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

Federal RegisterDec 23, 2022

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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.

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.

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:

•

Federal eRulemaking Portal: https://www.regulations.gov/

(our preferred method). Follow the online instructions for submitting comments.

•

Email: a-and-r-docket@epa.gov.

Include Docket ID No. EPA-HQ-OAR-2021-0527 in the subject line of the message.

•

Fax:

(202) 566-9744. Attention Docket ID No. EPA-HQ-OAR-2021-0527.

•

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.

•

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

https://www.regulations.gov/,

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:

bergin.michelle@epa.gov.

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

https://www.epa.gov/stationary-sources-air-pollution/adoption-and-submittal-state-plans-designated-facilities-40-cfr.

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

https://www.epa.gov/stationary-sources-air-pollution/adoption-and-submittal-state-plans-designated-facilities-40-cfr

or contact the public hearing team at (888) 372-8699 or by email at

SPPDpublichearing@epa.gov.

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:

https://www.epa.gov/stationary-sources-air-pollution/adoption-and-submittal-state-plans-designated-facilities-40-cfr.

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

https://www.epa.gov/stationary-sources-air-pollution/adoption-and-submittal-state-plans-designated-facilities-40-cfr

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

SPPDpublichearing@epa.gov.

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

documents in the docket are listed in the

Regulations.gov

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

Regulations.gov

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

http://www.regulations.gov,

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

https://www.regulations.gov/

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

https://www.epa.gov/dockets/commenting-epa-dockets.

The

http://www.regulations.gov/

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

https://www.regulations.gov/,

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

https://www.epa.gov/dockets.

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

https://www.regulations.gov/.

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,

oaqpscbi@epa.gov,

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

oaqpscbi@epa.gov

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

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

https://www.epa.gov/stationary-sources-air-pollution/adoption-and-submittal-state-plans-designated-facilities-40-cfr.

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

https://www.epa.gov/stationary-sources-air-pollution/adoption-and-submittal-state-plans-designated-facilities-40-cfr.

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

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.

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).

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).

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

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.

The ACE Rule was initially vacated by

Am. Lung Ass'n

EPA,

985 F.3d 914 (D.C. Cir. 2021). The Supreme Court subsequently reversed and remanded the D.C. Circuit's opinion,

West Virginia

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

EPA,

No. 19-1140, ECF No. 1970895.

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.

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

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.

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

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

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).

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

EPA,

985 F.3d 914, 991. (D.C. Cir. 2021) (

ALA

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.

State Farm Mut. Auto. Ins. Co.

463 U.S. 29, 43 (1983)).

The Supreme Court subsequently reversed and remanded the D.C. Circuit's opinion.

West Virginia

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

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

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.

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.

Table 1—Proposed Subpart

Timelines Compared With Those Vacated From Subpart

and With Those From Subpart B

Process step

2022 Subpart Ba proposal

Subpart Ba (2019) vacated timelines

Subpart B (1975)

State Plan submittal after effective date of EG

15 months

36 months

9 months.

State Plan completeness determination

2 months after State Plan submission

6 months after State Plan submission

N/A.

State Plan evaluation

12 months after completeness

4 months after State Plan submittal deadline.

EPA Federal Plan promulgation

12 months after failure to submit or disapproval

24 months after finding of failure to submit or disapproval

6 months after State Plan submittal deadline.

Requirements for Increments of Progress after submittal deadline

If compliance is >16 months

If compliance is >24 months

If compliance is >12 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

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

2.5

). 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.

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).

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.

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.

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.

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.

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

2.5

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

2.5

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

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.

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).

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

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.

The deadlines for the EPA action under subpart Ba would apply to any state plan submission regardless of when it is submitted.

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

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.

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.

The EPA recognizes that the court in

ALA

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.

In the third instance, the

EPA is proposing to require that its timeline to promulgate a Federal plan would begin at its disapproval of the state's plan.

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).

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

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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.

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.

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).

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

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.

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.

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

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.

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.

“Each plan shall include standards of performance and compliance schedules.” 40 CFR 60.24a(a).

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.

Petitioners did not challenge, and the court did not vacate, the substantive requirement for increments of progress.

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.

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.

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.

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).

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.

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.

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.

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

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

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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,

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.

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.

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

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.

States may cancel a public hearing if no request for one is received during the required notification period. 40 CFR 60.23a(e).

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.

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

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.

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.

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.

FACT SHEET: Biden-Harris Administration Mobilizes Resources to Connect Tribal Nations to Reliable, High-Speed internet (December 22, 2021).

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/

; 7 percent of Americans don't use the internet. Who are they? Pew Research Center (April 2, 2021),

https://www.pewresearch.org/fact-tank/2021/04/02/7-of-americans-dont-use-the-internet-who-are-they/.

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

prior action on a state plan.

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.

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).

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.

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.

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).

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

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

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.

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.

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.

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.

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.

For example, the 1998 “NO

SIP call” required states to submit SIP revisions addressing NO

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.

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.

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.

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,

for removal of substantive provisions from an EPA-approved state plan that did not relate to attainment of the NAAQS or other CAA program,

and when EPA, in error and without knowledge, approved a SIP that did not meet applicable requirements at the time of

approval.

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.

For example, see 74 FR 57051, November 3, 2009, for correction of clerical and typographical errors in a portion of an Arizona SIP.

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.

For example, see 86 FR 23054, April 30, 2021, for error correction with respect to Kentucky's “good neighbor obligations” and SIP disapproval.

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.

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.

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).

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

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 facil

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