly requires the EPA to
permit states to consider RULOF for a particular designated facility
when applying a standard of performance to that facility. The
consideration of remaining useful life in particular can be an
important consideration, as the cost of control for a specific
designated facility that is expected to cease operations in the near
term could significantly vary from the average cost calculations done
as part of the BSER determination for the source category as a whole.
In such an instance, and in others as described throughout section
III.E of this preamble, a less stringent standard may be justifiable in
lieu of a standard of performance that reflects the presumptive level
of stringency. However, as currently written, the RULOF provision in
subpart Ba does not provide clear parameters for states on how and when
to apply a standard less stringent than the presumptive level of
stringency given in an EG to a particular source.
As written, the references to reasonableness in this provision are
potentially subject to widely differing interpretations and
inconsistent

[[Page 79197]]

application among states developing plans, and by the EPA in reviewing
them. Without a clear analytical framework for applying RULOF, the
current provision may be used by states to set less stringent standards
such that they could effectively undermine the overall presumptive
level of stringency envisioned by the EPA's BSER determination and
render it meaningless. Such a result is contrary to the overarching
purpose of CAA section 111(d), which is generally to require meaningful
emission reductions from designated facilities based on the BSER in
order to mitigate pollution which endangers public health or welfare.
Additionally, while states have discretion to consider RULOF under
CAA section 111(d), it is the EPA's responsibility to determine whether
a state plan is ``satisfactory,'' \38\ which includes evaluating
whether RULOF was appropriately considered. The relevant dictionary
meaning of ``satisfactory'' is ``fulfilling all demands or
requirements.'' The American College Dictionary (``ACD'') 1078 (C.L.
Barnhart, ed. 1970). In addition to the requirements of the applicable
emission guideline, state plans must be consistent with the underlying
statutory purpose of mitigating the air pollution emissions which
endanger public health or welfare. Thus, the most reasonable
interpretation of a ``satisfactory plan'' is a CAA section 111(d) plan
that meets the applicable conditions or requirements, which means that
the EPA must assess a state's application of RULOF to determine whether
it meets the regulatory requirements and whether the state employed
RULOF in a manner that supports the statutory purpose. That is, the EPA
must determine both whether the plan meets the requirements of the
particular emission guideline, as well as meets the requirements of the
implementing regulations that the EPA is directed to promulgate
pursuant to CAA section 111(d).\39\
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\38\ CAA section 111(d)(2)(A) authorizes the EPA to promulgate a
Federal plan for any state that ``fails to submit a satisfactory
plan'' establishing standards of performance under section
111(d)(1). Accordingly, the EPA interprets ``satisfactory'' as the
standard by which the EPA reviews state plan submissions.
\39\ Although there is no case law specifically on the standard
of review of a section 111(d)(1) state plan or the EPA's duty to
approve satisfactory plans, the EPA's action on a 111(d)(1) state
plan is structurally identical to the EPA's action on a SIP. Under
section 110(k)(3), EPA must approve a SIP that meets all
requirements of the Act. See Train v. NRDC, 421 U.S. 60 (1975)
(discussing the 1970 version of the Act); Virginia v. EPA, 108 F.3d
1397, 1408-10 (D.C. Cir. 1995) (discussing the 1970, 1977, and 1990
versions).
---------------------------------------------------------------------------

The EPA's determination of whether each plan is ``satisfactory'',
including the application of RULOF, must be generally consistent from
one plan to another. If the states do not have clear parameters for how
to consider RULOF when applying a standard of performance to a
designated facility, then they face the risk of submitting plans that
the EPA may not be able to consistently approve as satisfactory. For
example, under the current broadly structured provision, two states
could consider RULOF for two identically situated designated facilities
and apply completely different standards of performance on the basis of
the same factors. In this example, it may be difficult for the EPA to
substantiate finding both plans satisfactory in a consistent manner,
and the states and sources risk uncertainty as to whether each of the
differing standards of performance would be approvable. Accordingly,
providing a clear analytical framework for the invocation of RULOF will
provide regulatory certainty for states and the regulated community as
they seek to craft satisfactory plans that EPA can ultimately approve.
Notably, CAA section 111(d) does not require states to consider
RULOF, but rather requires that the EPA's regulations ``permit'' states
to do so. In other words, the EPA must provide states with the ability
to account for RULOF, but states may instead choose to establish a
standard of performance that is the same as the presumptive level of
stringency set forth in the EGs. The optionality, rather than mandate,
for states to account for RULOF further supports the notion that this
provision is not intended to undermine the presumptive level of
stringency in an EG for the source category broadly. The EPA is not
aware of any CAA section 111(d) EGs under which an EPA-approved state
plan has previously considered RULOF to apply a standard of performance
that deviates from the presumptive level of stringency. Clarifying
parameters may better enable states to effectively use this provision
in developing their state plans without undermining the overall purpose
of CAA section 111 to mitigate pollution which endangers public health
or welfare.
For these reasons, the EPA is proposing to revise the RULOF
provision under subpart Ba, consistent with the statutory construct and
goals of CAA section 111(d), in order to provide states and sources
with clarity regarding the requirements that apply to the development
and approvability of state plans that consider RULOF when applying a
standard of performance to a particular designated facility. The
following describes the guiding principles for the EPA's proposed
revisions.
CAA section 111(a)(1) requires that the EPA determine the BSER is
``adequately demonstrated'' for the regulated source category. In
determining whether a given system of emission reduction qualifies as
BSER, CAA section 111(a)(1) requires that the EPA take into account
``the cost of achieving such reduction and any non-air quality health
and environmental impact and energy requirements.'' The EPA's proposed
revisions to clarify the RULOF provision do so by tethering the states'
RULOF demonstration to the statutory factors the EPA considered in the
BSER determination. This is appropriate under the statute because the
EPA will have demonstrated that the BSER identified in the EG is
``adequately demonstrated'' as achievable for sources broadly within
the source category. Therefore, RULOF is appropriately applied to
permit states to address instances where the application of the BSER
factors to a particular designated facility is fundamentally different
than the determinations made to support the BSER and presumptive level
of stringency in the EG. For example, the D.C. Circuit has stated that
to be ``adequately demonstrated,'' the system must be ``reasonably
reliable, reasonably efficient, and . . . reasonably expected to serve
the interests of pollution control without becoming exorbitantly costly
in an economic or environmental way.'' Essex Chem. Corp. v.
Ruckelshaus, 486 F.2d 427, 433 (D.C. Cir. 1973). The court has further
stated that the EPA may not adopt a standard in evaluating cost that
would be ``exorbitant,'' \40\ ``greater than the industry could bear
and survive,'' \41\ ``excessive,'' \42\ or ``unreasonable.'' \43\ These
formulations use reasonableness in light of the statutory factors as
the standard in evaluating cost, so that a control technology may be
considered the ``best system of emission reduction . . . adequately
demonstrated'' if its costs are reasonable (i.e., not exorbitant,
excessive, or greater than the industry can bear), but cannot be
considered the BSER if its costs are unreasonable. Similarly, in making
the BSER

[[Page 79198]]

determination, the EPA must evaluate whether a system of emission
reduction is ``adequately demonstrated'' for the source category based
on the physical possibility and technical feasibility of control. Under
this construct, it naturally follows that most designated facilities
within the source category should be able to implement the BSER at a
reasonable cost to achieve the presumptive level of stringency, and
that RULOF will be justifiable only for a subset of sources for which
implementing the BSER would impose unreasonable costs or not be
feasible due to unusual circumstances that are not applicable to the
broader source category that the EPA considered when determining the
BSER.\44\
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\40\ Lignite Energy Council v. EPA, 198 F.3d 930, 933 (D.C. Cir.
1999).
\41\ Portland Cement Ass'n v. EPA, 513 F.2d 506, 508 (D.C. Cir.
1975).
\42\ Sierra Club v. Costle, 657 F.2d 298, 343 (D.C. Cir. 1981).
\43\ Sierra Club v. Costle, 657 F.2d 298, 343 (D.C. Cir. 1981).
\44\ This construct is also supported by CAA section 111(d) use
of the term ``establishing'' in directing states to create and set
standards of performance. As previously described, ``standard of
performance'' is defined under CAA section 111(a)(1) as reflecting
the degree of emission limitation achievable through application of
the BSER, which sets the initial parameters for development of the
standards of performance by states. The statute does not provide
that states may account for RULOF in ``establishing'' standards of
performance in the first instance, but permits states to do so in
``applying'' such standards to a particular source.
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The proposed revisions to the regulatory RULOF provision, as
described in section III.E. 3-8 of this preamble, are also consistent
with how the EPA has approached RULOF in the implementing regulations
previously. Subparts B and Ba both currently contain the same three
circumstances for when states may account for RULOF, and reasonableness
in light of the statutory criteria is an element of all three
circumstances. Under those subparts as currently written, states may
consider RULOF if they can demonstrate unreasonable cost of control,
physical impossibility of control, or other factors that make
application of a less stringent standard ``significantly more
reasonable.'' 40 CFR 60.24(f) and 60.24a(e). The EPA's proposal retains
the first circumstance in whole and revises the second one to add
``technical infeasibility'' of installing a control as a situation
where application of consideration of RULOF may be appropriate. The
proposal further clarifies the third catch-all circumstance, which the
first two circumstances also fall under, by specifying that states may
consider RULOF to apply a less stringent standard if factors specific
to a facility are fundamentally different from the factors considered
in the determination of the BSER in an EG. The proposed clarification
of this third criteria provides parameters for states and the EPA in
developing and assessing state plans, as this criteria was previously
vague and potentially open-ended as to the circumstances under which
states could consider RULOF.
The ``fundamentally different'' standard, which undergirds all
three circumstances, is also consistent with other variance provisions
that courts have upheld for environmental statutes. For example, in
Weyerhaeuser Co. v. Costle, 590 F.2d 1011 (D.C. Cir. 1978), the court
considered a regulatory provision promulgated under the Clean Water Act
(CWA) that permitted owners to seek a variance from the EPA's national
effluent limitation guidelines under CWA sections 301(b)(1)(A) and
304(b)(1). The EPA's regulation permitted a variance where an
individual operator demonstrates a ``fundamental difference'' between a
CWA section 304(b)(1)(B) factor at its facility and the EPA's
regulatory findings about the factor ``on a national basis.'' Id. at
1039. The court upheld this standard as ensuring a meaningful
opportunity for an operator to seek dispensation from a limitation that
would demand more of the individual facility than of the industry
generally, but also noted that such a provision is not a license for
avoidance of the Act's strict pollution control requirements. Id. at
1035.
For the reasons described in this section, the EPA is proposing to
clarify the existing RULOF provision under 40 CFR 60.24a(e) by: (1)
revising the threshold requirements for consideration of RULOF; (2)
adding requirements for calculating a less stringent standard
accounting for RULOF; (3) adding requirements for consideration of
communities most affected by and vulnerable to the health and
environmental impacts from the designated facilities being addressed;
and (4) adding requirements for the types of information and evidence
the states must provide to support the invocation of RULOF in a state
plan. The EPA solicits comment on the proposed revisions described in
the following sections (Comment E2-1), including the use of the BSER
factors as a framework governing the invocation and application of the
RULOF provision (Comment E2-2). The EPA notes a specific EG may provide
additional requirements or supersede the requirements of the
implementing regulations. 40 CFR 60.20a(a)(1). This extends to any
requirements of the RULOF provision, as the EPA cannot necessarily
anticipate the appropriate and potentially unique implementation needs
for every future EG. The EPA solicits comment on the circumstances
under which it would be appropriate for an EG to provide additional
requirements or supersede the requirements of these proposed revisions
to the RULOF provision (Comment E2-3).
The EPA also solicits comment about whether, instead of
establishing firm requirements for the application of RULOF, the EPA
should instead consider establishing a framework, consistent with the
proposed requirements in the following discussion, pursuant to which
state plans would be considered presumptively approvable (Comment E2-
4). In this scenario, states would have certainty regarding what type
of demonstration the EPA would find satisfactory as they develop their
plans, but states could also submit an alternative RULOF demonstration
for the EPA's consideration. In the latter case, states would bear the
burden of proving to the EPA that they have proposed a satisfactory
alternative analysis and standard, considering all factors relevant to
addressing emissions from the source or sources at issue. The EPA also
solicits comment on what different approaches might be appropriate for
a state in applying RULOF to a particular source and that the EPA
should consider in determining whether to finalize the provisions
discussed below, either as requirements or as presumptions (Comment E2-
5).
Note that the EPA considers the proposed RULOF provisions to apply
in circumstances distinct from the flexible compliance mechanisms, such
as trading and averaging, discussed in section III.G.1 of this
preamble. In other words, these provisions would apply where a state
intends to depart from the presumptive standards in the EG and propose
a less stringent standard for a designated facility (or class of
facilities), and not where a state intends to comply by demonstrating
that a facility or group of facilities subject to a state program
would, in the aggregate, achieve equivalent or better reductions than
if the state instead imposed the presumptive standards required under
the EG at individual designated facilities.
3. Threshold Requirements for Considering Remaining Useful Life and
Other Factors
Under the existing RULOF provision in subpart Ba, 40 CFR 60.24a(e),
a state may only account for RULOF in applying a standard of
performance provided that it makes a demonstration based on one of
three criteria. These criteria are: (1) unreasonable cost of control
resulting from plant age,

[[Page 79199]]

location, or basic process design; (2) physical impossibility of
installing necessary control equipment; or (3) other factors specific
to the facility (or class of facilities) that make application of a
less stringent standard or final compliance time significantly more
reasonable. However, the existing version of this provision in subpart
Ba provides no further guidance on what constitutes reasonableness or
unreasonableness for these demonstrations. The EPA proposes to clarify
this provision by revising it to require that in order to account for
RULOF in applying a less stringent standard of performance to a
designated facility, a state must demonstrate that the designated
facility cannot reasonably apply the BSER to achieve the degree of
emission limitation determined by the EPA because it entails (1) an
unreasonable cost of control resulting from plant age, location, or
basic process design; (2) physical impossibility or technical
infeasibility of installing necessary control equipment; or (3) other
circumstances specific to the facility (or class of facilities) that
are fundamentally different from the information considered in the
determination of the BSER in the emission guidelines.\45\ The first
criterion remains the same as under the existing RULOF provision in 40
CFR 60.24a(e). For the second criterion, the EPA is proposing to add a
reference to technical infeasibility, as a similar yet distinct factor
from that of physical impossibility of control. Finally, the EPA is
proposing to revise the third criterion by referring to any
circumstances at a specific designated facility that are
``fundamentally different from the information [the EPA] considered in
the determination of the best system of emission reduction'', rather
than the current regulation, which applies to factors ``that make
application of a less stringent standard or final compliance time
significantly more reasonable.'' This revision to the third criterion
will ensure that application of RULOF is akin to the types of
circumstances anticipated by the first two criteria and consistent with
the statutory construct of CAA section 111(d), as further described
below, rather than based on subjective criteria that is untethered to
the statute and that could result in widely diverging and potentially
arbitrary application by states.
---------------------------------------------------------------------------

\45\ States may also account for RULOF when applying standards
of performance to a class of designated facilities. For purposes of
administrative efficiency, a state may be able to calculate a
uniform standard of performance that accounts for RULOF using a
single set of demonstrations to meet the proposed requirements
described in this section if the group of sources has similar
characteristics.
---------------------------------------------------------------------------

The EPA proposes to require that, in order to demonstrate that a
designated facility cannot reasonably meet the presumptive level of
stringency based on one of these three criteria, the state must show
that implementing the BSER is not reasonable for the designated
facility due to fundamental differences between the factors the EPA
considered in determining the BSER, such as cost and technical
feasibility of control, and circumstances at the designated facility.
Per the requirements of CAA section 111(a)(1), the EPA determines
the BSER by first identifying control methods that it considers to be
adequately demonstrated, and then determining which are the best
systems by evaluating (1) the cost of achieving such reduction, (2)
health and environmental impacts, (3) energy requirements, (4) the
amount of reductions, and (5) advancement of technology. So, for
example, if the EPA applied a specific dollar-per-ton threshold in
determining the BSER, the state would be required to show that the cost
of implementing the BSER in order to achieve the presumptive level of
stringency at a particular designated facility is unreasonably high
relative to the EPA's cost threshold applied in the EG. Or, by way of
further example, if the EPA were to determine that a specific back-end
control technology at a 95 percent reduction in emissions of a specific
pollutant is the BSER for a source category, a state could evaluate
whether it would be physically possible to install that control
technology at a designated facility given the size and physical
constraints needed to install it. If the state could show that the
cost-per-ton was significantly higher at a specific designated facility
or that a specific designated facility does not have adequate space to
reasonably accommodate the installation, that designated source may be
evaluated for a less stringent standard because of the consideration of
RULOF. Requiring states to hew to the same types of factors and
analyses considered in the EPA's BSER determination in making the
demonstration that the BSER is not reasonable to implement at a
particular designated facility is consistent with the statutory
construct that defines RULOF as a limited exception to the level of
stringency otherwise required by the BSER.
In examining the factors that the EPA considered in determining the
BSER and how they apply to a specific facility, states may not invoke
RULOF based on minor, non-fundamental differences. There could be
instances where a designated facility may not be able to comply with
the level of stringency required by the EG based on the precise metrics
of the BSER determination but is able to do so within a reasonable
margin. For example, if the EPA determined a BSER based on a cost-
effectiveness threshold of $500/ton, it would not be reasonable for a
state to apply the RULOF provision to propose a less stringent standard
for a designated facility that can meet the standard of performance at
a slightly higher cost, such as $525/ton. There might also be instances
where the EPA determines the BSER for a source category as a particular
technology, but a particular designated facility does not currently
have the capability to implement that technology, and it would be cost
prohibitive to gain that capability. However, if that designated
facility has the ability instead to reasonably install a different,
non-BSER technology to achieve the presumptive level of stringency, the
designated facility would not be eligible for a less stringent standard
that accounts for RULOF. The EPA notes the examples described here are
meant to be illustrative hypotheticals and are not determinative of
whether state plans that include similar scenarios would be approvable
under a specific EG.
The EPA acknowledges that what is considered reasonable in light of
the statutory factors is a fact-specific inquiry based on the source
category and pollutant that is being regulated pursuant to a particular
EG, and that the EPA cannot anticipate and address all circumstances
that may arise in these general implementing regulations. Thus, the EPA
may consider additional factors and establish additional requirements
governing the consideration of RULOF, including what deviations from
the presumptive standard may be considered reasonable, in a particular
EG.
The EPA solicits comment on the proposal to require states to
demonstrate, as a threshold matter when determining whether a state may
account for RULOF in order to set a less stringent standard, that the
designated facility cannot reasonably apply the BSER to achieve the
presumptive level of stringency determined by the EPA (Comment E3-1).
The EPA further solicits comment whether other considerations should
inform the circumstances under which the EPA should permit RULOF to be
used to set a less stringent standard for a particular source (Comment
E3-2).

[[Page 79200]]

4. Calculation of a Standard Which Accounts for Remaining Useful Life
and Other Factors
If a state has made the proposed demonstration that accounting for
RULOF is appropriate for a particular designated facility, the state
may then apply a less stringent standard. The current RULOF provision
in subpart Ba is silent as to how a less stringent standard should be
calculated, raising the potential for inconsistent application of this
provision across states and the potential for the imposition of a
standard less stringent than what would be reasonably achievable by a
designated facility. In order to fill this gap and ensure the integrity
of the CAA section 111(d) program, the EPA is proposing several
requirements that would apply for the calculation of a standard of
performance that accounts for RULOF. The proposed requirements
described in this section are designed to provide a framework for the
state's analysis in evaluating and identifying a less stringent
standard, and in doing so would prevent the application of a standard
that is less stringent than what is otherwise reasonably achievable by
a particular designated facility, while remaining general in order to
account for possible differences across source categories and
designated facilities that may be addressed by specific EGs.
The EPA is first proposing to require that the state determine and
include, as part of the plan submission, a source-specific BSER for the
designated facility. As described previously, the statute requires the
EPA to determine the BSER by considering control methods that it
considers to be adequately demonstrated, and then determining which are
the best systems by evaluating (1) the cost of achieving such
reduction, (2) health and environmental impacts, (3) energy
requirements, (4) the amount of reductions, and (5) advancement of
technology. To be consistent with this statutory construct, the EPA
proposes that in determining a less stringent BSER for a designated
facility, a state must also consider all these factors in applying
RULOF for that source.
Specifically, the state in its plan submission must identify all
control technologies available for the source and evaluate the BSER
factors for each technology, using the same metrics and evaluating them
in the same manner as the EPA did in developing the EG using the five
criteria noted above.\46\ For example, if the EPA evaluated capital
costs as part of its cost analysis in setting the BSER, the state must
do the same in evaluating a control technology for an individual
designated facility, rather than selecting a different cost metric. The
state must then calculate the emission reductions that applying the
source-specific BSER would achieve and select the standard which
reflects this degree of emission limitation. This standard must be in
the form or forms (e.g., numerical rate-based emission standard) as
required by the specific EG. The EPA notes there may be cases where a
state determines that a designated facility cannot reasonably implement
the BSER but can instead reasonably implement another control measure
to achieve the same level of stringency required by an EG. In such
cases, the standard of performance that reflects the source-specific
BSER would be the same level of stringency as the degree of emission
limitation achievable through application of the EPA's BSER.
---------------------------------------------------------------------------

\46\ To the extent that a state seeks to apply RULOF to a class
of facilities that the state can demonstrate are similarly situated
in all meaningful ways, the EPA proposes to permit the state to
conduct an aggregate analysis of these factors for the entire class.
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The EPA solicits comment on these proposed requirements for the
calculation and form or forms of the less stringent standard that
accounts for remaining useful life and other factors (Comment E4-1).
The EPA believes that the five identified BSER factors generally
address all relevant information that states would reasonably consider
in evaluating the emission reductions reasonably achievable for a
designated facility. Moreover, the EPA considers that these factors
provide states with the discretion to weigh these factors in
determining the BSER and establishing a reasonable standard of
performance for the source. However, the EPA solicits comments on
whether there are additional factors, not already accounted for in the
BSER analysis, that the EPA should permit states to consider in
determining the less stringent standard for an individual source
(Comment E4-2). The EPA also solicits comments on whether we should
consider these factors to be part of a presumptively approvable
framework for applying a less stringent standard of performance, rather
than requirements, and, if so, what different approaches states might
use to evaluate and identify less stringent standards that the EPA
should consider to be satisfactory in evaluating state plans that apply
RULOF (Comment E4-3).
The EPA notes that CAA section 111(d) requires that state plans
include measures that provide for the implementation and enforcement of
a standard of performance. This requirement therefore applies to any
standard of performance established by a state that accounts for RULOF.
Such measures include monitoring, reporting, and recordkeeping
requirements, as required by 40 CFR 60.25a, as well as any additional
measures specified under an applicable EG. In particular, any standard
of performance that accounts for RULOF is also subject to the
requirement unde

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