[Federal Register Volume 88, Number 221 (Friday, November 17, 2023)]
[Rules and Regulations]
[Pages 80480-80545]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-25269]
[[Page 80479]]
Vol. 88
Friday,
No. 221
November 17, 2023
Part IV
Environmental Protection Agency
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40 CFR Part 60
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Adoption and Submittal of State Plans for Designated Facilities:
Implementing Regulations Under Clean Air Act Section 111(d); Final Rule
Federal Register / Vol. 88 , No. 221 / Friday, November 17, 2023 /
Rules and Regulations
[[Page 80480]]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 60
[EPA-HQ-OAR-2021-0527; FRL-8606-01-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: Final rule.
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SUMMARY: The Environmental Protection Agency (EPA) is finalizing
amendments to the regulations that govern the processes and timelines
for state and Federal plans to implement emission guidelines under
Clean Air Act (CAA) New Source Performance Standards for existing
sources (the ``implementing regulations''). The amendments include
revisions to the timing requirements for state and the EPA actions
related to plans; the addition of mechanisms to improve flexibility and
efficiency in plan processes; and new requirements for demonstration of
timely meaningful engagement with pertinent stakeholders--including,
but not limited to, industry, small businesses, and communities most
affected by and vulnerable to the impacts of the plan. This action
additionally provides a process for states' consideration of `remaining
useful life and other factors' (RULOF) in applying a standard of
performance; amends the definition of standard of performance in the
implementing regulations; and clarifies compliance flexibilities that
states may choose to incorporate into state plans, including trading or
averaging. Finally, this action adds requirements for the electronic
submission of state plans and provides several other clarifications and
minor revisions to the implementing regulations.
DATES: This final rule is effective on December 18, 2023.
ADDRESSES: The EPA has established a docket for this action under
Docket ID No. EPA-HQ-OAR-2021-0527. All documents in the docket are
listed on the https://www.regulations.gov/ website. Although listed,
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 form. Publicly available docket materials are available
electronically through https://www.regulations.gov/.
FOR FURTHER INFORMATION CONTACT: For questions about this 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, 109 T.W. Alexander Drive, P.O. Box
12055, Research Triangle Park, North Carolina 27711; telephone number:
(919) 541-2726; email address: [email protected].
SUPPLEMENTARY INFORMATION: 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
CDX Central Data Exchange
CFR Code of Federal Regulations
EG Emission Guideline
EGU electric generating unit
EJ environmental justice
EPA Environmental Protection Agency
FIP Federal Implementation Plan
ICR Information Collection Request
IoP Increments of Progress
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 (2.5 microns and less)
RTC Response to Comments document
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
TAR Tribal Authority Rule
TAS Treatment as a State
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?
C. Judicial Review and Administrative Review
II. Background
A. What is the statutory authority for this action?
B. What is the background for this action?
C. What changes did we propose?
D. What outreach and engagement did the EPA conduct?
III. What actions are we finalizing and what is our rationale for
such decisions?
A. Revised Implementing Timelines
B. Federal Plan Authority and Timeline Upon Failure to Submit a
Plan
C. 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. Summary of Cost, Environmental, and Economic Impacts
V. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review;
Executive Order 13563: Improving Regulation and Regulatory Review;
and Executive Order 14094: Modernizing 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. Congressional Review Act (CRA)
I. General Information
A. Does this action apply to me?
This action applies for the development and adoption of plans for
implementation of CAA section 111(d) final emission guidelines (EGs)
published in the Federal Register after July 8, 2019. In particular,
this action applies to states in the development and submittal of state
plans and to the EPA in processing state plan submissions and to the
EPA in promulgating Federal plans. After the EPA promulgates a final
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 [i.e., a new source].'' See 40 CFR 60.21a(b). If a
state fails to submit a plan or if the EPA determines that a state plan
is not
[[Page 80481]]
satisfactory, the EPA has the authority to establish a Federal CAA
section 111(d) plan for designated facilities located in the state.
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 (treatment as a state; TAS) 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
develop and implement one or more of its own air quality programs, or
portions thereof, under the CAA; however, it does not require tribes to
develop a CAA program. Tribes may implement programs that are most
relevant to their air quality needs. A tribe with an approved TAS under
TAR for CAA 111(d) is not required to resubmit TAS approval to
implement an EG subject to subpart Ba.\1\ 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.
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\1\ See the EPA website, https://www.epa.gov/tribal/tribes-approved-treatment-state-tas, for information on those tribes that
have treatment as a state for specific environmental regulatory
programs, administrative functions, and grant programs.
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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 final 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 final rule, a memorandum showing the rule edits
finalized in this action, and key supporting documents at this same
website.
C. Judicial Review and Administrative Review
Section 307(b)(1) of the CAA governs judicial review of final
actions by the EPA. This section provides, in part, that petitions for
review must be filed in the D.C. Circuit: (i) when the agency action
consists of ``nationally applicable regulations promulgated, or final
actions taken, by the Administrator,'' or (ii) when such action is
locally or regionally applicable, but ``such action is based on a
determination of nationwide scope or effect and if in taking such
action the Administrator finds and publishes that such action is based
on such a determination.'' For locally or regionally applicable final
actions, the CAA reserves to the EPA complete discretion whether to
invoke the exception in (ii) described in the preceding sentence.\2\
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\2\ Sierra Club v. EPA, 47 F.4th 738, 745 (D.C. Cir. 2022)
(``EPA's decision whether to make and publish a finding of
nationwide scope or effect is committed to the agency's discretion
and thus is unreviewable''); Texas v. EPA, 983 F.3d 826, 834-35 (5th
Cir. 2020).
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This action is ``nationally applicable'' within the meaning of CAA
section 307(b)(1). The final rule governs the EPA's promulgation of
emission guidelines under CAA section 111(d), which are nationally
applicable regulations for which judicial review is available only in
the U.S. Court of Appeals for the District of Columbia (D.C. Circuit)
pursuant to CAA section 307(b)(1).\3\ Moreover, it revises the
generally applicable, nationally consistent implementing regulations
that govern the development and submission for all states of state
plans and the EPA's development of Federal plans pursuant to EGs under
CAA section 111(d), as well as the EPA's review of states' plans.
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\3\ See, e.g., Nat'l Waste & Recyling Ass'n v. EPA, No. 16-1371
(D.C. Cir. 2016) (consolidated challenges to the CAA section 111(d)
emissions guidelines for municipal solid waste landfills in the D.C.
Circuit); Am. Lung Ass'n v. EPA, 985 F.3d 914 (D.C. Cir. 2021)
(consolidated challenges to, among other things, the CAA section
111(d) emission guidelines for fossil fuel-fired electric generating
units known as the Affordable Clean Energy Rule).
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In the alternative, to the extent a court finds this final action
to be locally or regionally applicable, the Administrator is exercising
the complete discretion afforded to him under the CAA to make and
publish a finding that this action is based on a determination of
``nationwide scope or effect'' within the meaning of CAA section
307(b)(1).\4\ As explained above, this final action is revising a
single set of nationally consistent implementing regulations that apply
to every state that must develop a state plan submission pursuant to
CAA section 111(d) and an EPA-issued EG, as well as apply to the EPA
when it reviews state plan submissions. The regulations also govern the
EPA's development of EGs pursuant to CAA section 111(d), which apply to
every state that contains designated facilities.
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\4\ In deciding whether to invoke the exception by making and
publishing a finding that an action is based on a determination of
nationwide scope or effect, the Administrator takes into account a
number of policy considerations, including his judgment balancing
the benefit of obtaining the D.C. Circuit's authoritative
centralized review versus allowing development of the issue in other
contexts and the best use of agency resources.
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The Administrator finds that this is a matter on which national
uniformity in judicial resolution of any petitions for review is
desirable, to take advantage of the D.C. Circuit's administrative law
expertise, and to facilitate the orderly development of the law under
the Act. The Administrator also finds that consolidated review of this
action in the D.C. Circuit will avoid piecemeal litigation in the
regional circuits, further judicial economy, and eliminate the risk of
inconsistent results, and that a nationally consistent approach to
implementation of EGs pursuant to CAA section 111(d) constitutes the
best use of agency resources.
For these reasons, this final action is nationally applicable or,
alternatively, the Administrator is exercising the complete discretion
afforded to him by the CAA and finds that this final action is based on
a determination of nationwide scope or effect for purposes of CAA
section 307(b)(1) and is publishing that finding in the Federal
Register. Under section 307(b)(1) of the CAA, petitions for judicial
review of this action must be filed in the United States Court of
Appeals for the District of Columbia Circuit by January 16, 2024. Under
CAA section 307(b)(2), the requirements established by this final rule
may not be challenged separately in any civil or criminal proceedings
brought by the EPA to enforce the requirements.
Additionally, pursuant to CAA section 307(d)(1)(V), the
Administrator determines that this action is subject to the provisions
of CAA section 307(d). The EPA made this determination at proposal and
has complied with the applicable procedural requirements in the course
of this rulemaking. Section 307(d)(1)(V) of the CAA provides that the
provisions of CAA section 307(d) apply to ``such other actions as the
Administrator may determine.'' Section 307(d)(7)(B) of the CAA further
provides that ``[o]nly an objection to a rule or procedure which was
raised with reasonable specificity during the period
[[Page 80482]]
for public comment (including any public hearing) may be raised during
judicial review.'' This section also provides a mechanism for the EPA
to convene a proceeding for reconsideration, ``[i]f the person raising
an objection can demonstrate to the Administrator that it was
impracticable to raise such objection within [the period for public
comment] or if the grounds for such objection arose after the period
for public comment (but within the time specified for judicial review)
and if such objection is of central relevance to the outcome of the
rule.'' Any person seeking to make such a demonstration should submit a
Petition for Reconsideration to the Office of the Administrator, U.S.
Environmental Protection Agency, Room 3000, WJC South Building, 1200
Pennsylvania Ave. NW, Washington, DC 20460, with a copy to both the
person listed in the preceding FOR FURTHER INFORMATION CONTACT section,
and the Associate General Counsel for the Air and Radiation Law Office,
Office of General Counsel (Mail Code 2344A), U.S. Environmental
Protection Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460.
The EPA notes that the individual regulatory provisions it is
revising or finalizing in this action are severable from one another
because each is supported by an independent rationale. That is, the
individual subsections within each of the sections of subpart Ba are
generally justified independently and are therefore severable for
purposes of judicial review.
II. Background
A. What is the statutory authority for this action?
The statutory authority for this action is provided by CAA section
111 (42 U.S.C. 7411). As described further in the next section, CAA
section 111 requires the EPA to establish standards of performance for
certain categories of 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 submit plans to the EPA that establish standards of performance for
existing sources of certain air pollutants to which a standard 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 general implementing
regulations, including those addressed by this action, and through
promulgation of EGs for specific source categories. Additional
statutory authority for this action is provided by section 301 of the
CAA (42 U.S.C. 7601), which contains general provisions for the
administration of the CAA, including the authority for the
Administrator to ``prescribe such regulations as are necessary to carry
out [the] functions'' of the CAA under section 301(a)(1).
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 that 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 nonair 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 existing sources in that same
source category.\5\ Under CAA section 111(d), the Agency has, to date,
issued EGs regulating five pollutants from six source categories that
are currently 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 (greenhouse gases [GHGs]). 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).6 7 Additionally, the
[[Page 80483]]
EPA recently proposed EGs addressing GHG emissions from two different
source categories. On November 15, 2021, the EPA proposed EGs to
regulate GHG emissions (in the form of methane limitations) from
sources in the oil and natural gas source category (86 FR 63110) and
provided a supplemental proposal for that sector on December 6, 2022
(87 FR 74702). On May 23, 2023, the EPA proposed to repeal the existing
EG for GHG emissions from certain fossil fuel-fired electric generating
units (the ACE Rule) and to promulgate a new EG in order to regulate
GHG emissions (in the form of carbon dioxide limitations) from existing
fossil fuel-fired electric generating units. 88 FR 33240. Finally, the
Agency has regulated additional pollutants from solid waste
incineration units under CAA section 129 and in accordance with CAA
section 111(d).\8\
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\5\ In accordance with CAA section 111(d), states are required
to submit plans 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).
\6\ The EPA has also issued several EGs that have subsequently
been repealed or vacated by the courts. The EPA regulated mercury
from coal-fired electric power plants in a 2005 rule that was
vacated by the D.C. Circuit, ``Standards of Performance for New and
Existing Stationary Sources: Electric Utility Steam Generating
Units; Final Rule,'' 70 FR 28606 (May 18, 2005) (Clean Air Mercury
Rule), vacated by New Jersey v. EPA, 517 F.3d 574 (D.C. Cir. 2008).
The EPA also issued CAA section 111(d) EGs regulating GHG emissions
from fossil fuel-fired electric power plants in a 2015 rule,
``Carbon Pollution Emission Guidelines for Existing Stationary
Sources: Electric Utility Generating Units; Final Rule,'' 80 FR
64662 (October 23, 2015) (Clean Power Plan). The EPA subsequently
repealed and replaced the 2015 rule with the ACE Rule.
\7\ The ACE Rule was initially vacated by Am. Lung Ass'n v. EPA,
985 F.3d 914 (D.C. Cir. 2021). The Supreme Court subsequently
reversed and remanded the D.C. Circuit's opinion, West Virginia v.
EPA, 142 S. Ct. 2587 (June 30, 2022). On October 27, 2022, the D.C.
Circuit amended its judgement and recalled the partial mandate
vacating the ACE Rule, effectively reinstating ACE. Order, ALA v.
EPA, No. 19-1140, ECF No. 1970895.
\8\ CAA section 129 directs the EPA Administrator to develop
regulations under CAA section 111 limiting emissions of nine air
pollutants from four categories of solid waste incineration units.
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The mechanism for regulating designated facilities \9\ under CAA
section 111(d) differs from the mechanism for regulating new facilities
under CAA section 111(b). Pursuant to 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 statutory framework, the EPA has the
responsibility to determine the BSER for designated facilities, as well
as the degree of emission limitation achievable through application of
that BSER. The EPA identifies both the BSER and the degree of emission
limitation as part of an EG, which it may typically reflect as a
presumptive standard of performance or methodology for calculating a
presumptive standard of performance for designated facilities. States
use the EPA's presumptive standards of performance as the basis for
establishing requirements for designated facilities in their state
plans. In addition to standards of performance, CAA section 111(d)(1)
requires state plans to include provisions for the implementation and
enforcement of such standards. CAA section 111(d)(1) also 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.
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\9\ A ``designated facility'' is any existing facility which
emits an air pollutant, the emissions of which are subject to a
standard of performance for new stationary sources but for which air
quality criteria have not been issues and that is not included on a
list published under CAA section 108(a) or 112, and which would be
subject to a standard of performance for that pollutant if the
existing facility were a new facility. See 40 CFR 60.21a.
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CAA section 111(d) directs the EPA to establish a procedure for the
submission of state plans, which the EPA addresses both through its
promulgation of general implementing regulations for section 111(d) and
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. The states must 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, the EPA has the
``same authority'' to prescribe a Federal plan 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 \10\ until 2019, when the EPA promulgated a new set of
implementing regulations codified at 40 CFR part 60, subpart Ba
(subpart Ba). 84 FR 32520 (July 8, 2019).
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\10\ In 2012, the EPA revised several provisions of subpart B,
mainly to include allowance systems as a form of standard of
performance. 77 FR 9303 (February 16, 2012).
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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 make changes similar 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(f))). The EPA further added
required minimum administrative and technical criteria for inclusion in
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 must 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).
The EPA proposed minor revisions to the subpart Ba applicability
provision and is finalizing those revisions largely as proposed (see
section III.G.2.a. of this preamble). As finalized in 2019, subpart Ba
was applicable to any final 111(d) EG published, or the implementation
of which was ongoing, after July 8, 2019. The EPA proposed revisions to
this provision for clarity, including to
[[Page 80484]]
remove the phrase ``if implementation of such final guideline is
ongoing.'' \11\ It did not propose to change the already-established
applicability date. At the time of promulgation of this rule, there are
no final EGs that have been published after July 8, 2019, so subpart Ba
will not retroactively apply to the implementation of any EG.
Specifically, the final EG for greenhouse gas emissions from existing
electric utility generating units that was included in the ACE Rule was
published on July 8, 2019; \12\ thus, subpart Ba as revised will not
apply to that EG. Regardless, the EPA proposed to repeal the ACE Rule
on May 23, 2023,\13\ and intends to finalize its repeal, at which point
neither states nor the EPA will have any obligations under the ACE Rule
and the potential applicability of subpart Ba to this EG will be moot.
In contrast, the EPA has recently proposed two EGs that would regulate
GHG emissions from designated facilities in the oil and natural gas
industry (86 FR 63110, November 15, 2021; 87 FR 74702, December 6,
2022) and in the power sector (88 FR 33240, May 23, 2023). If those EGs
are finalized and to the extent that the final EGs do not contain EG-
specific requirements superseding subpart Ba provisions, subpart Ba as
revised in this action will apply. Subpart B continues to apply to CAA
section 111 EGs promulgated on or prior to July 8, 2019, and to EGs
issued pursuant to CAA section 129.
---------------------------------------------------------------------------
\11\ 87 FR 79176, 79208-09 (Dec. 23, 2022). As explained in
section III.G.2.a. of this preamble, the EPA is finalizing the
removal of this phrase from 40 CFR 60.20a(a).
\12\ 84 FR 32520 (July 8, 2019).
\13\ ``New source Performance Standards for Greenhouse Gas
Emissions From New, Modified, and Reconstructed Fossil Fuel-Fired
Electric Generating Units; Emission Guidelines for Greenhouse Gas
Emissions From Existing Fossil Fuel-Fired Electric Generating Units;
and Repeal of the Affordable Clean Energy Rule,'' 88 FR 33240 (May
23, 2023).
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In January 2021, the D.C. Circuit vacated several provisions of
subpart Ba related to timelines for state plans and Federal plans. Am.
Lung Ass'n v. EPA, 985 F.3d 914, 991. (D.C. Cir. 2021) (ALA).\14\ In
this vacatur, the court identified several flaws in the EPA's rationale
for extending CAA section 111(d) state and Federal plan timelines.
First, the court found that the EPA erred in adopting the timelines for
SIPs and FIPs in CAA section 110 without meaningfully addressing the
differences in the scale of effort required for development and
evaluation of CAA section 110 SIPs, as compared with the scale of
effort needed for CAA section 111(d) state plans. Id. at 992-93. The
court also concluded that in promulgating the timelines in subpart Ba,
the EPA failed to justify why the shorter deadlines under subpart B
were unworkable. Id. at 993. Further, the court held that the EPA was
required to consider the effect of its subpart Ba timelines on public
health and welfare, consistent with the statutory purpose of CAA
section 111(d). In the court's view, the EPA's ``complete failure to
say anything at all about the public health and welfare implications of
the extended timeframes'' meant that the EPA failed to consider an
important aspect of the problem. Id. at 992 (citing Motor Vehicle Mfrs.
Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co. 463 U.S. 29, 43
(1983)).
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\14\ The Supreme Court subsequently reversed and remanded the
D.C. Circuit's opinion. West Virginia v. EPA, 142 S.Ct. 2587 (June
30, 2022). However, no Petitioner sought certiorari on, and the
Supreme Court's West Virginia decision did not implicate, the D.C.
Circuit's vacatur of portions of subpart Ba. See Amended Judgment,
ALA v. EPA, No. 19-1140 (D.C. Cir. October 27, 2022), ECF No.
1970898 (ordering that petitions for review challenging the timing
portion of implementing regulations be granted).
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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 (IoPs; 40 CFR 60.24 (a(d)). Because of the
vacatur, subpart Ba currently does not provide generally applicable
timelines for state plan submissions, a deadline for the EPA's action
on state plan submissions, a deadline for the EPA's promulgation of a
Federal plan, or a timeline associated with requirements for IoPs. The
EPA notes that while it is finalizing generally applicable timelines
for the implementing regulations, a particular EG may supersede those
generally applicable timelines with its own specific timelines. 40 CFR
60.20a(a)(1). This may be appropriate, for example, based on the
complexity of regulating a particular source category, such as a
category with a large number of disparate facilities to be regulated.
C. What changes did we propose?
On December 23, 2022, the EPA proposed 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. See 87 FR 79176 (December 23,
2022). In response to the ALA decision, the EPA proposed timeframes for
(1) state plan submittal, (2) the timeline for the EPA to determine
completeness of state plans, (3) the EPA's action on state plan
submissions, (4) the EPA's promulgation of a Federal plan, and (5)
requirements to establish IoPs. Additionally, the EPA proposed to
remove the publication in the Federal Register of a ``finding of
failure to submit'' as the starting point for the clock to promulgate a
Federal plan.
In addition, the EPA proposed revisions to subpart Ba that would
enhance the provision of reasonable notice and opportunity for public
participation by requiring that states, as part of the state plan
development or revision process, undertake outreach and meaningful
engagement with a broad range of pertinent stakeholders. The EPA
proposed to define pertinent stakeholders as including communities most
affected by and vulnerable to the impacts of the plan or plan revision.
Increased vulnerability, as described in the proposal, 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 proposed to
include the following 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.
The EPA also proposed revisions to the existing regulations
governing the ``remaining useful life and other factors'' (RULOF)
provision of the statute. These proposed revisions were intended to
promote clarity and increase consistency in situations where states or
the EPA consider RULOF when applying standards of performance to
individual sources and to ensure that such standards fulfill the
statutory requirements of CAA section 111(d).
Finally, the EPA proposed to require electronic submissions of
state plans, as well as additional modifications and clarifications to
subpart Ba. In particular, the EPA proposed clarifying amendments to
the subpart Ba definition of standard of performance, along with a
revised interpretation of CAA section 111(d) with respect to
permissible compliance flexibilities. The EPA proposed to determine
that, under appropriate circumstances, the Agency may approve state
plans that authorize sources to meet their emission limits in the
aggregate, such as through standards that permit compliance via
[[Page 80485]]
trading or averaging. In doing so, the EPA also proposed to conclude
that CAA section 111 does not limit the BSER to controls that can be
applied at and to the source.
The EPA did not reopen any subpart Ba requirements other than the
specific provisions that the EPA explicitly proposed to revise in the
December 2022 notice of proposed rulemaking. Any comments received on
the proposal that did not relate to the proposed revisions or additions
are considered out of the scope of this action.
D. What outreach and engagement did the EPA conduct?
The EPA conducted both pre- and post-proposal outreach and
meaningful engagement events with environmental justice (EJ)
communities, small businesses, states, and Tribes. On July 7 and July
11, 2022, the EPA conducted two pre-proposal webinars for states
addressing meaningful engagement for pertinent stakeholders, and on
July 26, 2022, the Agency conducted a pre-proposal webinar for EJ
communities and other key stakeholders about potential requirements for
states to conduct meaningful engagement in developing their state
plans. The EPA emailed an announcement of the subpart Ba proposal to
Tribal nations and environmental justice communities via existing
listservs on December 15, 2022. Post-proposal outreach during the
public comment period with environmental justice communities included
participation on the January 24, 2023 Environmental Justice National
call and the January 26, 2023 National Tribal Air Association call. The
EPA also conducted a public training webinar on January 31, 2023, for
environmental justice community members and their representatives.
Additionally, the EPA conducted post-proposal outreach with small
businesses through the Small Business Environmental Assistance Program
call on February 21, 2023, and with state environmental protection
associations including the Association of Air Pollution Control
Agencies on January 10, 2023, and the National Association of Clean Air
Agencies on February 8, 2023.
III. What actions are we finalizing and what is our rationale for such
decisions?
This action finalizes amendments to subpart Ba, including the
timing requirements for state plan submittal, the EPA's action on state
plan submissions, the EPA's promulgation of a Federal plan, and the
establishment of IoPs; the addition of five regulatory mechanisms to
improve state plan processing: (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; new requirements for meaningful engagement with
pertinent stakeholders; and amended requirements for states' and the
EPA's consideration of RULOF in applying a standard of performance in
certain circumstances. This action also finalizes amendments to the
subpart Ba definition of ``standard of performance'' and finalizes
clarifications associated with CAA section 111(d) compliance
flexibilities. Finally, this action finalizes requirements for the
electronic submission of state plans and several other clarifications
and minor revisions to the implementing regulations. While the EPA is
finalizing most amendments as proposed, in response to comments
submitted on the proposal, the EPA is extending the state plan
submittal timeline and the timeline for requirement of IoPs; providing
for additional flexibility and guidance for meaningful engagement; as
well as revising and streamlining the requirements for accounting for
RULOF in applying a less-stringent standard. There are also other
provisions that we are finalizing with slight revisions relative to
proposal. Further detail is provided in the following sections of this
preamble and additional detailed responses to comments are located in
the response to comment document (RTC).
While this action amends the generally applicable requirements of
subpart Ba, the EPA has recognized that, under certain circumstances,
some provisions of the implementing regulations may not fit the needs
of a specific EG. Therefore, the existing 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 source category-specific
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 unique characteristics of a source
category. For example, if a proposed EG addresses a particularly large
and complex source category that necessitates a relatively long
timeframe for state planning, the EPA may provide a state plan
submission deadline that is longer than the 18 months being finalized
for subpart Ba.\15\
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\15\ See, e.g., 88 FR 33240, 33402-03 (May 23, 2023) (proposing
a 24-month state plan submission deadline for the EG for GHG
emissions from fossil fuel-fired electric generating units).
---------------------------------------------------------------------------
A. Revised Implementing Timelines
As described in section II.A. of this preamble, the subpart Ba
timing requirements were vacated by the D.C. Circuit in the ALA
decision. These vacated timing requirements include: 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 IoPs. These
timelines are all critical to ensuring that the emission reductions
anticipated by the EPA when promulgating an EG become federally
enforceable measures that are timely implemented by the designated
facilities.
The EPA proposed the following timelines to replace those vacated
in ALA (87 FR 79176, Dec. 23, 2022): 15 months for state plan
submissions after publication of a final EG; 60 days after submission
for the EPA to determine if a plan is complete; 12 months for the EPA
to take final action on a complete state plan (i.e., approve,
disapprove); 12 months for the EPA to promulgate a Federal plan either
after the state plan submission 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 IoPs if the plan
requires final compliance with standards of performance later than 16
months after the plan submission deadline.\16\
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\16\ See 87 FR 79176, 79181-90 (Dec. 23, 2022).
---------------------------------------------------------------------------
The EPA received numerous comments on these proposed timelines,
most of which expressed support for timelines longer than those
proposed. Some commenters asserted that the ALA decision does not
direct the EPA to necessarily reduce timelines from those vacated, only
to justify the timelines more fully. In particular, most commenters
expressed the need for a longer state plan submittal timeline in order
to accommodate state regulatory processes associated with plan
submittals (i.e., legislative and/or administrative state processes),
as well as to accommodate technical development of the plans and to
implement the proposed meaningful engagement requirements. However, a
few commenters noted that the EPA should not accommodate all lengthy
state administrative processes that would unnecessarily postpone
emission-reduction obligations. Some
[[Page 80486]]
commenters asserted that if the EPA were to finalize the state plan
submittal timeline as proposed, the EPA should include a mechanism in
the rule for states to request for extensions for state plan
submittals.
While some commenters also asserted the need for longer timelines
associated with the EPA's obligations to take action on a state plan
submittal and to promulgate a Federal plan when required, as well as
allowing a longer timeline before IoPs are required in the state plans,
other commenters supported the proposed timelines for these milestones
based, among other concerns, on the need for timely protection of
health and welfare and in consideration of the EPA's ability to extend
timelines if warranted in a particular EG.
In consideration of these comments and for the reasons described in
detail in the sections that follow, the EPA is finalizing extended
timelines from those proposed for submission of state plans, for
significant state plan revisions, and for when IoPs must be considered
for inclusion in state plans. The EPA is finalizing the remaining
timelines as proposed. The EPA determined that these timelines will
appropriately balance the need to reasonably accommodate the processes
generally required by states and the EPA to develop, evaluate, and
adopt plans to effectuate the EG with the need to ensure that
designated facilities control emissions of dangerous pollutants as
expeditiously as reasonably possible, consistent with the health and
welfare-based objectives of CAA section 111(d). A summary of the
timelines finalized in this action is shown in Table 1.
The final subpart Ba timelines are applicable to any final EG
published pursuant to CAA section 111(d) after July 8, 2019, including,
if finalized, those recently proposed to regulate GHG emissions from
sources in the oil and natural gas industry (86 FR 63110, November 15,
202187 and FR 74702, December 6, 2022) and those proposed to regulate
GHG emissions from fossil fuel-fired electric generating units (88 FR
33240, May 23, 2023), to the extent that the final EGs do not contain
provisions superseding any of these timelines in subpart Ba.\17\
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\17\ Under each of these EGs the EPA proposed to supersede the
15-month state plan submittal timeline in proposed subpart Ba based
on the size and complexity of the source sectors at issue.
Table 1--Final 40 CFR Part 60, Subpart Ba, Timeline Compared With Those Initially Proposed, Vacated From Subpart
Ba, and From Subpart B
----------------------------------------------------------------------------------------------------------------
2023 Subpart Ba 2022 Subpart Ba Subpart Ba (2019)
Process step final proposal vacated timelines Subpart B (1975)
----------------------------------------------------------------------------------------------------------------
State Plan submittal after 18 months......... 15 months......... 36 months......... 9 months.
publication of EG in the
Federal Register.
State Plan completeness 60 days after 60 days after *6 months after N/A.
determination. State Plan State Plan State Plan
submission. submission. submission.
State Plan evaluation........... 12 months after 12 months after 12 months after 4 months after
completeness. completeness. completeness. State Plan
submittal
deadline.
EPA Federal Plan promulgation... 12 months after 12 months after 24 months after 6 months after
failure to submit failure to submit finding of State Plan
or disapproval. or disapproval. failure to submit submittal
or disapproval. deadline.
Requirements for Increments of If compliance is If compliance is If compliance is If compliance is
Progress after submittal >20 months. >16 months. >24 months. >12 months.
deadline.
----------------------------------------------------------------------------------------------------------------
* Although the timeline for the state plan completeness determinations was not vacated, the EPA has evaluated
this timeline light of the court vacatur of the related timelines.
As described in greater detail 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 finalizing 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 by proceeding as
expeditiously as reasonably possible while accommodating the time
needed for states or the EPA 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 acknowledges these timelines 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 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. 985 F.3d at 993. In proposing the revised timelines, the
EPA evaluated each step of the state plan implementation process to
independently determine the appropriate duration needed to accomplish a
given step as part of the overall process. After receiving comments on
the proposed timelines, the EPA again evaluated each step in light of
the new information; the timelines being finalized in this action
represent the Agency's revised assessment of the most reasonably
expeditious timelines that are appropriate to provide as a default for
EGs under these generally applicable implementing regulations.
The EPA recognizes that, under certain circumstances, the timelines
being finalized in this action may not fit the needs of a specific EG
because of the specific characteristics of an EG. The EPA will address
source category-specific circumstances or facts that are not
accommodated by the timelines of subpart Ba through a specific EG.
Examples of circumstances that may require consideration for different
[[Page 80487]]
timelines could include EGs that require states to perform extensive
engineering and/or economic analyses before submitting their plans; EGs
with an exceptional need to expedite implementation (e.g., in order to
address immediate health and welfare impacts); EGs that apply to an
extraordinary number of disparate 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 will, in the EG, both provide a
justification for the differing timelines and address how the change in
timeline will impact health and welfare.
1. State Plan Submission Timelines
This section discusses the amount of time states will have to
submit plans and plan revisions to the EPA following the publication of
a final or revised EG in the Federal Register. As described in further
detail in section III.E of this preamble, under CAA section 111(d), the
EPA first determines a BSER and the degree of emission limitation for
designated facilities and promulgates these determinations in an EG.
CAA section 111(a)(1), 40 CFR 60.22a(b)(5). It is then each state's
obligation to submit a plan to the EPA which establishes standards of
performance based on the EG for each designated facility. See CAA
section 111(d)(1), 40 CFR 60.24a(c). The implementing regulations
promulgated in 1975 under subpart B 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 or plan revisions for subsequently
promulgated or revised EGs, consistent with the timelines provided for
submission of SIPs pursuant to CAA section 110(a)(1). This 3-year
timeframe was vacated by the D.C. Circuit in the ALA decision, and thus
currently there is no applicable deadline for state plan submissions
and revisions required under EGs subject to subpart Ba.
As laid out in the notice of proposed rulemaking and summarized
below, in evaluating the appropriate timeline for plan submittal to
replace the vacated provisions in subpart Ba, 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 the statutory
deadlines and processes for relatively comparable state plans under CAA
section 129, and attainment planning SIPs submitted pursuant CAA
sections 189(a)(2)(B) and 189(b)(2) for the 2012 National Ambient Air
Quality Standards (NAAQS) for fine particulate matter
(PM2.5). 78 FR 3085 (January 15, 2013). Finally, the EPA
incorporated consideration of the ALA decision addressing expediency in
implementation of EGs for protection of public health and welfare.
To develop a CAA section 111(d) state plan, a state must complete a
series of steps to ensure that the plan will meet all 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) as well
as certain processes that a state must undertake 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,
including the administrative processes (e.g., permitting processes,
regulatory development, legislative approval) necessary to develop and
adopt enforceable standards of performance. State plan development
generally involves several phases, including providing notice that the
state agency is considering adopting a rule; taking public comment; and
approving or adopting a final rule. The process required to formally
adopt a rule at the state level differs from state to states.\18\
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\18\ 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.
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As previously mentioned, 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 indicated that most states either did not submit plans
or submitted plans that were substantially late.\19\ The EPA also noted
that the plans submitted under subpart B were not subject to additional
requirements for meaningful engagement and consideration of RULOF,
which may add time to the state development process relative to plans
developed and submitted under subpart B. For these reasons, the EPA
found that 9 months is not a reasonable amount of time for most states
to adequately develop a plan for an EG.
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\19\ 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.
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To help inform the 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. The processes for CAA sections 111(d)
and 129 are 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). Moreover, CAA section 129 plans are required by statute
to be at least as protective as the EPA's EGs, without exception. CAA
section 129(b)(2). While CAA section 111(d) permits states to take into
account remaining useful life and other factors to set less stringent
standards for particular sources. This suggests that the development of
a CAA section 111(d) plan could involve more complicated analyses than
a CAA section 129 plan and that a longer timeframe is likely reasonable
for state plans under CAA section 111(d) than the 1-year timeframe the
statute provides under CAA section 129.
Additionally, the EPA found that a considerable number of states
have not made timely state plan submissions in response to previous CAA
section 129 EGs. 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.\20\ This again suggests that states
will typically need more than
[[Page 80488]]
one year to develop a state plan to implement an EG.
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\20\ The EPA reviewed the information available in 40 CFR part
62. The supporting information reviewed is available at Docket ID
No. EPA-HQ-OAR-2021-0527. Part 62 codifies the Administrator's
approval and disapproval of state plans for the control of
pollutants and facilities under CAA section 111(d), and under CAA
section 129 as applicable.
---------------------------------------------------------------------------
In the 2019 promulgation of subpart Ba, the EPA mirrored CAA
section 110 by giving states 3 years to submit plans. As previously
described, the D.C. Circuit 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. Therefore, in
proposing the revised timelines the EPA closely evaluated other
statutory deadlines and requirements for state implementation plans to
determine what is feasible for a CAA section 111(d) state plan
submission timeline. The EPA specifically focused on statutory SIP
submission deadlines and requirements in the context of attainment
plans for the 2012 PM2.5. NAAQS under CAA section 189
because it provided a comparable process. CAA section 189(a)(2)(B)
requires states to submit attainment planning SIPs within 18 months
after an area is designated nonattainment and there is a record of
successful state submittals pursuant to this timeline. The 2012
PM2.5. NAAQS attainment plans were, in most cases, more
complicated for states to develop when compared to a typical plan that
may be required 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 PM2.5 NAAQS by a
specified date. Identification of contributing emission sources and the
development of effective control strategies can be challenging because
particulate matter pollution is comprised of both primary emissions and
secondary particle formation. By contrast, under CAA section 111(d), it
is clear which designated facilities are subject to a state plan, in
general what control methods are available for the designated pollutant
from that facility, and that the standards of performance for these
sources must reflect the level of stringency for the facility as
determined by the EG unless a state chooses to account for RULOF.
Informed by these analyses, the EPA proposed to require that each
state adopt and submit to the Administrator a plan for the control of
the designated pollutant(s) to which the EG applies within 15 months of
publication of a final EG. Some commenters supported the proposed
timeline based on the need for urgency in achieving the emission
reductions targeted by an EG. Additionally, some commenters noted that,
in comparison with NAAQS SIP requirements, states are generally well-
positioned to address the source sectors historically regulated under
CAA section 111(d) and have access to information about control
strategies and regulatory approaches for controlling emissions. Most
commenters on this issue were state agencies or other state-related
entities that generally expressed the need for a longer state plan
submittal timeline in order to accommodate state regulatory processes
associated with plan submittals (i.e., legislative and/or
administrative state processes), as well as to accommodate technical
development of the plans and to implement the proposed meaningful
engagement requirements. Approximately 10 states responded to the EPA's
request with information about their state processes. The information
received indicates that states argued that they need anywhere from 15
months to 36 months to adopt and submit state plans. As discussed
further below, the EPA is finalizing a state plan submittal timeline of
18 months. It is doing so after consideration of comments received on
the proposal and recognizing the need to protect public health and
welfare. The EPA has determined that 18 months is the appropriate
timeline for these general implementing regulations; for a generic EG,
this represents a reasonable balance between providing states
sufficient time to develop and submit a plan that satisfies the
applicable requirements and ensuring that the emission reductions
contemplated in an EG are achieved as expeditiously as practicable.
Consistent with the existing regulations of subpart Ba, 40 CFR
60.20a(a)(1), the EPA may supersede this 18-month state plan submittal
timeline in an individual EG.
The proposed 15-month submittal timeline was based on the EPA's
proposed determination that this was a reasonably expeditious deadline
that would provide states and stakeholders sufficient time to develop
and submit an approvable state plan. However, based on public comments
received, we no longer believe that 15 months will provide sufficient
time to complete the substantive and procedural requirements under
subpart Ba. For example, the EPA is revising subpart Ba to require that
states demonstrate meaningful engagement as part of their state plan
development. While the time needed to conduct meaningful engagement
will depend highly on the source category, the designated pollutant,
and the types of impacts associated with designated facilities and
potential controls, as well as on the pertinent stakeholders under a
given EG within each state, it is very likely to require additional
time relative to the existing public notice and hearing requirements
under CAA section 110 and subpart Ba. We received comments that 15
months would be insufficient time to identify pertinent stakeholders,
develop public participation strategies, and conduct outreach and
engagement. Some commenters also pointed out that adding requirements,
such as meaningful engagement and RULOF, without a corresponding
extension of time to develop plans may undermine states' abilities to
submit timely, approvable plans. While some commenters requested 36
months to submit state plans, several indicated that a minimum
timeframe of 18 months would be appropriate for a state plan under a
generic EG. Given the preponderance of comments suggesting that 15
months was not a reasonable amount of time to develop an approvable
state plan and in recognition of the need to promulgate a timeline that
achieves emission reductions as expeditiously as practicable, the EPA
believes 18 months is the most reasonable timeline to include in these
generally applicable implementing regulations.
The EPA acknowledges that, as commenters asserted, state regulatory
and legislative processes and resources can vary significantly and
influence the time needed to develop and submit state plans (e.g.,
legislative procedures and timelines vary by state). Some commenters
opposed to a shorter state plan submission timeline asserted that they
need 36 months to complete their administrative and legislative
processes. However, because the CAA contains numerous, long-standing
requirements under other programs for states to develop and submit
plans within 18 months (or fewer),\21\ the EPA believes that states
should be well positioned to accommodate an 18-month submittal timeline
for plans under section 111(d). In designing a submittal deadline for
state plans, it is reasonable to look to what Congress has determined
are appropriate timelines for SIPs and to assume that states should be
able to accommodate comparable timelines under CAA section 111(d).
Indeed, some commenters recommend that the EPA not defer to lengthy
state administrative processes, and expressed concern that some states
have adopted, or may adopt, procedures that are longer than necessary
and that will unnecessarily postpone Federal emission-reduction
obligations. To this point, extending
[[Page 80489]]
state plan submittal timelines to account for any and all unique state
procedures would inappropriately delay reductions in emissions that
have been found under CAA section 111 to endanger health or the
environment.
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\21\ See, e.g., CAA sections 110(k)(5); 129; 179(d)(1); 189.
---------------------------------------------------------------------------
Some commenters asserted that the ALA decision does not preclude
the EPA from adopting a 36-month time frame for state plan submittals
and that the Agency need only justify a longer timelines more fully.
However, the EPA recognizes that the D.C. Circuit, in ALA, faulted the
Agency for failing to consider the potential impacts to public health
and welfare associated with extending planning deadlines. In response,
the EPA is promulgating a state plan submittal timeline that reflects
the generally expeditious period of time for states to develop and
submit a plan per the corresponding emission guidelines that is both
comprehensive and legally sound. The EPA does not interpret the court's
direction to require a quantitative measure of impact, but rather
consideration of the importance of meeting the public health and
welfare goals when determining appropriate deadlines for implementation
of regulations under CAA section 111(d). Based on EPA's assessment of
the time it will take for states to develop and submit plans under
these general implementing regulations, both in the notice of proposed
rulemaking and this preamble and after consideration of comments
received, the EPA has determined that 18 months represents the
generally expeditious period of time.
Some commenters stated that reduction of the designated pollutants
addressed by currently proposed emission guidelines (i.e., GHG) is not
urgent based on the fraction of global GHG reduced by currently
proposed emission guidelines, so a longer state plan timeline would be
justified. The EPA disagrees with the commenters' characterizations of
the threat posed by elevated concentrations of greenhouse gases in the
atmosphere. The EPA has determined that greenhouse gas air pollution
may reasonably be anticipated to endanger public health or welfare \22\
and has explained that ``scientific assessments, EPA analyses, and
documented observed changes in the climate of the planet and of the
U.S. present clear support regarding the current and future dangers of
climate change and the importance of GHG emissions mitigation.'' \23\
Moreover, subpart Ba applies to any EG promulgated after July 8, 2019,
not only to the recently proposed EGs addressing GHG emissions from two
source categories. The EPA regulates source categories, through EGs,
that emit pollutants the Agency has determined under CAA section 111(d)
to cause or significantly contribute to an endangerment of public
health or welfare. Accordingly, consistent with ALA, it is appropriate
for the EPA to set an expeditious but reasonable schedule in these
general provisions for state plan development and submission to ensure
that emission reductions occur in a timely manner.
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\22\ See, e.g., 80 FR 64510, 64530 (Oct. 23, 2015).
\23\ 88 FR 33240, 33252 (May 23, 2023).
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Finally, some commenters asserted that if the EPA were to finalize
the state plan submittal timeline as proposed, the EPA should include a
mechanism in subpart Ba for states to ask for extensions of the state
plan submittal deadline. However, as we are providing additional time
for state plan submittals relative to proposal, we are not providing a
mechanism for states to request deadline extensions in subpart Ba.
Additionally, the EPA has the ability to supersede the timelines in
subpart Ba in individual EGs and will take into account any unique
considerations that may result in the need for longer or shorter
timelines on an EG-by-EG basis.
In summary, while the EPA proposed a 15-month state plan submittal
timeline, after consideration of comments, the EPA is finalizing 40 CFR
60.23a(a)(1) to provide an 18-month timeline for the submission of
state plans following publication in the Federal Register of a final
EG. The EPA has determined that this is the generally expeditious
period in which states can create and submit a plan per the EPA's
corresponding EGs that is both comprehensive and legally sound. In
considering the appropriate timeline, the EPA has evaluated data from
previously implemented EGs and the statutory deadlines and data from
analogous programs (e.g., CAA sections 129 and 189). We have also
considered comments that some of the requirements the EPA had proposed
for subpart Ba would require additional time to implement, as well as
comments asserting that certain states need up to 36 months to complete
their administrative and legislative processes. While a reasonable
state plan submittal timeline must provide states sufficient time to
develop and submit plans that comport with the applicable requirements,
the EPA also believes that state processes should be able to
accommodate an 18-month timeline because the CAA already contains
numerous deadlines that require SIP submissions to be developed and
submitted to the Agency within 18 or fewer months. Thus, this finalized
timeline should provide states reasonable time to adopt and submit
approvable plans, and is also sufficiently expeditious to protect
against significant adverse impacts to health and welfare resulting
from foregone emission reductions during the state planning process.
Providing 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. Because 18
months is an expeditious time period, 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.
The EPA is also finalizing the proposed amendment to 40 CFR
60.27a(a) replacing the word ``shorten'' with ``amend''. The
applicability provision at 40 CFR 60.20a(a)(1) states that ``each
emission guideline may include specific provisions in addition to or
that supersede requirements of this subpart.'' However, the existing
provision in 40 CFR 60.27a(a) only provides for the Administrator to
``shorten the period for submission of any plan or plan revision or
portion thereof.'' To make these two provisions consistent in light of
the timelines for plan submission finalized in this action, the EPA is
replacing the word ``shorten'' with ``amend.'' One commenter opposed
the amendment stating there is no regulatory certainty for the state in
state plan submittal if the Administrator can simply change the
timeline as he deems necessary. However, the appropriate timeline would
undergo notice and comment rulemaking as the EG is proposed and
finalized so that states would have sufficient notice of the timeline.
To the extent the EPA considers deviating from this 18-month timeframe
in promulgating an EG in the future, the EPA will consider the public
health and welfare impacts associated with extending the state plan
submission timeline, consistent with the D.C. Circuit's direction in
ALA.
The EPA is also finalizing two amendments to 40 CFR 60.28a(a),
which addresses plan revisions by the state. First, the EPA is
finalizing the proposed clarification that meaningful engagement
requirements apply to any significant plan revision by the state.
Second, the EPA is finalizing revisions
[[Page 80490]]
to the timeline for state plan revisions required in response to a
revised emission guideline. At proposal, the EPA indicated in the
revised regulatory text that it was proposing to shorten the timeline
for state plan revisions in this specific circumstance from three years
to 12 months.\24\ The EPA received comments on this proposed revision
asserting that the same process-related challenges that apply to
initial state plan submissions, including conducting meaningful
engagement and RULOF procedures and working through states'
administrative and legislative processes, also apply to state plan
revisions. Commenters requested that the EPA extend the timeline for
state plan revisions in response to revised emission guidelines; one
commenter specifically requested that the EPA leave it at 36 months.
However, the EPA anticipates that, in most instances, plan revisions
required in response to a revised emission guideline would be narrower
in scope than the initial state plan and would not require states to
reevaluate standards of performance or conduct significant new
analysis. For example, the EPA may revise an emission guideline to
provide for additional or updated monitoring or compliance protocols or
to clarify applicability provisions. In such instances, the full period
of time provided for initial state plan development and submission
would not be necessary.\25\ Thus, the EPA believes it is reasonable to
set a default timeline for the submission of state plan revisions in
these general implementing guidelines that is shorter than the timeline
for initial state plan submission. Because the EPA is providing an
additional three months for state plan submission in this final rule
relative to the proposed timeline (18 months versus 15 months), it is
finalizing a timeline for the submission of state plan revisions in
response to a revised emission guideline of fifteen months, which is
also three months longer than the twelve months proposed. Additionally,
in recognition that some state plan revisions in response to a revised
emission guideline may in fact be more complex or necessitate
additional analysis or rulemaking, the EPA is finalizing the provision
at 40 CFR 60.28a(a) to allow the Agency to determine a different
timeline for the submission of revised state plans, which it will
provide in the revised emission guideline.
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\24\
``Docket_memo_outlining_proposed_changes_to_regulatory_text.pdf,''
available at https://www.epa.gov/stationary-sources-air-pollution/adoption-and-submittal-state-plans-designated-facilities-40-cfr, as
well as Docket ID No. EPA-HQ-OAR-2021-0527-0002.
\25\ The EPA's response to comments that the state plan
submission timelines should accommodate every state's unique
administrative and legislative processes is also relevant here and
is provided elsewhere in this section of the preamble.
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2. Timeline for the EPA To Determine Completeness of State Plans
Once a state plan has been submitted to the EPA, the EPA reviews
the plan for ``completeness'' to determine whether it 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 determine whether the submission contains the
specified elements (see 40 CFR 60.27a(g)(2) for completeness criteria).
The timeline to make completeness determinations in the version of
subpart Ba the EPA promulgated in 2019 mirrored the language for SIPs
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.'' Like CAA section
110(k)(1)(B), subpart Ba also provided that a state plan would be
deemed complete by operation of law if the EPA had not made an
affirmative determination by the date 6 months after receipt of the
plan submission. 40 CFR 60.27a(g)(1).
After a state plan is deemed 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 timeline for
the EPA to act on a state plan submission runs from the date a
submission is deemed complete; more on this timeline can be found in
section III.A.3. of this preamble.
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.
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
proposed to revise the timing element of the completeness review at 40
CFR 60.27a(g)(1). In light of the ministerial nature of the
completeness determination, the EPA proposed a maximum of 60 days from
receipt of the state plan submission for the EPA to make a
determination of completeness. The EPA additionally proposed 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 and tribes, the EPA explained at proposal that it did not
find that this timeframe could reasonably be shortened any further.
While most commenters supported the 60-day completeness period,
some commenters expressed concern that a state plan that is
automatically deemed complete by operation of law as of the allotted 60
days could cause unnecessary turbulence in state plan implementation if
the plan is later disapproved by the EPA due to missing information.
Other commenters noted that if a plan is determined to be incomplete, a
60-day period will not allow states sufficient time to correct the
deficiency and submit a complete plan. First, the EPA notes that the
completeness determination is ministerial in nature and does not affect
the Agency's subsequent responsibility and authority to substantively
review a state plan submission against the requirements of the Act and
applicable regulations, including this subpart Ba and the relevant EG.
That is, a determination that a state plan is complete does not signify
that it necessarily satisfies the substantive requirements. The
commenters fail to explain how deeming a state plan submission complete
by operation of law, in this case after 60 days, and later finding it
does not satisfy an applicable requirement is a new phenomenon or would
cause unnecessary turbulence in state plan implementation. Rather, a
shorter period for deeming plans complete by operation of law would be
less disruptive than a longer period in this instance because the EPA
will complete its substantive evaluation of the plan sooner and the
state will have notice earlier on of any deficiencies. Additionally,
because states may submit plan revisions at any time, states may
[[Page 80491]]
work collaboratively with the EPA on any portions of a plan identified
as being deficient during both the completeness determination period
and the period for the EPA's substantive review of the plan. Thus,
again, a shorter completeness determination period that includes a
cutoff for deeming submissions complete by operation of law merely
keeps the state plan review process moving expeditiously and does not
foreclose any state opportunities to correct or supplement submissions
at any point in the EPA's review process.
Moreover, the EPA intends to review for completeness as soon as
possible after submittal. Although the EPA believes that it will be
able to provide a timely completeness determination for most if not all
state plan submissions, providing for completeness through operation of
the law will help ensure that the EPA's action on state plans does not
significantly delay plan processing or implementation.
The EPA is therefore finalizing the completeness provision at 40
CFR 60.27a(g)(1) as proposed. The EPA notes that if the EPA determines
a plan is incomplete, the EPA is required to promulgate, through
notice-and-comment rulemaking, a Federal plan. See sections III.A.4.
and III.B. for the discussion and final amendments associated with the
timeline and triggers of the Federal Plan respectively. 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 that
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, 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. The EPA does
so by evaluating a plan (or plan revision) to 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 partial plan approvals),
through a notice-and-comment rulemaking process. After the EPA proposes
an action on a state plan submission (e.g., approval, partial approval/
partial disapproval, disapproval) and reviews comments on the proposed
action, the EPA will finalize its action on 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 the state
that were covered by the disapproved portions of the plan (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 in this
rulemaking 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 again proposed 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.\26\
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\26\ The deadlines for the EPA action under subpart Ba would
apply to any state plan submission regardless of when it is
submitted.
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In the notice of proposed rulemaking, the EPA explained that the
first step it takes once a state plan submittal has been deemed
``complete'' under 40 CFR 60.27a(g) is for an intra-agency workgroup to
review 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 the 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
the 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 of review and 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 by commenters. 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
information provided by the comments, it should alter its proposed
action or further augment the legal, policy, and technical rationales
[[Page 80492]]
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 includes standards of performance for dozens of
facilities on different compliance schedules would be 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.
While some commenters supported 12 months as an expeditious
timeframe for the EPA review and action on state plan submittals,
several noted that 12 months may be insufficient. These commenters
asserted that the EPA must meaningfully evaluate and take action on a
state plan and a 12-month timeframe may be too short for this process.
However, as detailed in the discussion above, the EPA has a mapped out
the time necessary to take action on a generic plan submission and
believes that 12 months is the most expeditious and therefore the most
appropriate period to provide for these generally applicable
implementing regulations. Additionally, the EPA has completed hundreds
of actions on CAA section 110 SIPs within 12 months over the past 4
years. Given that the EPA may choose to supersede the requirements of
subpart Ba as necessary in an individual EG, we believe that providing
the shortest period here is consistent with considering health and
welfare impacts by designing timelines to achieve state plan
implementation as expeditiously as reasonably possible.
The EPA is therefore finalizing as proposed 40 CFR 60.23a(b) to
provide that it will take action on a state plan or plan revision
within 12 months of a determination of a complete plan pursuant to 40
CFR 60.27a(g). This is a reasonably expeditious timeframe to
accommodate the EPA action 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 in this
action 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, any proposed action by the EPA has to be open for public
comment for at least 30 days, and therefore the 4-month timeline
provided in subpart B only gave 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
in this action.\27\
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\27\ While the EPA would have the discretion to act on a state's
submission more quickly than 12 months where specific circumstances
allow (e.g., where there are no public comments on the proposed
action), the EPA does not believe that it would be reasonably
possible to act significantly more quickly than 12 months in most
cases.
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As explained at proposal, the EPA recognizes that the court in ALA
faulted the Agency for failing to consider the potential impacts to
public health and welfare associated with extending planning deadlines.
The EPA does not interpret the court's direction to require a
quantitative measure of impact, but rather consideration of the
importance of the public health and welfare goals of CAA section 111(d)
when determining appropriate deadlines. Because 12 months is an
adequate period of time in which the EPA can both expeditiously act on
a plan submission and ensure that its action is technically and legally
sound, it follows that the EPA has appropriately considered the
potential impacts to public health and welfare associated with this
extension of time by providing no more time than the EPA reasonably
needs to ensure a plan submission contains appropriate and protective
emission reduction measures. If the EPA does not have adequate time to
evaluate a state plan submission, its ability to ensure the plan
contains appropriate measures to satisfactorily implement and enforce
the standards necessary to comply with the EG may be compromised, which
would in turn compromise the EPA's ability to ensure that the public
health and welfare objectives of the EG are satisfied. Although several
commenters noted that the review of some plans may require a more in
depth analysis, the EPA believes 12 months is a both reasonable and
expeditious timeframe to evaluate and act on most state plans.
Accordingly, in order to ensure that the public health and welfare
objectives of CAA section 111 are timely realized, and consistent with
the direction in ALA, the EPA does not believe it would be appropriate
to finalize a timeframe longer than 12 months for the EPA action on
state plans.
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
[[Page 80493]]
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 60.27a(c). The EPA is finalizing
as proposed the revisions to 40 CFR 60.27a(c) providing that the Agency
will promulgate a Federal plan at any time within 12 months of any of
the triggers in Sec. 60.27a(c)(1) and (2) (see section III.B. of this
preamble for discussion).\28\
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\28\ 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 separate Federal plans each time its authority to do so
has been triggered (e.g., the EPA will promulgate a Federal plan for
all states that fail to submit a plan and another Federal plan for
all states that have their plan disapproved).
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The EPA 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.\29\
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\29\ CAA section 179 provides that sanctions should be applied
in states that fail to submit approvable SIPs for certain specified
requirements for NAAQS implementation. The EPA has not promulgated
any similar sanctions provisions governing the submission of state
plans pursuant to section 111(d).
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The original implementing regulations in subpart B provided the EPA
with 6 months to promulgate a Federal plan once its obligation to do so
was triggered. 40 CFR 60.27(d). When the EPA promulgated subpart Ba in
2019, it concluded that this amount of time was insufficient and
consequently extended the time for the EPA to promulgate a Federal plan
to 24 months, mirroring the timeframe permitted for promulgation of a
FIP under CAA section 110. 84 FR 32520, July 8, 2019. In the ALA
decision, the D.C. Circuit vacated this revised timeline in subpart Ba
on the basis that the EPA did not adequately justify the extended
timeframe and did not consider the health and welfare impacts of
extending the implementation timeframe.
At proposal, the EPA reevaluated the process, steps, and timeframes
for the EPA to promulgate a Federal plan through a public notice-and-
comment rulemaking process and proposed a 12-month timeframe to
promulgate a Federal plan once its obligation to do so is
triggered.\30\ As explained in the notice of proposed rulemaking, 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). The EPA's regulations at 40 CFR
60.27a implement these various statutory requirements and contain
general regulatory requirements for the EPA's promulgation of a Federal
plan. The process, and steps for the EPA to promulgate a Federal plan
consistent with these applicable requirements is described in the
following paragraphs.
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\30\ The EPA reviewed the information available in 40 CFR part
62 associated with the promulgation of Federal Plans under CAA
section 111(d). The supporting information reviewed is available at
Docket ID No. EPA-HQ-OAR-2021-0527. Under the provisions of CAA
section 111 and subpart B, the EPA promulgated Federal plans for
municipal solid waste landfills EG 40 CFR part 60, subpart Cc
(Federal plan codified at 40 CFR part 62, subpart GGG) and municipal
solid waste landfills EG 40 CFR part 60, subpart Cf (Federal plan
codified at 40 CFR part 62, subpart OOO).
The EPA also reviewed information available in 40 CFR part 62
associated with the promulgation of Federal Plans under CAA 129. The
supporting information reviewed is available at Docket ID No. EPA-
HQ-OAR-2021-0527. Under the provisions of CAA sections 111 and 129
and subpart B, the EPA has promulgated Federal plans for large
municipal waste combustors EG 40 CFR part 60, subpart Cb (Federal
plan codified at 40 CFR part 62, subpart FFF); small municipal waste
combustors EG 40 CFR part 60, subpart BBBB (Federal plan codified at
40 CFR part 62, subpart JJJ); hospital, medical, and infectious
waste incinerators EG 40 CFR part 60, subpart Ce (Federal plan
codified at 40 CFR part 62, subpart HHH); commercial and industrial
solid waste incinerators EG 40 CFR part 60, subpart DDDD (Federal
plan codified at 40 CFR part 62, subpart III) and sewage sludge
incinerators EG 40 CFR part 60, subpart MMMM (Federal plan codified
at 40 CFR part 62, subpart LLL).
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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 degree of emission limitation
achievable through application of the BSER as determined by the EPA as
part of the EG. Depending on the form of the BSER and the degree of
emission limitation 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 translate the degree of
emission limitation into a presumptive standard in the form of
numerical emission rates, which a Federal plan could simply adopt as
the requisite standards of performance. However, if an EG provides the
degree of emission limitation in a form other than presumptive
numerical standards, and 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 to identify whether the remaining
useful lives of relevant designated facilities, among other appropriate
factors, merit the EPA establishing different standards of performance
for those facilities. The development of a Federal plan may also
necessitate that the EPA determine 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 IoPs are warranted,
[[Page 80494]]
and the EPA will correspondingly need to identify and determine the
appropriate IoPs. The development of a Federal plan with these
components, or of significant revision to a Federal plan, will also
include elements of meaningful engagement, as finalized in this action
including revision to section 40 CFR 60.29a and as 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 nine 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 for which the EPA will
need to establish standards of performance and implementation measures,
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.
In response to this proposed timeline, several commenters asserted
that the EPA should provide itself more than the proposed 12 months to
promulgate a Federal plan, with some commenters noting additional time
needed for the EPA to provide for meaningful engagement and
consideration of RULOF. However, based on the assessment as presented
in the preceding paragraphs, recognizing that much of the evaluation
needed for promulgating a Federal plan will be performed by the EPA
during development of the EG, considering the need for expeditious
implementation of EGs, and noting that RULOF is expected to only be
needed for certain limited circumstances, the EPA is finalizing the
requirement that it promulgate a Federal plan within 12 months once its
obligation to do so is triggered, i.e., 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. As with the other
timelines in subpart Ba, the EPA may supersede the 12 month timeline
for a Federal plan as appropriate depending on the circumstances of the
applicable EG.
The EPA also recognizes that some commenters stated that the EPA
need not and should not wait for its Federal plan obligation to be
``triggered'' to begin developing such a plan. The EPA agrees that
early development of the Federal plan, where possible before the EPA's
obligation is formally triggered, could provide the EPA with additional
time to meet this deadline. The EPA notes that to further streamline
the timeline associated to the issuance of a Federal plan, the EPA is
also finalizing the proposed 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. That discussion is found in section III.B. of
this preamble.
[[Page 80495]]
Thus, the EPA is finalizing as proposed the revisions to 40 CFR
60.27a(c) providing that the Agency will promulgate a Federal plan at
any time within 12 months of any of the triggers in Sec. 60.27a(c)(1)
and (2). While retaining the authority to supersede this timeline in an
EG if appropriate, 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 earlier that the EPA 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.\31\
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\31\ While the EPA would have the discretion to promulgate a
Federal plan more quickly than 12 months where specific
circumstances allow (e.g., where there are no public comments on the
proposed action), the EPA does not believe that would be reasonably
possible to act significantly more quickly than 12 months in most
cases.
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As with the EPA's finalized timeline to act on state plan
submissions, 12 months is generally the period of time in which the EPA
can both expeditiously complete a Federal plan and ensure it is
technically and legally sound. Therefore, this time period 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 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 (IoPs)
As part of the EPA's statutory responsibility to determine the
degree of emission limitation achievable through application of the
BSER and to include it in an EG, 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). Accordingly, state plans must include
both standards of performance for designated facilities and compliance
schedules for achieving those standards of performance.\32\
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\32\ ``Each plan shall include standards of performance and
compliance schedules.'' 40 CFR 60.24a(a).
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In 1975, the EPA defined in subpart B ``compliance schedule'' as
``a legally enforceable schedule specifying a date or dates by which a
source or category of sources must comply with specific standards of
performance contained in a plan or with any increments of progress to
achieve such compliance.'' In subpart B the EPA also defined
``increments of progress'' as steps to achieve compliance which must be
taken by an owner or operator of a designated facility including: (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. The EPA adopted
these definitions without change when it promulgated subpart Ba in
2019.
Subpart B requires that each state plan include emission standards
and compliance schedules. 40 CFR 60.24a. In addition, subpart B
specifies in 40 CFR 60.24(e)(1) 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.
Unless otherwise specified in the applicable subpart, increments of
progress must include, where practicable, each increment of progress
specified in Sec. 60.21(h) and must include such additional increments
of progress as may be necessary to permit close and effective
supervision of progress toward final compliance. The provision in 40
CFR 60.24(e)(1) was amended in 2000.\33\ The 2000 amendments to 40 CFR
60.24(e)(1) added the words ``Unless otherwise specified in the
applicable subpart'' to the requirements associated with IoPs. The EPA
described in the 1999 proposal that the purpose of this amendment was
to allow the EPA, in a specific subpart, discretion in the number of
IoPs that a designated facility must meet. Without this amendment
subpart B required designated facilities to meet all five IoPs
specified in the IoP definition. In the 1999 proposal the EPA
recognized that while for some categories of designated facilities the
five increments are appropriate, all five IoPs may not be necessary to
ensure compliance for other categories of designated facilities.
Therefore, EPA proposed and finalized amendments to 40 CFR 60.24(e) to
allow discretion and flexibility in establishing IoPs for a particular
subpart.
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\33\ 65 FR 76380 (Dec 6, 2000).
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In promulgating subpart Ba in 2019, the EPA largely carried over
the requirement of subpart B at 40 CFR 60.24(e)(1) in a new provision
40 CFR 60.24a(d).\34\ However, to align the trigger of IoPs in 40 CFR
60.24a(d) to the updated timelines it was finalizing in subpart Ba, in
2019 the EPA adopted a timeframe trigger for IoPs of 24-months instead
of the 12-months as in subpart B. Per the finalized 2019 subpart Ba
provision at 40 CFR 60.24a(d), unless otherwise specified in the
applicable subpart, any compliance schedule extending more than 24
months from the date required for submittal of the plan must include
legally enforceable IoPs to achieve compliance for each designated
facility or category of facilities. As discussed previously, the D.C.
Circuit vacated the extended implementation timelines in subpart Ba,
including the 24-months timeline trigger for IoPs in 40 CFR
60.24a(d).\35\
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\34\ In promulgating Ba in 2019, the EPA specified that for
``For those provisions that are being carried over from the existing
implementing regulations into the new implementing regulations, the
EPA is not intending to substantively change those provisions from
their original promulgation and continues to rely on the record
under which they were promulgated.'' 84 FR 32520 (July 8, 2019).
\35\ Petitioners did not challenge, and the court did not vacate
in ALA, the substantive requirement for or definition of increments
of progress.
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[[Page 80496]]
To address the vacated timeline trigger of IoPs in 40 CFR
60.24a(d), the EPA proposed in 2022 that, unless otherwise specified in
the applicable subpart, any compliance schedule extending more than 16
months from the date required for submittal of the plan must include
legally enforceable IoPs to achieve compliance for each designated
facility or category of facilities. The proposed 16-month trigger for
IoPs overlapped with the EPA's proposed 60-day completeness review
following a state plan submittal and the proposed 12-month period for
the EPA to review and take action on the state's plan and would have
further provided a 2-month buffer after the timeline for the EPA's
action on a state plan (occurring no later than 14 months after the
plan submission deadline under these general implementing regulations).
In the 2022 proposal the EPA recognized the proposed 16-month timeframe
trigger for IoPs provided a 2-month time buffer between the EPA's
action on a state plan and the trigger of IoPs. As proposed, this 2-
months buffer was less than both the 8 months previously provided by
subpart B and the 6-month buffer provided by the vacated subpart Ba
timeline.
In response to the proposed 16-month IoPs timeframe trigger,
several commenters asserted the proposed 2-month buffer from the time
of the EPA's action on a state plan to the trigger of IoPs is not
practically workable. Some commenters argued that, assuming that there
could be a required increment of progress right after the 16-months
trigger and the EPA has 14 months to take final action on a state plan,
the designated facilities would have only two months to comply with the
requirement after it becomes federally enforceable. Other commenters
similarly noted that if final compliance was required just after the
16-month trigger, designated facilities would similarly have only two
months to complete any IoPs. The commenters explained that it is unduly
burdensome for sources to expend resources on developing hypothetical
final control plans and committing resources to construction projects
that may ultimately be inconsistent with the EPA's action on a state
plan. Several commenters that opposed the 16-months proposed timeframe
trigger for IoPs suggested that the EPA extend the trigger to more than
24-months, consistent with the previously vacated subpart Ba. Some
commenters argued that 24 months is the minimum time necessary to
develop control strategies, design plans, procure construction
materials and/or equipment, and complete the installations often
necessary for compliance. Other commenters suggested that a 10-month
buffer from the EPA action on a state plan to the trigger for IoPs
would also be acceptable and even preferred, should the EPA miss its
approval deadlines.
After consideration of comments and accounting for the discretion
that EPA has in establishing IoPs in a particular EG, the EPA is
extending the buffer associated with the trigger of IoPs from 2 months
to 6 months, so that, unless otherwise specified in the applicable
subpart, any compliance schedule extending more than 20 months from the
date required for submittal of the plan must include legally
enforceable IoPs to achieve compliance for each designated facility or
category of facilities.
The EPA emphasizes that the timeline for the trigger for IoPs
merely signals when the gap between state plan submission and final
compliance is long enough that the EPA must consider whether IoPs are
necessary. It is not the case that any EG with a final compliance date
after the trigger for consideration of IoPs will necessarily require
all of the increments listed in 40 CFR 60.21a(h). The EPA is required,
per 40 CFR 60.22a(b)(4), to include within an EG ``[i]ncremental
periods of time normally expected to be necessary for the design,
installation, and startup of identified control systems.'' These
incremental periods are determined within an EG through notice and
comment rulemaking, providing an opportunity for appropriate
consideration of the reasonable time needed for the designated
facilities to meet the requirements associated with the pertinent
standards of performance. As provided by subpart Ba, the EPA will
determine in an individual EG whether IoPs are needed to achieve final
compliance with the standards of performance and, if increments are
needed, how many and the timeframes associated with compliance of such
IoPs. However, the EPA also believes that the trigger requirement for
IoPs should attach to plans that contain compliance periods that are
longer than the period provided for the EPA's review of such plans and
in addition provide a reasonable buffer after the EPA has acted on such
plans so that designated facilities could reasonably comply with
required increments. After further consideration, the EPA believes that
a default 2-month buffer between an EPA action on a state plan and a
hypothetical compliance deadline for a full set of IoPs is not
generally sufficient.
In 2019, the EPA promulgated a trigger for IoPs of 24-months given
that it was finalizing a period of up to 18 months for its action on
state plans (i.e., 12 months from the determination that a state plan
submission is complete, which could occur up to six months after
receipt of the state plan). The 24-month period would have provided a
6-month buffer for designated sources to comply with any IoPs after the
EPA acted on state plans. In this action, the EPA is finalizing a
trigger for consideration of IoPs that provides the same buffer
provided by the EPA in the 2019 vacated increment of progress timeline
trigger. The EPA believes a 6-month buffer is generally needed to
appropriately balance ensuring designated facilities control emissions
of harmful pollutants as expeditiously as reasonably possible with the
need for designated facilities to have reasonable certainty regarding
their federally enforceable regulatory compliance obligations with
sufficient time before those obligations are due. In addition, the EPA
determines that the 6-months buffer provides a reasonable time to come
into compliance with any potential increment of progress when
compliance date that extends more than 20 months from the date required
for submittal of the plan. Per the EPA's assessment of the comments and
in light of the ALA court decision, the EPA determines that a 6-month
timeframe buffer before the trigger for requirements associated with
IoPs provides is the most reasonable expeditious period of time
associated with the requirements for IoPs in 40 CFR 60.24a(d). While
some commenters argued more time is necessary to develop control
strategies, design plans, procure construction materials and/or
equipment, and complete the installations often necessary for
compliance, the final requirements in subpart Ba does not express the
EPA's intent to require that states require designated facilities to
complete all potential IoPs in a 6-month period.
Several commenters also urged the EPA to link the timelines for
IoPs to the date on which the EPA takes final action on a state plan,
instead of with the state plan submittal deadline. However, given that
there will typically be a single final compliance date specified in an
EG but the dates on which the EPA takes final action on individual
states plans are likely to be many and varied based on, inter alia,
when each state plan was submitted to the Agency, such an approach
would create unnecessary confusion about whether IoPs must be
[[Page 80497]]
implemented and potentially uneven application of the requirement for
state plans to include IoPs. It could also create a perverse incentive
for states to delay submission of their state plans. Additionally, the
timeline for IoPs initiates from the state plan submittal deadline
because it is the earliest instance when all standards of performance
in all timely state plans will be enforceable. It is a requirement of
state plans, when submitted, to be enforceable at the state level and
thus all designated facilities subject to a standard of performance in
a state plan will have assurance of their requirements at the state
level and can start planning for compliance while the EPA reviews and
acts on the state plan.
The timeline for IoPs finalized in this action 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.
B. Federal Plan Authority and Timeline Upon Failure To Submit a Plan
CAA section 111(d)(2)(A) provides that the EPA has the same
authority ``to prescribe a plan for a State in cases where the State
fails to submit a satisfactory plan as he would have under section
7410(c) of this title in the case of failure to submit an
implementation plan.'' The original implementing regulations in subpart
B provide that the EPA is to ``promptly prepare and publish proposed
regulations setting for a plan, or portion thereof, for a State if:'' a
state fails to submit a plan within the time prescribed, the state
fails to submit a plan revision within the time prescribed or the
Administrator disapproves a state plan or plan revision or any portion
thereof. 40 CFR 60.27(c). Subpart B further requires the EPA to
promulgate the plan proposed under paragraph (c) ``within six months
after the date required for submission of a plan or plan revision . . .
unless, prior to such promulgation, the State has adopted and submitted
a plan or plan revision which the Administrator determines to be
approvable.'' 40 CFR 60.27(d).
In promulgating subpart Ba in 2019, the EPA incorporated language
in the provisions associated with the Actions by the Administrator in
40 CFR 60.27a(c) from CAA sections 110(c)(1)(A) and 110(k)(1)(B)
addressing the circumstances which trigger the EPA's authority under
CAA section 111(d)(2) for promulgating a Federal plan. Specifically, in
2019 the EPA adopted language at 40 CFR 60.27a(c)(1) that requires the
EPA to promulgate a Federal plan after it ``[f]inds that a state fails
to submit a required plan or plan revision or finds that the plan or
plan revision does not satisfy the minimum criteria under'' 40 CFR
60.27a(g), i.e., the completeness criteria (emphasis added). Pursuant
to the amendments being finalized in this action, the EPA will be
required, under 40 CFR 60.27a(g), to determine whether completeness
criteria have been met no later than 60 days after the date by which a
state is required to submit a plan (see section III.A.2. of this
preamble). These provisions under subpart Ba taken together would mean
that, no later than 60 days after the state plan submission deadline
has passed, the EPA must make a finding (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.\36\
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\36\ 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 state has submitted a plan
so no finding of failure to submit is issued. The EPA's obligation
and timeline to promulgate a Federal plan in this instance arises
from the EPA's disapproval based on its conclusion that the state
plan submission was unsatisfactory.
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At proposal, the EPA acknowledged that in the CAA section 110
context, it has not always timely met its obligation to issue a finding
of failure to submit, which in turn delays the timing for when the EPA
promulgates a FIP to achieve the necessary emission reductions.
Accordingly, the EPA proposed to streamline the process in the subpart
Ba context to ensure that the emission reductions anticipated by the EG
are realized in a timely way through the promulgation of any necessary
Federal plan. In particular, the EPA proposed revisions to 40 CFR
60.27a(c)(1) consistent with the framework and requirements that have
been effective in subpart B since 1975. As proposed the Administrator
would issue a Federal plan if a state fails to submit a plan within the
time prescribed without requiring the EPA to affirmatively issue a
finding of failure to submit before the EPA's obligation to issue a
Federal plan is triggered.
As explained in the notice of proposed rulemaking, as part of
evaluating ways to streamline the steps leading to promulgation of a
final Federal plan, the EPA considered the value and role of issuing
findings of failure to submit in this process. 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 may have some utility as 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 about a formal
finding of failure to submit substantively informs the development of a
Federal plan; the EPA has the information it needs to know which states
have and have not submitted complete plans. By decoupling the timeline
from the finding of failure to submit, the EPA's obligation to
promulgate a Federal plan can be triggered without the interim step and
potential lag associated with issuing a formal finding of failure to
submit notification. By removing this interim process, the EPA will be
required to promulgate the Federal plan more expeditiously, and, in
turn, overall implementation of the corresponding EG will be timelier.
Finalizing this amendment is also consistent with the spirit of the ALA
decision, where the D.C. Circuit emphasized the need for implementation
timelines that consider potential impacts on public health and welfare.
By expeditiously and efficiently promulgating a Federal plan and by
removing an interim step of a finding of failure, the EPA is further
addressing the potential impacts of implementation times on health and
welfare.
Some commenters requested that the EPA retain a separate ``finding
of failure to submit'' action as the trigger for starting the timeline
on a Federal plan. They note that the ``finding of failure'' provides
notification to the states, regulated community, and public of the
failure, as state submissions can be difficult to track. Commenters
also note that the need to first provide the finding also provides
additional time for the states to submit plans or revisions. One
commenter noted that the EPA should retain the ``finding of failure to
submit'' procedure and avoid establishing automatic deadlines for
itself on a schedule that, based on past experience, it is almost
certain to miss.
First, the EPA notes that where a state has failed to timely submit
a state plan, the absence of a state plan submission should be easy to
track for the state,
[[Page 80498]]
regulated community, and public; many, if not all, states maintain
public websites on which they document their submissions to the EPA.
The EPA expects that notification and tracking capabilities will also
generally be much improved through the use of electronic submittal (see
section III.F. of this preamble) and increasing public access to online
information.
Second, the EPA stresses that the purpose of using a finding of
failure to submit as the trigger for Federal plan development was not
to give states time to develop and submit their state plans in excess
of the regulatorily allotted timeframes. In this action, the Agency is
finalizing timeframes for state plan submissions that are reasonably
achievable and that may be superseded where necessary. Decoupling the
finding of failure to submit and the trigger of state plan development
should therefore not impact states' abilities to develop and submit
satisfactory state plans. States always have the ability to submit
state plans and state plan revisions at any time. Additionally, while
the EPA recognizes that it has not always provided timely Federal
plans, the Agency does not believe that changing the starting point for
its Federal plan clock from a finding of failure to submit to the day
after state plan submission are due will have an appreciable impact on
its ability to do so. Notably, the trigger for its timeline will not
change the length of time the EPA has to promulgate a plan. While the
commenter implies that the EPA would use the time before it has made a
finding of failure to submit to start working on a Federal plan, it is
not reasonable to assume that the Agency is in a position to start
developing such a plan before it has had a chance to determine if a
state plan is incomplete. Therefore, the EPA is finalizing its proposed
approach of removing from subpart Ba a finding of failure to submit as
the trigger for starting the timeline for a Federal plan. The approach
being finalized in subpart Ba is consistent with the framework and
requirements that have been effective in subpart B since 1975. The
regulatory text at 40 CFR 60.27a(c)(1) is being revised slightly
relative to proposal to clarify that the 12-month clock starts running
the day after the state plan submission deadline for instances in which
a state fails to submit a plan or plan revision by that deadline, and
the day after state plan submissions would be deemed complete by
operation of law (i.e., 60 days after the state plan submission
deadline) for instances in which a state plan has been submitted but
deemed incomplete.\37\ These revisions merely clarify the EPA's intent
at proposal to ensure that all states and stakeholders have a clear
understanding of the timeline for promulgation of a Federal plan. As
discussed in section III.A.4. of this preamble, the EPA is finalizing
the requirement that it 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 finalizing a deadline of 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 are triggered off of its disapproval of a state plan.
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\37\ As discussed in section III.A.2., if a state submits a plan
but that 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.
That letter is for notification only and, although the EPA intends
to issue such letters expeditiously, it does not start the clock for
a Federal plan.
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The EPA notes that this amendment to subpart Ba 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).
In summary, while recognizing that a finding of failure to submit
can have value in notifying states and the public of the status of
plans, the EPA does not find that it is integral to the process of
promulgating a Federal plan for states that do not submit plans.
Further, the requirement for the EPA to issue a finding of failure can
result in significant unwarranted delays in EG implementation. The EPA
is therefore finalizing the proposed amendment that this finding will
no longer be the event that triggers the timeline for the EPA's
issuance of a Federal plan. 40 CFR 60.27a(c)(1). While the EPA will not
publish a formal finding of failure to submit in the Federal Register,
the Agency will notify the states and the public of a failure to submit
expeditiously following the state plan submission deadline or deadline
for EPA determinations of completeness, as applicable. Additionally,
the EPA notes that the completeness criteria in 40 CFR 60.27a(g) were
promulgated in 2019, 84 FR 32520, 32578 (July 8, 2019), and, while the
EPA is removing finding of failure to submit as the trigger for
promulgation of a Federal rule, it emphasizes that states may have
discussions with the EPA and submit revised state plans at any point.
That is, there remains within this framework ample opportunity for
iterative state plan development.
The regulatory provision at 40 CFR 60.27a(c)(1), as finalized, is
consistent with the requirement that applies regarding the EPA's
issuance of a Federal plan under subpart B. In subpart B (i.e.,
applicable to implementing regulations for CAA section 111(d) EGs
promulgated on or prior to July 8, 2019, 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 submission
deadline.
C. 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,\38\ and
in the EPA's development of a Federal plan or significant plan
revision, 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 is
critical to ensuring that the full range of these impacts are
understood and considered.
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\38\ A 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.
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States often rely primarily on public hearings as the foundation of
their public engagement in their state plan development process because
a public hearing has always been 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
[[Page 80499]]
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.\39\ The EPA is not reopening these basic and
long-standing public hearing requirements in this rulemaking. However,
as explained in the notice of proposed rulemaking,\40\ 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 may be most affected by and vulnerable to the impacts
being addressed by the plan. Because the CAA section 111(d) program
addresses existing facilities, some of which may be decades old, it is
possible that impacted communities may not have had a voice in the
process when the source was originally constructed, or previous
outreach may have focused largely on engaging the industry. The EPA
proposed amendments to 40 CFR part 60, subpart Ba, were intended to
strengthen the public participation provisions and ensure that all
affected members of the public, not just a particular subset, have an
opportunity to participate in the pollution control planning process 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).
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\39\ States may cancel a public hearing if no request for one is
received during the required notification period. 40 CFR 60.23a(e).
\40\ 87 FR 79176, 79190-92 (Dec. 23, 2022).
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The EPA proposed to add meaningful engagement with pertinent
stakeholders in 40 CFR 60.23a(i) and 60.27a(f) and add the definition
of meaningful engagement and of pertinent stakeholders in 40 CFR
60.21a. The EPA proposed 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 nor favor 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 also proposed to evaluate the approvability of state plans
based on the components of the meaningful engagement definition.
The EPA proposed 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.'' Additionally, to ensure that a robust and meaningful public
engagement process occurs as the states develop their CAA section
111(d) plans, the EPA proposed to amend the requirements in 40 CFR
60.27a(g) to include, as part of the completeness criteria, the
requirement 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: (1) a list
of the pertinent stakeholders identified by the state; (2) a summary of
engagement conducted; and (3) a summary of the stakeholder input
received.
Most of the comments received on the proposed meaningful engagement
requirements and proposed definitions were supportive of including
meaningful engagement in the development of the state plans. Several
commenters stated that they supported the inclusion of environmental
justice considerations in Federal programs, including requirements for
meaningful engagement. In particular, one commenter stated that
outreach and meaningful engagement with stakeholders, specifically
including communities most affected by and vulnerable to the pollution
that would be reduced by a state plan, is an important and overdue step
to ensuring that impacted communities have a voice in a process that
directly impacts their health and welfare. While several commentors
affirmed the EPA's authority to require meaningful engagement, some
commenters said that the EPA lacks such authority. One of the
commenters argued that the EPA lacks authority to require consideration
of public health and welfare under CAA section 111(d) because CAA
section 111 was devised as a technology-based approach to controlling
emissions from stationary sources, not one predicated on the setting of
standards directly and exclusively based on public health and welfare
needs. One of the commenters stated the EPA lacks the authority to pass
judgment on state plans submitted pursuant to CAA section 111(d) based
on public engagement and argued that the only statutory requirement in
CAA section 110 (which 111(d) cross-references) is the requirement that
states provide ``reasonable notice and public hearings'' prior to
adoption of a state plan.
Several commenters supported the EPA's definition of meaningful
engagement and the proposed meaningful engagement requirement.
Additionally, some comments supported the state plan approvability
requirements for meaningful engagement and recommended that the EPA
also require an accounting of what states have done with stakeholder
input and how that input was used or not used in their state plan.
Several commenters expressed the need for additional resources in
order to conduct meaningful engagement, both for states and
communities. Some of the comments stated that the EPA needs to consider
how these increased requirements may strain already limited state
resources. One commenter said that resources needed to fulfill the
requirements for meaningful engagement, including costs associated with
identifying and contacting stakeholders, renting of rooms or spaces for
multiple public meetings, travel, and associated staff time, will be
significant and burdensome to states.
There were several comments requesting clarification on the
definition of meaningful engagement, and on the proposed approvability
requirements for meaningful engagement. Some commenters requested that
the rule provide more clarity on what states need to do for meaningful
engagement and provide a clear path for states to develop an approvable
meaningful engagement demonstration. Similarly, other commenters
recommended the EPA establish a more detailed definition and provide
examples of best practices for states to follow in implementing
meaningful engagement, particularly with vulnerable communities, and
further clarify what is meant by meaningful engagement with pertinent
stakeholders. Some commenters cited lack of clarity in expressing their
concern with meaningful engagement being a requirement for state plan
approvability.
Based on comments received, the EPA has revised the proposed
definition of meaningful engagement and is finalizing revisions that
are flexible enough to serve the unique needs of states and their
stakeholders, rather than relying on the more prescriptive approach of
the proposal. The EPA recognizes that states will generally be in the
best position to understand how to meaningfully engage pertinent
stakeholders within their borders as they develop state plans. The EPA
also believes that states and the Federal Government may learn from
each
[[Page 80500]]
other's efforts to meaningfully engage pertinent stakeholders. The EPA
further recognizes that appropriate approaches to meaningful
engagement, as well as the time and resources needed, will be highly
dependent on characteristics of the source category--such as the number
and location of designated facilities--as well as on the type of health
or environmental impacts of the emissions addressed by an EG.
Additionally, as noted by a number of commenters, states are highly
diverse in, among other things, their local conditions, resources, and
established practices of engagement. Also as noted by commenters,
vulnerable communities are highly diverse in, among other things, their
technical capacities, access to resources for meaningful participation
(e.g., geographic distribution, transportation, childcare), languages,
and available representation.
For these reasons, rather than finalizing prescriptive substantive
requirements for how states should conduct meaningful engagement, the
EPA is requiring in subpart Ba that states, in their state plan
submissions or significant plan revisions, describe the efforts they
undertook to meaningfully engage pertinent stakeholders, what input
they received from stakeholders, and how that input was used or not
used in their state plan. The EPA will also include this information
when promulgating Federal plans or significant plan revisions. In
addition, the EPA is describing some current best practices for
meaningful engagement in this preamble that states may consider, that
and which the Agency expects will continue to develop as states
experiment with different types of meaningful engagement and share
their experiences through state plans.
Consistent with these changes, the EPA is finalizing the definition
of meaningful engagement, as it applies to subpart Ba, as follows: ``.
. . timely engagement with pertinent stakeholders and/or their
representatives in the plan development or plan revision process. Such
engagement should not be disproportionate in favor of certain
stakeholders and should be informed by available best practices.''
States should therefore make a good faith effort to ensure that they
are engaging in a proportionate manner with all pertinent stakeholders.
The EPA is also finalizing, as proposed, a definition of ``pertinent
stakeholders.'' Pertinent stakeholders ``include, but are not limited
to, industry, small business, and communities most affected by and/or
vulnerable to the impacts of the plan or plan revision.'' Finally, the
EPA is including in subpart Ba the three proposed completeness criteria
requirements for meaningful engagement at 40 CFR 60.27a(g)(2)(ix) and
adding a fourth completeness criterion, which will require state to
include in their plans a description of how stakeholder input was
considered in the development of the state plan or plan revisions.
The EPA expects that the finalized approach to meaningful
engagement in state plans will provide the flexibility needed to allow
states to address specific and unique issues in their states and to
appropriately communicate with and respond to their stakeholders during
the notice and comment process. As revised, the meaningful engagement
component finalized here strengthens the framework for public
participation in state plan development, a long-standing cornerstone of
the cooperative federalism structures of CAA sections 110 and 111(d).
The meaningful engagement component finalized here is intended to
promote equitable opportunities to participate in the planning process
for all stakeholders, as opposed to dictating a specific approach or
set of practices that constitute meaningful engagement.
To support the goals outlined above, and in response to comments
received, the EPA is finalizing the proposed completeness criteria that
require documentation of meaningful engagement, including adding a
fourth completeness criterion, but the EPA is not finalizing specific
requirements for what types of outreach meaningful engagement must
include in subpart Ba. The fourth completeness criterion will require
states to include a description of how stakeholder input from the
meaningful engagement process was considered in the development of the
plan, which the EPA expects will both bolster accountability to
stakeholders and assist states in ensuring that their meaningful
engagement processes are additive to the public hearing and
notification processes which has always been required under subpart Ba.
See 40 CFR 60.27a(g)(1)(ix). While the EPA finds that the requirements
finalized in this action are sufficient and appropriate for the general
CAA section 111(d) implementing regulations, the EPA may provide
additional guidance pertaining to meaningful engagement in specific
EGs.
While the EPA is revising the definition of meaningful engagement
relative to proposal, the definition of pertinent stakeholders is being
finalized as proposed. Pertinent stakeholders include, among other
stakeholders, industry, small business, and communities--in particular,
communities 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, an
accumulation of negative environmental, health, economic, or social
conditions within these populations or communities, and a lack of
positive conditions. 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 and/or exposure to
environmental hazards. For example, 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--experience greater vulnerability to
environmental hazards. Sensitive populations (e.g., infants and
children, pregnant women, the elderly, and 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.
Communities in neighboring states or neighboring Tribal nations may
also be impacted by a state plan and, if so, are 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. of this preamble, the pertinent
stakeholders would include 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 has determined that the definitions of meaningful
engagement and pertinent stakeholders in subpart Ba provide the states
sufficient specificity while allowing for flexibility in the
implementation of meaningful engagement. Meaningful engagement is an
enhancement of the existing public notice and comment requirements and
is intended to promote the sharing of relevant information with, and
the soliciting of input from, pertinent stakeholders at critical
junctures during plan development. In particular, the
[[Page 80501]]
processes for meaningful engagement should allow for fair and balanced
participation, including opportunities for communities most affected by
and vulnerable to the impacts of a plan an opportunity to be informed
of and weigh in on that plan. These procedural requirements, in turn,
help ensure that a plan will adequately address 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., recurring
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, what
constitutes fair and balanced participation among a broad set of
pertinent stakeholders will be highly dependent on which stakeholders
are directly impacted by a particular state plan.
The EPA's authority for finalizing procedural requirements to
strengthen the public participation provisions of the implementing
regulations 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 ``establish a procedure similar to that provided by'' 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.''
\41\ The Act does not define what constitutes ``reasonable notice and
public hearings'' under CAA section 110, and the EPA has reasonably
interpreted this requirement in promulgating a process under which
states submit state plans.\42\
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\41\ 42 U.S.C. 7410(a)(1).
\42\ See 40 CFR 51.102; 40 CFR part 51, appendix V, section 2.1.
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Subpart Ba currently includes certain requirements for notice and
public hearing in 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 publication
to the internet. Id. at paragraph (d). A state may choose to cancel a
public hearing if no request for one is received during the required
notification period. Id. at paragraph (e).
A fundamental purpose of the Act's notice and public hearing
requirements is to ensure that all affected members of the public are
able to participate in pollution control planning processes that impact
their health and welfare.\43\ In order to effectuate this purpose of
the Act's notice and public hearing requirements, the notice of the
proposed plans and of the public hearings should be reasonably adequate
in its ability to reach affected members of the public. While many
states provide for notification of public engagement through the
internet consistent with the current requirements under the CAA section
111(d) implementing regulations, such notification may not be adequate
to reach all those who are impacted by a CAA section 111(d) state plan
and would benefit the most from participating in the state planning
process. 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.\44\ Accordingly, the EPA has
determined that it is appropriate to improve the procedural public
engagement requirements under CAA section 111(d) to ensure the
statutory objectives are met.
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\43\ Consistent with this principle of providing reasonable
notice under the CAA, under programs other than CAA section 111(d),
current regulations governing other CAA programs similarly require
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).
\44\ 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/.
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Given the public health and welfare objectives of CAA section
111(d) in regulating specific existing sources, it is reasonable to
include a meaningful engagement component 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].'' As finalized, the meaningful
engagement components of this rule 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 and
promote the statutory objective that all pertinent stakeholders have
reasonable notice of relevant information and the opportunity to
participate in the state plan development throughout the process.
Ongoing engagement between states and pertinent stakeholders 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.
To promote meaningful engagement, the EPA is finalizing as part of
the completeness criteria in 40 CFR 60.27a(g) procedural requirements
for states to describe in their plan submittals how they engaged with
pertinent stakeholders. As proposed, the state will be required to
describe, in its plan submittal, (1) a list of the pertinent
stakeholders identified by the state; (2) a summary of engagement
conducted; and (3) a summary of the stakeholder input received. The EPA
is also finalizing a fourth component as part of the procedural
completeness demonstration--that the state also includes (4) a
description of how stakeholder input was considered in the development
of the plan or plan revisions. The EPA will review the state plan to
ensure it includes these required descriptions regarding meaningful
public engagement as part of its completeness evaluation of a state
plan submittal. If a state plan submission does not include the
required elements for notice and opportunity for public participation,
including the procedural requirements at 40 CFR 60.23a(i) and
60.27a(g)(2)(ix) for meaningful engagement, this may be grounds for the
EPA to find the submission incomplete or (where a plan has become
complete by operation of law) to disapprove the plan.
While the EPA is finalizing procedural requirements for meaningful
engagement as completeness criteria and is not prescribing how states
proceed with such engagement, we understand states would find it useful
to consider guidance as to how such engagement could be meaningfully
conducted. In light of this interest, the following paragraphs provide
examples and guidance which the EPA
[[Page 80502]]
encourages states to consider in designing their own meaningful
engagement programs.
In considering approaches for meaningful engagement, states should
consider the identification of pertinent stakeholders; developing a
strategy for engagement with the identified pertinent stakeholders;
making information available in a transparent manner; and providing
adequate and accessible notice. First, it would be reasonable for
states to identify pertinent stakeholders considering information
specific to the applicable EG, including the nature of the designated
pollutants at issue and the communities likely to be impacted by
facilities in the source category. The EPA intends to specifically
provide information on impacts of designated pollutant emissions to
assist states in the identification of their pertinent stakeholders, in
addition to any other guidance that EPA may find it reasonable to
provide in the applicable EG. Moreover, in developing a strategy for
engagement, it would be reasonable for states to share information and
solicit input on plan development and on any accompanying assessments.
Finally, in providing transparent and adequate notice of plan
development, states should consider that internet notice alone may not
be adequate for all stakeholders, given lack of access to broadband
infrastructure in many communities. Thus, in addition to internet
notice, examples of prominent advertisement for engagement and public
hearing 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.
The EPA believes the following example, while not tailored to
specific designated facilities but to a source category for recent EG
development, provides states with ideas for how they can structure
their own meaningful engagement activities.\45\ Prior to the November
2021 proposal for the ``Standards of Performance for New,
Reconstructed, and Modified Sources and Emissions Guidelines for
Existing Sources: Oil and Natural Gas Sector Climate Review'' (86 FR
63110), the EPA conducted meaningful engagement with pertinent
stakeholders. For the pre-proposal stakeholder outreach, the EPA
engaged with stakeholders through information posted on the internet,
meetings, training webinars, and public listening sessions to
disseminate information regarding this action, communicate how to
submit comments on the proposed rule, and receive stakeholder input
about the industry and its impact. In addition to the pre-proposal
stakeholder engagement, the EPA conducted additional post-proposal
training during the comment period on the proposed rule and held a
public hearing. The EPA conducted three half-day post-proposal
trainings to provide background information, an overview of the
proposed rule, stakeholder panel discussions, and information on how to
effectively engage in the regulatory process. The trainings were open
to the public, focusing on individuals from and representatives of
communities with EJ concerns, Tribes, and small businesses. Further
considerations, analyses, and outreach relevant to meaningful
engagement are presented in sections VI.\46\ and VII.\47\ of the
preamble for that action and could help states in designing, planning,
and developing their own outreach and engagement plans associated with
the development and implementation of their state plans. An additional
resource is the memorandum on stakeholder outreach \48\ for the ``New
Source Performance Standards for Greenhouse Gas Emissions from New,
Modified, and Reconstructed Fossil Fuel-Fired Electric Generating
Units; Emission Guidelines for Greenhouse Gas Emissions from Existing
Fossil Fuel-Fired Electric Generating Units; and Repeal of the
Affordable Clean Energy Rule'' proposed rule (88 FR 33240, May 23,
2023). This memorandum provides states with another example of the
types of activities and processes that the EPA has found appropriate
for meaningfully engaging with stakeholders in the particular context
of EG development.
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\45\ The EPA emphasizes that the appropriateness of any
meaningful engagement strategy will depend on the specific context,
including the sources and pollutants addressed by the EG, the scope
and scale of the proposed regulation or plan, and the pertinent
stakeholders. The activities and processes included in the examples
of meaningful engagement in this preamble were tailored to the
specific circumstances of EPA's EG development.
\46\ See 86 FR 63110, 63140.
\47\ See 86 FR 63110, 63145.
\48\ See Docket ID No. EPA-HQ-OAR-2023-0072-0002.
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The EPA recognizes that the state planning process is different
than a national rulemaking and may benefit from different types of
engagement. Nonetheless, the information and examples the EPA has
provided on meaningful engagement can serve as an example of what types
of engagement states should consider for their meaningful engagement
processes. In addition, to further assist states in the meaningful
engagement efforts, the EPA expects to develop resources to aid states
in establishing meaningful engagement best practices, while recognizing
that states have differing situations and that best practices will not
be ``one size fits all.'' One resource that states may find helpful in
developing their own best practices is the ``Public Involvement Policy
of the US Environmental Protection Agency,'' \49\ which is currently
under revision. Another helpful resource the EPA has developed is the
``Capacity Building Through Effective Meaningful Engagement''
booklet.\50\ The booklet is also available in the docket for this rule.
Additionally, most states have opted into the EPA Climate Pollution
Reduction Grant Program (CPRG),\51\ developed under the Inflation
Reduction Act.\52\ To assist states that are participating in the CPRG,
the EPA is conducting training for states on meaningful engagement,
sharing case studies, best practices, and lessons learned through
ongoing EPA-led CPRG forums. The EPA expects that, with experience and
shared access to information on best practices, approaches to address
challenges and barriers, and other resources and collaborative
opportunities, meaningful engagement practices at the state and Federal
level will continue to improve.
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\49\ https://archive.epa.gov/publicinvolvement/web/pdf/policy2003.pdf.
\50\ https://www.epa.gov/system/files/documents/2023-09/epa-capacity-building-through-effective-meaningful-engagement-booklet_0.pdf.
\51\ See U.S. EPA Office of Air and Radiation ``Climate
Pollution Reduction Grants Program: Formula Grants for Planning
Program Guidance for States, Municipalities, and Air Pollution
Control Agencies'' (March 1, 2023), https://www.epa.gov/system/files/documents/2023-02/EPA%20CPRG%20Planning%20Grants%20Program%20Guidance%20for%20States-Municipalities-Air%20Agencies%2003-01-2023.pdf (overview of the
CPRG). See also U.S. EPA, ``Status of Notice of Intent to
Participate (NOIP) Submittals by States (March 31, 2023), https://www.epa.gov/system/files/documents/2023-04/NOIP%20Status%20Lists.pdf
(list of states who have opted in to the CPRG as of March 31, 2023).
\52\ Inflation Reduction Act section 60114.
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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
[[Page 80503]]
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 actions that help ensure
emission reductions are appropriately and timely implemented.
The EPA proposed to incorporate 5 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. 87 FR 79176, 79193-96 (Dec. 23, 2022). The
proposed additional regulatory mechanisms 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 that allows the EPA to call for revision of a
previously approved state plan; and (5) an error correction mechanism
for the EPA to revise its prior action on a state plan.\53\ These
mechanisms were proposed to 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
finalizing the adoption and incorporation of these mechanisms into
subpart Ba as the EPA has interpreted and applied them in the context
of CAA section 110.
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\53\ These regulatory mechanisms were also previously proposed
to be added to subpart B in 2015 and largely received support from
states, the public, and stakeholders, but were never finalized. 80
FR 64965 (October 23, 2015).
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As explained in the notice of proposed rulemaking, the
interpretation that CAA section 111(d)(1) authorizes the EPA to adopt
procedures ``similar'' to those under CAA section 110 for the entire
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 promulgate a Federal
plan for a state that has failed to submit a satisfactory plan as under
CAA section 110(c), and to enforce state plan requirements as it does
for SIPs under CAA sections 113 and 114. This is because, read
together, CAA section 111(d)(1) and (2) call for the set of essential
procedural requirements for state and Federal plan development and
implementation and enforcement that generally reflect the essential
procedural requirements for SIPs and FIPs in section 110.\54\ 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.
Moreover, the EPA believes that it is reasonable, in promulgating the
regulations required under CAA section 111(d)(1), to look to the
mechanisms and flexibilities that Congress has deemed appropriate for
states and the EPA to use in the highly analogous context of state and
Federal implementation plans.
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\54\ Compare CAA section 111(d)(1) (requiring states to submit
state plans that include specified types of measures that, in turn,
meet minimum EPA requirements) and section 111(d)(2) (indicating
that the EPA must review and approve or disapprove state plans,
requiring the EPA to promulgate a Federal plan if the state does not
submit a satisfactory plan, authorizing the EPA to enforce state
plan measures) with section 110(a)(1)-(2) (requiring states to
submit SIPs that include specified types of measures that in turn
meet minimum EPA requirements), section 110(k) (requiring the EPA to
review and approve or disapprove SIPs), section 110(c) (requiring
the EPA to promulgate a FIP if the state does not submit a plan or
the EPA disapproves the state plan) and 113(a)(1) (authorizing the
EPA to enforce SIP measures).
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The availability of these 5 regulatory mechanisms will 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, may reduce processing time, and have proven to be very
useful tools for the review and processing of CAA section 110 SIPs.
Overall, the comments received for incorporating the 5 regulatory
mechanisms were favorable, in particular noting that the mechanisms
would offer not only procedural improvements long sought by state
agencies but also reflect the flexibility offered in section 111 of the
CAA, consistent with the Act's cooperative approach, and would expand
state planning options while conserving state resources. However, one
commenter noted generally that for 111(d) plans, the CAA directs the
EPA to establish a procedure similar to CAA section 110 for SIP
submittals but does not require those procedures to be identical. This
commenter contended that while the CAA specifically authorized various
flexible mechanisms in sections 110(k)(2)-(6), the plain language of
CAA section 111 does not provide for these options for 111(d) plans.
The EPA agrees that procedures adopted under CAA section 111(d)(1)
need not be identical to CAA section 110 procedures, but interprets
section 111(d)(1) to authorize the EPA to adopt procedures under
111(d)(1) which are substantially the same as those outlined under
section 110, including section 110 procedural mechanisms.\55\
Additionally, as explained above, while CAA section 111(d)(1) directs
EPA to establish ``a procedure . . . under which each State shall
submit to the Administrator a plan,'' section 111(d)(2) further
provides that EPA also has authority to prescribe a Federal plan where
states fail to submit a satisfactory plan and to enforce the provisions
of state plans in cases where states fail to do so. Congress saw fit to
provide mechanisms such as conditional approval and SIP calls under CAA
section 110 for the purpose of EPA evaluation and action on, and
enforcement of, SIPs, and the Agency believes it is reasonable to look
to section 110 as evidence of the types of mechanisms that are
reasonable for EPA to provide for the same purposes under section
111(d).
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\55\ See Merriam Webster's Dictionary, defining ``Similar'' as
``having characteristics in common'' or ``alike in substance and
essentials.'' https://www.merriam-webster.com/dictionary/similar.
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These regulatory mechanisms will provide flexibility and support
efficiency to the states and the EPA in the submission and processing
of state plans. For the reasons discussed in the following sections,
the EPA is finalizing these provisions.
1. Partial Approval and Disapproval
The EPA proposed 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)) but does not explicitly specify whether
such actions may be partial.
One commenter stated that the partial approval and disapproval
mechanisms the EPA proposed appear to be aimed at providing a way for
the EPA to approve model rule provisions and disapprove RULOF
provisions. The EPA disagrees with this comment. The EPA reviews each
provision of a state plan, regardless of the type of provision, to
determine whether it meets the applicable
[[Page 80504]]
statutory and regulatory requirements. If it meets the applicable
requirements, the EPA must approve it. It is entirely possible, and in
fact common, for some state plan provisions to comport with the
applicable requirements and others not to. Pursuant to this mechanism,
the EPA may partially approve or partially disapprove a state plan when
portions of the plan are approvable, but other discrete and severable
portions are not. In such cases, the purposes of a CAA section 111(d)
EG, as well as section 111(d)'s framework of cooperative federalism,
would be better served by allowing the state to move forward with
implementing those portions of the plan that are approvable, rather
than to disapproving the full plan and potentially delaying
implementation of beneficial emission reductions. 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.
The EPA is finalizing 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. As explained at proposal, the portion of a state plan that the
EPA may partially approve must be ``severable.'' A portion is severable
when: (1) the approvable portion of the plan does not depend on or
affect the portion of the plan that cannot be approved, and (2)
approving a portion of the plan without approving the remainder does
not alter the approved portion of a state plan in any way that renders
it more stringent than the state's intent. See Bethlehem Steel v.
Gorsuch, 742 F.2d 1028, 1034 (7th Cir. 1984). The EPA's 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 to fill the gap. See
section III.A.4 of this preamble for finalized 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 will be able
to submit partial plans intended to replace discrete portions of a
Federal plan, where appropriate. Partial submittals must meet all
completeness criteria.
2. Conditional Approval
The EPA proposed 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.'' The
proposed provision would authorize 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).
Comments were generally supportive of including the mechanism in
subpart Ba for use by the EPA in acting on CAA 111(d) state plans. One
commenter submitted that the EPA should limit conditional approvals to
plans either with only procedural deficiencies or with substantive
deficiencies that (1) apply to few designated facilities (e.g., no more
than 5); (2) do not lead to impacts on vulnerable communities; and (3)
are likely to be remedied by the state within one year. Comments were
received both supporting and opposing the proposed 12-month time period
for adopting and submitting the necessary revisions associated with a
conditional approval. In particular, one commenter recommended allowing
more than 12 months for submission of subsequent revisions that are
required as part of conditional approvals that relate to RULOF
provisions. After considering the comments received, the EPA is
declining to explicitly limit the circumstances in which conditional
approval may be used and is finalizing the 12-month period for
submission of a plan revision pursuant to a conditional approval as
proposed. First, the EPA views the conditional approval mechanism as a
beneficial flexibility for states in instances in which partial
disapproval may be appropriate because a discrete portion of a state
plan does not meet the applicable requirements, but that deficiency is
not so significant that it affects the substantial adequacy of the
plan. CAA section 110(k)(4) supports this view, as Congress provided
only 12 months for states correct the deficiency; 12 months is likely
not sufficient for states to remedy significant substantive
deficiencies in a plan. Thus, the EPA believes both that structure of
the conditional approval mechanism already appropriately circumscribes
its use and that extending the timeline for states to submit plan
revisions pursuant to conditional approval would abrogate its utility
as a way to address minor issues in a plan and encroach on
circumstances in which partial disapproval is more appropriate. Second,
under the provisions being finalized in this rulemaking, in the event
that EPA did partially disapprove a state plan in lieu of conditionally
approving it, the Agency would have 12 months to promulgate a Federal
plan to fill the gap. See 40 CFR 60.27a(c)(2). It would be
inappropriate to provide states a longer period of time in the same
circumstances to remedy a deficiency.
As finalized, if the state fails to meet its commitment to submit
the measures within 12 months, 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
timely 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
[[Page 80505]]
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 would be required to 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.
Commenters asserted that the EPA should take action to develop a
Federal plan immediately upon issuing a conditional approval, and
further asserted that the EPA should not allow the conditional approval
mechanism to toll the Federal plan clock and thereby delay needed
public health and welfare protections. A conditional approval is not a
disapproval and therefore there has been no failure on the part of the
state and thus will not trigger a corresponding Federal plan for the
given state nor initiate a timeline for the EPA to provide a Federal
plan. Conditional approvals will be evaluated and designed on a case-
by-case basis, with consideration of public health and welfare, and are
expected to result in approved state plans and therefore not require
the development of a Federal plan. The commenters also noted the EPA
proposed to allow 12 months in which to impose a Federal plan following
disapproval of a previously conditionally approved plan and stated
instead the EPA should start the clock for developing a Federal plan as
soon as a state plan submission is conditionally approved if the EPA
has determined that there is a significant possibility that the
deficiencies will not be corrected. The EPA disagrees with this comment
because the Agency would not conditionally approve a plan if the
deficiencies were not expected to be corrected; in this instance, a
partial disapproval of the plan would be appropriate.
Another commenter requested that the EPA clarify the applicable
compliance deadline for a state plan that is conditionally approved by
the Agency. The commenter contended that the proposed rule did not
specify the ``trigger'' date for compliance deadlines when the EPA
conditionally approves a state plan, and recommended that, in this
scenario, compliance deadlines should begin to run when the state
satisfies the condition(s) established by the EPA. However, the EPA
notes that compliance timeframes for designated facilities are
specified in the applicable EGs. To the extent that the Administrator
conditionally approves a plan, the compliance timeframes must still
meet the requirements in the EG. A conditional approval may not be an
appropriate action if the result would be a significant delay in
compliance, as that is inconsistent with the intention of adding this
flexibility for state plan processing.
Incorporating this mechanism under the subpart Ba will 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 is therefore
finalizing this provision as proposed at 40 CFR 60.27a(b)(2).
3. Parallel Processing
The EPA proposed 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 yet 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 and a final plan has been submitted.
At proposal, the EPA explained that parallel processing under
subpart Ba would be subject to certain conditions. In lieu of the
letter required under 40 CFR 60.27a(g)(2)(i), the state must submit the
proposed plan with a letter requesting the EPA propose approval through
parallel processing. Under the parallel processing procedures, a state
will 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 some of the public
participation criteria (40 CFR 60.27a(g)(2)(vi), (vii), and (viii)).
However, as with parallel processing for SIPs under 40 CFR part 51,
appendix V, 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 proposing action on the state plan. 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), including the
requirements for legal adoption and public engagement, before the EPA
can finalize its approval. If the state finalizes and submits to the
EPA a plan that includes changes relative the plan that the EPA
proposed to approve, 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.
While comments were generally supportive of the EPA adopting
parallel processing for CAA section 111(d) plans, some commenters
expressed concern that the purpose and benefits of meaningful
engagement would not be realized in the state plan development process
if this mechanism were finalized as proposed. One commenter noted that
the proposed parallel processing provision appeared to indicate that
the state can submit its plan to the EPA prior to conducting meaningful
engagement, and that the EPA is expecting an informational meeting
rather than actual engagement from the public during the meaningful
engagement process. Another commenter remarked that if a state does not
include meaningful engagement before submitting its initial plan to the
EPA, the proposed parallel processing mechanism creates an inherent
disincentive for the state to modify a plan under this mechanism in
response to any public engagement which occurs
[[Page 80506]]
subsequent to submittal, and further stated this would increase the
disparity between the feedback received from the individuals the EPA
designed the meaningful engagement provisions to protect and feedback
from individuals or organizations with plentiful resources for
proactive engagement. The commenters also asserted that members of the
public, knowing that a version of the plan is already under Federal
review, would be more likely to doubt that their feedback would have an
impact on the final product.
The EPA agrees with these commenters that, as proposed, exempting
meaningful engagement from completeness criteria requirements under
parallel processing would be a disincentive to meeting to the goals of
meaningful engagement. In fact, as defined in this action, meaningful
engagement is the ``timely engagement with pertinent stakeholders and/
or their representatives in the plan development or plan revision . .
.'' (emphasis added). Thus, meaningful engagement should occur well in
advance of a state being ready to submit a plan to the EPA for parallel
processing. The EPA is therefore excluding the meaningful engagement
completeness criteria defined at 40 CFR 60.27a(g)(2)(ix) from the
completeness criteria exceptions provided under the finalized parallel
processing provision at Sec. 60.27a(h)(4). That is, states must
include the information required under Sec. 60.27a(g)(2)(ix) in any
proposed state plans submitted to the EPA for parallel processing.
Meaningful engagement is integral in early state plan development and
should be included as part of the completeness criteria for parallel
processing.
The EPA is finalizing as part of the completeness criteria in 40
CFR 60.27a(g) procedural requirements for states to describe in their
plan submittals how they engaged with pertinent stakeholders. The state
will be required to describe, in its plan submittal, (1) a list of
pertinent stakeholders identified by the state; (2) a summary of
engagement conducted; (3) a summary of the stakeholder input received;
and (4) a description of how stakeholder input was considered in the
development of the plan or plan revisions.
4. State Plan Call
Under CAA section 110(k)(5), the EPA may call for a revision of a
state implementation plan ``[w]henever the Administrator finds that the
applicable implementation plan . . . is substantially inadequate to . .
. comply with any requirement of [the Act].'' The EPA proposed to add a
mechanism analogous to this ``SIP call'' provision to subpart Ba at 40
CFR 60.27a(i) 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
approved state plans continue to meet the requirements of the EGs and
of the CAA over time. This may be particularly important because EGs
that achieve emission reductions from specific source categories may be
implemented over many years.
As proposed, the state plan call provision stated that, whenever
the Administrator finds that the applicable plan is substantially
inadequate to meet the requirements of the applicable EG, to provide
for the implementation of such plan or to otherwise comply with any
applicable requirement of subpart Ba or the CAA, the Administrator
shall require the state to revise the plan as necessary to correct such
inadequacies. The EPA explained that a plan call would be generally
appropriate under two circumstances: when legal or technical conditions
arise after the EPA approves a state plan that undermine the basis for
the approval and when a state fails to adequately implement an approved
state plan. In the first circumstance, a change in conditions or
circumstances could render an approved plan inconsistent with the EG,
subpart Ba, and/or the CAA, necessitating a plan revision to realign it
with the applicable requirements. For example, a court decision
subsequent to the approval of a plan may render that plan substantially
inadequate to meet applicable CAA requirements resulting from the
change in law.\56\ Or, 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.\57\
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\56\ 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.
\57\ For example, the 1998 ``NOX SIP call'' required
states to submit SIP revisions addressing NOX emissions
found, after SIP approvals, to significantly impact the attainment
of air quality standards in other states due to atmospheric
transport. 63 FR 57356, October 27, 1998.
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The second circumstance in which a state plan call may be
appropriate is when a state fails to adequately implement an approved
state plan. In this case, the approved state plan may facially meet 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 provides for implementation of the plan's
requirements given the state's actual circumstances or to provide
demonstration that the plan is being adequately implemented as
approved.
Consistent with the SIP call process under CAA section 110(k)(5),
the EPA proposed that, after it finds that a state's approved plan is
substantially inadequate to comply with applicable requirements, it
would require the state to revise the plan as necessary to correct
inadequacies. The EPA proposed that such finding and notice must be
public. The plan call notice would identify the plan inadequacies
leading to the plan call and establish a reasonable deadline (not to
exceed 12 months after the date for such notice) for submission of a
plan revision and/or demonstration of appropriate implementation of the
approved plan.
A number of commenters asserted that the EPA is not authorized to
issue a call for state plans under CAA section 111(d) because Congress
did not provide this explicit authority in CAA section 111. Some
commenters also expressed concern that this mechanism undermines the
regulatory certainty approved plans provide to facilities.
Additionally, some commenters contended that CAA sections 113 and 114
address the condition of states not properly implementing approved
state plans such that a state plan call mechanism is unnecessary.
As explained at the start of this section of the preamble (section
III.D.), the EPA interprets CAA section 111(d)(1)'s direction to
prescribe regulations establishing a procedure similar to that provided
by CAA section 110 for the submission of state plans to authorize the
EPA to adopt the section 110 procedural mechanisms. Additionally, CAA
section 111(d)(2) provides that EPA shall have the same authority as
under CAA section 110(c) to prescribe a Federal plan where a state
fails to submit a satisfactory plan, as well as the same authority as
under CAA sections 113 and 114 to enforce the
[[Page 80507]]
provisions of a state plan where the state fails to enforce them.
Congress did not specify how the EPA is to exercise its authority to
approve or disapprove state plans, promulgate Federal plans, and
oversee and enforce state plan implementation on an ongoing basis, and
the EPA finds it reasonable to look to other mechanisms under the CAA
that Congress has provided for substantially the same purpose. That is,
the EPA believes CAA sections 111(d)(1) and 111(d)(2), taken together,
provide the legal basis for incorporating mechanisms into subpart Ba
that ensure the ongoing compliance of state plans with the applicable
requirements, including the state plan call mechanism of CAA section
111(k)(5).
While CAA sections 113 and 114 provide the EPA authority to enforce
the provisions of state plans through, inter alia, issuance of
administrative orders and penalties, civil actions in the case of
violations, and use of monitoring, reporting, recordkeeping, and
compliance certifications, the EPA believes it is also reasonable and
helpful to provide a mechanism for states to bring their state plans
into compliance with the applicable requirements. A state's failure to
implement its approved plan may result if that plan's implementation or
enforcement measures, e.g., monitoring, reporting, and verification
requirements, prove inadequate to enable a state to ensure that a
designated facility is meeting its standards of performance. A failure
to implement may also arise, as described above, where an approved
state plan contains the appropriate implementation and enforcement
measures but changes in, e.g., available funding, resources, or legal
authority at the state level render the plan, as it is being
implemented, substantially inadequate to meet the requirements of
subpart Ba, the EG, or CAA section 111(d). In either instance, a
reasonable alternative to EPA enforcement may be for the Agency to
issue a state plan call in order to give the state an opportunity to
remedy the deficiency or to provide demonstration that the plan is
being or will be adequately implemented as approved. As with all of the
regulatory mechanisms being incorporated into subpart Ba in this
rulemaking, the EPA interprets CAA sections 111(d)(1) and (2) as
collectively providing the authority to provide for procedures for
ensuring that state plans remain ``satisfactory'' over the long time
periods over which they are implemented, given that subsequent findings
or conditions may affect the basis for a previous plan approval.
The EPA acknowledges that a call for revision of a state plan may
result in a change in the requirements to which regulated entities are
subject under than plan. However, as explained above, state plan calls
are appropriate in two general circumstances: when legal or technical
conditions arise that abrogate the basis of the initial state plan
approval and when a state fails to adequately implement an approved
state plan. In either of these two instances, the plan as it is
currently being implemented fails to meet the applicable requirements.
The EPA believes it would be neither consistent with the statute nor
reasonable to fail to correct a state plan under these circumstances
and that the state plan call mechanism, which provides for notice to
the state and the public and a process for revising the state plan that
is intended to cause as little disruption to the original plan as
possible, is appropriate. The state plan call provisions state that
``[a]ny finding under this paragraph shall, to the extent the
Administrator deems appropriate, subject the State to the requirements
of this part to which the State was subject when it developed and
submitted the plan for which such finding was made, except that the
Administrator may adjust any dates applicable under such requirements
as appropriate.'' \58\
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\58\ The regulations being finalized at Sec. 60.27a(i)(1)
further provided that if the Administrator makes the finding in
Sec. 60.27a(i) on the basis that a State is failing to implement an
approved plan, or part of an approved plan, the State may submit a
demonstration to the Administrator it is adequately implementing the
requirements of the approved state plan in lieu of a plan revision.
Such demonstration must be submitted by the deadline established
under Sec. 60.27a(i).
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Several commenters noted that the proposed ``not to exceed 12
months'' timeline associated with the state call revision provision may
be inadequate for states to respond to a state plan call and noted that
this time is shorter than that provided for plan development. However,
because a state plan call would represent that a plan is substantially
inadequate to meet an EG after implementation of the plan was supposed
to be underway, and compliance deadlines may have already passed, a
more expeditions timeline to fix the problem than the deadline for
initial plan development is imperative to the public health concerns.
Additionally, the EPA anticipates that in many instances a state plan
call would impact a discrete portion or element of a plan that will not
require the same amount of time the EPA is allotting for initial state
plan development and submission, i.e., 18 months, to correct. The EPA
believes 12 months is a reasonable timeframe and allows 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. However, the Agency also acknowledges that this may not
be true in every instance. The EPA is therefore finalizing the state
plan call mechanism with a change relative to proposal to provide that
plan revisions associated to a state plan call shall be submitted to
the Administrator within 12 months or within a period as determined by
the Administrator, instead of ``not to exceed 12 months.'' Because the
CAA contains numerous deadlines requiring states to submit various
state implementation plans within 12 months of a triggering event,\59\
the EPA believes it is reasonable to expect states to be able to submit
state plan revisions pursuant to a state plan call within this
timeframe as well. The final language provides more flexibility and
allows that the EPA may supersede this 12-month timeframe in
appropriate circumstances.
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\59\ See, e.g., CAA sections 110(k)(4), 129(b)(2), and 179(d).
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While this period is less than the time allotted for the submission
of a full state plan (finalized in section III.A.1. of this preamble
above as 18 months), it can provide 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.
With the exception of this revision to the timeline for states to
submit revised state plans, the EPA is finalizing the state plan call
mechanism at 40 CFR 60.27a(i) as proposed. As explained at proposal,
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 after the necessary revisions are
due. If the state fails to submit a plan revision, to make an adequate
demonstration within the prescribed time pursuant to 40 CFR
60.27a(i)(1), or if the EPA disapproves a submission, then the EPA
would be required to promulgate a Federal plan addressing the
deficiency for sources within that state.
[[Page 80508]]
5. Error Correction
Under CAA section 110(k)(6), the EPA may, on its own accord, revise
its prior action on a state implementation 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 proposed to add a
mechanism analogous to this ``error correction'' provision to subpart
Ba at 40 CFR 60.27a(j) under CAA section 111(d) and is finalizing that
mechanism as proposed.
As explained in the notice of proposed rulemaking, 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 allows 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 error correction mechanism does away with
unnecessary burdens on states based solely on 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
justified on a case-by-case basis. The EPA has previously used CAA
section 110(k)(6) for correction of technical or clerical errors,\60\
for removal of substantive provisions from an EPA-approved state plan
that did not relate to implementation, enforcement, or maintenance of
the NAAQS or is otherwise permissible under the CAA for inclusion in
the plan,\61\ and when the EPA in error approved a SIP that did not
meet applicable requirements.\62\ These examples are not the only
circumstances when the EPA has used CAA section 110(k)(6) in the past
and do not limit the EPA for circumstances of error correction under
section 111(d) in the future.
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\60\ For example, see 74 FR 57051, November 3, 2009, for
correction of clerical and typographical errors in a portion of an
Arizona SIP.
\61\ For example, see 86 FR 24505 (May 7, 2021) (removal of
asbestos requirements from a Kentucky SIP).
\62\ For example, see 86 FR 23054, April 30, 2021, for error
correction with respect to Kentucky's ``good neighbor obligations''
and SIP disapproval.
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One commenter, while not objecting to the inclusion of this
mechanism, suggested the EPA should make clear in the regulations that
this provision cannot be used to effect a change in policy because of a
change in perspective on implementation that may arise from an
administration transition, citing the need for designated facilities to
have regulatory certainty and to avoid unexpected changes in regulatory
requirements. Other commenters also noted that the proposed regulatory
text does not place any limitations on the EPA's ability to use the
error correction provision and that the EPA should impose meaningful
limits on its ability to use this mechanism to effectuate significant
changes to a prior action or to implement new policy perspectives. The
EPA acknowledges the concern expressed by the commenters. The Agency
intends the same intrinsic limits on its error correction authority
that exist under CAA section 110(k)(6) to apply to its use under
subpart Ba: the EPA must determine that its action on a state plan
submission was ``in error.'' The EPA reviews state plan submissions
against the applicable requirements of the statute, general
implementing regulations, and specific EG. If the submission meets
those requirements, it is ``satisfactory'' and the EPA must approve it.
A subsequent change in Agency policy alone does not constitute an error
that the EPA committed in acting on the state plan. The EPA's history
of using error correction mechanisms under CAA section 110(k)(6),
including to correct clerical or typographic errors and remove
provisions from SIPs that it was without authority to approve in the
first instance (as described earlier), gives good indication of how the
EPA intends to use this mechanism under subpart Ba. The EPA also notes
that use of error correction is fact- and context-specific, and a
determination that a previous action was in error is subject to
scrutiny and review by the state and public. Additionally, due to the
complex facts and circumstances that frequently characterize state
plans and state plan implementation, the EPA believes that any attempt
to further define the circumstances in which use of error correction
may or may not be permissible is likely to inadvertently limit its use
where otherwise appropriate. Thus, the Agency does not find it
necessary to prescribe further limits on its use of error correction
under these CAA section 111 implementing regulations. The EPA is
therefore finalizing use of error correction for state plan actions at
40 CFR 60.27a(j) as proposed. While the EPA maintains that this error
correction mechanism would be available for acting on state plans when
appropriate, it also expects that it will work with states, as it has
done previously in the SIP context, to correct any deficiencies in
their plans.
E. Remaining Useful Life and Other Factors (RULOF) Provisions
The EPA is finalizing revisions to certain provisions of 40 CFR
60.24a to clarify the framework for applying standards of performance
based on RULOF in state plans \63\ under CAA section 111(d). Consistent
with Congress's mandate in CAA section 111(d), the EPA's implementing
regulations have guided the implementation of RULOF for decades. See 40
CFR 60.24(d), (f). The existing subpart Ba regulations \64\ contain
provisions at 40 CFR 60.24a(e) governing the circumstances under which
states may take RULOF into consideration when applying standards of
performance to particular sources in state plans. The EPA proposed
revisions to these existing provisions as well as additional RULOF-
related requirements to ensure consistency with the statute and to
enhance clarity and equitable treatment for states. The EPA is
finalizing some of these provisions as proposed, is finalizing other
provisions with changes relative to proposal in response to public
comments, and is choosing not to finalize yet other provisions.
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\63\ As explained in section III.E.1. of this preamble, any
discussion and requirements that apply to states' consideration of
RULOF in state plans also apply to the EPA's consideration of RULOF
in the context of a Federal plan.
\64\ The D.C. Circuit's vacatur of certain provisions of subpart
Ba in ALA did not impact the existing RULOF provision at 40 CFR
60.24a(e).
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Section III.E.1. of this preamble describes the statutory and
regulatory background of RULOF under CAA section 111 and section
III.E.2. of this preamble explains the authority and rationale for the
collective regulatory revisions. Section III.E.3. of this
[[Page 80509]]
preamble describes in detail the proposed RULOF provisions and the
EPA's approach to each provision in this final rule.
1. Statutory and Regulatory Background
Under CAA section 111(d), the EPA is required to ``establish a
procedure . . . under which each State shall submit to the
Administrator a plan which (A) establishes standards of performance
for'' designated facilities and ``(B) provides for the implementation
and enforcement of such standards of performance.'' As the Supreme
Court explained in West Virginia v. EPA (in the context of an EG
addressing existing power plants): ``Although the States set the actual
rules governing existing power plans, EPA itself still retains the
primary regulatory role in Section 111(d).'' \65\ The Court elaborated
that the ``[t]he Agency, not the States, decides the amount of
pollution reduction that must ultimately be achieved. It does so by
again determining, as when setting the new source rules, `the best
system of emission reduction . . . that has been adequately
demonstrated for [existing covered] facilities.' 40 CFR part
60.22(b)(5) (2021); see also 80 FR 64664, and n. 1. The States then
submit plans containing the emissions restrictions that they intend to
adopt and enforce in order not to exceed the permissible level of
pollution established by EPA. See parts 60.23, 60.24; 42 U.S.C. part
7411(d)(1).'' \66\
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\65\ 142 S. Ct. 2587, 2601-02 (2022).
\66\ Id. The part of the rule preamble cited by the Court
states, in part: ``Under CAA section 111(a)(1) and (d), the EPA is
authorized to determine the BSER and to calculate the amount of
emission reduction achievable through applying the BSER. The state
is authorized to identify the emission standard or standards that
reflect that amount of emission reduction.'' 80 FR 64662, 64664 n. 1
(Oct. 23, 2015).
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Accordingly, while states establish the standards of performance
for individual sources, EPA must ensure that such standards reflect the
degree of emission limitation achievable through the application of the
BSER. This obligation derives from the definition of ``standard of
performance'' under CAA section 111(a)(1), which is ``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 . . . the Administrator determines has been
adequately demonstrated.'' Consistent with this definition, the EPA
identifies the degree of emission limitation achievable through
application of the BSER for a category (or sub-category) of existing
sources as part of its EG. 40 CFR 60.22a(b)(5). States must then
establish standards of performance for existing sources in their state
plans that reflect the EPA's degree of emission limitation.
CAA section 111(d)(1) also requires that the ``regulations which
establish a procedure'' for submission of state plans must ``permit''
states, ``in applying a standard of performance to any particular
source under a plan,'' to consider, ``among other factors, the
remaining useful life of the existing source.'' Thus, while standards
of performance must generally reflect the degree of emission limitation
achievable through application of the BSER determined by the EPA
pursuant to CAA section 111(a)(1), see 40 CFR 60.24a(c), CAA section
111(d)(1) also contemplates circumstances in which states would be
permitted to deviate from the degree of emission limitation in the
applicable EG based on consideration of RULOF for particular sources.
The 1970 version of CAA section 111(d) made no reference to the
consideration of RULOF in the context of standards for existing
sources.\67\ In the 1975 regulations promulgating subpart B to
implement the 1970 CAA section 111(d), however, the EPA included a
provision that would allow states to provide ``variances'' from the
EPA's emission guideline on a case-by-case basis.\68\ For health-based
pollutants, the regulations provided that 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 would make the application of a less stringent standard
significantly more reasonable. 40 CFR 60.24(f). For welfare-based
pollutants, the regulations provided that 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).
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\67\ See Public Law 91-604, section 111(d)(1) (Dec. 31, 1970),
84 Stat. 1684.
\68\ 40 FR 53340, 53344 (Nov. 17, 1975).
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In proposing this variance provision, the EPA explained that the
application of less stringent emission standards on a case-by-case
basis is allowed, provided that sufficient economic justification is
demonstrated in each case. Such justification must be presented for
each case in the plan and may include, for example, unreasonable cost
of control resulting from plant age, location, or basic process design
or physical impossibility of installing specified control systems.\69\
In response to a comment received on its proposal arguing that the EPA
did not have authority to promulgate a variance provision, the Agency
explained that, although section 111(d) does not explicitly provide for
variances, it does require consideration of the cost of applying
standards to existing facilities. Such a consideration is inherently
different than for new sources, because controls cannot be included in
the design of an existing facility and because physical limitations may
make installation of particular control systems impossible or
unreasonably expensive in some cases. For these reasons, EPA believes
the provision (Sec. 60.24(f)) allowing States to grant relief in cases
of economic hardship (where health-related pollutants are involved) is
permissible under section 111(d).\70\
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\69\ 39 FR 36102, 36102 (Oct. 7, 1974).
\70\ 40 FR 53343.
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The Agency further explained in the 1975 rulemaking that the
``EPA's emission guidelines will reflect its judgment of the degree of
control that can be attained by various classes of existing sources
without unreasonable costs.'' \71\ States were required to establish
emission standards for existing sources that are equivalent to the
EPA's emission guidelines; states would also be free to apply more
stringent standards for particular sources within a class of sources
that can achieve greater control without unreasonable costs, or where
they otherwise believe that additional control is necessary or
desirable.\72\
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\71\ Id.
\72\ See id.
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As part of the 1977 CAA amendments, Congress amended CAA section
111(d)(1) in a way that codified the provision of a variance as
contained in the EPA's 1975 regulations. Specifically, 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.'' 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 the Agency promulgated 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, then-
[[Page 80510]]
new RULOF provision.\73\ As did subpart B before it, this subsection
provides that, in applying a standard of performance to a particular
source, the state may take into consideration factors including the
remaining useful life of such source, provided that the state
demonstrates one or more of three 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 that make application of a less
stringent standard or compliance time significantly more reasonable.
The 2019 RULOF provision also allows, as did the 1975 version, for the
variance to be provided for a particular facility or class of such
facilities.
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\73\ 84 FR 32520, 32577 (July 8, 2019).
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CAA section 111(d)(2) provides that ``[t]he Administrator shall
have the same authority . . . to prescribe a plan for a State in cases
where the State fails to submit a satisfactory plan as he would have
under section 7410(c) of this title [i.e., CAA section 110(c)] in the
case of failure to submit an implementation plan.'' When CAA section
111(d)(2) was enacted in 1970, CAA section 110(c) stated that the
Administrator shall promptly propose a Federal implementation plan for
a state if ``(1) the State fails to submit an implementation plan . . .
within the time prescribed, (2) the plan, or any portion thereof,
submitted for such State is determined by the Administrator not to be
in accordance with the requirements of this section, or (3) the State
fails, within 60 days after notification by the Administrator or such
longer period as he may prescribe, to revise an implementation plan as
required pursuant to a provision of its plan . . . .'' \74\
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\74\ Public Law 91-604, section 110(c) (Dec. 31, 1970), 84 Stat.
1681-82.
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Thus, CAA section 111(d)(2), through its reference to CAA section
110(c), provides the EPA the authority and the obligation to review
state plans for compliance with CAA requirements.75 76 If a
state has not submitted a state plan or if the EPA determines that a
state plan is not ``satisfactory,'' i.e., not in accordance with the
requirements of CAA section 111, the EPA must promulgate a Federal
plan.
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\75\ See also 40 CFR 60.27(c) (``The Administrator will, after
consideration of any State hearing record, promptly prepare and
publish proposed regulations setting forth a plan, or portion
thereof, for a State if: (1) The State fails to submit a plan within
the time prescribed; . . . (3) The Administrator disapproves the
State plan or plan revision or any portion thereof, as
unsatisfactory because the requirements of this subpart have not
been met.''); 60.27(d) (providing for promulgation of a proposed
Federal plan).
\76\ Congress subsequently updated CAA section 110(c) in 1977
and again in 1990. The current version of CAA section 110 splits the
EPA's Federal implementation plan authority and the criteria for
disapproval of State implantation plans across subsections 110(c)
and 110(k)(3). CAA section 110(c)(1) provides that ``[t]he
Administrator shall promulgate a Federal implementation plan at any
time within 2 years after the Administrator--'' (A) finds that a
State has failed to make a complete plan submission, or ``(B)
disapproves a State implementation plan submission in whole or in
part, unless the State corrects the deficiency, and the
Administrator approves the plan or plan revision, before the
Administrator promulgates such Federal plan.'' CAA section
110(k)(3), which addresses ``[f]ull and partial approval and
disapproval,'' states that the Administrator shall approve all or
certain portions of the plan that ``meet[] the applicable
requirements of this chapter.'' Thus, a plan, or any portion
thereof, that fails to meet the applicable CAA requirements must be
disapproved.
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Congress further provided in CAA section 111(d)(2) that the EPA
shall, in promulgating a standard of performance under a Federal plan,
``take into consideration, among other factors, remaining useful lives
of the sources in the category of sources to which such standard
applies.'' Thus, the RULOF regulations the EPA has previously
promulgated in subparts B and Ba, and the revisions to the RULOF
regulations in subpart Ba being finalized in this action, apply not
only to states when promulgating state plans, but also to the EPA when
promulgating a Federal plan. Throughout this section III.E. of the
preamble, discussion of provisions and requirements that apply to
states' consideration of RULOF in state plans also apply to the EPA's
consideration of RULOF in the context of a Federal plan.
2. Authority and Rationale for the Revisions
The primary authority for these revisions is in CAA section
111(d)(1). The rationale for the revisions finalized here is to more
fully align the implementing regulations with the statute and to
enhance clarity for states as well as the equitable treatment of states
and sources.
CAA section 111(d)(1) directs the EPA to ``prescribe regulations
which establish a procedure'' under which states submit state plans.
These regulations must ``permit'' states, in applying a standard of
performance to any particular source, to consider RULOF. That is,
Congress gave the EPA the authority and the obligation to establish
procedures that permit states to consider RULOF.
The EPA has been guiding consideration of RULOF for over fifty
years, consistent with Congress's direction. ``Permit'' means ``to
consent to formally; to allow (something) to happen, esp[ecially] by an
official ruling, decision, or law.'' \77\ It is well understood that
there may be parameters or rules as a condition of someone consenting
to or allowing something to be done. For example, a building permit
generally does not allow a person to build in any way they like, but
contains conditions and requirements such as compliance with safety
codes and limitations on height. In general, ``permit,'' whether a verb
or noun, carries with it an expectation of rules and parameters
designed to ensure consistency with the applicable framework, as
opposed to open-ended discretion.\78\ CAA section 111(d)(1) provides
that ``regulations of the Administrator . . . shall permit the State''
to consider RULOF (emphasis added). The natural reading of this
provision is that Congress intended the EPA to set out parameters and
conditions that govern states' consideration of RULOF..\79\
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\77\ Black's Law Dictionary (11th ed. 2019); see also The
American College Dictionary (1970) (``to let (something) be done or
occur''); Oxford English Dictionary Online (``to allow or give
consent to (a person or thing) to do or undergo something''),
https://www.oed.com/search/dictionary/?scope=Entries&q=permit, page
accessed Sept. 1, 2023.
\78\ See, e.g., U.S. v. Chau, 293 F.3d 96, 101 (3d Cir., 2002)
(a provision requiring an entity to provide notice to the EPA prior
to acting is not a ``permit'' because ``[a] requirement that someone
provide written notice of an intention to perform an act is not the
same at the EPA's granting of a license, or other permission, to the
person to perform the act in question . . . .'').
\79\ This contrasts with other provisions of the Clean Air Act
where Congress granted states unbounded discretion. See, e.g., CAA
section 116 (``nothing in this chapter shall preclude or deny the
right of any State or political subdivision thereof to adopt or
enforce'' more stringent requirements).
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The EPA's role in implementing RULOF finds further support in the
Supreme Court's understanding of this provision as laid out in American
Electric Power v. Connecticut.\80\ In describing the statutory
framework of CAA section 111, the Court explained that the EPA sets
standards of performance based on CAA section 111(a)(1). It further
recognized that, pursuant to the EPA's subpart B general implementing
regulations for state plans, 40 CFR 60.24(f), ``EPA may permit state
plans to deviate from generally applicable emissions standards upon
demonstration that costs are `[u]n-reasonable.' '' \81\
---------------------------------------------------------------------------
\80\ 564 U.S. 410 (2011).
\81\ Id. at 427.
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At the same time that Congress clearly directed the EPA to
prescribe rules governing states' consideration of RULOF, it also
provided that those rules establish a procedure under which
[[Page 80511]]
states submit state plans, including any standards of performance
pursuant to consideration of RULOF. CAA section 111(d)(1) states, ``The
Administrator shall prescribe regulations which shall establish a
procedure . . . . Regulations of the Administrator under this paragraph
shall permit the State in applying a standard of performance to any
particular source . . . to take into consideration, among other
factors, the remaining useful life of the existing source to which such
standard applies.'' Consistent with this statutory direction, the EPA's
RULOF provisions, both the existing provisions and those being
finalized in this action, are fundamentally procedural in nature. They
prescribe the series of steps and considerations states must undertake
to apply a less stringent standard of performance that is consistent
with CAA section 111(d).
As discussed in section III.E.1. of this preamble, Congress also
granted the EPA a role in ensuring that states applying standards of
performance based on RULOF do so in an appropriate manner. CAA section
111(d)(2) requires the EPA to evaluate standards of performance in
state plans and approve them only if they are ``satisfactory,'' i.e.,
if they meet the applicable requirements.\82\ Thus, while states have
responsibility for establishing, implementing, and enforcing standards
of performance for designated facilities, the EPA has an obligation to
ensure that those standards of performance--including any standards of
performance based on consideration of RULOF--are consistent with the
statute. The regulations the EPA is promulgating in this final rule
provide greater clarity and thus enable states to apply less stringent
standards of performance that are consistent with CAA section 111(d).
Having clear, detailed regulations also aids the EPA in evaluating less
stringent standards of performance included in state plans, which
maximizes the Agency's ability to provide for fair and equitable
treatment across the states and sources that use the RULOF provision.
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\82\ CAA section 111(d)(2)(A) authorizes the EPA to promulgate a
Federal plan for any state that ``fails to submit a satisfactory
plan'' under section 111(d)(1). Accordingly, the EPA interprets
``satisfactory'' as the standard by which the EPA reviews state plan
submissions. The EPA discusses the ``satisfactory'' standard of
review in greater detail in section III.E.3.b of this preamble.
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In addition, the parameters for considering RULOF set out in this
final rule are consistent with the role of RULOF as an important tool
for states in the unusual circumstance in which the EPA's BSER
determination is unreasonable for a particular source. As explained in
detail in section III.E.3.b. of this preamble, the EPA's longstanding
interpretation is that RULOF provision in CAA section 111(d)(1) allows
the Agency to permit states to provide variances for existing
facilities in certain circumstances. These circumstances are limited to
when a state can demonstrate that it is unreasonable for a particular
facility to achieve the degree of emission limitation determined by the
EPA in the applicable EG.
Under CAA section 111, EPA must provide BSER and degree of emission
limitation determinations that are, to the extent reasonably
practicable, applicable to all designated facilities in the source
category. In many cases, this requires the EPA to create subcategories
of designated facilities, each of which has a BSER and degree of
emission limitation \83\ tailored to its circumstances.\84\ Thus, the
EPA endeavors, to the extent practicable, to promulgate BSER and degree
of emission limitation determinations that are achievable for all
designated facilities covered by an EG. However, as Congress
recognized, this may not be possible in every instance because, e.g.,
it is not be feasible for the Agency to know and consider the
idiosyncrasies of every designated facility in a source category or
because the circumstances of individual facilities change after the EPA
determined the BSER. The EPA believes Congress intended RULOF to allow
the EPA to permit the use of variances for states to adjust a standard
of performance in unusual circumstances in which the EPA's
determination regarding the degree of emission limitation achievable
through the BSER is not reasonable for a particular designated
facility.
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\83\ The EPA, in different contexts, uses the phrase ``degree of
emission limitation'' to refer to both the degree of emission
limitation achievable through application of the BSER at the level
of an individual source, e.g., the best system can achieve an 85%
reduction in end-of-stack emissions when applied to a designated
facility, and to the overall level of stringency that results from
applying the BSER to the source category as a whole. In this section
of the preamble, this phrase refers to the emission reductions that
are achievable at an individual source.
\84\ See 40 CFR 60.22a(b)(5) (EPA may specify different degrees
of emission limitation and compliance times for different
subcategories of designated facilities).
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This view of the RULOF provision as a limited variance from the
EPA's determinations in an EG has a long history. The EPA's description
of how it develops EGs in the preamble to the 1975 subpart B
implementing regulations stated that ``emission guidelines will reflect
subcategorization within source categories where appropriate, taking
into account differences in sizes and types of facilities and similar
con- . . . siderations [sic], including differences in control costs
that may be involved for sources located in different parts of the
country.'' \85\ As a result, emission guidelines ``will in effect be
tailored to what is reasonably achievable by particular classes of
existing sources, and States will be free to vary from the levels of
control represented by the emission guidelines in the ways mentioned
above.'' \86\ The ``ways mentioned above'' included establishing more
stringent standards under CAA section 116 where states believe
additional control is necessary or desirable, as well as setting more
lenient standards, subject to EPA review, in cases of economic
hardship.\87\ The EPA subsequently explained that such cases could
arise because controls were not included in the design of existing
sources or because physical limitations may make installation of
particular control systems impossible or unreasonably expensive in some
cases.\88\
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\85\ 40 FR 53343.
\86\ Id.
\87\ See id.
\88\ Id. at 53344. Similarly, in the 1974 notice of proposed
rulemaking for the subpart B regulations, the EPA explained that
``it is the Administrator's judgment that section 111(d) permits him
to approve State emission standards only if they reflect application
of the best systems of emission reduction (considering the cost of
such reduction) that are available.'' The EPA further stated: ``It
is recognized, however, that application of such standards may be
unreasonable in some situations. For example, to require that
existing controls be upgraded by a small margin at a relatively high
cost may be unreasonable in some cases. The proposed regulations,
therefore, provide that States may establish less stringent emission
standards on a case-by-case basis provided that sufficient
justification is demonstrated in each case.'' 39 FR 36102, 36102
(Oct. 7, 1974).
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Thus, the EPA's long-standing interpretation is that the standards
of performance established by states must generally reflect the degree
of emission limitation determined by the Agency, except where, based on
RULOF, states provide ``sufficient justification'' that the EPA's
determination is ``unreasonable'' for a particular source.\89\ Although
the EPA endeavors to address the circumstances of all designated
facilities in its EG, there may remain instances in which the
circumstances of a particular facility justify application of a less
stringent standard of performance.
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\89\ 39 FR 36102; see also 40 CFR 60.24(c), (f) (EPA's
longstanding regulations in subpart B require standards of
performance in state plans to be no less stringent than the
corresponding EG except where a state has satisfied the regulatory
requirements for invoking RULOF).
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[[Page 80512]]
Finally, and relatedly, to be consistent with the statutory purpose
of reducing dangerous air pollution under CAA section 111; the
statutory framework under which to achieve that purpose the EPA is
directed to set the degree of emission limitation achievable through
application of the best system of emission reduction; and the history
of the statutory RULOF provision as a limited variance from that degree
of emission limitation to address unusual circumstances at particular
facilities, the EPA's regulations must ensure that application of less
stringent standards of performance pursuant to consideration of RULOF
does not undermine the degree of emission limitation achievable through
application of the BSER.
Thus, for the reasons explained above, the EPA has the authority to
promulgate the regulatory updates included in this final rule, which
flow from the statute's direction for the Agency to ``establish
procedures'' that, among other things, ``permit'' states to consider
RULOF. The EPA believes these updates are warranted to provide
additional clarity to the states (when developing state plans) and the
EPA (when issuing Federal plans and reviewing state plans) regarding
the appropriate procedures for considering RULOF and to ensure the
predictable and equitable treatment of states and sources in
implementing EGs under CAA section 111(d). Furthermore, the updates to
the framework are needed to ensure that consideration of RULOF adheres
to statutory purpose, structure, and historical context discussed
above.
Critically, the regulatory revisions also provide a framework for
how states and the EPA calculate and apply less-stringent standards of
performance. Neither the RULOF provision in subpart B nor the 2019
update to that provision in subpart Ba clearly delineate the process
for states or the EPA after they have determined that a source cannot
reasonably achieve the degree of emission limitation in the applicable
emission guideline. As such, the existing regulations are not adequate
to ensure that standards of performance pursuant to RULOF are no less
stringent than required to address the basis for providing a variance
from the EPA's degree of emission limitation in the first instance.
Consistent with the long-held interpretation of the RULOF provision
as a limited variance, the EPA is aware of only a small handful of
instances in which a state has used this provision to apply a less-
stringent standard of performance to a designated facility in a state
plan. In three of these instances, the Agency approved less stringent
standards of performance for welfare-related designated pollutants for
which, under subpart B (40 CFR 60.24(d)), there was a lower bar for
doing so.\90\ In the fourth instance, the state invoked RULOF to apply
a less-stringent standard for a health-related designated pollutant and
the EPA disapproved the less-stringent standard for failing to satisfy
the requirements of 40 CFR 60.24(f).\91\ At the time of this
rulemaking, however, there are two new EGs for which rulemaking is
ongoing; each of these EGs would address large, complex, and highly
diverse source categories.\92\ Commenters on these proposed EGs have
suggested that there may be more of a role for RULOF than in past
EGs.\93\ The revisions to the RULOF provisions are thus timely to give
states greater clarity on and predictability for applying less
stringent standards of performance consistent with CAA section 111.
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\90\ 49 FR 35771 (Sept. 12, 1984), 47 FR 50868 (Nov. 10, 1982),
47 FR 28099 (June 29, 1982). See, e.g., Emission Guideline Document
for Kraft Pulping: Control of TRS Emissions from Existing Mills,
EPA-450/2-78-003b (March 1979) at 1-3 (``For Welfare-related
pollutants, states may balance the emission guidelines, times for
compliance, and other information in a guideline document against
other factors of public concern in establishing emission standards,
compliance schedules, and variances provided that appropriate
consideration is given to the information presented in the guideline
document and at public hearing(s) required by Subpart B and that all
other requirements of Subpart B are met. . . . Thus, states will
have substantial flexibility to consider factors other than
technology and costs in establishing plans for the control of
welfare-related pollutants if they wish.'').
\91\ See 40 CFR 62.8860(a) (``The requirements of Sec. 60.24(f)
of this chapter are not met because the State failed to justify the
application of emission standards less stringent than the Federal
emission standards.''); see also 55 FR 19883, 19884 (May 14, 1990)
(explaining the proposed less-stringent limits were not approvable
because the state had not demonstrated sufficient justification).
The RULOF provision that governed that action in subpart B was
substantively identical to the version promulgated in 2019 in
subpart Ba.
\92\ Proposed Rule: ``Standards of Performance for New,
Reconstructed, and Modified Sources and Emissions Guidelines for
Existing Sources: Oil and Natural Gas Sector Climate Review,'' 86 FR
63110 (Nov. 15, 2021); Supplemental Proposal: Standards of
Performance for New, Reconstructed, and Modified Sources and
Emissions Guidelines for Existing Sources: Oil and Natural Gas
Sector Climate Review,'' 87 FR 74702 (Dec. 6, 2022); Proposed Rule:
New Source Performance Standards for Greenhouse Gas Emissions From
New, Modified, and Reconstructed Fossil Fuel-Fired Electric
Generating Units; Emission Guidelines for Greenhouse Gas Emissions
From Existing Fossil Fuel-Fired Electric Generating Units; and
Repeal of the Affordable Clean Energy Rule,'' 88 FR 33240 (May 23,
2023).
\93\ See, e.g., Comment Letter of Pioneer Natural Resources USA,
Inc. on Supplemental Notice of Proposed Rulemaking for Standards of
Performance for New, Reconstructed, and Modified Sources and
Emissions Guidelines for Existing Sources: Oil and Natural Gas
Sector (``Oil and Gas Proposed Rule''), EPA-HQ-OAR-2021-0317-2298 at
20-21; Comment Letter of American Petroleum Institute on Oil and Gas
Proposed Rule, EPA-HQ-OAR-2021-0317-2428 at 93-95, 102-104; Comment
Letter of Power Generators Air Coalition on New Source Performance
Standards for Greenhouse Gas Emissions from New, Modified, and
Reconstructed Fossil Fuel-Fired Electric Generating Units; Emission
Guidelines for Greenhouse Gas Emissions from Existing Fossil Fuel
Fired Electric Generating Units; and Repeal of the Affordable Clean
Energy Rule (``EGU Proposed Rule''), EPA-HQ-OAR-2023-0072-0710 at
75-78; Comment Letter of Wisconsin Department of Natural Resources
and Public Service Commission of Wisconsin on EGU Proposed Rule,
EPA-HQ-OAR-2023-0072-0538 at 1-2, 10-11.
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Note that the RULOF provisions are distinct from the flexible
compliance mechanisms such as trading and averaging, discussed in
section III.G.1. of this preamble. The RULOF provisions apply where a
state intends to depart from the degree of emission limitation in the
EG and propose a less stringent standard for a designated facility (or
class of facilities). That is, the RULOF provisions are relevant to a
state's process of applying a standard of performance to a designated
facility in the first instance. In contrast, trading and averaging are
mechanisms that, when permitted in an EG, states may use to demonstrate
compliance with the standards of performance that are contained within
their state plans.
3. Proposed and Finalized RULOF Provisions
The EPA proposed revisions to the existing RULOF provision at 40
CFR 60.24a(e), which details the circumstances under which states or
the EPA may apply a less stringent standard of performance. The EPA
also proposed to add new provisions: a procedure for determining less
stringent standards when a state has properly invoked RULOF (proposed
and finalized at 40 CFR 60.24a(f)); a clarification that state plans
may not apply less stringent standards if a designated facility can
reasonably achieve the presumptive standard of performance using a
technology other than the BSER (proposed at 40 CFR 60.24a(g)); a
clarification that any less stringent standards must meet all other
applicable requirements (proposed at 40 CFR 60.24a(l), finalized at
60.24a(h)); requirements related to when operating conditions that are
relied on for a less stringent standard must be included as enforceable
requirements in state plans (proposed at 40 CFR 60.24a(h), finalized at
40 CFR 60.24a(g)); requirements related to the consideration of
remaining useful life (proposed 40 CFR 60.24a(i)); a clarification
regarding the burden of proof and information on which RULOF
demonstrations are based (proposed 40 CFR 60.24a(j));
[[Page 80513]]
requirements to consider potential impacts and benefits of control to
communities most affected by and vulnerable to emissions from a
designated facility for which a state is proposed a less stringent
standard (proposed 40 CFR 60.24a(k)); and a clarification that states
may account for other factors in applying a more stringent standard of
performance (proposed 40 CFR 60.24a(m)). In addition, the EPA proposed
changes to the existing 40 CFR 60.24a(f) (proposed at 40 CFR 60.24a(n),
finalized at Sec. 60.24(i)) reflecting the Agency's revised
interpretation that CAA sections 111(d) and 116 authorize states to
include standards of performance more stringent than the EPA's
presumptive standards in their state plans as enforceable requirements.
The EPA received a wide range of comments on its proposed RULOF
provisions. Some commenters expressed support for the proposed
revisions, noting that the EPA has the authority to specify how RULOF
is implemented and the obligation to ensure that its use does not
undermine the emission reductions that are achievable through
application of the BSER. Supportive commenters also noted that
providing a regulatory structure is important to ensure that RULOF is
applied in a reliable, consistent, and appropriate manner. Commenters
opposed to the proposed RULOF revisions stated that there is no basis
in the statute for the EPA to restrict states' authority to consider
RULOF and apply less-stringent standards of performance. Some
commenters also argued that the EPA's proposed regulations were too
prescriptive and burdensome. Other commenters generally supported the
EPA's proposed revisions but had questions or concerns regarding
specific provisions, including the requirements around source-specific
standards of performance and consideration of impacted communities. One
commenter requested that the EPA clarify that the revised RULOF
provisions would apply to design, equipment, work practice, or
operational standards issued under CAA sections 111(d) and 111(h)(1).
After consideration of these comments, the EPA is finalizing a
subset of the requirements that it proposed. As a general matter, the
EPA is finalizing as requirements the provisions that must apply under
any EG to provide necessary clarity to both the states and the EPA in
applying or approving less stringent standards of performance. This
clarity and predictability with regard to what constitutes a
satisfactory, and therefore approvable, less stringent standard is
crucial to ensuring the equitable treatment of states and sources that
are considering RULOF in state plans. The requirements the EPA is
finalizing are additionally necessary to ensure that use of RULOF is
consistent with the statutory purpose of reducing emissions of
dangerous air pollutants, the framework under which the EPA is directed
to achieve that purpose through determining the degree of emission
limitation, and history of RULOF as a limited variance to address
unusual circumstances when it is not possible for a particular facility
to achieve the EPA's degree of emission limitation. The proposed RULOF
provisions that are not being included as regulatory requirements
remain important considerations when applying RULOF; however, the EPA
is not finalizing them in these general implementing regulations.
The EPA recognizes that in finalizing these updates it is imposing
certain requirements on states' use of RULOF. Consistent with the
framework of cooperative federalism under which CAA section 111(d)
operates, states apply standards of performance pursuant to
consideration of RULOF, as well as provide the compliance measures for
implementing such standards, subject to the applicable statutory
requirements. The Agency again notes that it has placed requirements on
states' ability to apply less stringent standards of performance since
it first created a variance provision in subpart B in 1975. See 40 CFR
60.24(c) through (e). When Congress later adopted the RULOF provision
into the statute, it directed the EPA in CAA section 111(d)(1) to
establish a procedure permitting states to consider RULOF. Moreover, as
discussed further in section III.E.3.b, these updates are consistent
with the historical interpretation of RULOF as a variance from the
EPA's degree of emission limitation. The EPA also notes that the
requirements being finalized in this action establish a process for
states in applying less stringent standards of performance. These final
regulations ensure, consistent with the statutory purpose, that any
less stringent standards are no less stringent than necessary to
address the reason that the variance is needed in the first place.
Finally, the EPA confirms that the RULOF provisions, including
those being finalized in this action, apply to standards of performance
promulgated pursuant to CAA sections 111(d) and 111(h)(1). The existing
definition of ``standard of performance'' in 40 CFR 60.21a(f) includes
``a legally enforceable regulation . . . prescribing a design,
equipment, work practice, or operational standard, or combination
thereof.'' Therefore, the RULOF provisions in 40 CFR 60.24a, which may
be invoked to apply a ``standard of performance'' to a particular
designated facility, also apply to standards of performance applied
under CAA section 111(h)(1).\94\
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\94\ See also 40 CFR 60.24a(b).
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a. Threshold Requirements for Considering Remaining Useful Life and
Other Factors
The existing RULOF provision at 40 CFR 60.24a(e) addresses the
circumstances in which states may invoke RULOF to deviate from the BSER
and degree of emission limitation determinations the EPA has made
pursuant to CAA section 111(a)(1). It 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: (1) unreasonable cost of control resulting
from plant age, location, or basic process design; (2) physical
impossibility of installing necessary control equipment; or (3) other
factors specific to the facility (or class of facilities) that make
application of a less stringent standard or final compliance time
significantly more reasonable.
As discussed in the notice of proposed rulemaking, the proposed
amendments largely retained this provision, including the three
circumstances under which a less stringent standard of performance may
be applied, and provided further clarification of what a state must
demonstrate in order to invoke RULOF in a state plan. Specifically, the
proposed amendments required the state to demonstrate that a particular
facility cannot reasonably apply the BSER to achieve the degree of
emission limitation determined by the EPA, based on one or more of the
three circumstances. The EPA's proposal retained the first circumstance
in whole and revised the second circumstance to add the ``technical
infeasibility'' of installing a control as another situation in which
application of RULOF may be appropriate. The proposal further clarified
the third circumstance for invoking RULOF, the existing version of
which provides that states may invoke RULOF when other factors specific
to the facility make a less stringent standard of performance
``significantly more reasonable.'' The EPA proposed to revise this
circumstance, under which the first two circumstances also fall, to
specify that states may consider RULOF
[[Page 80514]]
to apply a less stringent standard if circumstances specific to a
facility are fundamentally different from the information the EPA
considered in determining the BSER. This proposed clarification was
intended to provide clear parameters for developing and assessing state
plans, as the existing third circumstance is vague and potentially
open-ended.
The EPA explained at proposal that the revisions clarified the
RULOF provision by tethering a state's RULOF demonstration to the
statutory factors the EPA considered in the BSER determination. As
discussed in section III.E.1. of this preamble, CAA section 111(a)(1)
gives the EPA the responsibility of determining the BSER and degree of
emission limitation that is required of designated facilities in the
source category; the EPA endeavors, to the extent reasonably
practicable based on the information before it, to promulgate
determinations that are achievable for every designated facility
covered by an EG. Per the statutory requirements, the EPA determines
the BSER by first identifying control methods that it considers to be
adequately demonstrated and then determining which is the best system
of emission reduction by evaluating the statutory factors: (1) the cost
of achieving such reduction, (2) nonair quality health and
environmental impacts, (3) energy requirements, and (4) the amount of
emission reductions.\95\ The EPA's BSER determination thus represents a
system that is ``adequately demonstrated'' and reasonable for sources
broadly within the source category; CAA section 111(a)(1) requires that
standards of performance must reflect the degree of emission limitation
that is achievable through application of the BSER.
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\95\ Although CAA section 111(a)(1) may be read to state that
the factors enumerated in the parenthetical are part of the
``adequately demonstrated'' determination, the D.C. Circuit's case
law may be read to treat them as part of the ``best'' determination.
See Sierra Club v. Costle, 657 F.2d 298, 330 (D.C. Cir. 1981). Under
either approach, the EPA's analysis and ultimate determination as to
the BSER would be the same. In determining the ``best'' system of
emission reduction, the EPA also considers the advancement of
technology, consistent with D.C. Circuit caselaw. See id. at 347.
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In considering the BSER, the D.C. Circuit has stated that to be
``adequately demonstrated,'' the system must be ``reasonably reliable,
reasonably efficient, and . . . reasonably expected to serve the
interests of pollution control without becoming exorbitantly costly in
an economic or environmental way.'' Essex Chem. Corp. v. Ruckelshaus,
486 F.2d 427, 433 (D.C. Cir. 1973). Thus, in making the BSER
determination, the EPA must evaluate whether a system of emission
reduction is ``adequately demonstrated'' for the source category or
sub-category based on the physical possibility and technical
feasibility of control. Similarly, the court has interpreted CAA
section 111(a)(1) as using reasonableness in light of the statutory
factors as the standard in evaluating cost, so that a control
technology may be considered the ``best system of emission reduction .
. . adequately demonstrated'' if its costs are reasonable (i.e., not
exorbitant, excessive, or greater than the industry can bear), but
cannot be considered the BSER if its costs are unreasonable.\96\ In
light of the statutory factors the EPA is required to consider, it
follows that most designated facilities within the source category or
subcategory should be able to implement the BSER at a reasonable cost
to achieve the degree of emission limitation determined by the EPA.
Consideration of RULOF is appropriate only for particular sources for
which implementing the BSER to achieve that degree of emission
limitation would impose unreasonable costs or would otherwise not be
feasible due to facility-specific circumstances that are not applicable
to the broader source category (or subcategories) and that the EPA did
not consider in determining the BSER.
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\96\ See Lignite Energy Council v. EPA, 198 F.3d 930, 933 (D.C.
Cir. 1999), Sierra Club v. Costle, 657 F.2d 298, 343 (D.C. Cir.
1981), Portland Cement Ass'n v. EPA, 513 F.2d 506, 508 (D.C. Cir.
1975).
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For example, if the EPA applied a specific cost threshold in
determining the BSER, application of RULOF based on cost would only be
appropriate where the cost of achieving the associated degree of
emission limitation at a particular designated facility is unreasonably
high relative to the costs the EPA considered for the BSER. Or, by way
of further example, if the EPA were to determine that a specific back-
end control technology is adequately demonstrated and the BSER for a
source category, a state may need to evaluate whether it would be
physically possible to install that control technology at a designated
facility given the particular size and physical constraints of that
facility. Application of RULOF to deviate from the EPA's determinations
pursuant to CAA section 111(a)(1) may be appropriate, e.g., where the
state could show that the cost of achieving the degree of emission
limitation would be significantly higher at a specific designated
facility than the cost-per-ton EPA considered in setting the BSER, or
that a specific designated facility does not have adequate space to
reasonably accommodate the installation of the BSER and the facility
cannot reasonably achieve the degree of emission limitation using a
different control technology. The EPA proposed to require states to hew
to the same types of factors and analyses the EPA's considered in its
BSER determination when demonstrating that the EPA's determinations are
not reasonable for a particular designated facility; the Agency
explained that this would be consistent with the statutory framework
under which RULOF is a limited exception to the level of stringency
otherwise required by the BSER.\97\
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\97\ 87 FR 79199.
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Related to the proposed revisions at 40 CFR 60.24a(e), the EPA also
proposed to add new Sec. 60.24a(g) to the regulations, which would
explicitly provide that a state plan may not apply a less stringent
standard of performance in cases where a designated facility cannot
reasonably apply the BSER to achieve the degree of emission limitation
determined by the EPA, but can reasonably implement a different
technology or other system to achieve that same degree of emission
limitation. This is consistent with the statutory framework, which does
not require sources to implement the EPA's BSER but rather permits
states to allow their sources to comply with their standards of
performance using systems of their choosing.
The EPA received a range of comments on the proposed revisions to
the threshold circumstances for invoking RULOF to apply a less-
stringent standard of performance. Some commenters agreed with the EPA
that the existing criteria are not specific or clear enough to ensure
that RULOF is invoked only when a designated facility cannot achieve
the degree of emission limitation that the EPA has determined pursuant
to section 111(a)(1). Several commenters supported the EPA's proposal
that application of RULOF is only appropriate where a facility cannot
reasonably apply the BSER to achieve the degree of emission limitation
determined by the EPA based on fundamental differences between that
facility and the factors the EPA considered in the BSER determination.
Some commenters also urged the EPA to explicitly apply the
``fundamentally different'' standard to all three circumstances under
40 CFR 60.24a(e).
However, other commenters argued that the EPA cannot preclude
states from considering factors specific to particular facilities on
the basis that the EPA did not consider those factors in
[[Page 80515]]
determining the BSER, and that the ``fundamentally different'' standard
unlawfully narrows states' consideration of site-specific factors under
the third RULOF criterion. Some commenters further contended that
states should have wide latitude and flexibility to consider RULOF and
that the EPA lacks authority to restrict states' abilities to apply
RULOF in circumstances they deem appropriate. The EPA also received a
request from one commenter asking the Agency to clarify how the
proposed provisions at 40 CFR 60.24a(e) and (g) interact with each
other.
The EPA is finalizing the provisions for invoking RULOF at 40 CFR
60.24a(e) with clarifying revisions relative to proposal. Based on
these changes, the proposed addition of 40 CFR 60.24a(g) is redundant;
the EPA is therefore not finalizing this provision.
These revisions to 40 CFR 60.24a(e) are necessary to ensure that
state plans comply with CAA section 111(d). As explained above, the
EPA's determination of the degree of emission limitation achievable
through application of the BSER is the level of stringency required by
CAA section 111(d), unless it can be demonstrated that something about
the EPA's determination does not hold true for a particular designated
facility. The enumerated circumstances for invoking RULOF in 40 CFR
60.24a(e) mirror the information the EPA considers in making its BSER
and degree of emission limitation determination pursuant to CAA section
111(a)(1): information related to determining that a system is
adequately demonstrated (including physical possibility and technical
feasibility), the cost of achieving emission reductions, and other
factors, which include nonair quality health and environmental impacts
and energy requirements. Thus, the long-standing RULOF provision \98\
is formulated for states to examine, at a minimum, the same factors the
EPA considered in determining the BSER in order to determine the
reasonableness of the EPA's BSER and degree of emission limitation as
it applies to a particular designated facility. In this action, the EPA
is clarifying the circumstances in 40 CFR 60.24a(e) for invoking RULOF
in order to provide more objective and consistent criteria that will
aid both states and the EPA in developing and reviewing standards of
performance consistent with CAA section 111(d), as well as ensure the
equitable treatment of states and sources that avail themselves of the
RULOF provision.
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\98\ The circumstances for invoking RULOF in the existing
subpart Ba provision at 40 CFR 60.24a(e) are identical to those in
the original variance provision of subpart B at 40 CFR 60.24(f).
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The EPA disagrees with commenters who argued that the proposed
revisions to the third circumstance unlawfully constrain states'
authority to invoke RULOF. On the contrary, the EPA believes these
revisions provide necessary clarity to ensure that states invoke RULOF
in appropriate circumstances. First, as discussed more fully in section
III.E.2. of this preamble, Congress directed the EPA to promulgate
regulations for the submission of state plans that ``permit'' states to
consider RULOF. Rather than granting states unfettered discretion to
consider RULOF in applying standards of performance, the statute
directs the EPA to establish regulations describing the ``permissible''
use of such consideration. Thus, the EPA has the authority and
obligation to guide states' consideration of RULOF.
Second, the revisions to 40 CFR 60.24a(e) provide a clear and
easily replicable standard for when it is appropriate to apply a less
stringent standard of performance: when there are fundamental
differences between the information the EPA considered in determining
the degree of emission limitation and the information specific to a
facility that make the EPA's degree of emission limitation unreasonable
for the facility. In addition to clarifying the circumstances under
which consideration of RULOF is appropriate, this standard also
provides greater specificity that will aid both states and the EPA in
implementing the provision. This standard is further consistent with
statutory purpose, structure, and history of CAA section 111(d), under
which the generally applicable requirement is the degree of emission
limitation determined by the EPA and RULOF serves as a variance to that
requirement.\99\ Moreover, the revisions to 40 CFR 60.24a(e) will
provide a framework for the EPA to use when considering any requests
for less stringent standards of performance when the Agency is
promulgating a Federal plan, which is again critical to ensuring both
the equitable treatment of states and sources and the integrity of an
EG's emission reduction purpose.
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\99\ See the discussion in section III.E.3.b. of this preamble.
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This revision will additionally provide the EPA with clear criteria
to use when evaluating any invocation of RULOF in state plans to
determine whether providing a less-stringent standard of performance is
consistent with the statutory framework and therefore approvable as
``satisfactory.'' As noted above, it provides an objective, replicable
benchmark against which to assess states' plans, which can be further
elaborated on in individual EGs.
The ``fundamentally different'' standard ensures that RULOF is
invoked for circumstances where application of the statutory factors
would lead to a result that is outside the realm of what the EPA
considered reasonable in determining the BSER. The EPA makes BSER
determinations on a source category, or sub-category, basis.
Necessarily, therefore, the Agency considers information relevant to
potential BSERs for representative, average units or as average values
for the set of designated facilities. Implicit in an EPA determination
that a system is the BSER based on average, representative information
is a determination that values around those average representative
values are also reasonable, including some portion of unit-specific
values that will deviate from but are not significantly different than
the average representative values. Therefore, in order to justify
deviating from the EPA-determined degree of emission limitation, the
circumstances of a particular source must be not just different but
fundamentally different from those the Agency considered in determining
the BSER.
Furthermore, as explained at proposal, the ``fundamentally
different'' standard is also consistent with other variance provisions
that courts have upheld for environmental statutes. For example, in
Weyerhaeuser Co. v. Costle,\100\ the court considered a regulatory
provision promulgated under the Clean Water Act (CWA) that permitted
owners to seek a variance from the EPA's national effluent limitation
guidelines under CWA sections 301(b)(1)(A) and 304(b)(1). The EPA's
regulation permitted a variance where an individual operator
demonstrates a ``fundamental difference'' between a CWA section
304(b)(1)(B) factor at its facility and the EPA's regulatory findings
about the factor ``on a national basis.'' \101\ The court upheld this
standard as ensuring a meaningful opportunity for an operator to seek
dispensation from a limitation that would demand more of the individual
facility than of the industry generally, but also noted that such a
provision is not a license for avoidance of the Act's strict pollution
control requirements.\102\
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\100\ 590 F.2d 1011 (D.C. Cir. 1978).
\101\ Id. at 1039.
\102\ Id. at 1035.
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[[Page 80516]]
The EPA is revising the regulatory text of 40 CFR 60.24a(e)
relative to proposal to explicitly provide that the ``fundamentally
different'' standard applies to all three categories of circumstances
for invoking RULOF. This change is consistent with the stated intent at
proposal; for example, the EPA proposed ``to require that, in order to
demonstrate that a designated facility cannot reasonably meet the
presumptive level of stringency based on one of these three criteria,
the state must show that implementing the BSER is not reasonable for
the designated facility due to fundamental differences between the
factors the EPA considered in determining the BSER, such as cost and
technical feasibility of control and circumstances at the designated
facility.'' \103\ As explained above, in order to be consistent with
the statutory framework, the fundamentally different standard
necessarily applies to any consideration that may be cause to invoke
RULOF to provide a less-stringent standard of performance.
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\103\ 87 FR 79199.
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There may be instances in which the EPA has not considered, in
making its BSER determination, a circumstance that makes the BSER
unreasonable for a particular facility because that circumstance is not
applicable to the average or typical designated facility in the source
category. Where the EPA did not consider a circumstance that is
relevant to a particular designated facility and that circumstance
causes the BSER to be unreasonable for that facility due to one or more
of the reasons enumerated in 40 CFR 60.24a(e), a state may find there
is a fundamental difference from the information the EPA considered in
determining the degree of emission limitation achievable through
application of the BSER. That is, if the EPA did not consider any
information pertaining to a certain circumstance in making its
determination, facility-specific information relevant to that
circumstance that demonstrates that achieving the degree of emission
limitation is unreasonable pursuant to 40 CFR 60.24a(e) may be
``fundamentally different'' from the information the EPA considered.
The EPA notes that, in many cases, facility-specific circumstances can
be considered in terms of differences in cost. For example, an issue of
the technical feasibility of implementing a control to achieve a
certain degree of emission limitation may, at its root, be an issue of
being able to achieve that degree of emission limitation at a
reasonable cost. Because cost is generally a more quantifiable and
replicable metric, where possible the EPA expects states to include the
impacts of any facility-specific circumstances in the cost calculation,
rather than evaluating those circumstances under a different factor or
consideration.
The EPA is also finalizing its proposed clarifying revisions to 40
CFR 60.24a(e) with further updates. The existing provision in subpart
Ba was not clear, unless it was read directly in conjunction with 40
CFR 60.24a(c), that its specific purpose is application of less
stringent standards of performance pursuant to consideration of RULOF;
it did not mention less stringent standards until 40 CFR
60.24a(e)(3).\104\ The EPA therefore proposed and is finalizing
revisions so that the provision's purpose is now clearly stated at the
outset. The EPA is also making two further revisions relative to the
proposed 40 CFR 60.24a(e). First, it is adding back in language
allowing the RULOF provision to be used to provide a compliance
schedule longer than otherwise required by an applicable emission
guideline. In proposing to revise 40 CFR 60.24a(e), the EPA
inadvertently deleted the phrase ``that make application of a less
stringent . . . final compliance time significantly more reasonable''
in the document containing redline/strikeout of the subpart Ba
regulations.\105\ It was not the EPA's intent to preclude the use of
RULOF to provide a longer compliance schedule; this has been part of
the provision since the original variance in 1975.\106\ However, as the
language pertinent to providing a longer compliance time no longer fits
in its original sub-paragraph, the EPA is adding this allowance back
elsewhere in 40 CFR 60.24a(e).
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\104\ 84 FR 32520, 32577 (July 8, 2019).
\105\ Memorandum, ``Redline/Strikeout for proposed amendments to
40 CFR 60 Subpart Ba: Adoption and Submittal of State Plans for
Designated Facilities,'' Docket ID No, EPA-HQ-OAR-2021-0527-0035.
\106\ See 40 CFR 60.24(f).
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Second, the EPA is revising this provision relative to proposal to
change the circumstances under which invoking RULOF is appropriate from
the state demonstrating that ``the facility cannot reasonably apply the
best system of emission reduction to achieve the degree of emission
limitation determined by the EPA . . .'' to the state demonstrating
that ``the facility cannot reasonably achieve the degree of emission
limitation determined by the EPA. . . .'' At proposal, the EPA
explained that ``the state must show that implementing the BSER is not
reasonable for the designated facility due to fundamental differences
between the factors the EPA considered in determining the BSER, such as
cost and technical feasibility of control and circumstances at the
designated facility.'' \107\ However, it is not sufficient that a
facility not be able to implement the BSER; the state must demonstrate
that the facility cannot otherwise reasonably achieve the EPA's degree
of emission limitation (for example, through a different system of
emission reduction) in order for a facility to be eligible for a less
stringent standard of performance. This is consistent with the
definition of ``standard of performance'' in CAA section 111(a)(1),
which is a ``standard for emissions of air pollutants'' that ``reflects
the degree of emission limitation achievable through application of the
[BSER],'' as opposed to a standard requiring the application of the
BSER. That is, the statute requires a certain degree of emission
limitation, not the use of a particular technology. Therefore, the fact
that a facility cannot apply the BSER on its own is not sufficient to
invoke RULOF.
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\107\ 87 FR 79199.
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The EPA believes that simplifying the language in 40 CFR 60.24a(e)
will reduce confusion about the ultimate circumstances under which
invoking RULOF is appropriate: where a particular facility cannot meet
the degree of emission limitation determined by the EPA. Because the
degree of emission limitation is based on the EPA's BSER determination,
the information the EPA considered in determining the BSER remains the
touchstone for determining when a particular facility cannot reasonably
achieve the degree of emission limitation in the applicable emission
guideline. Furthermore, given that the BSER presumptively reflects a
system that is adequately demonstrated and reasonable for all
designated facilities within a source category or subcategory, the EPA
anticipates that in many if not most instances a state considering
RULOF will in fact be evaluating the reasonableness of applying the
BSER to achieve the degree of emission limitation. However, even if the
state is evaluating the use of a different system to achieve the degree
of emission limitation determined by the EPA, the factors and
information the EPA considered in the EG, e.g., cost effectiveness,
will remain relevant to this inquiry.
As a corollary to this change, the EPA is not finalizing the
provision proposed at 40 CFR 60.24a(g), which would have provided that
a state could not apply a less stringent standard of performance where
a facility could reasonably
[[Page 80517]]
implement a system of emission reduction other than the BSER to achieve
the degree of emission reduction determined by the EPA. This provision
is redundant now that the EPA is clarifying in 40 CFR 60.24a(e) that
states may apply less stringent standards of performance only when they
demonstrate that a facility cannot reasonably achieve the degree of
emission limitation determined by the EPA.
Both subpart B at 40 CFR 60.24(f) and the existing regulations of
subpart Ba at 40 CFR 60.24a(e) provide that use of RULOF is appropriate
if a state demonstrates that one of the three circumstances is met
``with respect to each facility (or class of such facilities).'' In the
notice of proposed rulemaking for this action, the EPA stated that,
``[t]o the extent that a state seeks to apply RULOF to a class of
facilities that the state can demonstrate are similarly situated in all
meaningful ways, the EPA proposes to permit the state to conduct an
aggregate analysis of [the five BSER factors] for the entire class.''
\108\ The EPA is reiterating in this final rule that invoking RULOF and
providing a less-stringent standard or performance or longer compliance
schedule for a class of facilities is only appropriate where all the
facilities in that class are similarly situated in all meaningful ways.
That is, they must not only share the circumstance that is the basis
for invoking RULOF, they must also share all other characteristics that
are relevant to determining whether they can reasonably achieve the
degree of emission limitation determined by the EPA in the applicable
EG. For example, it would not be reasonable to create a class of
facilities for the purpose of RULOF on the basis that the facilities do
not have space to install the EPA's BSER control technology if some of
them are able to install a different control technology to achieve the
degree of emission limitation in the EG. Similarly, it would not be
appropriate for a state to conduct a single evaluation pursuant to 40
CFR 60.24a(f) to apply the same less stringent standard of performance
to a class of facilities if individual facilities within that class
have different characteristics that could result in different standards
of performance. The evaluation of when it is appropriate to create a
class of facilities is extremely source-sector and EG-specific; the EPA
will address circumstances in which it may or may not be permissible to
group facilities for purposes of RULOF in individual EGs.
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\108\ 87 FR 79200 n.46.
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In summary, the EPA is finalizing its proposed revisions to 40 CFR
60.24a(e) with additional clarifications. The first is to reflect that
the ``fundamentally different'' standard applies to all three
circumstances for invoking RULOF. This clarification reinforces that
invocation of RULOF is appropriate when the circumstances of a
particular designated facility are fundamentally different from those
the EPA considered such that the facility cannot reasonably achieve the
degree of emission limitation the EPA determined pursuant to CAA
section 111(a)(1). Second, the EPA is revising the circumstances under
which invoking RULOF is appropriate from a demonstration that a
facility cannot reasonably apply the BSER to achieve the degree of
emission limitation determined by the EPA to a demonstration that the
facility cannot reasonably achieve the degree of emission limitation
determined by the EPA. This change is intended to simplify and clarify
the provision as it is the degree of emission limitation determined by
the EPA, not the system used to achieve it, that has always been the
relevant consideration under CAA sections 111(d) and 111(a)(1). Third,
the EPA is clarifying the provision that states may use RULOF to
provide for a longer compliance timeline as well as less-stringent
standards of performance, which was inadvertently omitted from the
proposed regulatory text. In general, the EPA is revising 40 CFR
60.24a(e) to provide more objective and consistent criteria for when it
is appropriate to invoke RULOF in order to guide states in applying
standards of performance to particular designated facilities and the
EPA in evaluating state plans. The EPA is not finalizing proposed 40
CFR 60.24a(g), as this provision is now superfluous given the updates
to 40 CFR 60.24a(e).
The EPA acknowledges that what is considered reasonable in light of
the statutory factors is a fact-specific inquiry based on the source
category and pollutant that is being regulated pursuant to a particular
EG, and that the EPA cannot anticipate and address all circumstances
that may arise in these general implementing regulations. Thus, the EPA
may consider additional factors and establish additional parameters
governing the consideration of RULOF, including what deviations from
the EPA's determinations may be within the range of reasonable versus
deviations that constitute fundamental differences between facility-
specific circumstances and the EPA's degree of emission limitation
determination, in a particular EG.
b. Calculation of a Standard Which Accounts for Remaining Useful Life
and Other Factors
If a state has demonstrated, pursuant to 40 CFR 60.24a(e), that
there is a fundamental difference between the information the EPA
considered in the applicable EG and the information specific to a
particular source that makes it unreasonable for that source to achieve
the degree of emission limitation, the state may then apply a less
stringent standard of performance.\109\ The current RULOF provision, 40
CFR 60.24a(e), does not specify how a less stringent standard is to be
calculated and applied. While this provision stands on its own and
permits states to consider RULOF to apply a less stringent standard of
performance, the lack of a process for determining any such standards
makes it difficult for states to know whether the result will be
approvable and additionally makes it difficult for the EPA to review
less stringent standards in a consistent and equitable manner. In order
to provide clarity and ensure the integrity of the emission reduction
purpose of CAA section 111(d), as well as to ensure the equitable
treatment of designated facilities across states, the EPA is
promulgating a framework in 40 CFR 60.24a(f) for the calculation of a
standard of performance that accounts for RULOF. As explained in this
section of the preamble, the process the EPA is finalizing differs from
the proposed framework, but the material components of calculating and
applying a less stringent standard of performance, and the underlying
purpose and direction of the EPA's framework, remain the same.
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\109\ States intending to apply a less-stringent standard of
performance pursuant to RULOF would include all information,
demonstrations, etc. necessary to satisfy 40 CFR 60.24a(e) through
(h) in their state plan submissions. The EPA will first review a
state's demonstration that invocation of RULOF pursuant to 40 CFR
60.24a(e) is appropriate for a particular designated facility
against the applicable requirements. If the EPA finds that
demonstration satisfactory, it will proceed to evaluate the standard
of performance for that facility applied pursuant to 40 CFR
60.24a(f).
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The EPA proposed to require that states determine a source-specific
BSER for each designated facility for which RULOF has been invoked
pursuant to 40 CFR 60.24a(e) and include a standard of performance that
reflects the degree of emission limitation achievable through
application of that BSER in their state plans. The notice of proposed
rulemaking explained that the statute requires the EPA to determine the
BSER by considering emission control methods that it finds to be
adequately demonstrated, and then determining which is the best system
of emission
[[Page 80518]]
reduction by evaluating (1) the cost of achieving such reduction, (2)
nonair quality health and environmental impacts, (3) energy
requirements, and (4) the amount of reductions.\110\ To be consistent
with this statutory construct, the EPA proposed to require that in
determining a source specific BSER for a designated facility (or class
of such facilities \111\), a state must also consider all these factors
in applying RULOF for that source.
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\110\ The D.C. Circuit has stated that in determining the
``best'' system, the EPA must take into account ``the amount of air
pollution'' reduced, see Sierra Club v. Costle, 657 F.2d 298, 326
(D.C. Cir. 1981), and the role of ``technological innovation.'' Id.
at 347.
\111\ See section III.E.3.a. of this preamble. The EPA expects
to address the appropriateness of invoking RULOF and applying less-
stringent standards to a class of facilities in individual EGs.
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Specifically, the EPA proposed that a state in its plan submission
would identify all control technologies available for the source and
evaluate the BSER factors for each technology, using the same factors
and evaluation metrics as the EPA did in developing the EG. For
example, if the EPA evaluated the cost factor using the evaluation
metric of capital costs in determining the BSER, the EPA proposed that
the state must do the same in evaluating a control technology for an
individual designated facility, rather than selecting a different
evaluation metric for cost. The state would then calculate the emission
reductions that applying the source-specific BSER would achieve and
select the standard of performance which reflects this degree of
emission limitation. This standard would be in the form or forms (e.g.,
numerical rate-based emission standard) as required by the specific EG.
While the EPA proposed to require that states identify all control
technologies or other systems of emission reduction available for the
source and evaluate each system using the same factors and evaluation
metrics as the EPA did in determining the BSER, it also solicited
comment on whether there are additional factors, not already accounted
for in the BSER analysis, that the EPA should permit states to consider
in determining a less stringent standard of performance. The EPA
further solicited comment on whether it should provide that the manner
in which the EPA conducted the BSER analysis would be a presumptively
approvable framework for applying a less-stringent standard rather than
requirements and, if so, what different approaches states might use to
evaluate and identify less stringent standards of performance.
The EPA also noted at proposal that CAA section 111(d) requires
that state plans include measures that provide for the implementation
and enforcement of a standard of performance. This requirement applies
to any standard of performance established by a state, including one
that accounts for RULOF. Such measures include monitoring, reporting,
and recordkeeping requirements, as required by 40 CFR 60.25a, as well
as any additional measures specified under an applicable EG. In
particular, any standard of performance that accounts for RULOF is also
subject to the requirement under subpart Ba that the state plan
submission include a demonstration that each standard is quantifiable,
non-duplicative, permanent, verifiable, and enforceable. 40 CFR
60.27a(g)(3)(vi). The EPA did not reopen these existing requirements of
subpart Ba in this rulemaking.
The EPA received both comments in support of and comments opposed
to the proposed requirements for calculating facility-specific
standards of performance under RULOF. Some commenters supported the
addition of a regulatory framework for facility-specific BSER analysis
and stated that the BSER factors encompass all relevant information to
a state's determination of an appropriate standard for a facility.
Other commenters opposed the proposed framework. Comments in opposition
largely fell into two categories: Some commenters asserted there is no
basis in the statute for requiring states to conduct facility-specific
BSER analyses pursuant to RULOF and, relatedly, that the EPA should not
put restrictions on what states may consider in applying a less
stringent standard of performance for a particular source but should
rather maintain the wide latitude afforded to states under CAA section
111. Others stated that the EPA's proposed requirements would
constitute a heavy lift for state agencies and would require
substantial work for states to implement. In this vein, one commenter
requested that the EPA not require states to evaluate, as part of their
facility-specific BSER analyses, control technologies that the Agency
has previously excluded from the BSER on the basis of technological or
economic feasibility. Rather, the only control technologies that states
should be required to evaluate are technologies that result in less
emission reduction than the technology the EPA determined to be the
BSER.
As explained below, the EPA disagrees with comments that there is
no basis for putting a framework in place for states and the Agency to
use in applying and evaluating less stringent standards of performance.
The EPA believes that such a framework is well supported by the
statutory purpose, text, and context of the RULOF provision. In
particular, after considering the comments, the EPA believes that the
purpose, text, and context support a requirement that states (or the
EPA in the case of a Federal plan) calculate and apply a standard of
performance that varies from the EPA's degree of emission limitation in
the applicable emission guideline only to the extent necessary to
address the fundamental difference that is the basis for invoking
RULOF.
First, providing a framework for calculating less stringent
standards of performance is consistent with the text of CAA section
111(d) and is responsive to Congress's directive in that provision that
the Agency prescribe regulations establishing a procedure for state
plans, including regulations that ``permit'' states ``in applying'' a
standard of performance to a particular source to ``take into
consideration'' RULOF. The provisions the EPA is promulgating in this
action set out a procedure--the series of steps and considerations
states must undertake to apply a less stringent standard of
performance. As described in section III.E.2. of this preamble, to
``permit'' something means to allow or give consent for that thing to
occur. In this case, the EPA is prescribing the procedures that allow
for states to apply less stringent standards of performance. To
``apply'' means ``to put to a special use or purpose'' or ``put into
practical operation,'' \112\ and ``consideration'' means ``the action
of taking into account.'' \113\ Thus, the state's authorization to
``apply[]'' a standard of performance to any particular source,
``tak[ing] into consideration'' RULOF, means the state may
particularize a standard of performance for a given source by
accounting for remaining useful life and other factors where there are
fundamental differences between the information specific to a facility
and the information the EPA considered in determining the degree of
emission limitation achievable through application of the BSER. In
doing so, the state must remain as consistent as possible with that
degree of emission limitation in light of what the Supreme
[[Page 80519]]
Court has recognized as the EPA's ``primary regulatory role in section
111(d)'' \114\ and the emission reduction purpose of CAA section 111.
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\112\ Oxford English Dictionary, https://www.oed.com/search/advanced/Meanings?textTermText0=apply&textTermOpt0=WordPhrase, last
accessed Nov. 1, 2023.
\113\ Id., https://www.oed.com/search/advanced/Meanings?textTermText0=consideration&textTermOpt0=WordPhrase, last
accessed Nov. 1, 2023.
\114\ West Virginia v. EPA, 142 S. Ct. at 2601.
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Second, the history and context of CAA section 111(d) supports the
EPA's authority to provide a framework for states' consideration of
RULOF. As explained in section III.E.2. of this preamble, the standards
of performance that states establish in state plans must generally be
no less stringent than the degree of emission limitation that Congress
required, which is the degree of emission limitation that EPA
determines in the applicable EG.\115\ However, in the original 1975
subpart B implementing regulations, the EPA allowed states to grant
variances from this degree of emission limitation in cases of economic
hardship based on the age of the plant and other factors, as long as
the states could justify the variances.\116\ Congress then, in the 1977
CAA Amendments, included the RULOF provision in CAA section 111(d)(1),
which similarly allows states to deviate from the EPA's degree of
emission limitation based on consideration of an existing source's age
(i.e., remaining useful life) and other factors.
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\115\ 40 CFR 60.24(c); 40 CFR 60.24a(c); see 39 FR 36102.
\116\ 40 CFR 60.24(f); 40 FR 53344.
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Congress's inclusion of the RULOF provision in CAA section
111(d)(1) should be interpreted as expressing its intent to confirm
that the EPA has authority to promulgate a regulatory variance
provision, including the provision the EPA had, at that time, recently
promulgated. The EPA, following its 1974 proposal of the subpart B
implementing regulations, had received a comment arguing that it did
not have authority to promulgate such a variance provision, to which it
responded by asserting that it did have the authority and explaining
that such a provision is consistent with CAA section 111(d).\117\ The
Courts have held that Congress is presumed to be aware of an
administrative interpretation under certain circumstances.\118\
Accordingly, Congress's adoption of the RULOF provision in the 1977 CAA
Amendments should be interpreted as expressing its intent to make
explicit under CAA section 111(d) the EPA's authority to promulgate
regulations that include a variance provision.\119\
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\117\ 40 FR 53344.
\118\ See Lorillard v. Pons, 434 U.S. 575, 580 (1978)
(``Congress is presumed to be aware of an administrative or judicial
interpretation of a statute and to adopt that interpretation when in
re-enacts a statute without change.'').
\119\ In the notice of proposed rulemaking for this rule, the
EPA stated that ``[t]here are noticeable differences between the
subpart B variance provision and the CAA section 111(d) RULOF
provision that indicate Congress did not intend to incorporate and
ratify all aspects of the EPA's regulatory approach when amending
CAA section 111(d) in 1977.'' The EPA thus proposed to conclude that
it could not ``clearly ascertain whether the statutory RULOF
provision ratified the variance provision under subpart B . . . .''
87 FR 79176, 79205 (Dec. 23, 2022). Upon further consideration,
however, the EPA believes the most reasonable interpretation of the
statutory RULOF provision, given its history and context, is that
Congress intended it to authorize the EPA to provide variances from
the required degree of emission limitation on a case-by-case basis.
However, the EPA agrees with its assessment at proposal that
Congress did not necessarily incorporate or ratify specific aspects
of the Agency's 1975 variance provision; it is reasonable that
Congress would not have codified the precise regulations that the
EPA promulgated in 1975 and instead leave the Agency space to revise
those regulations as needed, as it is did in 2019 and is doing in
the present rule.
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It is also clear that the EPA understood the RULOF provision in CAA
section 111(d)(1) to be a variance in the same way it had provided a
variance in subpart B. This is evidenced by the fact that following the
1977 CAA Amendments the EPA did not revise its 1975 regulations, which
were premised on this understanding, for over forty more years.\120\
This indicates that the EPA viewed its 1975 regulations granting a
variance as authorized under the RULOF provision enacted in 1977.
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\120\ The ACE rule, in which the EPA promulgated subpart Ba in
2019, declined to refer to the RULOF provision as a ``variance,''
apparently because the term conflicted with that rule's view that
RULOF would be used to establish standards of performance as a
general matter. 84 FR 32520,32570 n. 291 (July 8, 2019). The ACE
rule misunderstood the RULOF provision. As explained throughout
section III.E. of this preamble, this provision authorizes a state
to depart from the degree of emission limitation the EPA determines
under CAA section 111(a)(1) when applying a standard of performance
to a particular source pursuant to consideration of RULOF. As the
1975 regulations indicated, 40 FR 53332, 53344 (Nov. 17, 1975), it
is appropriate to call this type of departure or exception a
``variance.''
\121\ The EPA explains the reasons it believes it is now
necessary to provide the second part of the process for this
variance--how to calculate a less stringent standard of
performance--in section III.E.2. of this preamble.
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The regulations the EPA is promulgating at 40 CFR 60.24a(f) are
consistent with the long-held view that the Agency's implementing
regulations provide a variance. While 40 CFR 60.24a(e) provides the
process for invoking this variance, to date the regulations have not
included the second part: how to address a source that has qualified
for the variance.\121\ Although variances may operate in different ways
in the context of different statutory and regulatory schemes, it is
clear from both the language and the context of the RULOF provision
that Congress intended it to provide for alternative compliance with
CAA section 111(d), i.e., a less stringent standard of performance, to
the extent necessary to address the fundamental differences between the
EPA's EG and the circumstances of a particular facility. Such variances
are common throughout environmental statutes and, for the environmental
protection aim to be achieved, must be crafted so that the alternative
is as close as possible to the statutory standard, even as it departs
from the generally applicable requirement.
For example, Clean Water Act (CWA) section 301(b)(2) requires, in
part, certain sources to achieve effluent limitations consistent with
application of the best available technology economically achievable,
which will result in reasonable further progress toward eliminating the
discharge of all pollutants. These limitations must be determined in
accordance with factors specified in the statute and are provided by
either effluent limitation guidelines issued by the EPA or the
permitting authority on a best professional judgment basis where no
such national effluent limitation guidelines exist. CWA section 301(n)
authorizes the EPA to grant variances for existing sources from the
best available technology requirements of its effluent limitation
guidelines where a facility can demonstrate that it is fundamentally
different with respect to the factors (other than cost) specified in
the statute and considered by the EPA in establishing those
requirements. CWA section 301(n) further requires that, where a
variance is warranted, the EPA must provide an alternative requirement
that (1) is no less stringent than justified by the fundamental
difference, and (2) will not result in a non-water quality
environmental impact which is markedly more adverse than the impact
considered in establishing the rule.\122\
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\122\ As another example, CWA section 301(c) provides that the
EPA may modify the best available technology requirements for
particular sources if a facility can demonstrate that a modified
standard will (1) represent the maximum use of technology within the
economic capability of the owner or operator and (2) will result in
reasonable further progress toward the elimination of the discharge
pollutants.
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Similarly, section 3004(m)(1) of the Resource Conservation and
Recovery Act (RCRA) requires the EPA to promulgate regulations
specifying the levels or methods of treatment of hazardous waste, if
any, that ``substantially diminish the toxicity of the waste or
substantially reduce the
[[Page 80520]]
likelihood of migration of hazardous constituents from the waste so
that short-term and long-term threats to human health and the
environment are minimized.'' The EPA has set generally applicable
regulatory standards for the treatment of hazardous waste under RCRA
section 3004(m)(1). The Agency has also has provided regulatorily for
waste-specific variances in instances in which it is not physically
possible, or it is inappropriate, to treat waste to the level specified
in the Agency's treatment standard or to treat waste using the method
the Agency specified as the treatment standard.\123\ In order for the
EPA to grant a variance, the party requesting it must provide an
alternative waste treatment requirement that is sufficient to minimize
threats to human health and the environment posed by disposal of the
waste, i.e., that is sufficient to satisfy the underlying statutory
requirement, even though it differs from the generally applicable
treatment standard prescribed by the EPA.
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\123\ 40 CFR 268.44.
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The discussion above highlights examples of environmental statutes
that require adherence to a generally applicable standard, but under
which either Congress or the EPA has authorized variances when it is
impossible or unreasonable for a particular regulated entity to achieve
that standard. For a general statutory standard requiring the ``best''
technology or ``substantial'' progress, the variances are an
alternative way of achieving the statutory standard, as opposed to an
exemption from that standard. In the case of the CWA variances, in
particular, this means that the alternative requirement pursuant to the
variance constitutes a degree of pollutant limitation that deviates as
little as possible from the EPA's regulation pursuant to that statutory
standard. That is, the alternative requirement constitutes a particular
regulated entity's best effort to achieve the generally applicable
standard.
The EPA has crafted 40 CFR 60.24a(e) and (f) to be a variance in
the same vein as the CWA and RCRA statutory and regulatory provisions
discussed above. It is clear from both the history and plain language
of CAA section 111(d)(1) that Congress did not provide an exemption
from regulation, but rather a method for providing alternative
compliance with the general statutory requirement of that section.\124\
CAA section 111(d) provides that states must submit plans that include
``standards of performance,'' and CAA section 111(a)(1) defines
``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
. . . the Administrator determines has been adequately demonstrated.''
Thus, the underlying statutory standard is the degree of emission
limitation determined by the EPA in the applicable EG. A variance from
this statutory standard is not available if a source can reasonably
achieve the EPA's degree of emission limitation. If a variance is
warranted, the alternative requirement, i.e., a standard of performance
pursuant to consideration of RULOF, must be a standard for emissions of
air pollutants that is no less stringent than necessary to address the
fundamental differences identified under 40 CFR 60.24a(e). That is, the
degree of emission limitation of a standard of performance pursuant to
RULOF must deviate as little as possible from the degree of emission
limitation in the applicable EG.\125\ Consistent with the structure of
CAA section 111(d) generally, the RULOF provision does not prescribe
the use of any particular system of emission reduction in conjunction
with a less stringent standard of performance but instead focuses on
ensuring that the degree of emission limitation deviates no more than
necessary; anything less would be inconsistent with the general
statutory framework.
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\124\ See CAA section 111(d)(1) (requiring that states
considering RULOF for a particular source nonetheless apply a
standard of performance to that source); 39 FR 36102, 36102 (Oct. 7,
1974) (proposed regulations ``provide that States may establish less
stringent emission standards on a case-by-case basis provided that
sufficient justification is demonstrated in each case'').
\125\ Cf. Weyerhauser Co. v. Costle, F.2d 1011, 1035 (D.C. Cir.
1978) (Clean Water Act variance provision ``authorizes the Agency to
relieve a particular point source operator from any demands that the
Act does not allow the Agency to make of the industry generally.''
However, the point source operator must still, consistent with the
general statutory requirement for the industry, use the best
available technology economically available and ``the variance may
not halt progress toward eliminating pollution.'').
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Thus, 40 CFR 60.24a(f)(1) requires that a less stringent standard
of performance be no less stringent (or have a compliance schedule no
longer) than necessary to address the fundamental differences
identified under 40 CFR 60.24a(e). It also contains a framework that
states must use, to the extent necessary to satisfy that criterion, to
determine the less stringent standard of performance. In some
instances, determining the standard of performance that is no less
stringent than necessary to address the fundamental differences will be
straightforward and the state will not need to undertake the analysis
of additional systems of emission reduction that is laid out in the
second and third sentences of 40 CFR 60.24a(f)(1). For example, where
the BSER the EPA has identified in the applicable EG may be implemented
at the source at either a lower stringency or with a longer compliance
schedule and it is clear that no other system of emission reduction
will result in greater stringency or a shorter schedule, it is
unnecessary for a state to evaluate other systems in order to satisfy
the first sentence of paragraph (f)(1). In this case, the state would
simply justify the degree of emission limitation or compliance schedule
as the most stringent or shortest reasonably possible.
However, where a particular source cannot implement the types of
controls that comprise the BSER or where it is not apparent that
implementation of the BSER at lower stringency or with a longer
compliance schedule will result in a standard of performance that is no
less stringent than necessary, evaluation of additional systems of
emission reduction will be necessary under 40 CFR 60.24a(f)(1). In this
situation, the EPA does not believe it is reasonably possible to
determine a standard of performance that satisfies the criterion of
Sec. 60.24a(f)(1) without considering the systems of emission
reduction that the EPA determined, in the applicable EG, have been
adequately demonstrated.\126\ As discussed below, however, it may not
be necessary for a state to evaluate every system of emission reduction
that the EPA considered. Thus, the EPA is requiring that, to the extent
necessary to determine a standard of performance that is no less
stringent than necessary, states must evaluate the systems of emission
reduction in the applicable EG. As further discussed below, the EPA
expects states will leverage the information and analysis the Agency
has provided in that EG for their evaluations, particularizing that
information to the circumstances of the particular facility as needed.
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\126\ See 40 CFR 60.22a(b)(2).
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Similarly, it is not reasonably possible to craft a standard of
performance that is no less stringent than necessary to address a
fundamental difference between a particular facility's circumstances
and the information the EPA considered in determining the degree of
emission limitation without engaging with that information.\127\ In
[[Page 80521]]
determining the degree of emission limitation in an EG, the EPA
considers whether available systems of emission reduction have been
adequately demonstrated, the amount of emissions they reduce, the cost
of achieving such reduction, any nonair quality health and
environmental impacts, and energy requirements.\128\ To evaluate
whether a state's less stringent standard of performance is no less
stringent than necessary, both states and the EPA need to be able to
compare the information relevant to the source category (or
subcategory) with the facility-specific information. Additionally, to
ensure equitable consideration and treatment of sources in different
states that have invoked RULOF to apply less stringent standards of
performance, it is necessary that each state is using a common set of
factors and metrics as the bases for their decisions. Using the factors
\129\ and evaluation metrics \130\ that the EPA considered in
determining the degree of emission limitation ensures ``apples-to-
apples'' comparisons, both between the EPA's degree of emission
limitation and a state's less stringent standard of performance and
between different sources in different states. Thus, to the extent that
states are evaluating systems of emission reduction to determine a less
stringent standard of performance under 40 CFR 60.24a(f)(1), they must
use the same factors the EPA considered, and the evaluation metrics the
EPA used to consider the factors, in doing so.
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\127\ Cf. Weyerhauser Co. v. Costle, F.2d 1011, 1035 (D.C. Cir.
1978) (CWA section 304(b)(2)(B) lays out the minimum factors the EPA
must consider in determining the best available technology
economically achievable on a source-category basis. In deciding
whether a variance sought by a particular point source owner
represents the ``maximum use of technology within the economic
capability of (that) owner, the permit-granting agency, and the EPA
in supervising that agency, must consider the factors laid out in
section 304(b)(2)(B).'').
\128\ The D.C. Circuit has stated that in determining the
``best'' system of emission reduction, the EPA must also take into
account the role of ``technological innovation.'' See Sierra Club v.
Costle, 657 F.2d 298, 347 (D.C. Cir. 1981). However, because
technological innovation is less likely to be relevant at the scale
of a single facility than it is on a source-category basis, the EPA
is not explicitly requiring states to consider it under 40 CFR
60.24a(f)(1).
\129\ Under 40 CFR 60.24a(f)(1), as finalized in this action,
states must evaluate the systems of emission reduction identified in
the applicable EG. The EPA's EGs include systems of emission
reduction that have been ``adequately demonstrated.'' There is
therefore no need for states to revisit the ``adequately
demonstrated'' consideration. However, ``adequately demonstrated''
includes ``technical feasibility'' and the EPA acknowledges that
systems of emission reduction that are adequately demonstrated for
the source category may not be technically feasible for a particular
source. The EPA is thus adding ``technical feasibility'' to the list
of factors states must consider in determining a less stringent
standard of performance.
\130\ An ``evaluation metric'' includes both the form of the
EPA's consideration of a factor and any threshold or level of
reasonableness the EPA considered in the applicable EG.
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For example, assume the EPA considered cost using the evaluation
metric dollars per ton of pollutant reduced and concluded that costs of
up to $500/ton of pollutant reduced are reasonable. A state has invoked
RULOF for a particular source under 40 CFR 60.24a(e) because, based on
that source's shortened remaining useful life, the cost, in dollars per
ton of pollutant reduced, of achieving the degree of emission
limitation in the applicable EG is fundamentally different from $500/
ton. The state, in determining a less stringent standard of performance
pursuant to 40 CFR 60.24a(f), must evaluate the systems of emission
reduction in the EG using the cost evaluation metric dollars per ton of
pollutant reduced. In doing so, the state would consider the
reasonableness of the costs of those systems against the benchmark of
$500/ton.
The regulations at 40 CFR 60.24a(e) also allow states to invoke
RULOF based on a fundamental difference unrelated to cost, e.g.,
physical impossibility of implementing control equipment necessary to
achieve the EPA's degree of emission limitation. In this instance, a
state may find that a particular facility's footprint is such that
there are no systems of emission reduction that could be installed at
the facility to achieve the degree of emission limitation in the
applicable EG. Under 40 CFR 60.24a(f)(1), the state would evaluate the
systems of emission reduction in the EG using the factors--technical
feasibility, amount of emission reductions, cost of achieving such
reductions, nonair quality health and environmental impacts, and energy
requirements--and evaluation metrics the EPA considered in order to
determine the standard of performance that is both physically possible
for the source to achieve and that is no less stringent than necessary.
As explained in section III.E.3.a., there may be facility-specific
circumstances and factors that the EPA did not anticipate and consider
in the applicable EG that make achieving the EPA's degree of emission
limitation unreasonable for that facility. Such facility-specific
information may constitute an ``other factor specific to the facility''
under 40 CFR 60.24a(e) and could potentially represent a fundamental
difference between the information the EPA considered in determining
the degree of emission limitation and the information specific to a
facility. Such facility-specific ``other factors'' may also be relevant
in determining and applying a less stringent standard of performance.
Thus, pursuant to the process the EPA is finalizing in 40 CFR
60.24a(f)(1), states may consider ``other factors specific to the
facility'' that were the basis of the demonstration under paragraph (e)
in determining and applying a less stringent standard of performance.
In some instances, the fundamental difference between the
information the EPA considered in the applicable EG and the information
specific to a facility will manifest as a difference in whether or how
an enumerated factor applies to a particular facility. For example,
parasitic load may be an appropriate evaluation metric for considering
energy requirements for some systems of emission reduction but not for
others, or water availability may not have been important to the EPA's
consideration of nonair quality environmental impacts but may be
relevant for a source located in a particularly water-scarce region. If
such information represents a fundamental difference that make the
EPA's degree of emission limitation determination unreasonable for a
particular facility pursuant to 40 CFR 60.24a(e), it would be
reasonable and permissible for a state to consider such information in
applying a less stringent standard of performance under 40 CFR
60.24a(f)(1).
In addition to ``other factors'' that the EPA did not necessarily
consider, there may be circumstances in which a system of emission
reduction that the EPA did not consider in the applicable EG or that
the EPA concluded was not adequately demonstrated because, e.g., it is
not available on a source-category wide basis, is available,
technically feasible, and potentially reasonable for a particular
facility.
The EPA is therefore providing in 40 CFR 60.24a(f)(1) that states
may consider, in determining a less stringent standard of performance,
``other factors specific to a facility'' that were the basis for the
fundamental difference and invoking RULOF under 40 CFR 60.24a(e), as
well as systems of emission reduction in addition to those the EPA
considered in the applicable EG. At the same time, however, the EPA in
a particular EG makes certain judgments about which systems are
available and adequately demonstrated, as well as how the factors are
reasonably considered when evaluating those systems for designated
facilities within the source category. To ensure that any additional
considerations do not result in a standard of performance that deviates
more than necessary from the
[[Page 80522]]
EPA's degree of emission limitation, the state must justify how any
additional consideration results in a standard of performance that is
no less stringent than necessary to address the fundamental differences
identified under paragraph (e).
In addition to being consistent with statutory and regulatory
precedent on variances, the procedure the EPA is promulgating in 40 CFR
60.24a(f)(1) for determining standards of performance that are no less
stringent than necessary is also consistent with CAA section 111. As
explained throughout this section of the preamble, CAA section
111(a)(1) defines a standard of performance as a standard for emissions
of air pollutants that reflects a certain degree of emission limitation
and gives the EPA the ``primary regulatory role'' \131\ of determining
that degree of emission limitation. Congress required that, in doing
so, the EPA evaluate systems of emission reduction that have been
adequately demonstrated and determine which is best based on the amount
of emission reductions, cost of achieving such reduction, nonair
quality health and environmental impacts, and energy requirements. As
also explained in this section of the preamble, CAA section 111(d)
directs the EPA to prescribe regulations that ``permit'' states ``in
applying'' a standard of performance to a particular source to ``take
into consideration'' RULOF. The requirements the EPA is promulgating in
40 CFR 60.24a(f)(1) ``permit'' a state to particularize a standard of
performance for any given source by accounting for RULOF where there
are fundamental differences between the information specific to a
facility and the information the EPA considered in determining the
degree of emission limitation in the applicable EG. In doing so, the
state must remain as consistent as possible with that degree of
emission limitation in light of what the Supreme Court has recognized
as the EPA's primary regulatory role in CAA section 111(d) and the
emission reduction purpose of CAA section 111. Because Congress has
identified the factors noted above as relevant considerations for the
EPA in determining a standard of performance, the Agency believes it is
also reasonable to require states to consider these systems, factors,
and evaluation metrics in the manner that the EPA did in applying
standards of performance pursuant to 40 CFR 60.24a(f).
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\131\ West Virginia v. EPA, 142 S. Ct. at 2601.
---------------------------------------------------------------------------
Furthermore, the EPA's authority to promulgate 40 CFR 60.24a(f) is
buttressed by CAA section 111(d)(2). As discussed in sections III.E.1.
and 2. of this preamble, CAA section 111(d)(2) provides that the EPA
shall have the same authority as under CAA section 110(c) to prescribe
a Federal plan where a state fails to submit a satisfactory plan. The
EPA's long-standing interpretation of this subsection is that it
provides the Agency authority to substantively review states' standards
of performance.\132\ The existing regulations of subpart Ba and the
EPA's emission guidelines provide the substantive criteria for the
Agency's evaluation of standards of performance generally; \133\ the
regulations the EPA is promulgating at 40 CFR 60.24a(f) constitute the
substantive criteria for evaluating standards of performance states
have applied pursuant to RULOF.
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\132\ See 40 FR 53342 (CAA section 111(d)'s references to CAA
section 110 suggest that Congress intended the Administrator to
apply some substantive criterion to his review of State plans).
\133\ See 40 CFR 60.24a(c).
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Some commenters on proposed 40 CFR 60.24a(f) dislike the EPA's
approach to determining what constitutes a ``satisfactory'' less
stringent standard of performance but offer no alternatives, other than
states should have complete discretion to apply standards pursuant to
RULOF. This cannot be correct. If this was the case, the EPA would have
no choice but to approve plans in which states have applied business-
as-usual standards, or standards that allows designated facilities'
emissions to increase, even if more stringent standards of performance
are reasonable for that facility. Such an outcome would be inconsistent
with the text, context, and purpose of CAA section 111. The EPA
believes the criteria it is providing for the Agency's substantive
review of less stringent standards of performance are a reasonable
approach to fulfilling its statutory obligation under CAA section
111(d)(2) to substantively review standards of performance in state
plans.
Moreover, it is not uncommon for the EPA to promulgate regulatory
frameworks to guide states in areas in which Congress has granted them
discretion. For example, under the visibility protection provisions of
CAA section 169A, Congress directed the EPA to promulgate regulations
to assure that reasonable progress towards meeting the national goal
for visibility improvement in mandatory class I Federal areas, as well
as to assure compliance with the requirements of CAA section 169A.
Section 169A further provides that states implement the visibility
protection requirements through state implementation plans, in which
they must include emission limitations for sources of visibility
impairing pollutants. The statute provides two types of control
analyses for states to use in determining the applicable emission
limitations: reasonable progress and best available retrofit
technology.\134\ Although Congress directed states to determine the
best available retrofit technology for their existing sources, the EPA,
in promulgating its implementing regulations, provided a detailed
methodology and requirements for doing so in 40 CFR 51.308(e) and 40
CFR part 51, appendix Y. The EPA has similarly prescribed requirements
for states to determine the emission reduction measures that are
necessary to make reasonable progress in 40 CFR 51.308(f).\135\ These
requirements create procedural and substantive frameworks within which
states exercise their discretion in order to ensure the outcomes of
their control analyses are consistent with the statutory requirements
and purpose. The regulatory framework and associated guidance also
provide states useful clarity as to how the EPA will fulfill its
statutory obligation to review and approve or disapprove state plans,
and how the EPA will promulgate Federal plans.
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\134\ CAA section 169A(g)(1) and (2). The statutory factors that
states must use to determine reasonable progress are ``costs of
compliance, the time necessary for compliance, and the energy and
nonair quality environmental impacts of compliance, and the
remaining useful life of any existing source subject to such
requirements.'' The statutory factors for best available retrofit
technology analysis are: ``costs of compliance, the energy and
nonair quality environmental impacts of compliance, any existing
pollution control technology in use at the source, the remaining
useful life of the source, and the degree of improvement in
visibility which may reasonably be anticipated to result from the
use of such technology.''
\135\ The EPA has also issued extensive and detailed guidance
for states in conducting reasonable progress analyses for sources of
visibility impairing pollutants. See Guidance on Regional Haze State
Implementation Plans for the Second Implementation Period (2019),
available at https://www.epa.gov/visibility/guidance-regional-haze-state-implementation-plans-second-implementation-period;
Clarifications Regarding Regional Haze State Implementation Plans
for the Second Implementation Period (2021), available at https://www.epa.gov/visibility/clarifications-regarding-regional-haze-state-implementation-plans-second-implementation.
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The EPA is not providing that states can forgo analyzing control
technologies or other systems of emission reduction that the EPA has
excluded from being the BSER on the basis of technological or economic
feasibility, as suggested by commenters. The EPA conducts BSER analyses
on a source-category basis. It may be that a system of emission
[[Page 80523]]
reduction is generally adequately demonstrated but is not the BSER
because it cannot be applied to designated facilities across the
category at a reasonable cost or because it is technically infeasible
for a certain portion of the category. However, designated facilities
that are eligible to receive a less-stringent standard of performance
are in demonstrably different circumstances than facilities in the
source category generally. Therefore, control technologies or other
systems that may not be the BSER for the source category may be
reasonable for a source that has invoked RULOF. Similarly, to avoid
inadvertently precluding consideration of a system that could allow a
state to apply a standard of performance that is no less stringent than
necessary, the EPA is not providing that states must consider only
control technologies or systems that result in less emission reductions
than the EPA's BSER. While it is true that states should only be in the
position of applying less stringent standards of performance if they
have demonstrated that a designated facility cannot achieve the degree
of emission limitation, there may be situations in which it is not
practical or feasible to ascertain a priori what degree of emission
limitation a technology or system could achieve when applied to a
particular source. Thus, the EPA does not believe it is reasonable to
narrow the scope of control technologies or other systems of emission
reduction that states must consider under these general implementing
regulations. The Agency may find it appropriate to do so in the context
of an individual EG.
Some commenters noted the resources and potential burden associated
with conducting the proposed source-specific BSER analyses. While the
EPA is not finalizing a requirement for states to conduct source-
specific BSER analyses, it acknowledges that stakeholders could have
similar concerns in the context of the provision being promulgated at
40 CFR 60.24a(f). However, the EPA does not believe the RULOF
provisions will significantly add to states' planning processes. First,
as explained in section III.E.2. of this preamble, consistent with the
statutory framework the EPA believes that use of RULOF should be an
exception to the general rule that the EPA's degree of emission
limitation is reasonable for designated facilities within the
applicable source category. Given the EPA's ability to subcategorize
source categories and to tailor its EG to the circumstances of each
subcategory, using RULOF to apply a less stringent standard of
performance should be appropriate in only very limited circumstances.
Second, as explained above, the EPA is providing in 40 CFR
60.24a(f)(1) that states must evaluate the systems of emission
reduction in the applicable EG using the factors and evaluation metrics
the EPA considered ``[t]o the extent necessary to determine a standard
of performance'' that is no less stringent than necessary to address
the fundamental differences identified under paragraph (e). As noted
above, the EPA anticipates that in some if not many cases, states will
be able to demonstrate that the less stringent standard of performance
they are applying is no less stringent than necessary without
evaluating all of the systems of emission reduction in the applicable
EG. For example, if the EPA's degree of emission limitation is 95%
reduction in emissions and a state applies a less stringent standard of
performance that results in 90% reduction, the state may reasonably
forgo evaluating additional systems of emission reduction if, based on
the information in the EG, it is clear that none is able to achieve
comparable reductions. Similarly, a state may not need to consider
every system of emission reduction in an applicable EG if it starts by
evaluating the system or systems that achieve the greatest emission
reductions and applies a standard of performance corresponding to one
of those systems.
Third, the EPA anticipates states applying less stringent standards
of performance would leverage the information and analyses the Agency
has provided in the applicable EG. In promulgating an EG, the EPA is
required to provide the elements listed in 40 CFR 60.22a(b), which
include ``[a] description of systems of emission reduction which, in
the judgment of the Administrator, have been adequately demonstrated,''
and ``[i]nformation on the degree of emission limitation which is
achievable with each system, together with information on the costs,
nonair quality health environmental [sic] effects, and energy
requirements of applying each system to designated facilities,'' as
well as ``[s]uch other available information as the Administrator
determines may contribute to the formulation of State plans.'' In many
cases, the EPA provides extensive technical support documents including
feasibility and cost analyses. The Agency also typically discusses the
types of nonair quality health and environmental effects and energy
requirements that might be expected in conjunction with various systems
of emission reduction applicable to the source category. Although
designated facilities for which RULOF has been invoked are in
fundamentally different circumstances that the average or typical
facilities that EPA considers in the context of its own analysis, the
information provided in an EG will provide a starting point and, in at
least some cases, much of the analytical basis for states' evaluations.
Fourth, in the event the state needs to analyze different systems
of emission reduction to determine a less stringent standard of
performance, the EPA believes it would be in this position regardless
of any requirements the Agency does or does not provide. That is,
because CAA section 111(d)(1) requires a standard of performance for
each existing source, the EPA does not believe the framework being
provided in 40 CFR 60.24a(f) will significantly alter states' workload
if and when invoking RULOF. Rather, it is intended to provide clarity
for states in developing standards of performance consistent with the
statutory requirements. The EPA intends for these requirements to in
fact reduce planning burdens overall, as they provide a framework for
states to submit approvable standards of performance for sources
invoking RULOF, thereby obviating the need for subsequent plan
revisions to address any disapproved standards.
As noted above, the EPA requested comment on whether to provide
consideration of the five BSER factors as part of a source-specific
BSER analysis as a presumptively approvable framework for applying a
less stringent standard of performance, as opposed to requirements. The
framework the EPA is finalizing in this action differs from the
proposed approach under which states would conduct source-specific BSER
analyses; the process the EPA is finalizing at 40 CFR 60.24a(f) is
premised on determining the appropriate variance from the EPA's degree
of emission limitation. The EPA is providing this framework as
requirements for states applying a less stringent standard of
performance. As explained elsewhere in this section of the preamble,
the EPA does not believe it is possible, as a practical matter, to
determine a standard of performance that is no less stringent than
necessary without evaluating the systems of emission reduction that the
EPA determined are adequately demonstrated and engaging with the
factors and evaluation metrics that the EPA used to evaluate those
systems in the applicable EG. Therefore, the EPA believes that states
must use the framework laid out in 40 CFR 60.24a(f) in order for the
resulting variance to be
[[Page 80524]]
consistent with CAA section 111(d). As laid out in the Sec.
60.24a(f)(1), states may also consider additional systems and other
factors specific to the facility that were the basis of the fundamental
difference identified under 40 CFR 60.24a(e), so long as they justify
that any such consideration is consistent with applying a standard of
performance that is no less stringent than necessary.
In sum, the EPA is not finalizing its proposed requirement under 40
CFR 60.24a(f)(1) that states that have invoked RULOF for a particular
facility determine a source-specific BSER. As a result, it is also not
finalizing the provision proposed at 40 CFR 60.24a(f)(2) that would
have required states to calculate the emission reductions a source-
specific BSER would achieve and apply the standard of performance that
reflects this degree of emission reduction. However, consistent with
its proposal, the EPA continues to believe it is necessary for the
Agency to provide a process for states that have invoked RULOF for a
particular facility to follow in applying a less stringent standard of
performance. The EPA is therefore promulgating requirements at 40 CFR
60.24a(f) to ensure that states that have invoked RULOF for a
particular designated facility apply a standard of performance that is
no less stringent than necessary to address the fundamental differences
identified under 40 CFR 60.24a(e). These provisions are necessary to
ensure consistency with the purpose, text, and context of CAA section
111(d), including an understanding of RULOF as a limited variance from
the degree of emission limitation in the applicable EG. The provisions
at 40 CFR 60.24a(f)(1) as finalized will require states to determine a
less stringent standard of performance that is no less stringent than
necessary. In doing so, states must, to the extent necessary, evaluate
the systems of emission reduction in that EPA using the factors and
evaluation metrics that the EPA considered. States may also consider,
as justified, other factors specific to the facility that were the
basis for invoking RULOF under 40 CFR 60.24a(e), as well as additional
systems of emission reduction. The EPA is finalizing the provision
proposed at 40 CFR 60.24a(f)(3), requiring that a less stringent
standard of performance pursuant to RULOF be in the form \136\ required
by the applicable EG, at paragraph (f)(2).
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\136\ ``Form'' of the less stringent standard of performance
refers to a numerical emissions standard versus a work practice
standard, the units in which a standard is expressed, or both.
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c. Contingency Requirements
The EPA recognizes that a source's operations may change over time
in ways that cannot always be anticipated or foreseen by the EPA,
state, or designated facility. This is particularly true where the
basis of the application of RULOF is a designated facility's
operational conditions, such as the source's remaining useful life or
restricted capacity. If the designated facility subsequently changes
its operating conditions after the state or EPA applies a less
stringent standard of performance, the basis for the variance may be
abrogated and the standard of performance may no longer be no less
stringent than necessary. For example, a state may seek to invoke RULOF
for an EGU on the basis that it is running at lower utilization than
the EPA considered in determining the degree of emission limitation and
intends to do so for the duration of the compliance period required by
an EG. Under this scenario, the state may be able to demonstrate that
it is not reasonably cost-effective for the designated facility to
achieve the degree of emission limitation and the state could set a
less stringent standard of performance for this EGU. However, because
reduced utilization is not a physical constraint on the designated
facility's operations, it is possible that the source's utilization
could increase in the future without any other legal constraint.
The EPA proposed to address this potential scenario by adding a
contingency requirement to the RULOF provision at 40 CFR 60.24a(h) that
would require a state to include in its state plan an instrument making
a source's operating condition, such as remaining useful life or
restricted capacity, enforceable whenever the state seeks to rely on
that operating condition as the basis for a less stringent standard.
This requirement would not extend to instances where a state applies a
less stringent standard on the basis of an unalterable condition that
is not within the designated source's control, such as technical
infeasibility, space limitations, water access, or geologic
sequestration access. Rather, this requirement addresses operating
conditions such as operation times, operational frequency, process
temperature and/or pressure, fuel parameters, and other conditions that
are subject to the discretion and control of the designated facility.
Many commenters on this subject supported the EPA's proposed
approach to operating conditions that are within a designated
facility's control. They noted that, in the absence of an enforceable
requirement, a designated facility could change its operations with the
result being foregone emission reductions and undermining of the level
of stringency in the EG. One commenter stated that the EPA should not
permit a source that has legally committed to a retirement date as a
condition of invoking RULOF to receive a less-stringent standard to
postpone that date because, even if it committed to meet the emission
limitation in the EG from that point forward, it could not make up for
its excess emissions before that time. Other commenters opposed the
EPA's proposed requirement and asserted that the EPA had cited no legal
authority or record basis for a need to require states to make
operational conditions that are the basis of less stringent standards
into enforceable requirements in state plans. One commenter noted that
states should have latitude in their regulatory and permit processes to
determine what additional restrictions or contingencies are necessary
to ensure that the less stringent standard remains appropriate over
time.
The EPA continues to believe the requirement proposed at 40 CFR
60.24a(h) is a necessary and reasonable safeguard to ensure that
designated facilities' standards of performance are consistent with the
level of stringency Congress required. Where are particular facility's
operating conditions are the basis for a variance from the EPA's degree
of emission limitation, that variance is warranted only so long as the
operating condition remains a fundamental difference between that
facility's circumstances and the information the EPA considered in the
applicable EG. Therefore, in order for a state plan to include
satisfactory standards of performance as well as measures for the
implementation and enforcement of those standards pursuant to CAA
section 111(d)(1), the contingency must be an enforceable requirement
in that plan; upon EPA approval of the plan the contingency becomes a
federally enforceable requirement (in addition to being enforceable
through the state-law instrument that was included in the plan).
Inclusion in a state permit, rule, or other instrument alone is not
sufficient to satisfy CAA section 111(d)(1). A state-only instrument
can additionally be changed outside the state plan revision process,
which could result in the lifting of the operational condition without
a corresponding adjustment to the designated facility's less stringent
standard of performance.
The EPA notes that it has a practice of requiring operational
conditions that
[[Page 80525]]
are the basis of less stringent emission limitations to be included in
state plans or state implementation plans under CAA section 111 or 110,
respectively, including in the Affordable Clean Energy Rule \137\ and
under the CAA's regional haze program.\138\
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\137\ 84 FR 32520, 32558 (July 8, 2019). The EPA has proposed to
repeal the ACE Rule on other grounds. See 88 FR 33240 (May 23,
2023).
\138\ See, e.g., 76 FR 12651, 12660-63 (March 8, 2011) (best
available retrofit technology requirements for Oregon source based
on enforceable retirement that were to be made federally enforceable
in state implementation plan); Guidance on Regional Haze State
Implementation Plans for the Second Implementation Period at 34,
EPA-457/B-19-003, August 2019 (to the extent a state relies on an
enforceable shutdown date for a reasonable progress determination,
that measure would need to be included in the SIP and/or be
federally enforceable).
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States may revise their state plans to allow a designated facility
that has committed to retiring as the basis for invoking RULOF to
postpone its retirement date. There could be many reasons a designated
facility that previously agreed to a federally enforceable commitment
to cease operations by a certain date might need to extend that date.
The EPA is unable to assess, in the context of these general
implementing regulations, an appropriate approach for all possible
circumstances to ensure that the level of stringency of the EG is not
undermined. The EPA anticipates addressing this consideration in
individual EGs.
As previously discussed, the state plan submission must also
include measures for the implementation and enforcement of a standard
that accounts for RULOF. For standards that are based on operating
conditions that a facility has discretion over and can control, the
operating condition and any other measure that provides for the
implementation and enforcement of the less stringent standard must be
included in the plan submission and as a component of the standard of
performance. For example, if a state applies a less stringent standard
for a designated facility on the basis of a lower capacity factor, the
plan submission must include an enforceable requirement for the source
to operate at or below that capacity factor, and include monitoring,
reporting, and recordkeeping requirements that will allow the state,
the EPA, and the public to ensure that the source is in fact operating
at that lower capacity. A specific EG may detail supplemental or
different requirements on implementing the proposed general requirement
that a state plan submission include both the operating condition that
is the basis for a less stringent standard, and measures to provide for
the implementation and enforcement of such standard.
The EPA notes there may be circumstances under which a designated
facility's operating conditions change permanently so that there may be
a potential violation of the contingency requirements approved as
federally enforceable components of the state plan. For example, a
designated facility that was previously running at lower capacity now
plans to run at a higher capacity full time, which conflicts with the
federally enforceable state plan requirement that the facility operate
at the lower capacity. To address this concern, a state may submit a
plan revision to reflect the change in operating conditions. Such a
plan revision must include a new standard of performance that accounts
for the change in operating conditions. The plan revision would need to
include a standard of performance that reflects the degree of emision
limitation required by the EG and meet all applicable requirements, or
if a less stringent standard is still warranted for other reasons, the
plan revision would need to meet all of the applicable requirements for
considering RULOF. The new standard of performance would only become
effective upon the EPA's determination that the plan revision is
satisfactory.
The EPA is finalizing as proposed the requirement that, where a
plan applies a less stringent standard of performance on the basis of
an operating condition within the designated facility's control, such
as remaining useful life or restricted capacity, the plan must also
include such operation condition or conditions as an enforceable
requirement (this requirement was proposed at 40 CFR 60.24a(h) and is
being finalized at 40 CFR 60.24a(g)). The plan must also include
requirements to provide for the implementation and enforcement of the
operating condition, such as monitoring, reporting, and recordkeeping
requirements.
d. Requirements Specific to Remaining Useful Life
CAA section 111(d) explicitly requires that the EPA permit states
to consider remaining useful life in applying a standard of
performance. While the EPA may consider the age of designated
facilities within a source category as a general matter in determining
the BSER, it is a factor that can have considerable variability from
facility to facility. The annualized costs can change considerably
based on the applied technology at any particular designated facility
given the amortization period. When the EPA determines a BSER, it
considers cost and, in many instances, specifically considers
annualized costs associated with payment of the technology associated
with the BSER. The shorter that payback period is (i.e., shorter
remaining useful life), the less cost-effective that BSER may become.
The current RULOF provision in subpart Ba generally allows for a state
to account for remaining useful life to set a less stringent standard.
However, the provision does not provide guidance or parameters on when
and how a state may do so.
Consistent with the principles described previously in section
III.E., the EPA proposed requirements for when a state seeks to apply a
less stringent standard on grounds that a designated facility will
retire in the near future. Specifically, the EPA proposed that the
Agency would be required to identify in an EG the outermost retirement
date for designated facilities that could qualify for consideration of
remaining useful life, or a methodology and considerations for states
to use in determining such an outermost date. The proposed regulations
would have also allowed states to apply a routine maintenance standard
of performance to designated facilities with ``imminent'' retirement
dates and additionally provided that the EPA may define the timeframe
for imminent retirements in an EG. Finally, consistent with the
proposed provisions regarding contingency requirements, the EPA
proposed that any state plan that applies a standard of performance
that is based on a particular designated facility's remaining useful
life must include the retirement date as an enforceable commitment and
provide measures for its implementation and enforcement.
Several commenters supported the EPA's proposal to identify in an
EG an outermost and imminent retirement date to guide states'
consideration of remaining useful life in setting less stringent
standards. Some supportive commenters also urged the EPA to prescribe
further requirements for designated facilities that rely on a shorter
remaining useful life, including prohibiting them from extending their
retirement dates and defining an imminent retirement as one that occurs
within two years of state plan submission. Other commenters opposed the
EPA's proposed requirements around the consideration of remaining
useful life. Some argued that the requirements would foreclose states
from considering remaining useful life when a designated facility's
retirement date falls outside the prescribed range and that, although
states must reasonably exercise their discretion, the
[[Page 80526]]
CAA puts no limits on their consideration of this factor. Adverse
commenters also noted that the remaining useful life consideration is
very source-specific and that there may be relevant factors that the
EPA would not necessarily take into account when determining the
outermost and imminent dates in an EG.
After consideration of the comments received, the EPA has decided
not to finalize the provisions proposed at 40 CFR 60.24a(i) regarding
remaining useful life. As a general matter, the proposed requirement
for the EPA to identify an outermost and imminent retirement date for
the consideration of remaining useful life was intended to assist
states in developing their state plans and to provide transparency and
consistency in states' application of, and the EPA's review of,
standards of performance based on this factor. As explained in the
preamble to the proposed rule, a designated facility's remaining useful
life generally impacts a cost analysis by changing the amortization
period, or the period of time over which a facility pays the capital
costs for a system of emission reduction. The shorter the period, the
higher the annualized costs. The EPA generally assumes a certain
amortization period in its BSER determination based on, e.g., the
lifespan of the system under consideration and the characteristics of
facilities within the source category. A designated facility that has a
shorter remaining useful life than the amortization period the EPA
assumed in its BSER determination will likely find that achieving the
degree of emission based on application of the BSER has higher
annualized costs; the larger the difference between a particular
facility's remaining useful life and the EPA's assumed amortization
period, the larger the difference in annualized costs. However, as a
factual matter, there is a point at which a designated facility's
remaining useful life is long enough so that the difference in
annualized costs for that facility and the costs the EPA considered
reasonable in the applicable EG are not fundamentally different. At
this point, it would be unreasonable for a state to use remaining
useful life as the basis for a less-stringent standard for that
facility because it could achieve the EPA's degree of emission
limitation at a reasonable cost.
Similarly, an imminent retirement date could serve to streamline
states' planning for sources with remaining useful lives that are so
short that, as a factual matter, no available system of emission
reduction could have reasonable costs. What constitutes a reasonable
cost in the context of a specific EG could depend on, inter alia, the
source category, the emission reductions available, and the designated
pollutant.
However, the EPA agrees with commenters that states' consideration
of remaining useful life and what constitutes reasonable consideration
of this factor will necessarily depend on the source category, the
variability of the individual designated facilities within the source
category, and the structure of the applicable EG. In some instances,
the nature of the designated facilities and structure of the EG may
render a designated facility's remaining useful life of little
relevance. For example, where a BSER is based on operational changes or
activities that entail little to no capital cost, the remaining useful
life of a designated facility should not change the reasonableness of
the system and there would be no need for the EPA to prescribe imminent
and outermost retirement dates in an EG. Alternatively, designated
facilities within the source category may, by virtue of how an industry
developed, fall into discrete age classes based on their remaining
useful lives such that the EPA considers this characteristic in
creating subcategories and determining appropriate BSERs for each
subcategory. In this case, too, there might be little utility in the
EPA defining imminent and outermost dates for consideration of
remaining useful life in an EG.
The EPA is therefore choosing not to finalize the provisions
proposed at 40 CFR 60.24a(i), although it may be appropriate to include
outermost and imminent retirement dates for the consideration of
remaining useful life in individual EGs. The proposed provisions
included a requirement that any plan that applies a less-stringent
standard based on remaining useful life must include the retirement
date for the designated facility as an enforceable commitment,
including any measures that provide for the implementation and
enforcement of such a commitment. The EPA notes that although it is not
finalizing the proposed 40 CFR 60.24a(i)(3), as discussed in section
III.E.3.c. of this preamble plans that include less-stringent standards
based on remaining useful life will still be required to include the
relevant designated facilities' retirement dates as enforceable
commitments and include any measures necessary to provide for the
implementation and enforcement of those commitments pursuant to the
requirement being finalized at 40 CFR 60.24a(g).
The EPA also reiterates that the obligation to include a standard
of performance in a state plan applies to any designated facility that
meets the applicability requirements of an EG as of that EG's
compliance date. That is, a state plan must include a standard of
performance for a designated facility that is retiring after the
compliance date, even if the facility has an enforceable commitment to
retire imminently following that date. In the case of an imminently
retiring designated facility, it may be reasonable for a state to apply
a standard reflecting that facility's business as usual; the EPA will
address this and other potential considerations, including how such a
standard would be calculated, in individual EGs.
e. Reasoned Decision Making and the EPA's Review of State Plans
Invoking RULOF
As discussed previously in section III.E. of this preamble, under
CAA section 111(d)(2), the EPA has the obligation to determine whether
a state plan submission is ``satisfactory.'' This obligation extends to
all aspects of a state plan, including the application of a less
stringent standard of performance that accounts for RULOF. States carry
the primary responsibility to develop plans that meet the requirements
of CAA section 111(d) and therefore have the obligation to justify any
consideration of RULOF in applying standards less stringent than the
degree of emission limitation provided by the EG. That states must
provide a reasoned basis including, where applicable, technical
analyses and other documentation to support the decisions they make in
their plans is fundamental to the structure of CAA section 111(d).\139\
As explained in section III.E.3.a. of this preamble, consistent with
the statutory framework of CAA section 111(d), state plans must ensure
that designated facilities achieve the degree of emission limitation
achievable through application of the BSER as determined by the EPA
unless doing so would be unreasonable for a particular facility. The
fundamental tenet has been reflected in the EPA's regulations since
1975.\140\ Thus, a ``satisfactory'' plan is one that, inter alia,
applies less-stringent standards only where the state has demonstrated
that achieving the EPA's degree of emission limitation would be
unreasonable pursuant to 40 CFR 60.24a(e). A demonstration that a
particular designated facility cannot
[[Page 80527]]
reasonably achieve the degree of emission limitation determined by the
EPA will, in most cases, necessarily be supported by technical analysis
that assesses a particular designated facility and compares its
circumstances to those the EPA considered in its EG.
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\139\ See, e.g., 84 FR 32558 (ACE Rule explained that state
plans must adequately document and demonstrate the process and
underlying data used to establish standards of performance so that
EPA can adequately and appropriately review the plan to determine
whether it is satisfactory).
\140\ See 40 CFR 60.24(c), 60.24a(c).
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While it is within states' discretion to apply a less stringent
standard of performance where the state has identified fundamental
differences for a particular facility (or class of facilities), the
state must support its decision making and demonstrate that it results
in a standard of performance that is no less stringent than necessary
to address the fundamental differences and that meet the applicable
requirements. When a state invokes RULOF and applies a less-stringent
standard, it must demonstrate that the standard is no less stringent
than necessary to address the fundamental difference identified by the
state. Absent such a demonstration, the EPA cannot ascertain that a
less-stringent standard meets the requirements of CAA section 111; that
is, it cannot determine that a less-stringent standard is
``satisfactory.''
The requirements proposed at 40 CFR 60.24a(j) were intended to
explicitly clarify states' responsibilities when invoking RULOF and to
assist them in developing standards in a manner that enables the Agency
to determine whether such standards are ``satisfactory.'' The proposed
requirements provided that states would carry the burden of making any
demonstrations in support of less-stringent standards pursuant to the
RULOF provisions. States would carry the primary responsibility to
develop plans that meet the requirements of CAA section 111(d) and
therefore have the obligation to justify any accounting for RULOF in
support of standards less stringent than those provided by the EG.
While the EPA has discretion to supplement a state's demonstration, the
Agency may also find that a state plan's failure to include a
sufficient RULOF demonstration is a basis for concluding the plan is
not ``satisfactory'' and therefore disapprove the plan. The EPA further
proposed that for the required demonstrations, states must use
information that is applicable to and appropriate for the specific
designated facility, and must show how information is applicable and
appropriate. As RULOF is a source-specific determination, it is
appropriate to require that the information used to justify a less
stringent standard for a particular designated facility be applicable
to and appropriate for that source. Finally, the EPA proposed to
require that the information used for states' demonstrations under the
new RULOF provisions must come from reliable and adequately documented
sources, such as EPA sources and publications, permits, environmental
consultants, control technology vendors, and inspection reports.
Comments received on the proposed requirements regarding states'
burden of demonstration and the use of site-specific information were
generally supportive while also requesting further clarification of and
flexibility in the types of information that the EPA would consider
acceptable. One commenter suggested that the EPA allow states to use
historical data even if not published or documented by third parties,
as this constitutes site-specific information, while another suggested
allowing verified industry information, even if it is not site-
specific.
Despite the generally supportive commenters received, the EPA is
not finalizing the requirements proposed at 40 CFR 60.24a(j). While the
EPA continues to find that states carry the burden of making any
demonstrations in support of less-stringent standards pursuant to RULOF
in developing their plans, we have determined that it is not necessary
to promulgate this expectation as a standalone regulatory requirement.
States always bear the responsibility of reasonably documenting and
justifying the standards of performance in their plans.\141\ If the EPA
cannot ascertain, based on the information and analysis included in a
state plan submission, whether a standard of performance meets the
statutory requirements, it cannot find that standard satisfactory.
Additionally, it is de facto necessary to use information that is
applicable to and appropriate for the designated facility when
analyzing systems of emission reduction for that particular facility.
For example, for a designated facility invoking RULOF based on its
unique design features, the state plan must provide information
corroborating the uniqueness of those features and analysis
demonstrating how they result in the facility being unable to
reasonably achieve the degree of emission limitation determined by the
EPA. It would not be reasonable in this instance for a state to use
generic industry data, whether verified or not, as the basis of
demonstrations pursuant to 40 CFR 60.24a(e) and (f).
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\141\ Where a state has relied on information or analyses the
EPA provided in an applicable EG as part of its source specific BSER
determination, a state would explain why such reliance is reasonable
and cite or otherwise incorporate that information or analyses in
its state plan submission.
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While the proposed requirements would have simply codified
generally applicable tenets of reasoned decision making, the EPA
recognizes that the specific types and provenances of information
needed to justify a less-stringent standard can vary significantly
between not only source categories, but between individual designated
facilities within a source category. As a result, the proposed
provisions had the potential to be both over- and underinclusive. While
we are not finalizing these provisions as generally applicable
requirements for state plans, they and the accompanying discussion in
the notice of proposed rulemaking \142\ remain important guidance for
plan development. The EPA may also choose to promulgate requirements
for RULOF demonstrations in individual EGs.
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\142\ See 87 FR 79176, 79202-03 (Dec. 23, 2022).
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f. Consideration of Impacted Communities
While the consideration of RULOF can be warranted to apply a less
stringent standard of performance to a particular facility, such
standards have the potential to result in disparate health and
environmental impacts to communities most affected by and vulnerable to
those impacts from the designated facilities being addressed by the
state plan. These communities could be put in the position of bearing
the brunt of the greater health or environmental impacts resulting from
that source implementing less stringent emission controls than would
otherwise have been required pursuant to the EG. The EPA considers that
a lack of attention to such potential outcomes would be antithetical to
the public health and welfare goals of CAA section 111(d) and the CAA
generally. Because of CAA section 111(d)(2)'s requirement that the EPA
determine whether a state plan is ``satisfactory'' applies to such
plan's consideration of RULOF in applying a standard of performance to
a particular facility, the EPA must determine whether a plan's
consideration of RULOF is consistent with CAA section 111(d)'s overall
health and welfare objectives.
In order to address the potential exacerbation of health and
environmental impacts to these communities as a result of applying a
less stringent standard, the EPA proposed to require states to consider
such impacts when applying the RULOF provision to establish those
standards. Under the proposed provisions at 40 CFR 60.24a(k), to the
extent a designated facility would qualify for a less stringent
standard through
[[Page 80528]]
consideration of RULOF, the state, in calculating such standard, would
have been required to demonstrate consideration of the potential health
and environmental impacts and potential benefits of control to
communities most affected by and vulnerable to the impacts from the
designated facility considered in a state plan for RULOF provisions.
These communities will be identified by the state as pertinent
stakeholders under the finalized meaningful engagement completeness
requirements described in section III.C. of this preamble.
The notice of proposed rulemaking further explained that state plan
submissions seeking to invoke RULOF for a source would be required to
identify where and how a less stringent standard impacts these
communities. In evaluating a RULOF option for a facility, states should
describe the health and environmental impacts anticipated from the
application of RULOF for such communities, along with any feedback the
state received during meaningful engagement regarding its draft state
plan submission, including on any standards of performance that
consider RULOF. Additionally, to the extent there is a range of options
for reasonably controlling a source based on RULOF, the EPA proposed
that in determining the appropriate standard of performance, states
should consider the health and environmental impacts to the communities
most affected by and vulnerable to the impacts from the designated
facility considered in a state plan for RULOF provisions and provide in
the state plan submission a summary of the results that depicts
potential impacts for those communities for that range of reasonable
control options.
The EPA received a wide range of comments on the proposed
requirements for state plans to consider the potential pollution
impacts and benefits of control to communities most affected by and
vulnerable to emissions from a designated facility that is invoking
RULOF. Several commenters supported the proposal and agreed that, given
that the purpose of regulating stationary source pollution under CAA
section 111 is to address emissions that endanger public health and
welfare, requiring states that are applying less-stringent standards to
take into account how air pollution above the level reflected by
application of the BSER may impact the health and welfare of local
communities furthers the statutory design. Other commenters agreed that
the EPA has authority to require states to consider the impacts of
less-stringent standards of performance on vulnerable communities but
expressed concern that the lack of specificity of and guidance for
implementing the proposed requirements would cause uncertainty among
state regulators and impacted communities and lead to unequal
application across states. Similarly, one commenter noted the
differences between community impacts when considering localized
pollutants versus regional or global pollutants and that impacts of the
latter are more diffuse and difficult to assess. Some commenters,
however, disagreed that the EPA has authority to require states to
consider potential health and environmental impacts of less-stringent
standards on vulnerable communities. These commenters generally
asserted that the state-focused language of the RULOF provision in CAA
section 111(d)(1) does not mandate an analysis of vulnerable
communities and does not give the EPA power to force states to consider
``other factors'' that it deems relevant.
The EPA is not finalizing the proposed provisions at 40 CFR
60.24a(k) as requirements under the general implementing regulations.
We agree with commenters that additional specificity and guidance with
regard to how states should consider the potential pollution impacts
and benefits of control to communities most affected by and vulnerable
to emissions from a designated facility invoking RULOF would be key to
ensuring meaningful implementation of this provision. However, given
the diversity of source categories, designated facilities, and
designated pollutants that are regulated and could be regulated in CAA
section 111(d), as well as the wide range of potential impacts on
vulnerable communities that may result from less-stringent standards of
performance under any given EG,\143\ the EPA does not believe it is
either feasible or appropriate to prescribe a universally applicable
approach or standard for approvability for this consideration. Instead,
to protect all communities, including the most vulnerable ones, the EPA
is finalizing a provision that will ensure that any less stringent
standards of performance applied by states are no less stringent than
necessary. Moreover, because consideration of health and environmental
impacts is inherent in consideration of both the nonair quality health
and environmental impacts and amount of emission reduction factors the
EPA considers under CAA section 111(a)(1), when a state considers the
systems of emission reduction identified in the applicable emission
guideline using the factors and evaluation metrics the EPA considered
in assessing those systems pursuant to RULOF, the state will
necessarily consider the potential impacts and benefits of control to
communities affected by a designated facility that is receiving a less-
stringent standard of performance.
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\143\ In the notice of proposed rulemaking, the EPA
``recognize[d] that the consideration of communities in the standard
setting process, such as what constitutes a benefit to a vulnerable
community and what is a reasonable level of control, is highly
dependent on the designated pollutant and source category subject to
an EG.'' 87 FR 79203.
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Thus, while the EPA is not promulgating a regulatory requirement in
subpart Ba for states to consider the impacts of applying a less-
stringent standard of performance on the communities most affected by
and vulnerable to emissions from a designated facility invoking RULOF,
the EPA anticipates that states will consider these impacts. To this
end, states may look to the EPA's emission guideline and its
consideration of nonair quality health and environmental impacts and
the amount of emission reductions available in determining the degree
of emission limitation for guidance on considering the health and
environmental impacts on communities affected by a designated facility
for which RULOF has been invoked. Additionally, the procedural
requirements under subpart Ba for meaningful engagement with pertinent
stakeholders on state plan development that the EPA is finalizing will
play an important role in RULOF. Meaningful engagement, which the EPA
is defining as ``timely engagement with pertinent stakeholder
representation in the plan development or plan revision process,''
\144\ and providing that ``[s]uch engagement should not be
disproportionate in favor of certain stakeholders and should be
informed by available best practices,'' should address, inter alia, the
application of any less-stringent standards of performance pursuant to
RULOF. Thus, the EPA intends for communities most affected by and
vulnerable to the health and environmental impacts of pollution from a
designated facility invoking RULOF to have an opportunity to
participate in the process of determining how that facility is
addressed in the relevant state plan. The EPA may also consider whether
to promulgate requirements pertaining to consideration of impacts on
vulnerable communities as part of an individual EG in the future, at
which point it would
[[Page 80529]]
provide guidance on how to do so specific to the designated facilities
and designated pollutant at issue.
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\144\ The EPA is also finalizing the proposed definition of
``pertinent stakeholders'' to 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.
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g. Authority To Apply More Stringent Standards as Part of the State
Plan
The EPA, in the notice of proposed rulemaking, addressed two
different sources of authority that would allow the Agency to approve
state plans that include standards of performance that are more
stringent than the degree of emission limitation determined by the EPA
in the applicable EG. First, the EPA explained that allowing states to
apply a more stringent standard of performance as part of their CAA
section 111(d) plans is consistent with CAA section 116, which
generally authorizes states to include more stringent standards of
performance or requirements regarding control or abatement of air
pollution in their plans. Second, the EPA proposed to interpretation
the RULOF provision in CAA section 111(d)(1), and specifically the
``other factors'' consideration, as allowing states to adopt more
stringent standards of performance.\145\ As explained below, the EPA is
not finalizing its proposed interpretation that states can use the
RULOF provision in CAA section 111(d)(1) to adopt, and have the EPA
approve, more stringent standards of performance in their state plans
because, inter alia, states already have the authority and ability to
do so under CAA section 116.
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\145\ 87 FR 79204-06.
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As explained in the notice of proposed rulemaking, the anti-
preemption requirements of CAA section 116 provide that nothing in the
statute shall preclude or deny the right of states to adopt or enforce
``any standard or limitation respecting emissions of air pollutants.''
While CAA section 116 clearly extends to a state adopting or enforcing
a standard of performance more stringent than required under CAA
section 111(d), the subpart Ba implementing regulations did not
explicitly speak to whether the EPA can approve a state plan that
includes such standard of performance. However, the EPA proposed to
find that CAA section 116, as interpreted through the Supreme Court in
Union Electric Co. v. EPA,\146\ requires the EPA to approve a state
plan that includes more stringent standards of performance under CAA
section 111(d). The EPA therefore proposed to modify the existing 40
CFR 60.24a(f),\147\ clarifying that to the extent a state chooses to
submit a plan that includes standards of performance that are more
stringent or compliance schedules that are more rapid than the
requirements of an EG, states have the authority to do so under this
provision and CAA section 116. Further, the EPA proposed to clarify
that it has the obligation, and therefore the authority, to review and
approve such plans and render the more stringent requirements federally
enforceable if all applicable requirements are met.
---------------------------------------------------------------------------
\146\ 427 U.S. 246, 263-64 (1976).
\147\ The existing provision at 40 CFR 60.24a(f) provides that
``[n]othing in this subpart shall be construed to preclude any State
or political subdivision thereof from adopting or enforcing,'' (1)
standards of performance more stringent than an EG, or (2)
compliance schedules requiring final compliance at earlier times
than specified in an EG. In the proposed rulemaking, the EPA added
several proposed provisions to 40 CFR 60.24a, which resulted in
Sec. 60.24a(f), in addition to being amended, being renumbered as
Sec. 60.24a(n). However, the EPA is not finalizing all the new
provisions it proposed; as a result, erstwhile Sec. 60.24a(f) is
now being finalized, with amendments, at Sec. 60.24a(i).
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The EPA is finalizing the proposed changes to the provision
currently at 40 CFR 60.24a(f) which, as renumbered pursuant to this
final rule, is now 40 CFR 60.24a(i). The Agency acknowledges that it
previously took the position in the ACE Rule that Union Electric does
not control the question of whether CAA section 111(d) state plans may
be more stringent than Federal requirements. The EPA took this position
in the ACE Rule on the basis that Union Electric on its face applies
only to CAA section 110, and that it is ``potentially salient'' that
CAA section 111(d) is predicated on specific technologies whereas CAA
section 110 gives states broad latitude in the measures used for
attaining the NAAQS.\148\ The EPA no longer takes this position. Upon
further evaluation, the EPA finds that, because of the structural
similarities between CAA sections 110 and 111(d), CAA section 116 as
interpreted by Union Electric requires the EPA to approve CAA section
111(d) state plans that are more stringent than required by the EG.
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\148\ 84 FR 32559-61.
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The Court in Union Electric rejected a construction of CAA sections
110 and 116 that measures more stringent than those required to attain
the NAAQS cannot be approved into a federally enforceable SIP but can
be adopted and enforced only as a matter of state law. The Court found
that such an interpretation of CAA section 116 ``would not only require
the Administrator to expend considerable time and energy determining
whether a state plan was precisely tailored to meet the Federal
standards but would simultaneously require States desiring stricter
standards to enact and enforce two sets of emission standards, one
federally approved plan and one stricter state plan.'' 427 U.S. at 263-
64. The Court concluded there was no basis ``for visiting such wasteful
burdens upon the States and the Administrator.'' Id. CAA sections
111(d) and 110 are structurally similar in that both require the EPA to
establish targets to meet the objectives of the respective sections
(i.e., the degree of emission limitation set by an EG under CAA section
111(d), and attainment and maintenance of the NAAQS under CAA section
110), and states must adopt and submit to the EPA plans which include
requirements to meet these targets. Specifically, the EPA establishes a
presumptive standard of performance corresponding to the degree of
emission limitation it has determined in an EG, and state plans under
CAA section 111(d) must establish standards of performance that
generally reflect this degree of emission limitation. Because CAA
section 116 applies to ``any standard or limitation,'' this provision
clearly applies to standards of performance adopted under CAA section
111(d). Therefore, the Court's rationale in Union Electric as it
pertains to the application of CAA section 116 in the context of the
cooperative federalism structure of CAA section 110 also applies to CAA
section 111(d). That is, the assessment of CAA section 116 in the
context of requirements that states develop and submit to the EPA for
evaluation against nationally applicable standards or criteria applies
equally to CAA sections 110 and 111(d). On that basis, the EPA is
finding that the Court's holding applies and controls the outcome here,
as well. Requiring states to enact and enforce two sets of standards of
performance, one that is exactly equal to the EPA's presumptive
standard of performance that is federally approved as part of the CAA
section 111(d) plan and one that is stricter and is only adopted and
enforced as a matter state requirements, runs directly afoul of Union
Electric's holding that there is no basis for interpreting CAA section
116 in such manner.
Moreover, there is nothing in CAA section 111(d) that precludes
states from adopting, and EPA from approving, more stringent standards
of performance.\149\ In fact, permitting
[[Page 80530]]
states to adopt more stringent standards of performance and include
such standards in their state plans is entirely consistent with the
purpose and structure of CAA section 111(d). States bear the obligation
pursuant to CAA section 111(d)(1) to establish standards of
performance. Nothing in CAA section 111(d) suggests that Congress
intended to preclude states from determining that it is appropriate to
regulate certain sources within their jurisdiction more strictly than
otherwise required by Federal requirements. For the EPA to do so would
be arbitrary and capricious in light of the overarching purpose of CAA
section 111(d), which is to require emission reductions from existing
sources for certain pollutants that endanger public health or welfare.
It is inconsistent with the purpose of CAA section 111(d) and the role
it confers upon states for the EPA to constrain them from further
reducing emissions that harm their citizens, and the EPA does not see a
reasonable basis for doing so.
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\149\ In the 1975 CAA section 111(d) implementing regulations
the Agency explained that EPA's emission guidelines will reflect its
judgment of the degree of control that can be attained by various
classes of existing source without unreasonable costs. Particular
sources within a class may be able to achieve greater control
without unreasonable costs. Moreover, States that believe additional
control is necessary or desirable will be free under section 116 of
the Act to require more expensive controls, which might have the
effect of closing otherwise marginal facilities, or to ban
particular categories of sources outright. 40 FR 53343. Congress did
nothing to disturb the understanding that states can use CAA section
116 to adopt more stringent standards of performance when it enacted
the 1977 CAA Amendments shortly thereafter.
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The EPA also included a second rationale for permitting more
stringent standards of performance in the notice of proposed
rulemaking. The Agency explained that CAA section 111(d)(1) provides
that states are permitted to consider remaining useful life and other
factors ``in applying a standard of performance to any particular
source under a plan,'' but does not specify that the source-specific
standard must be a less stringent standard of performance. Aside from
the explicit reference to remaining useful life, the statute is silent
as to what the ``other factors'' are that states may consider in
applying a standard of performance and whether such factors can be used
only to weaken the stringency of a standard of performance for a
particular designated facility. Therefore, in addition to proposing
that states may include, and the EPA must approve, more stringent
standards of performance in state plans pursuant to CAA sections 111(d)
and 116, the EPA also proposed to interpret CAA section 111(d)(1) as
allowing states to consider ``other factors'' in exercising their
discretion to apply a more stringent standard to a particular source.
The Agency acknowledged that it had previously, in promulgating subpart
Ba in 2019, taken the position that the statutory RULOF provision
authorizes only standards of performance that are less stringent than
the presumptive level of stringency required by a particular EG,\150\
and explained why it was proposing to change course. To codify its
revised interpretation of the RULOF provision, the EPA proposed
explicit regulatory text that would have allowed states to use RULOF,
and specifically, ``other factors,'' to apply a more stringent standard
of performance. The new provision at 40 CFR 60.24a(m) would have also
required that state plans include an adequate demonstration that the
standard of performance is more stringent than required by an
application EG and meet all other applicable requirements.
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\150\ See EPA's Responses to Public Comments on the EPA's
Proposed Revisions to Emission Guideline Implementing Regulations at
56 (Docket ID No. EPA-HQ-OAR-2017-0355-26740) (July 8, 2019).
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The EPA received comments both in support of and opposed to its
proposed interpretation that states may apply more stringent standards
of performance and that EPA has an obligation to approve such standards
in state plans. Several commenters stated the Agency has appropriately
interpreted CAA section 116 and 111(d), as well as Union Electric Co.
v. EPA, as allowing states to submit, and the EPA to approve, more
stringent standards. One commenter also agreed that the statutory
phrase ``remaining useful life and other factors'' does not foreclose a
state plan from applying a more stringent standard of performance to a
particular source; while ``remaining useful life'' implies a less
stringent standard, ``other factors'' does not. Another commenter
asserted that the EPA need not rely on ``other factors'' to permit
states to apply more stringent standards because states already have
the ability to do so in light of the Supreme Court's ruling in Union
Electric. Commenters that disagreed with the EPA's proposed
interpretation generally recognized that states can adopt more
stringent rules than those required by the EPA but asserted that the
CAA does not authorize the EPA to approve them into state plans and
thus make them federally enforceable. One commenter argued that the
EPA's BSER determination defines the extent of both EPA and state
authority under CAA section 111 and that the RULOF provision does not
authorize states to select a different, more stringent BSER under the
guise of RULOF. Another commenter stated that the EPA's position that
RULOF is a variance provision for sources that cannot meet the BSER due
to limited remaining useful life or other factors is in tension with
its interpretation that the same provision provides a broad grant of
authority for states to impose more stringent standards on sources. The
same commenter pointed out the difference in proposed requirements for
states invoking RULOF to apply a less stringent standard and those for
applying a more stringent standard.
The EPA agrees with commenters that it need not rely on ``other
factors'' for authority to permit states to submit, and the EPA to
approve, more stringent standards of performance in state plans. As
explained above, CAA sections 116 and 111(d), and the Court's
interpretation in Union Electric of section 116 as it relates to CAA
section 110's analogous statutory framework, provide a sufficient basis
this position. Moreover, upon further consideration of the history of
the RULOF provision and the EPA's interpretation of that provision as a
variance for states to use when a source cannot reasonably achieve the
degree of emission limitation determined by the EPA, the Agency is not
finalizing its proposed interpretation that the RULOF provision allows
states to adopt more stringent standards of performance in their plans.
The EPA is therefore not finalizing the provision it proposed at 40 CFR
60.24a(m) that would have explicitly allowed a state to ``account for
other factors in applying a standard of performance that is more
stringent than required by an applicable emission guideline, or the
proposed provision that ``[t]he plan must include an adequate
demonstration that the standard of performance is more stringent than
required by an applicable emission guideline, and must meet all other
applicable requirements, such as those that provide for the
implementation and enforceable of the more stringent standard of
performance.'' As a general matter, states already bear the burden of
demonstrating that their standards of performance are no less stringent
than the corresponding EG. See 40 CFR 60.24a(c).
The EPA disagrees with comments suggesting that the EPA's BSER
determination is the ceiling--that the EPA is constrained from
approving more stringent standards of performance into state plans. As
explained above, there is no support for this position in the statutory
language or structure of CAA section 111(d). It is also inconsistent
with CAA section 116 and would run counter to the purpose of section
111--reducing emissions of dangerous air pollutants from designated
facilities.
[[Page 80531]]
The EPA anticipates that, in many cases, more stringent standards
of performance would entail marginal differences in stringency between
the degree of emission limitation in the applicable EG and the state
plan requirement. For example, the EPA may determine that, for the
source category in general, a control technology can reasonably achieve
an 80% reduction in emissions, while a state finds that at a particular
designated facility, that same control technology can reasonably
achieve a 90% reduction. Or a state may decide that a particular
designated facility can install a control technology that has already
been demonstrated to reasonably achieve greater emission reductions
than the BSER the EPA determined for the source category generally. The
EPA also notes that approving more stringent standards of performance
in state plans is not a new practice under subpart Ba; for example, in
2020 the EPA approved more stringent standards of performance that
California submitted as part of its CAA section 111(d) state plan to
implement the emission guidelines for landfill gas emissions from
municipal solid waste landfills. These more stringent standards of
performance were incorporated into the Code of Federal Regulations and
thus became federally enforceable.\151\
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\151\ 40 CFR 62.1100(b)(7); 85 FR 1121 (Jan. 9, 2020); see also
``Appendix E: Comparison of the Major Provisions of the Emission
Guidelines and California's Landfill Methane Regulation,'' EPA-R09-
OAR-2019-0393-0008 (technical support document for EPA action on
California's CAA section 111(d) state plan to implement the EG for
landfill gas from municipal solid waste landfills).
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In summary, the EPA is finalizing, at 40 CFR 60.24a(i), the
proposed revisions to the existing provision (currently at 40 CFR
60.24a(f)) stating that nothing in subpart Ba shall be construed to
preclude any state from adopting or enforcing, as part of a state plan,
(1) standards of performance more stringent that the applicable EG, or
(2) compliance schedules requiring final compliance at earlier times
than specified in the applicable EG. The EPA is not finalizing the
regulatory text provision proposed at 40 CFR 60.24a(m) stating that a
state may account for other factors in applying a more stringent
standard of performance.
F. Provision for Electronic Submission of State Plans
The EPA proposed to revise subpart Ba to require electronic
submission of state plans instead of paper copies.\152\ As explained in
the notice of proposed rulemaking, the regulations promulgated in 2019
require state plan submissions to be made in accordance with 40 CFR
60.4. Pursuant to 40 CFR 60.4(a), all requests, reports, applications,
submittals, and other communications to the Administrator pursuant to
40 CFR part 60 shall be submitted in duplicate to the appropriate
regional office of the EPA. The provision in 40 CFR 60.4(a) then
proceeds to list the corresponding addresses for each regional office.
The EPA proposed that, rather than requiring paper copies of state plan
submissions to be sent to the appropriate regional office, states would
submit their state plans electronically via the use of its State
Planning Electronic Collaboration System (SPeCS).
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\152\ 87 FR 79206.
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As previously described, CAA section 111(d) requires the EPA to
promulgate a ``procedure'' similar to that of CAA section 110 under
which states submit plans. The statute does not prescribe a specific
platform for plan submissions, and the EPA reasonably interprets the
procedure it must promulgate under the statute as allowing it to
require electronic submission. Requiring electronic submission is
reasonable for the following reasons. Providing for electronic
submittal of CAA section 111(d) state plans in subpart Ba in place of
paper submittals aligns with current trends in electronic data
management and as implemented in the individual EGs will result in less
burden on the states. It is the EPA's experience that the electronic
submittal of information increases the ease and efficiency of data
submittal and data accessibility. The EPA's experience with the
electronic submittal process for SIPs under CAA section 110 has been
successful as all the states are now using the SPeCS, which is a user-
friendly, web-based system that enables state air agencies to
officially submit SIPs and associated information electronically for
review and approval to meet their CAA obligations related to attaining
and maintaining the NAAQS. SPeCS for SIPs is the EPA's preferred method
for receiving such SIPs submissions. The EPA has worked extensively
with state air agency representatives and partnered with E-Enterprise
for the Environment and the Environmental Council of the States to
develop this integrated electronic submission, review, and tracking
system for SIPs. SPeCS can be accessed by the states through the EPA's
Central Data Exchange (CDX) (https://cdx.epa.gov/). The CDX is the
Agency's electronic reporting site and performs functions for receiving
acceptable data in various formats. The CDX registration site supports
the requirements and procedures set forth under the EPA's Cross-Media
Electronic Reporting Regulation, 40 CFR part 3.
Most of the commenters were supportive of the proposed amendments
for electronically submitting state plans. However, a few commenters
expressed that EPA should provide an option to submit state plans in
paper format. The EPA has determined that submitting state plans
electronically is more efficient and less burdensome than paper
submittals. States already submit state implementation plans
electronically via SPeCS so there should be little to no additional
burden associated with using it for state plans. Additionally, having
some states submit state plans via SPeCS and other states mail hard-
copy plans to regional offices would undermine many of the efficiencies
provided to the EPA through the use of electronic submission and could
result in confusion. One commenter recommended adding language to
clarify that a Negative Declaration letter submitted in accordance with
40 CFR 60.23a(b) can also be submitted via SPeCS. The EPA agrees with
the need to add the electronic submittal language to 40 CFR 60.23a(b)
identified by the commenter and has added the language in the final
rule so that the states submit the Negative Declaration letter using
the SPeCS, or through an analogous electronic reporting tool provided
by the EPA for the submission of any plan required by this subpart.
The EPA is therefore finalizing the requirements for electronic
submittal of state plans in 40 CFR 60.23a(a)(1) and (3). As finalized,
40 CFR 60.23a(a)(1) provides: ``The submission of such plan shall be
made in electronic format according with Sec. 60.23a(a)(3) or as
specified in an applicable emission guideline.'' The regulation at 40
CFR 60.23a(a)(3) in turn contains the general requirements associated
with the electronic submittal of a state plan in subpart Ba via the use
of SPeCS or through an analogous electronic reporting tool provided by
the EPA for the submission of any plan required by subpart Ba. The EPA
is also including at 40 CFR 60.23a(a)(3) language to specify that
states are not to transmit confidential business information (CBI)
through SPeCS. Even though state plans submitted to the EPA for review
and approval pursuant to CAA section 111(d) through SPeCS are not to
contain CBI, the language at 40 CFR 60.23a(a)(3) also addresses the
submittal of CBI in the event there is a need for such information to
be submitted to the EPA.
[[Page 80532]]
Any other specific requirements associated with the electronic
submittal of a particular state plan will be provided within the
corresponding EG. The requirements for electronic submission of CAA
section 111(d) state plans in EGs will ensure that these Federal
records are created, retained, and maintained in electronic format.
Electronic submittal will also improve the Agency's efficiency and
effectiveness in the receipt and review of state plans. The electronic
submittal of state plans may also provide continuity in the event of a
disaster like the one our nation experienced with COVID-19.
G. Other Proposed Modifications and Clarifications
1. Standard of Performance and Compliance Flexibility
a. Definition of Standard of Performance
The EPA proposed amendments to 40 CFR 60.21a(f) and 60.24a(b) to
clarify that the definition of ``standard of performance'' allows for
state plans to include standards in the form of an allowable mass limit
of emissions. As explained in the notice of proposed rulemaking,\153\
the amendments were intended to harmonize these regulatory definitions
with the definitions of ``emission limitation'' and ``emission
standard'' in CAA section 302(k), which is ``a requirement established
by the State or the Administrator which limits the quantity, rate, or
concentration of emissions of air pollutants on a continuous basis,
including any requirement relating to the operation or maintenance of a
source to assure continuous emission reduction, and any design,
equipment, work practice, or operational standard promulgated under
this chapter.'' While the EPA had intended the phrase ``allowable rate
or limit of emissions'' in the existing regulatory definitions to
encompass the full range of forms included in the statute, to eliminate
any potential confusion the Agency proposed to make this explicit.
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\153\ 87 FR 79176, 79206-07 (Dec. 23, 2022).
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Most comments received on the proposed revision to the definition
of ``standard of performance'' were in support of these amendments.
Some commenters pointed out that the revision would be consistent with
the statutory definition in CAA section 302(k) and many expressed
approval that the revised definition would clearly allow for standards
of performance to take the form of mass-based emission limits. Several
commenters stressed that, while they supported the proposed definition
of standard of performance for subpart Ba, the appropriate form of the
standard of performance in any particular EG must be determined in the
context of that EG. Some commenters expressed concern that the proposed
revision would allow the EPA to define the BSER as a trading program
for any source sector, or for states and the EPA to impose emissions
averaging and trading programs in CAA section 111(d) plans.
The EPA is finalizing amendments to 40 CFR 60.21a(f) and 60.24a(b)
as proposed. The Agency's interpretation of CAA section 111 with regard
to emissions trading or averaging is a separate matter that is
discussed in section III.G.1.b. of this preamble; it is reiterated that
the revisions to the definition of standard of performance are being
made to align it with the statutory definition of emission limitation
and emission standard in CAA section 302(k) for the purpose of these
general implementing regulations. The EPA agrees with commenters that
the appropriate form of the standard of performance in any particular
EG must be determined in the context of that EG, and the EPA may choose
to prescribe the acceptable form or forms of the standard of
performance in an individual EG. In addition to finalizing the proposed
amendments to 40 CFR 60.21a(f) to clarify that the term ``an allowable
rate or limit of emissions'' means ``an allowable rate, quantity, or
concentration of emissions'' of air pollutants, the EPA is also
finalizing its proposed removal of the phrase ``but not limited to''
from 40 CFR 60.21a(f) as unnecessary and potentially confusing verbiage
that is redundant of the word ``including,'' particularly where the
definition already identifies a wide breadth of potential standards
that may be included in a state plan. Moreover, the EPA is finalizing
amendments to the definition of standard of performance under 40 CFR
60.24a(b) to read ``. . . in the form of an allowable rate, quantity,
or concentration of emissions'' rather than ``. . . either be based on
allowable rate or limit of emission.''
b. Compliance Flexibilities, Including Trading or Averaging
The EPA is finalizing its proposal that CAA section 111(a) and (d)
cannot be interpreted, by their terms, to limit the types of controls
that states, in their state plans, may authorize their sources to adopt
to at-the-source, and thereby preclude states from authorizing their
sources flexibilities such as trading or averaging. Under the
provisions of CAA section 111(a) and (d), and consistent with the
federalism principles that underlie the CAA, states have broad
authority to determine the types of control measures for their sources,
including trading or averaging, although the EPA may establish
constraints to protect the integrity of particular EGs. The EPA is also
finalizing its proposal that CAA section 111 cannot be interpreted, by
its terms, to limit the ``best system of emission reduction . . .
adequately demonstrated'' (BSER) to at-the-source measures. As the EPA
explains, many control measures that the EPA has determined to be the
BSER in prior rules have outside-the-source components. The EPA is
finalizing its repeal of the ACE Rule's contrary interpretations of CAA
section 111.
In the proposal, the EPA provided a brief summary of the applicable
CAA provisions, the ACE Rule, the D.C. Circuit's decision reversing the
ACE Rule, and the U.S. Supreme Court's decision vacating the D.C.
Circuit's vacatur of the ACE Rule.\154\ For convenience, parts of that
summary are reproduced here.
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\154\ 87 FR 79176, 79207-08 (Dec. 23, 2022).
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i. CAA section 111. Under CAA section 111(d)(1), each state is
required to submit to the EPA ``a plan which . . . establishes
standards of performance for any existing source'' that emits certain
types of air pollutants, and which ``provides for the implementation
and enforcement of such standards of performance.'' Under CAA section
111(a)(1), a ``standard of performance'' is defined 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 . . . adequately demonstrated.''
ii. Rulemaking and caselaw. In the Clean Power Plan (CPP), the EPA
interpreted the term ``system'' in CAA section 111(a)(1) to be broad
and therefore to authorize the EPA to consider a wide range of measures
from which to select the BSER.\155\ Similarly, the CPP took the
position that states had broad flexibility in choosing compliance
measures for their state plans.\156\ The CPP went on to determine that
generation shifting qualified as the BSER,\157\ and that states could
include trading or averaging programs in their state plans for
compliance.\158\
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\155\ 80 FR 64662, 64720 (October 23, 2015).
\156\ See, e.g., id. at 64887.
\157\ Id. at 64707.
\158\ Id. at 64840.
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The ACE Rule included the repeal of the CPP. It interpreted CAA
section 111 so that the type of ``system'' that the EPA may select as
the BSER is limited to a control measure that could be
[[Page 80533]]
applied at each source (that is, inside the fenceline of each source)
to reduce emissions at each source.\159\ The ACE Rule also concluded
that the compliance measures the states include in their plans must
``correspond with the approach used to set the standard in the first
place,'' \160\ and therefore must also be limited to inside-the-
fenceline measures that reduce the emissions of each source. For these
reasons, the ACE Rule invalidated the CPP's generation-shifting system
as the BSER, on grounds that it was an outside the source measure, and
precluded states from allowing their sources to trade or average to
demonstrate compliance with their emission standards.\161\
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\159\ 84 FR 32520, 32523-24 (July 8, 2019).
\160\ Id. at 32556.
\161\ Id. at 32556-57.
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In 2021, the D.C. Circuit vacated the ACE Rule.\162\ The court
held, among other things, that CAA section 111(d) does not limit the
EPA, in determining the BSER, to at-the- source measures.\163\ The
court further held that the ACE Rule's premise for viewing compliance
measures as limited to at the source measures, which is that BSER
measures are so limited, was invalid for the same reason. The court
indicated that while requiring symmetry between the nature of the BSER
and compliance measures ``would be reasonable'' where necessary to
preserve the environmental outcomes a particular BSER was designed to
achieve, a universal restriction on compliance measures could not be
sustained by policy concerns that were not similarly universal.\164\
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\162\ American Lung Ass'n v. EPA, 985 F.3d 914 (D.C. Cir. 2021).
\163\ Id. at 944-51
\164\ Id. at 957-58.
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In 2022, the U.S. Supreme Court reversed the D.C. Circuit's vacatur
of the ACE Rule's embedded repeal of the Clean Power Plan.\165\ The
Supreme Court made clear that CAA section 111 authorizes the EPA to
determine the BSER and the amount of emission limitation that state
plans must achieve.\166\ However, the Supreme Court invalidated the
CPP's generation-shifting BSER under the major question doctrine,
explaining that the term ``system'' does not provide the ``clear
congressional authorization'' needed to support a BSER ``of such
magnitude and consequence.'' \167\ The Court declined to address the
D.C. Circuit's decision that the text of CAA section 111 did not limit
the type of ``system'' the EPA could consider as the BSER to at-the-
source measures.\168\ Nor did the Court rule on the scope of the
states' compliance flexibilities.
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\165\ West Virginia v. EPA, 142 S. Ct. 2587 (2022).
\166\ Id. at 2601-02.
\167\ Id. at 2614-16 (internal quotation marks omitted).
\168\ See id. at 2615 (``We have no occasion to decide whether
the statutory phrase `system of emission reduction' refers
exclusively to measures that improve the pollution performance of
individual sources, such that all other actions are ineligible to
qualify as the BSER.'' (emphasis omitted)).
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iii. Proposal. In the proposal, the EPA stated that it has
reconsidered the ACE Rule's interpretation of the compliance
flexibilities available to states under CAA section 111 and that it was
proposing to disagree with the rule's view that trading or averaging
are universally precluded \169\ and that state plan compliance measures
must always correspond with the approach the EPA uses to set the BSER.
The EPA added, however, that the flexibility that CAA section 111(d)
grants to states in adopting measures for their state plans is not
unfettered; rather, CAA section 111(d)(2) requires the EPA to review
state plans to ensure that they are ``satisfactory,'' and the EPA may
conclude in particular emission guidelines that limiting the types of
control measures states may authorize their sources to adopt, including
precluding trading or averaging, are necessary to protect the
environmental outcomes of the emission guidelines.\170\
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\169\ With respect to averaging, the ACE Rule noted that the
D.C. Circuit has recognized that the EPA may have statutory
authority under CAA section 111 to allow plant-wide emissions
averaging, See U.S. Sugar v. EPA, 830 F.3d 579, 627 n.18 (D.C. Cir.
2016) (pointing to the definition of ``stationary source''), but
stated that the Agency's determination that individual EGUs are
subject to regulation under ACE precludes the Agency from attempting
to change the basic unit from an EGU to a combination of EGUs for
purposes of ACE implementation.
\170\ 87 FR 79208.
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In addition, the EPA also proposed to reject the ACE Rule's
interpretation that various provisions in CAA section 111 limit the
type of ``system'' that may qualify as the BSER to at-the-source
measures.\171\ The EPA explained that it proposed to agree with the
part of the D.C. Circuit's decision in American Lung Ass'n,\172\ that
rejected the ACE Rule's at-the-source statutory interpretation. The EPA
added that it recognized that the Supreme Court, in West Virginia, did
impose limits, through the application of the major question doctrine,
on the type of ``system'' that may qualify as the BSER.\173\ The EPA
made clear that it was not proposing to address the scope of the limits
that may result from application of the major question doctrine, and
thus was not proposing to address whether it could include trading or
averaging as part of the BSER, or to identify any particular control
mechanism that could or could not be part of a specific BSER, in light
of those limits. Instead, the EPA stated that it may address further
those limits, and their implications for the legality of particular
systems of emission reduction and state compliance measures, in future
emission guidelines.\174\
---------------------------------------------------------------------------
\171\ 84 FR 32556.
\172\ 985 F.3d at 944-51.
\173\ 142 S. Ct. at 2615-16.
\174\ 87 FR 79208.
---------------------------------------------------------------------------
iv. The EPA's finalized interpretation of state authority to grant
compliance flexibilities. The EPA is finalizing its proposal that,
contrary to the position of the ACE Rule, CAA section 111 does not
preclude states from including compliance flexibilities such as trading
or averaging for their sources in their state plans, although in
particular emission guidelines the EPA may limit those flexibilities if
necessary to protect the environmental outcomes of the guidelines. The
EPA is also rescinding the related ACE Rule interpretation that CAA
section 111 requires that state plan measures be symmetrical to the
types of measures the EPA included in the BSER.
Most commenters agreed with the proposal that CAA section 111 does
not preclude states from including compliance flexibilities in their
state plans. However, several commenters disagreed and submitted
adverse comments. Some commenters stated that West Virginia is clear
that the EPA cannot include generation-shifting as the BSER, and then
argued that the EPA cannot include trading as part of the BSER because
trading entails generation shifting, and then further argued that for
emission guidelines applicable to electric generating units, the EPA
cannot authorize trading as a compliance mechanism because trading
incentivizes generation shifting to occur and only works if generation
shifting does occur. As explained further below, the EPA does not
believe that these adverse comments cast doubt on the rationale that it
gave in the proposal for why states have the authority to allow
compliance flexibilities such as trading or averaging.\175\ The EPA
continues to agree with the reasoning in American Lung Ass'n,\176\ in
rejecting the ACE Rule's limitations on those measures.
---------------------------------------------------------------------------
\175\ Id.
\176\ 985 F.3d at 957-58.
---------------------------------------------------------------------------
To review the reasons that the ACE Rule gave for asserting that
trading or averaging across designated facilities is inconsistent with
CAA section 111: The ACE Rule stated that those options would not
necessarily require any emission reductions from designated
[[Page 80534]]
facilities and may not actually reflect application of the BSER. The
ACE Rule explained that ``state plans must establish standards of
performance--which by definition `reflects . . . the application of the
best system of emission reduction,' '' \177\ and then asserted that
implementation and enforcement of such standards should be based on
improving the emissions performance of sources to which a standard of
performance applies. The ACE Rule added that trading or averaging would
effectively allow a state to establish standards of performance that do
not reflect application of the BSER, and gave, as an example, the
possibility that under a trading program, a single source could
potentially shut down or reduce utilization to such an extent that its
reduced or eliminated operation generates sufficient allowances for a
state's remaining sources to meet their standards of performance
without themselves making any emission reductions from any other
source. The ACE Rule asserted that this compliance strategy would
undermine the EPA's determination of the BSER.\178\
---------------------------------------------------------------------------
\177\ This paraphrasing by the ACE Rule of the CAA section
111(a)(1) definition of ``standard of performance'' is incomplete--a
``standard of performance'' ``reflects the degree of emission
limitation achievable through the application of the best system of
emission reduction.''
\178\ 84 FR 32557.
---------------------------------------------------------------------------
This interpretation of CAA section 111 is unduly strained and the
EPA rejects it. The provisions of CAA section 111(d) by their terms do
not affirmatively bar states from considering trading or averaging as a
compliance measure where appropriate for a particular emission
guideline. Under CAA section 111(d)(1), each state must ``establish[
],'' ``implement[ ],'' and ``enforce[ ]'' ``standards of performance
for any existing source.'' A state plan may ``establish[ ]'' a standard
of performance for each source that constitutes an emissions standard
that reflects the amount of emission reduction that the source could
achieve by applying the BSER, but the state may also allow measures
like trading or averaging as potential means of compliance. Nothing in
the text of CAA section 111 precludes states from considering a
source's acquisition of allowances as part of a trading program in
``implement[ing]'' and ``enforce[ing]'' a standard of performance for
that particular source, so long as the state plan achieves the required
overall level of emission reductions.\179\ CAA section 111(d)(1)
requires only that each source comply with its standard, not that each
source do so through applying the BSER. By the same token, contrary to
the ACE Rule,\180\ CAA section 111(d)(1) does not limit the states to
compliance measures that are symmetrical to what the EPA determined to
be the BSER unless necessary to preserve the environmental outcomes a
particular system was designed to achieve.
---------------------------------------------------------------------------
\179\ This overall level of emissions reduction is the level
that would be achieved if each source were to apply the BSER.
\180\ 84 FR 32556 (ACE Rule states that one reason why CAA
section 111 precludes states from authorizing trading or averaging
is that ``[a]pplying an implementation approach that differs from
standard-setting would result in asymmetrical regulation'').
---------------------------------------------------------------------------
For further support for the interpretation that CAA section 111
does not preclude states from authorizing compliance flexibilities such
as trading or averaging, the EPA notes that CAA section 111(d)(1)
requires a ``procedure similar to that provided by [CAA section 110].''
\181\ Consideration of the CAA section 110 framework reinforces the
absence of any mandate that states consider only compliance measures
that apply at and to an individual source. ``States have `wide
discretion' in formulating their plans'' under section 110.\182\ The
EPA has authorized trading programs in CAA section 110 SIPs for
decades. See Economic Incentive guidance.\183\
---------------------------------------------------------------------------
\181\ See CAA section 111(d)(2)(A) (referring to CAA section
110(c)), 111(d)(2)(B) (referring to enforcement of state
implementation plans (SIPs)).
\182\ Alaska Dep't of Envtl. Conservation v. EPA, 540 U.S. 461,
470 (2004) (citation omitted); see Union Elec. Co. v. EPA, 427 U.S.
246, 269 (1976) (``Congress plainly left with the States, so long as
the national standards were met, the power to determine which
sources would be burdened by regulation and to what extent.'');
Train v. Natural Res. Def. Council, Inc., 421 U.S. 60, 79 (1975)
(``[S]o long as the ultimate effect of a State's choice of emission
limitations is compliance with the national standards for ambient
air, the State is at liberty to adopt whatever mix of emission
limitations it deems best suited to its particular situation.'').
\183\ The ACE Rule stated that the reference in CAA section
111(d)(1) to CAA section 110 was limited to the procedure under
which states shall submit plans to the EPA, and asserted that it
does not imply anything about implementation mechanisms available
under CAA section 111(d). 84 FR 32557. The EPA believes that the
several references to CAA section 110 in CAA section 111(d)(1) and
(2), as noted in the accompanying text, support the view that
Congress intended that state plans under CAA section 111(d) would be
similar to state plans under CAA section 110, including retaining
the authority to grant sources compliance flexibility in appropriate
circumstances.
---------------------------------------------------------------------------
Such flexibility is consistent with the framework of cooperative
federalism that CAA section 111(d) establishes, which vests states with
substantial discretion in establishing control requirements for their
sources. As the U.S. Supreme Court has explained, CAA section 111(d)
``envisions extensive cooperation between Federal and state
authorities, generally permitting each State to take the first cut at
determining how best to achieve EPA emissions standards within its
domain.'' \184\
---------------------------------------------------------------------------
\184\ American Elec. Power Co. v. Connecticut, 564 U.S. 410, 428
(2011) (citations omitted).
---------------------------------------------------------------------------
This interpretation is also consistent with the EPA's consistent
views prior to the ACE Rule. The EPA authorized trading or averaging as
compliance methods in the 2005 Clean Air Mercury Rule for coal-fired
EGUs,\185\ and the 2015 Clean Power Plan (CPP).\186\
---------------------------------------------------------------------------
\185\ 70 FR 28606, 28617 (May 18, 2005), vacated on other
grounds, New Jersey v. EPA, 517 F.3d 574 (D.C. Cir. 2008), see 40
CFR 60.24(b)(1) (2005) (providing that a state's ``[e]mission
standards [may] be based on an allowance system), repealed in the
ACE Rule.
\186\ 80 FR 64662, 64840 (October 23, 2015), repealed by the ACE
Rule. 87 FR 79208.
---------------------------------------------------------------------------
It must be emphasized that the EPA retains an important role in
reviewing state plans for adequacy. Under CAA section 111(d)(2)(A), the
EPA must determine that the state plan is ``satisfactory'' and, if the
state plan is not satisfactory or if the state does not submit a state
plan, the EPA must promulgate a plan that establishes Federal standards
of performance for the State's existing sources. Thus, the flexibility
that CAA section 111(d)(1) grants to states in adopting measures for
their state plans is not unfettered. As the Supreme Court stated in
West Virginia, ``The Agency, not the States, decides the amount of
pollution reduction that must ultimately be achieved.'' \187\ The Court
further stated that state plans must contain ``emissions restrictions
that they intend to adopt and enforce in order not to exceed the
permissible level of pollution established by EPA.'' \188\ Thus, the
EPA retains the authority to ensure that the permissible level of
pollution is not exceeded by any state plan. If the EPA considers that
compliance flexibility measures would compromise the ability of the
state plan to achieve the environmental outcomes the best system could
achieve, the EPA may, in the emission guidelines, preclude such
measures or otherwise conclude that the state plan is not satisfactory.
---------------------------------------------------------------------------
\187\ 142 S. Ct. at 2602.
\188\ Id.
---------------------------------------------------------------------------
In West Virginia v. EPA, the Supreme Court did not directly address
the state's authority to determine their sources' control measures.
Although the Court did hold that constraints apply to the EPA's
authority in determining the BSER, the Court's discussion of CAA
section 111 is consistent with the EPA's interpretation that the
provision does not preclude states from granting sources compliance
flexibility.
At the outset of the decision, the Court made clear CAA section 111
[[Page 80535]]
provides different roles for the EPA and the States:
Although the States set the actual rules governing existing
power plants, EPA itself still retains the primary regulatory role
in Section 111(d). The Agency, not the States, decides the amount of
pollution reduction that must ultimately be achieved. It does so by
again determining, as when setting the new source rules, ``the
[BSER]. . . . The States then submit plans containing the emissions
restrictions that they intend to adopt and enforce in order not to
exceed the permissible level of pollution established by EPA.\189\
---------------------------------------------------------------------------
\189\ West Virginia v. EPA, 142 S.Ct. at 2601-02 (citations
omitted).
The Court was clear that the focus of the case was exclusively on
the EPA's role, that is, whether the EPA acted within the scope of its
authority in establishing the BSER.\190\ The Court applied the major
question doctrine to hold that the generation-shifting BSER that the
EPA promulgated in the CPP exceeded the constraints of the CAA section
111 BSER provisions, in light of ``separation of powers principles and
a practical understanding of legislative intent.'' \191\ The Court did
not identify any constraints on the states in establishing standards of
performance to their sources, and its holding and reasoning cannot be
extended to apply such constraints. In fact, the Supreme Court at least
implicitly recognized that CAA section 111(d) does not preclude states
from authorizing sources compliance flexibility when the Court observed
that a new or modified source ``may achieve [the EPA-determined]
emissions [standard] any way it chooses.'' \192\ There is no reason why
existing sources should have less flexibility.
---------------------------------------------------------------------------
\190\ Id. at 2600 (``The question before us is whether this
broad[ ] conception of EPA's authority [to determine the BSER] is
within the power granted to it by the Clean Air Act.'').
\191\ Id. at 2609.
\192\ Id. at 2601.
---------------------------------------------------------------------------
It should also be noted that the adverse commenters described above
are incorrect in their view that trading necessarily results in
generation shifting and that the logic of the West Virginia decision
precludes any such generation shifting. As just noted, the reasons why
the Court held that the CPP's generation-shifting BSER violated the
major question doctrine and thus was invalid have no application to
states in developing state plans. In addition, the Court was clear that
a BSER that has the incidental effect of resulting in generation
shifting would not, on those grounds, violate the major question
doctrine. The Court emphasized that ``there is an obvious difference
between (1) issuing a rule that may end up causing an incidental loss
of coal's market share, and (2) simply announcing what the market share
of coal, natural gas, wind, and solar must be, and then requiring
plants to reduce operations or subsidize their competitors to get
there.'' \193\ The second option is what the Court viewed the CPP's
generation-shifting BSER as attempting to do, which thereby triggers
the major question doctrine. But, as a coalition of companies that
operate electricity generation as well as transmission and distribution
systems commented, the Court ``evinced no general concern about option
1, which is an inevitable consequence of regulation within the power
sector, in which all sources of emissions are interconnected and
increase or decrease their generation based upon demand for electricity
and other sources' availability.'' \194\ If the Court in West Virginia
had little concern with the EPA determining a BSER that has the
incidental effect of shifting generation, there is no basis for reading
the case to preclude a state from adopting trading measures in its
state plan on grounds that those measures may have the incidental
effect of shifting generation. In any event, in many instances, trading
simply apportions the cost of controls between the sources engaged in
the transaction, and does not result in generation shifting. To
illustrate, assume that the EPA promulgates an emissions guideline that
determines as the BSER the installation by a source of control
equipment that captures 40 percent of its emissions of a pollutant.
Assume further that a state allows two of its designated facilities of
comparable size and emissions to engage in an emission trade, so that
one source installs control equipment that captures 80 percent of its
emissions, and the other one does not put on control equipment but
purchases allowances from the first one that fund half the costs of the
first one's control equipment. This type of emissions trade would not
necessarily give rise to generation shifting.
---------------------------------------------------------------------------
\193\ Id. at 2613 n.4.
\194\ Comment Letter from Energy Strategy Coalition on
``Adoption and Submittal of State Plans for Designated Facilities:
Implementing Regulations Under Clean Air Act Section 111(d), EPA-HQ-
OAR-2021-0527-0088 at 6.
---------------------------------------------------------------------------
For the reasons noted above, the EPA is rescinding the ACE Rule's
interpretation that state plans may not include trading or averaging or
other compliance flexibilities.
v. The EPA's finalized interpretation of BSER. The EPA is also
finalizing its proposal to rescind the ACE Rule's interpretation that
CAA section 111, by its plain meaning, limits the BSER to at-the-source
measures. The ACE Rule's interpretation is incorrect. In addition, as a
practical matter, it could call into question many of the EPA's
determinations in prior CAA section 111 rules that well-established
control measures, including clean fuels and add-on control technology,
qualified as the BSER. This is because many of these traditional
measures are not entirely at-the-source controls, but also include
outside-the-source components. West Virginia does not preclude the EPA
from rescinding the ACE Rule interpretation because although the
Supreme Court held that the CPP's generation-shifting BSER violated the
major question doctrine, Court declined to address the ACE Rule's
interpretation of CAA section 111.\195\
---------------------------------------------------------------------------
\195\ 142 S.Ct. at 2615-16.
---------------------------------------------------------------------------
To repeat for convenience the key requirements for determining the
BSER under CAA section 111: each state must establish ``standards of
performance for any existing source'' of certain types of air
pollutants, under CAA section 111(d)(1); a ``standard of performance''
is defined 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 . . . adequately
demonstrated, under CAA section 111(a)(1);'' and ``existing source'' is
defined as a ``stationary source,'' which, in turn, is defined, in
relevant part, as ``any building, structure, facility or
installation,'' under CAA section 111(a)(6) and (a)(3).
The ACE Rule interpreted CAA section 111 to limit, by its plain
language, the type of ``system'' that the EPA may select as the BSER to
control measures that can be applied at each source to reduce that
source's emissions.\196\ Specifically, the ACE Rule argued that the
requirements in CAA section 111(d)(1), (a)(3), and (a)(6) that each
state establish a standard of performance ``for'' ``any existing
source'' (in the singular), defined, in general, as any ``building . .
. [or] facility,'' and the requirements in CAA section 111(a)(1) that
the standard of performance reflect a degree of emission limitation
that is ``achievable'' through the ``application'' of the BSER, by
their terms, impose this limitation.\197\
---------------------------------------------------------------------------
\196\ 84 FR 32523-24.
\197\ Id. at 32556-57.
---------------------------------------------------------------------------
Upon reconsideration, the EPA concludes that, contrary to the ACE
Rule, CAA section 111(d) does not limit the EPA to at-the-source
measures in determining the BSER. The CAA section
[[Page 80536]]
111 requirement that each state establish a standard of performance
``for'' any existing ``building . . . [or] facility,''' means simply
that the state must establish standards applicable to each regulated
stationary source; and the requirement that the standard reflect a
degree of emission limitation ``achievable'' through the
``application'' of the BSER means that the source must be able to apply
the system to meet the standard. None of these requirements by their
plain language mandate that the BSER is limited to some measure that
each source can apply to its own facility to reduce its own emissions
in a specified amount. That the standards must be ``for'' a source does
not mean that the control measures that form the basis for the standard
are limited to measures that apply at the source or that all emission
reductions from the control measures must occur at the source.
The ACE Rule also argued that as a matter of grammar, the term
``application,'' which is derived from the verb, ``to apply,'' requires
an indirect object, and, further, that the phrase ``application of the
best system of emission reduction'' has, as the unstated indirect
object, an existing source. From this premise, the ACE Rule concluded
that the phrase must be read to refer to the application of the best
system of emission reduction at or to the existing source itself.\198\
But this premise is incorrect. As the D.C. Circuit explained in
American Lung Ass'n, ``application'' is a noun, and ``the phrase
`application of the best system of emission reduction' is what is
called a nominalization, a `result of forming a noun or noun phrase
from a clause or a verb.' '' \199\ The court further explained that
``[g]rammar assigns direct or indirect objects only to verbs--not
nouns. No objects are needed to grammatically complete the actual
statutory phrase.'' \200\ In any event, the fact that any such indirect
object is unstated itself contradicts the ACE Rule's conclusion that
CAA section 111 by its plain language mandates that the BSER must be
limited to at-the-source measures.\201\
---------------------------------------------------------------------------
\198\ Id. at 32524.
\199\ 985 F.3d at 948 (citations omitted).
\200\ Id.
\201\ The ACE Rule stated that the CAA provisions concerning the
``best available control technology'' (BACT) provide a CAA
structural argument that supports its interpretation that CAA
section 111 limits BSER to at-the-source measures. CAA section
165(a)(4) provides that construction and modification of major
stationary sources of a pollutant are subject to BACT, as defined
under CAA section 169(3), for each pollutant subject to regulation
under the CAA. The definition of BACT provides, ``In no event shall
application of [BACT] result in emissions of any pollutants which
will exceed the emissions allowed by any applicable standard
established pursuant to [CAA] section [111] or [112].'' The ACE Rule
pointed to the EPA's reading of this sentence to mean that section
111 standards of performance ``operate as a floor to BACT.'' The ACE
Rule asserted that, under the definition of BACT, control measures
are limited to at-the-source measures. The ACE Rule reasoned that
section 111 standards of performance must, by operation of the
structure of the CAA, also be interpreted to be limited to at-the-
source measures. 84 FR 32525. Upon further review, the EPA rejects
this argument. The EPA considers whether CAA section 169(3) should
be interpreted to limit BACT to at-the-source measures to be an open
question, and is not addressing it at this time. Even if BACT were
so limited, the ACE Rule did not demonstrate that any BACT
requirement that a particular source would be subject to would be
incompatible with any standard of performance that source would also
be subject to. Section 169(3) by its plain language provides that
the application of BACT may not result in exceedances of any
applicable standard of performance.
The ACE Rule also focused on statements in the CPP that it
asserted conflated the terms ``application'' and implementation, as
well as ``source'' and owner/operator; and that defined ``system''
broadly. The rule asserted that the CPP strained the interpretation
of CAA section 111 in those ways to justify determining generation-
shifting as the BSER. 84 FR 32526-29. Regardless of whether those
arguments have merit with respect to the generation-shifting, they
are not relevant to the position that the EPA is taking in the
present action that the ACE Rule erred in interpreting CAA section
111 by its terms to limit the BSER to at-the-source measures. It
should also be noted that the CPP's recognition that as a practical
matter, it is the owner/operator who takes actions to apply control
measures and assure that the source's emissions meet the standard is
a matter of common sense and applies as well to all control
measures, whether at the source or outside the source. The ACE Rule
itself referred to the ``owner or operator'' as the entity that
``must be able to achieve an applicable standard by applying the
BSER . . . .'' 84 FR 32524.
---------------------------------------------------------------------------
It should also be noted that CAA section 111(a)(1) provides that
when the EPA determines the BSER, it must ``tak[e] into account''
``cost'' and ``any nonair quality health and environmental impact and
energy requirements.'' As the ACE Rule itself recognized, the EPA may
consider the application of these requirements on a ``sector-wide,
region-wide or nationwide basis.'' \202\ As discussed below, the
reference to ``nonair quality health and environmental impact'' may
encompass to offsite impacts of control measures. Thus, these
provisions contradict the ACE Rule's argument that CAA section
111(d)(1) and (a), by its plain language, limits the BSER to at-the-
source measures. By the same token, the term ``achievable'' refers to
the ``degree of emission limitation'' that must be ``reflect[ed]'' in
the standards of performance ``through the application of the [BSER].''
This term does not, by its plain language, limit the BSER to at-the-
source measures.
---------------------------------------------------------------------------
\202\ 84 FR 32534 n.152 (referring to application of ``energy
requirements'').
---------------------------------------------------------------------------
Importantly, it should be emphasized that the ACE Rule's
interpretation that the provisions of CAA section 111(d)(1) and (a) by
their plain language require that the EPA identify as the BSER control
measures that apply at-the-source would also impose the same limit on
the state, that is, limit the state to authorizing its sources to
comply with their standards only through at-the-source measures. As a
result, this interpretation would preclude the state from allowing its
sources compliance flexibilities such as trading or averaging. In fact,
the ACE Rule argued that states were limited in that manner. For the
reasons noted above, limiting the states in that manner is contrary to
the provisions of CAA section 111(d) and the framework of cooperative
federalism that CAA section 111(d) establishes.
The ACE Rule also argued that the legislative history of the 1970
CAA Amendments confirms the rule's at-the-source interpretation for
BSER.\203\ The rule read the legislative history to indicate that the
House and Senate bills that led to the adoption of CAA section 111
``contemplated only control measures that would lead to better design,
construction, operation, and maintenance of an individual source. . .
.'' \204\ The EPA disagrees with this interpretation of the legislative
history. The ACE Rule itself acknowledged that the 1970 CAA Amendments
legislative history also included broader language in describing the
types of measures that were to provide the basis for the standards of
performance.\205\ In addition, the ACE Rule went on to narrow its
argument about legislative history to saying that the 1990 CAA
Amendments made clear only that generation-shifting was precluded.\206\
Id. at 32526 n.62. Thus, the EPA finds that the legislative history
cannot be read to confirm the interpretation that section 111(d) and
(a)(1), by their plain language, limit the BSER to at-the-source
measures.
---------------------------------------------------------------------------
\203\ 84 FR 32525-26.
\204\ Id. at 32526.
\205\ Id. at 32526 n.61. The ACE Rule argued that the canon of
ejusdem generis required that those broader terms be interpreted to
denote at-the-source measures but ejusdem generis is an aid in
statutory construction and should not be used to narrow the meaning
of a statute beyond its intention. Karl N. Llwellyn, Remarks on the
Theory of Appellate Decision and the Rules or Canons about how
Statutes are to be Construed, 3 Vanderbilt L. Rev. 395, 405 & n.46
(1950).
\206\ Id. at 32526 n.61.
---------------------------------------------------------------------------
There is another reason why the ACE Rule's interpretation is
incorrect: it appears to be inconsistent with many EPA determinations
in previous CAA section 111 rulemakings that certain control measures
qualified as the BSER. This is because although those measures apply at
the source and reduce
[[Page 80537]]
emissions at the source, they also have components that are outside the
source. In West Virginia, the Supreme Court recognized that the EPA
had, in prior rules, identified as the BSER these ```more traditional
air pollution control measures.' ''\207\ The Court made this point as
part of its reasoning that the CPP's generation-shifting BSER--which
the Court stated differed from these traditional measures--raised a
major question. The Court quoted the CPP as describing these
traditional measures as ```efficiency improvements, fuel-switching,''
and `add-on controls.' '' \208\ The Court noted that these types of
controls have several characteristics: they ``reduce pollution by
causing the regulated source to operate more cleanly.'' \209\ They ``
`allow[ ] regulated entities to produce as much of a particular good as
they desire provided that they do so through an appropriately clean (or
low-emitting) process.' '' '\210\ They are ``technology-based . . .
[and] focuse[d] on improving the emissions performance of individual
sources.'' \211\
---------------------------------------------------------------------------
\207\ 142 S.Ct.at 2611 (citing 80 FR 64662, 64784 (Oct. 23,
2015)).
\208\ Id. (citing 80 FR 64784).
\209\ 142 S.Ct. at 2610.
\210\ Id. (quoting 80 FR 64738).
\211\ Id. at 2611.
---------------------------------------------------------------------------
However, many of these traditional controls also have components
that are outside the source. One example includes what the Court,
quoting the CPP, identified as ``fuel-switching.'' \212\ Fuel-switching
entails the use of lower-emitting fuels. These include fuels that have
been cleaned, or processed, to reduce their level of pollutants,\213\
such as coal or oil that has been desulfurized. Desulfurization reduces
the amount of sulfur in the fuel, which means that the fuel can be
combusted with fewer SO2 emissions. Importantly, the process
of desulfurization typically occurs off-site and is undertaken by third
parties. Congress itself recognized this in the 1977 CAA Amendments.
Specifically, Congress revised CAA section 111(a)(1) to identify the
basis for standards of performance for new fossil fuel-fired stationary
sources as a ``technological system of continuous emission reduction,''
including ``precombustion cleaning or treatment of fuels.'' \214\ The
1977 House Committee report stated that fuel cleaning includes ``oil
desulfurization at the refinery.'' \215\ The report added that fuel
cleaning includes ``various coal-cleaning technologies,'' which
generally are also conducted off-site by third parties.\216\ As noted
above, in the 1990 CAA Amendments, Congress eliminated many of the
restrictions and other provisions added in the 1977 CAA Amendments by
largely reinstating the 1970 CAA Amendments' definition of ``standard
of performance.'' Nevertheless, there is no indication that in doing
so, Congress intended to preclude the EPA from considering fuel
cleaning off-site by third parties. In fact, the EPA's regulations
promulgated after the 1990 CAA Amendments continue to impose standards
of performance that are based on coal cleaning off-site by third
parties.\217\
---------------------------------------------------------------------------
\212\ Id.
\213\ EPA considered fuel cleaning to be within the scope of the
best system of emission reduction beginning immediately after the
adoption of the 1970 CAA Amendments. See U.S. EPA, Background
Information for Proposed New-Source Performance Standards: Steam
Generators, Incinerators, Portland Cement Plants, Nitric Acid
Plants, Sulfuric Acid Plants, Office of Air Programs Tech. Rep. No.
APTD-0711, p. 7 (Aug. 1971) (indicating the ``desirability of
setting sulfur dioxide standards that would allow the use of low-
sulfur fuels as well as fuel cleaning, stack-gas cleaning, and
equipment modifications'' (emphasis added)).
\214\ 1977 CAA Amendments, section 109, 91 Stat. 700; see also
CAA section 111(a)(7).
\215\ H.R. Rep. No. 95-294 (May 12, 1977), 1977 CAA Legis. Hist.
at 2655 (emphasis added).
\216\ Id. EPA recognized in a regulatory analysis of new source
performance standards for industrial-commercial-institutional steam
generating units that the technology ``requires too much space and
is too expensive to be employed at individual industrial-commercial-
institutional steam generating units.'' U.S. EPA, Summary of
Regulatory Analysis for New Source Performance Standards:
Industrial-Commercial-lnstitutional Steam Generating Units of
Greater than 100 Million Btu/hrHeat Input, EPA-450/3-86-005, p. 4-4
(June 1986).
\217\ 40 CFR 60.49b(n)(4); see also Amendments to New Source
Performance Standards (NSPS) for Electric Utility Steam Generating
Units and Industrial-Commercial-Institutional Steam Generating
Units; Final Rule, 72 FR 32742 (June 13, 2007).
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A second example includes what the Court, again quoting the CPP,
identified as ``add-on controls.'' \218\ These controls include air
pollution control devices that are installed at the unit. They
routinely operate by removing air pollutants from a unit's emission
stream and capturing them as a liquid or solid. For example, a baghouse
is an add-on control device that captures particulate matter by
trapping particles as a dust, which must then be disposed of.\219\
Another add-on control device, flue-gas desulfurization, ``scrubs''
acid gases like sulfur dioxide from emissions using a chemical sorbent
that reacts with the pollutant to generate a liquid slurry (wet
scrubbing) or solid residue (dry scrubbing). These captured pollutants
must then be disposed as solid wastes, discharged as wastewater, or
otherwise managed or reused.\220\ The same is true for carbon capture
and sequestration (CCS): the carbon capture control device scrubs
CO2 from the flue gas stream using a solvent; and the
CO2 must then be stored underground.\221\ Downstream
management of captured pollutants is thus a commonplace feature of CAA
section 111 standards.\222\ Downstream management of captured
pollutants is thus a commonplace feature of CAA section 111
standards.\223\
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\218\ 142 S.Ct. at 2611.
\219\ See Sierra Club v. Costle, 657 F.2d 298, 375 (D.C. Cir.
1981).
\220\ See id. at 323-24 n.69; see also 80 FR 21303, 21340 (April
17, 2015) (governing off-site disposal of solid wastes captured by
air pollution controls at steam units).
\221\ 80 FR 64549, 64555 (describing CCS and comparing CCS
pollutant disposition to particulate or wet scrubber pollutant
disposition).
\222\ See, e.g., 80 FR 64582-90 (requiring that an EGU that
captures CO2 assure that it is transferred to an entity
that will dispose of it appropriately; generally describing
oversight of CO2 storage; detailing Department of
Transportation pipeline regulations; detailing requirements for
monitoring, reporting, and verification plans; detailing injection
well requirements under the Safe Drinking Water Act; and detailing
how existing regulations prevent, monitor, and address potential
leakage); 75 FR 54970, 55022-23 (Sept. 9, 2010) (disposal of
wastewater and solid waste from CAA section 111 standard for
Portland cement plants); 54 FR 34008, 34015 (Aug. 17, 1989) (waste
disposal impacts of standard of performance for sulfur oxide
emissions for fluid catalytic cracking unit regenerators).
\223\ See 80 FR 64549, 64555 (describing CCS and comparing CCS
pollutant disposition to particulate or wet scrubber pollutant
disposition).
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Indeed, CAA section 111(a)(1) by its terms recognizes that
``system[s] of emission reduction'' may entail off-site disposition of
pollutants. The provision states that the EPA must consider ``nonair
quality health and environmental impact'' when determining the BSER.
Congress adopted this phrase in the 1977 CAA Amendments.\224\ As the
legislative history stated, Congress added this phrase so that
``environmental impacts would be required to be considered in
determining best technology which has been adequately demonstrated.''
\225\ In making this addition, Congress codified the D.C. Circuit's
holding in Essex Chem. Corp. v. Ruckelshaus, 486 F.2d 427, 438-39 (D.C.
Cir. 1973), cert. denied, 416 U.S. 969 (1974).\226\ In Essex Chem.
Corp., the D.C. Circuit required that EPA ``take into account counter-
productive environmental effects'' when determining whether a control
measure qualifies as the BSER, including ``disposal problems'' related
to the control measure's captured pollutants. The Court remanded the
NSPS at issue because there was no evidence that the EPA had considered
``the significant land or water pollution potential
[[Page 80538]]
resulting from disposal of the [scrubber system's] liquid purge
byproduct.'' \227\ That the ACE Rule's interpretation that CAA section
111 limits the BSER to at-the-source measures may be inconsistent with
the EPA's prior determinations that traditional control measures like
clean fuels and add-on controls qualified as the BSER provides another
reason to reject that interpretation.
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\224\ Pub. L. 95-95, section 109(c)(1)(A) (Aug. 7, 1977), 91
Stat. 699-700.
\225\ H.R. Rep. No. 95-294 at 190 (May 12, 1977).
\226\ Id.
\227\ Id. See Portland Cement Ass'n v. Ruckelshaus, 486 F.2d
375, 385 n.42 (D.C. Cir. 1973) (``The standard of the ``best
system'' is comprehensive, and we cannot imagine that Congress
intended that `best' could apply to a system which did more damage
to water than it prevented to air.'').
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It should be noted that many of the reasons noted above are
comparable to the reasoning by the D.C. Circuit to support its decision
in ALA that the ACE Rule was incorrect in interpreting CAA section 111
to restrict the BSER to at-the-source measures.\228\ The EPA agrees
with the D.C. Circuit's reasoning.
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\228\ 985 F.3d 914, 955-41 (D.C. Cir. 2021).
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In West Virginia, the Supreme Court held that the CPP's generation-
shifting BSER violated the major question doctrine, and the Court
vacated ALA on the basis of that holding.\229\ However, the Court
declined to address the ACE Rule's interpretation of CAA section
111.\230\ Thus, its opinion does not cast doubt on the EPA's reasons
for rejecting the ACE Rule's interpretation, as noted above and in ALA.
Several commenters argued that West Virginia indicates that control
measures that the commenters considered comparable to the generation-
shifting BSER of the CPP, including trading programs and other measures
that controlled designated facilities in the aggregate, were also
precluded from inclusion as the BSER under the major question
doctrine.\231\ Other commenters disagreed, arguing that West Virginia
identifies distinctions among those programs, so that the major
question doctrine would not necessarily apply.\232\ However, as noted
in the proposal, in this action, the EPA is not addressing what types
of controls, in addition to the generation-shifting BSER of the CPP,
would be precluded under CAA section 111 by the major question
doctrine. Instead, the EPA will evaluate particular controls against
the doctrine, as appropriate, when the EPA considers those controls in
future rulemakings under CAA section 111.
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\229\ 142 S.Ct. at 2610, 2614, 2615-16.
\230\ Id. at 2615-16.
\231\ API Comment Letter on ``Adoption and Submittal of State
Plans for Designated Facilities; Implementing Regulations Under
Clean Air Act Section 111(d)'' (``Subpart Ba''), EPA-HQ-OAR-2021-
0527-0074 at 8; Lignite Energy Council Comment Letter on Subpart Ba,
EPA-HQ-OAR-2021-0527-0100 at 8-9.
\232\ Energy Strategy Coalition Comment Letter on Subpart Ba,
EPA-HQ-OAR-2021-0527-0088 at 6 (noting that West Virginia
distinguished the trading program in the Clean Air Mercury Rule,
which was based on technological controls, from the trading program
in the CPP).
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2. Minor Amendments or Clarifications
The EPA proposed to amend the regulatory text in subpart Ba to
address several editorial and other minor clarifications and is
finalizing the amendments as described below. Except as noted
specifically below, commenters supported these revisions to the
regulatory text.
a. The EPA is finalizing amendments to the applicability provision
for subpart Ba under 40 CFR 60.20a, with slight revision from as
proposed. As discussed in section II.B. of this preamble, the revised
applicability provision clarifies that the provisions of subpart Ba are
applicable to an EG published after July 8, 2019. The EPA is finalizing
the proposed removal of text that included ``if implementation of such
final guideline is ongoing'' because there are no EGs the
implementation of which is ongoing; \233\ thus, leaving this language
in the regulation would be needlessly confusing. Emission guidelines
issued on and prior to July 8, 2019, and pursuant to CAA section 129
are subject to the provisions of subpart B. Also, in response to
comment that the term ``final emission guideline'' is unclear, the EPA
is adding the term ``in the Federal Register'' to 40 CFR 60.20a(a) to
clarify the publication in the Federal Register determines the
applicability date. Further clarification of the term ``final emission
guideline'' is available in 40 CFR 60.22a(a). A commenter also noted
that the proposed rule text deleted all references to ``subpart C of
this part'' and removing this language means that it would apply to all
EGs in 40 CFR part 60 (that are published after July 8, 2019),
including those for incinerators addressed by CAA section 129. This was
not the EPA's intent. Therefore, as noted in section III.G.2.b. of this
preamble, the EPA is amending the definition of EG within subpart Ba to
clarify that subpart Ba does not apply to EGs promulgated under CAA
section 129.
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\233\ The Municipal Solid Waste Landfills EG, which is currently
being implemented, has its own applicability provisions and is
subject to subpart B.
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b. The EPA is finalizing revisions to 40 CFR 60.21a(e), 60.22a(c),
and 60.24a(c) and (f)(1) and (2), largely as proposed, at 40 CFR
60.21a(e), 60.22a(c), and 60.24a(c) and (i)(1) and (2) respectively
(differences in numbering are due to provisions changing location in
the final regulations relative to proposal). These revisions delete
``subpart C'' from these provisions because EGs can be codified in
other subparts of this part and not only in subpart C of this part. In
response to a comment requesting clarification, 40 CFR 60.21a(e) is
also amended clarify that the definition of emission guidelines for
purposes of subpart Ba excludes guidelines promulgated pursuant to CAA
section 129. As discussed above, EGs under CAA section 129 are subject
to the provisions of subpart B.
c. The EPA is finalizing as proposed an editorial amendment to 40
CFR part 60, subpart A, at Sec. 60.1(a) to add a reference to subpart
Ba. The applicability provision in 40 CFR 60.1(a) states that
``[e]xcept as provided in subparts B and C, the provisions of this part
apply to the owner or operator of any stationary source which contains
an affected facility, the construction or modification of which is
commenced after the date of publication in this part of any standard
(or, if earlier, the date of publication of any proposed standard)
applicable to that facility.'' We are amending this provision to
include reference to subpart Ba in addition to subparts B and C.
d. A minor editorial correction at 40 CFR 60.22a(b)(3) amends the
term ``nonair quality health environmental effects'' to ``nonair
quality health and environmental effects''.
3. Submission of Emissions Data and Related Information
The EPA is finalizing as proposed amendments to 40 CFR 60.25a(a)
that delete reference to 40 CFR part 60, appendix D, because the system
specified for information submittal by the appendix is no longer in use
and clarify that the applicable EG will specify the system for
submission of the inventory of designated facilities, including
emission data for the designated pollutants and any additional required
information related to emissions. The EPA also proposed to delete the
term ``related to emissions'' in 40 CFR 60.25a(a). A commenter noted as
proposed this deletion caused the provision to be too vague. The EPA
agrees that the term ``related to emissions'' should be retained to
maintain the original and proper context of this provision. The term is
retained by this final action.
4. State Permit and Enforcement Authority
Questions have previously arisen as to whether states may establish
standards of performance and other plan requirements as part of state
permits
[[Page 80539]]
and administrative orders. The EPA is confirming with this final action
that subpart Ba allows for standards of performance and other state
plan requirements to be established as part of state permits and
administrative orders, which then must be incorporated into the state
plan. See 40 CFR 60.27a(g)(2)(ii).
However, the EPA notes that the permit or administrative order
alone may not be sufficient to meet the requirements of an EG or the
implementing regulations, including the completeness criteria under 40
CFR 60.27a(g). For instance, a plan submittal must include supporting
material demonstrating the state's legal authority to implement and
enforce each component of its plan, including the standards of
performance, 40 CFR 60.27a(g)(2)(iii), as well as a demonstration that
each emission standard is quantifiable, non-duplicative, permanent,
verifiable, and enforceable. Id. at Sec. 60.27a(a)(2)(vi). In
addition, the specific EGs may also require demonstrations that may not
be satisfied by terms of a permit or administrative order. To the
extent that these and other requirements are not met by the terms of
the incorporated permits and administrative orders, states will need to
include materials in a state plan submission demonstrating how the plan
meets those requirements. If a state does choose to use permits or
administrative orders to establish standards of performance, it needs
to demonstrate that it has the legal authority to do so. These
implementing regulations do not themselves provide any independent or
additional authority to issue permits and administrative orders under
states' EPA approved title I and title V permitting programs.
IV. Summary of Cost, Environmental, and Economic Impacts
In amending general implementing regulations, this final action
does not independently impose any requirements and therefore does not
directly incur any costs or benefits. However, the amendments finalized
in this action can impact the costs and benefits of future EGs subject
to subpart Ba. The potential impacts of these amendments as reflected
in an EG will vary greatly depending on the source category, number and
location of designated facilities, and the designated pollutant and
potential controls addressed by the EG. Of note, the EPA may propose to
supersede these general provisions in an EG as needed and with
appropriate justification. Individual EGs are subject to notice and
comment rulemaking, providing the opportunity for stakeholders,
including the public, to consider the impacts of implementing or
superseding these general implementing regulations in the course of
those rulemaking actions.
As described in detail in section III.A. of this preamble, the EPA
is finalizing amendments to subpart Ba to replace timelines vacated by
the D.C. Circuit in ALA \234\ and to improve and update other
provisions within subpart Ba. This section considers general impacts
that could result from the amendments finalized in this action as
adopted by an EG.
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\234\ Am. Lung Ass'n v. EPA, 985 F.3d 914, 991 (D.C. Cir. 2021).
---------------------------------------------------------------------------
As discussed in section III.A. of this preamble, the EPA does not
interpret the D.C. Circuit's direction to require the Agency to
quantitatively evaluate the impacts of potential subpart Ba framework
timelines, but rather to consider the balance between the public health
and welfare benefits resulting from appropriate and reasonable
deadlines for the implementation of EGs and the time needed for the
technical, administrative, and legislative actions needed to develop
and adopt approvable state or Federal plans. The EPA expects that the
amendments to subpart Ba finalized in this action will improve the
implementation of EGs under CAA section 111(d). In particular, the EPA
expects that the timelines finalized both appropriately accommodate
state and EPA processes to develop and evaluate plans to effectuate an
EG and are consistent with the objective of CAA section 111(d) to
ensure that designated facilities expeditiously control emissions of
pollutants that the EPA has determined may be reasonably anticipated to
endanger public health or welfare.
While the EPA initially proposed a 15-month deadline for state plan
submissions following the promulgation of an EG (87 FR 79176, Dec. 23,
2022), most commenters, including states and state organizations,
indicated that 15 months could not accommodate the technical,
administrative, and legal steps necessary to develop and adopt an
approvable state plan. Based on the comments and additional information
received, the EPA is finalizing 18 months for state plan submissions
after promulgation of a final EG, and finds that the additional time,
compared with the 9 months provided in subpart B, will better
accommodate states' processes to develop and adopt approvable plans and
will most efficiently effectuate the applicable EG. Under an 18-month
state plan submission timeframe, the costs of developing a state plan
under an applicable EG subject to subpart Ba, compared with the 9
months provided by subpart B, may be spread over 9 additional months.
With this state plan submittal timeline, the EPA is providing states
sufficient time to develop approvable implementation plans for their
designated facilities that adequately address public health and
environmental objectives. A timeline that is insufficient for states to
conduct, inter alia, the appropriate technical analysis and public
engagement may preclude them from timely adopting and submitting
approvable state plans, which could ultimately delay the implementation
of emission reductions. In addition, a successful submittal of
approvable state plans will avoid an attendant expenditure of Federal
resources associated with the development of a Federal plan.
After receiving a state plan, the EPA first must determine if the
plan is complete. The EPA is finalizing amendments to its determination
of completeness so the timeframe for such determination is streamlined
from six months to 60 days from receipt of the state plan submission
(see section III.A.2. of this preamble). If the EPA determines a state
plan submission is complete, it then evaluates the plan to determine
whether it satisfies the applicable requirements. The Agency proposes
an action (e.g., plan approval or plan disapproval) and then finalizes
its action pursuant to a notice-and-comment rulemaking process. As
described in detail in sections III.A.3. and III.A.4. of this preamble,
the EPA is finalizing a 12-month period for the EPA to take final
action on a state plan after a submission is found to be complete. The
EPA is also finalizing a 12-month timeline for the EPA to promulgate a
Federal plan, which runs from either the state plan deadline if a state
has failed to submit a state plan, 60 days following the state plan
deadline if a state has submitted a plan by the deadline and the EPA
determines it is incomplete, or from the date the EPA finalizes
disapproval of a state plan submission. As described in detail in
section III. of this preamble, because these timeframes provide for the
minimum time reasonably necessary for the EPA to accomplish propose and
finalize a Federal plan, the EPA expects these timeframes will minimize
the impacts on public health and welfare to the extent possible while
ensuring that an EG is expeditiously implemented.
As described in detail in section III.A.5. of this preamble, the
EPA is finalizing a requirement that state plans include IoPs if the
plan requires final
[[Page 80540]]
compliance with standards of performance later than 20 months after the
plan submission deadline. The compliance schedule, as defined in
subpart Ba (40 CFR 60.21a(g)) is a legally enforceable schedule
specifying a date or dates by which a source or category of sources
must comply with specific standards of performance contained in a plan.
If final compliance for a source to meet their standards of performance
is more than 20 months after the state plan submittal deadline, the
plan must include IoPs, which are defined steps to achieve compliance
(e.g., submittal of a control plan, awarding of contracts for emission
control systems or process modification, etc.). This 20 month timeline
is the trigger for when IoPs must be included in a state plan. An EG
will specify what the IoPs are and associated compliance schedules. The
EPA considers this slightly longer timeline than is required under
subpart B reasonable given that the EPA is also, in this action,
extending the timelines for state plan submission under subpart Ba. The
EPA notes that IoPs do not, on their own, govern how expeditiously
emission reductions are achieved: this is dictated by the final
compliance date, which is established in an individual EG.
Additionally, any specific requirements associated with IoPs, including
extended or truncated timelines, would be included in the EG, as these
are dependent on the source type, pollutant, and control strategy
addressed.
The EPA is also finalizing amending subpart Ba to enhance
requirements for reasonable notice and opportunity for public
participation. In particular, the EPA is requiring that states, as part
of the state plan development or revision process, provide
documentation that they have conducted meaningful engagement with a
broad range of pertinent stakeholders and/or their representatives.
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).
Overall, the EPA expects the amendments being finalized in this
action will benefit the states in the development of approvable state
plans. The EPA expects that the amendments associated with meaningful
engagement with pertinent stakeholders will potentially increase the
amount of information the states can use in designing state plans,
which may increase both the level of resources states will need to
employ in the development of an approvable plan, as well as the
resulting health and welfare benefits of the plan. In addition to
health and welfare benefits, there are also administrative benefits of
engaging with stakeholders and receiving pertinent information as a
state plan is being developed. Such engagement may improve the record
for the state's plan and reduce the amount of comments received when
the state plan is proposed to the public, which would reduce the amount
of effort employed after proposal to address issues raised by the
public and stakeholders.
There is variation and uncertainty in determining the magnitude of
impacts, both to states and the public, resulting from amendments
associated with meaningful engagement. First, the EPA notes that the
meaningful engagement provisions being finalized in this action are
largely procedural in nature and do not prescribe any particular set of
actions or activities that states must undertake. The potential costs
and benefits will therefore be determined in significant part by
choices that are within states' discretion. Second, the impacts of
conducting 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 pursuant to the
meaningful engagement provisions 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. It
might also be expected that less input and fewer comments might, in
certain cases, have an adverse impact on the ability of a state plan to
fulfill its health and welfare objectives.
To the extent that states already conduct significant engagement
with pertinent stakeholders, the meaningful engagement amendments will
most likely not result in additional costs. Conversely, states that do
not have engagement procedures already in place may be required to
increase their level of effort to engage with pertinent stakeholders.
The burden and benefits of meaningful engagement for the pertinent
stakeholders will also be highly dependent on the EG and associated
variables such as, but not limited to, the geographical distribution of
the facilities and communities impacted, available modes of
participation for those areas, the pollutants addressed, and the range
of options available to the state and facilities for meeting the EG
standards. The burden and benefits to pertinent stakeholders may be
difficult to quantify, but overall their engagement will be voluntary
and is anticipated to result in feedback that may improve the resulting
health and welfare benefits of the state plan as perceived and
experienced, particularly by those in communities most affected by and
vulnerable to the impacts of the plan.
The EPA is also finalizing revisions to the RULOF provisions in
subpart Ba. The amendments included in this final action are intended
to provide clarity for states to ensure that less-stringent standards
of performance for particular designated facilities are consistent with
the statutory requirements, as well as a consistent framework for EPA
to evaluate such standards across EGs and states (see section III.E. of
this preamble).
The magnitude of impacts, both to states and the public, resulting
from the final RULOF amendments will vary depending on the particular
EG to which the final provisions would apply. As explained in section
III.E.2. of this preamble, the EPA believes Congress intended RULOF as
a mechanism for states to apply a less-stringent standard of
performance in the unusual circumstances in which the degree of
emission limitation determined by the EPA is not reasonable for a
particular designated facility. Additionally, states are not required
to invoke the RULOF provision in any particular instance and may choose
not to do so, even if a particular designated facility's circumstances
meet the threshold specified in the regulations. If a state does not
invoke RULOF in their state plan, then the amendments will not result
in any additional costs. If a state does invoke RULOF in their state
plan, then the amendments could, in certain circumstances, result in an
increased level of effort to develop standards of performance for
certain sources. As such, the RULOF amendments could potentially
increase the level of resources states will need to employ in the
development of an approvable plan. However, because the amendments
clarify is required in order for a less-stringent standard pursuant to
RULOF to satisfy the statutory requirements, the amendments reduce the
uncertainty of states and designated facilities in the development of
such standards. This in turn could result in a decrease in the amount
of time that a state that wished to invoke RULOF would need, relative
to a situation where the requirements were less defined, by avoiding
significant back and forth with the EPA and the sources in the state
during state plan development. Overall, the EPA expects the RULOF
amendments will benefit the states in the development of
[[Page 80541]]
approvable state plans and therefore result in benefits to public
health and welfare.
Finally, the EPA expects that the requirements for electronic
submittal and that the availability of the optional regulatory
mechanisms being finalized in this action will improve flexibility and
efficiency in the call for and submission, review, approval, and
implementation of state plans, and thus will overall result in benefits
to the states, the EPA, designated facilities, and public health and
welfare. In addition, the EPA expects the requirements for electronic
submittal will increase the ease and efficiency of data submittal and
data accessibility and benefit the states and the EPA. Electronic
submittal will also improve the Agency's efficiency and effectiveness
in the receipt and review of state plans.
The EPA expects that the overall impacts of the implementation of
the amendments to subpart Ba finalized in this action will improve the
implementation of EGs under CAA section 111(d).
V. Statutory and Executive Order Reviews
Additional information about these Statutory and Executive orders
can be found at https://www.epa.gov/laws-regulations/laws-and-executive-orders.
A. Executive Order 12866: Regulatory Planning and Review; Executive
Order 13563: Improving Regulation and Regulatory Review; and Executive
Order 14094: Modernizing Regulatory Review
This action is a ``significant regulatory action'' as defined in
Executive Order 12866, as amended by Executive Order 14094.
Accordingly, the EPA submitted this action to the Office of Management
and Budget (OMB) for Executive Order 12866 review. Documentation of any
changes made in response to the Executive Order 12866 review is
available in the docket.
B. Paperwork Reduction Act (PRA)
This action does not impose an information collection burden under
the Paperwork Reduction Act. The requirements in subpart Ba do not
themselves require any reporting and recordkeeping activities, and no
Information Collection Request (ICR) was submitted in connection with
the original promulgation of subpart Ba or the amendments we are
finalizing at this time. Any recordkeeping and reporting requirements
are imposed only through the incorporation of specific elements of
subpart Ba in the individual emission guidelines, which have their own
ICRs.
C. Regulatory Flexibility Act (RFA)
I certify that this action will not have a significant economic
impact on a substantial number of small entities. This final rule will
not impose any requirements on small entities. Specifically, this
action addresses processes related to state plans for implementation of
EGs established under CAA section 111(d).
D. Unfunded Mandates Reform Act (UMRA)
This action does not contain an unfunded mandate of $100 million or
more as described in UMRA, 2 U.S.C. 1531-1538, and does not
significantly or uniquely affect small governments. This final action
does not contain a Federal mandate that may result in expenditures of
$100 million or more for state, local, and Tribal governments, in the
aggregate or the private sector in any 1 year.
This final action is also not subject to the requirements of
section 203 of UMRA because, as described in 2 U.S.C. 1531-38, it
contains no regulatory requirements that might significantly or
uniquely affect small governments. This action imposes no enforceable
duty on any local, or Tribal governments or the private sector.
However, this action imposes enforceable duties on states. This action
does not meaningfully require additional mandates on states beyond what
is already required of them and will not impose a burden in excess of
$100 million.
E. Executive Order 13132: Federalism
This action does not have federalism implications. It will not have
substantial direct effects on the states, on the relationship between
the National Government and the states, or on the distribution of power
and responsibilities among the various levels of government. The EPA
believes, however, that this action may be of significant interest to
state governments.
Subpart Ba requirements apply to states in the development and
submittal of state plans pursuant to emission guidelines promulgated
under CAA section 111(d) after July 8, 2019, to the extent that an EG
does not supersede the requirements of subpart Ba. This action
finalizes amendments to certain requirements for development,
submission, and approval processes of state plans under CAA section
111(d). In particular, the amendments associated with state plan
submission deadlines, RULOF provisions, meaningful engagement, and
regulatory mechanisms may be of significant interest to state
governments. In section IV of this preamble, the EPA summarizes the
potential cost, environmental, and economic impacts of the
implementation (through individual emission guidelines) of the
amendments to subpart Ba being finalized in this action. Overall, the
EPA expects these amendments will benefit the states in the development
of approvable state plans.
The EPA notes that notice and comment procedures required for the
promulgation of individual EGs will provide opportunity for states to
address issues related to federalism based on specific application of
subpart Ba requirements to that particular EG.
F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
This action does not have Tribal implications as specified in
Executive Order 13175. It would not impose substantial direct
compliance costs on Tribal governments that have designated facilities
located in their area of Indian country. Tribes are not required to
develop plans to implement the guidelines under CAA section 111(d) for
designated facilities. A tribe with an approved TAS under TAR for CAA
111(d) is not required to resubmit TAS approval to implement an EG
subject to subpart Ba. This action also will not have substantial
direct costs or impacts on the relationship between the Federal
Government and Indian tribes or on the distribution of power and
responsibilities between the Federal Government and Indian tribes, as
specified in Executive Order 13175. Thus, Executive Order 13175 does
not apply to the action.
G. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks
The EPA interprets Executive Order 13045 as applying only to those
regulatory actions that concern environmental health or safety risks
that the EPA has reason to believe may disproportionately affect
children, per the definition of ``covered regulatory action'' in
section 2-202 of the Executive order. This action is not subject to
Executive Order 13045 because it does not concern an environmental
health risk or safety risk.
H. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
This action is not a ``significant energy action'' because it will
not have a significant adverse effect on the supply, distribution or
use of energy. Specifically, this action addresses the
[[Page 80542]]
submission and adoption of state plans for implementation of EGs
established under CAA section 111(d).
I. National Technology Transfer and Advancement Act (NTTAA)
This rulemaking does not involve technical standards.
J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
Executive Order 12898 (59 FR 7629, February 16, 1994) directs
Federal agencies, to the greatest extent practicable and permitted by
law, to make environmental justice part of their mission by identifying
and addressing, as appropriate, disproportionately high and adverse
human health or environmental effects of their programs, policies, and
activities on minority populations (people of color and/or indigenous
peoples) and low-income populations.
The EPA believes that it is not practicable to assess whether the
human health or environmental conditions that exist prior to this
action result in disproportionate and adverse effects on people of
color, low-income populations and/or indigenous peoples. The 40 CFR
part 60, subpart Ba, provisions are the implementing regulations for
states to plan in response to individual EGs, and these individual EGs
are applicable to specific pollutants from specified categories of
existing sources. It is not possible to identify or assess human health
and environmental conditions that will be impacted by this rule because
this rule does not address a particular set of sources or a particular
pollutant. This action is revising the implementing regulations and
does not directly impact environmental justice communities or result in
new disproportionate and adverse effects.
The EPA identified and addressed environmental justice concerns by
specifying new requirements for meaningful engagement with pertinent
stakeholders, which includes communities most affected by and/or
vulnerable to the impacts of a state plan.
The information supporting this Executive order review is contained
in section III.C. and section III.E.3.f. of this action.
K. Congressional Review Act (CRA)
This action is subject to the CRA, and the EPA will submit a rule
report to each House of the Congress and to the Comptroller General of
the United States. This action is not a ``major rule'' as defined by 5
U.S.C. 804(2).
List of Subjects in 40 CFR Part 60
Environmental protection, Administrative practice and procedures,
Air pollution control, Intergovernmental relations, Reporting and
recordkeeping requirements.
Michael S. Regan,
Administrator.
For the reasons set out in the preamble, title 40, chapter I of the
Code of Federal Regulations is amended as follows:
PART 60--STANDARDS OF PERFORMANCE FOR NEW STATIONARY SOURCES
0
1. The authority citation for part 60 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
0
2. Amend Sec. 60.1 by revising paragraph (a) to read as follows:
Sec. 60.1 Applicability.
(a) Except as provided in subparts B, Ba, and C of this part, the
provisions of this part apply to the owner or operator of any
stationary source which contains an affected facility, the construction
or modification of which is commenced after the date of publication in
this part of any standard (or, if earlier, the date of publication of
any proposed standard) applicable to that facility.
* * * * *
0
3. Amend Sec. 60.20a by revising paragraph (a) introductory text to
read as follows:
Sec. 60.20a Applicability.
(a) The provisions of this subpart apply upon publication of a
final emission guideline under Sec. 60.22a(a) if the guideline is
published in the Federal Register after July 8, 2019.
* * * * *
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4. Amend Sec. 60.21a by:
0
a. Revising paragraphs (e) and (f); and
0
b. Adding paragraphs (k) and (l).
The revisions and additions read as follows:
Sec. 60.21a Definitions.
* * * * *
(e) Emission guideline means a guideline set forth in this part,
with the exception of guidelines set forth pursuant to section 129 of
the Clean Air Act, or in a final guideline document published under
Sec. 60.22a(a), 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 has determined has been
adequately demonstrated for designated facilities.
(f) Standard of performance means 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
nonair quality health and environmental impact and energy requirements)
the Administrator determines has been adequately demonstrated,
including a legally enforceable regulation setting forth an allowable
rate, quantity, or concentration of emissions into the atmosphere, or
prescribing a design, equipment, work practice, or operational
standard, or combination thereof.
* * * * *
(k) Meaningful engagement means the timely engagement with
pertinent stakeholders and/or their representatives in the plan
development or plan revision process. Such engagement should not be
disproportionate in favor of certain stakeholders and should be
informed by available best practices.
(l) Pertinent stakeholders include, but are not limited to,
industry, small businesses, and communities most affected by and/or
vulnerable to the impacts of the plan or plan revision.
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5. Amend Sec. 60.22a by revising paragraphs (b)(3) and (c) to read as
follows:
Sec. 60.22a Publication of emission guidelines.
* * * * *
(b) * * *
(3) Information on the degree of emission limitation which is
achievable with each system, together with information on the costs,
nonair quality health and environmental effects, and energy
requirements of applying each system to designated facilities.
* * * * *
(c) The emission guidelines and compliance times referred to in
paragraph (b)(5) of this section will be proposed for comment upon
publication of the draft guideline document, and after consideration of
comments will be promulgated in this part with such modifications as
may be appropriate.
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6. Amend Sec. 60.23a by:
0
a. Revising paragraph (a)(1);
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b. Adding paragraph (a)(3);
0
c. Revising paragraph (b); and
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d. Adding paragraph (i).
The revisions and additions read as follows:
[[Page 80543]]
Sec. 60.23a Adoption and submittal of State plans; public hearings.
(a)(1) Unless otherwise specified in the applicable subpart in this
part, within eighteen months after publication in the Federal Register
of a final emission guideline under Sec. 60.22a(a), each State shall
adopt and submit to the Administrator a plan for the control of the
designated pollutant to which the emission guideline applies. The
submission of such plan shall be made in electronic format according to
paragraph (a)(3) of this section or as specified in an applicable
emission guideline.
* * * * *
(3) States must submit to the Administrator any plan or plan
revision using the State Planning Electronic Collaboration System
(SPeCS), which can be accessed through the EPA's Central Data Exchange
(CDX) (https://cdx.epa.gov/) or through an analogous electronic
reporting tool provided by the EPA for the submission of any plan
required by this subpart. Do not use SPeCS to submit confidential
business information (CBI). Anything submitted using SPeCS cannot later
be claimed to be CBI. The State must confer with the Regional Office
for the procedures to submit CBI information. All CBI must be clearly
marked as CBI.
(b) If no designated facility is located within a State, the State
shall submit a letter of certification to that effect to the
Administrator within the time specified in paragraph (a) of this
section. Such certification shall exempt the State from the
requirements of this subpart for that designated pollutant. The State
must submit the letter using the SPeCS, or through an analogous
electronic reporting tool provided by the EPA for the submission of any
plan required by this subpart.
* * * * *
(i) The State must submit, with the plan or revision, documentation
of meaningful engagement including a list of identified pertinent
stakeholders and/or their representatives, a summary of the engagement
conducted, a summary of stakeholder input received, and a description
of how stakeholder input was considered in the development of the plan
or plan revisions.
0
7. Amend Sec. 60.24a by:
0
a. Revising paragraphs (b) introductory text, (c), (d), (e), and (f);
and
0
b. Adding paragraphs (g), (h), and (i).
The revisions and additions read as follows:
Sec. 60.24a Standards of performance and compliance schedules.
* * * * *
(b) Standards of performance shall be in the form of an allowable
rate, quantity, or concentration of emissions, except when it is not
feasible to prescribe or enforce such a standard of performance. The
EPA shall identify such cases in the emission guidelines issued under
Sec. 60.22a. Where standards of performance prescribing design,
equipment, work practice, or operational standards, or combination
thereof are established, the plan shall, to the degree possible, set
forth the emission reductions achievable by implementation of such
standards, and may permit compliance by the use of equipment determined
by the State to be equivalent to that prescribed.
* * * * *
(c) Except as provided in paragraph (e) of this section, standards
of performance shall be no less stringent than the corresponding
emission guideline(s) specified in this part, and final compliance
shall be required as expeditiously as practicable, but no later than
the compliance times specified in an applicable subpart of this part.
(d) Any compliance schedule extending more than twenty 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. Unless otherwise
specified in the applicable emission guideline, increments of progress
must include, where practicable, each increment of progress specified
in Sec. 60.21a(h) and must include such additional increments of
progress as may be necessary to permit close and effective supervision
of progress toward final compliance.
(e)(1) The State may apply a standard of performance to a
particular designated facility that is less stringent than or has a
compliance schedule longer than otherwise required by an applicable
emission guideline taking into consideration that facility's remaining
useful life and other factors, provided that the State demonstrates
with respect to each such facility (or class of such facilities) that
the facility cannot reasonably achieve the degree of emission
limitation determined by the EPA based on:
(i) Unreasonable cost of control resulting from plant age,
location, or basic process design;
(ii) Physical impossibility or technical infeasibility of
installing necessary control equipment; or
(iii) Other circumstances specific to the facility.
(2) For the purpose of this paragraph (e), the State must
demonstrate that there are fundamental differences between the
information specific to a facility (or class of such facilities) and
the information EPA considered in determining the degree of emission
limitation achievable through application of the best system of
emission reduction or the compliance schedule that make achieving such
degree of emission limitation or meeting such compliance schedule
unreasonable for that facility.
(f) If the State makes the required demonstration in paragraph (e)
of this section, the plan may apply a standard of performance that is
less stringent than required by an applicable emission guideline.
(1) The standard of performance applied under this paragraph (f)
must be no less stringent (or have a compliance schedule no longer)
than is necessary to address the fundamental differences identified
under paragraph (e) of this section. To the extent necessary to
determine a standard of performance satisfying that criteria, the State
must evaluate the systems of emission reduction identified in the
applicable emission guideline using the factors and evaluation metrics
EPA considered in assessing those systems, including technical
feasibility, the amount of emission reductions, the cost of achieving
such reductions, any nonair quality health and environmental impacts,
and energy requirements. The States may also consider, as justified,
other factors specific to the facility that were the basis of the
demonstration under paragraph (e) as well as other systems of emission
reduction in addition to those EPA considered in the applicable
emission guideline.
(2) A standard of performance under this paragraph (f) must be in
the form as required by the applicable emission guideline.
(g) Where a State applies a standard of performance pursuant to
paragraph (f) of this section on the basis of an operating condition(s)
within the designated facility's control, such as remaining useful life
or restricted capacity, the plan must also include such operating
condition(s) as an enforceable requirement. The plan must also include
requirements to provide for the implementation and enforcement of the
operating condition(s), such as requirements for monitoring, reporting,
and recordkeeping.
(h) A less stringent standard of performance must meet all other
applicable requirements, including in this subpart and in any
applicable emission guideline.
[[Page 80544]]
(i) Nothing in this subpart shall be construed to preclude any
State or political subdivision thereof from adopting or enforcing, as
part of the plan:
(1) Standards of performance more stringent than emission
guidelines specified in this part; or
(2) Compliance schedules requiring final compliance at earlier
times than those specified in applicable emission guidelines.
(ii) [Reserved]
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8. Amend Sec. 60.25a by revising paragraph (a) to read as follows:
Sec. 60.25a Emission inventories, source surveillance, reports.
(a) Each plan shall include an inventory of all designated
facilities, including emission data for the designated pollutants and
any additional information related to emissions as specified in the
applicable emission guideline. Such data shall be summarized in the
plan, and emission rates of designated pollutants from designated
facilities shall be correlated with applicable standards of
performance. As used in this subpart, correlated means presented in
such a manner as to show the relationship between measured or estimated
amounts of emissions and the amounts of such emissions allowable under
applicable standards of performance.
* * * * *
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9. Amend Sec. 60.27a by:
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a. Revising paragraph (a);
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b. Adding paragraphs (b)(1) and (2);
0
c. Revising paragraphs (c), (d), (f) introductory text, and (g)(1);
0
d. Removing the word ``and'' from the end of paragraph (g)(2)(viii);
0
e. Redesignating paragraph (g)(2)(ix) as paragraph (g)(2)(x); and
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f. Adding new paragraph (g)(2)(ix) and paragraphs (h), (i) and (j).
The revisions and additions read as follows:
Sec. 60.27a Actions by the Administrator.
(a) The Administrator may, whenever he determines necessary, amend
the period for submission of any plan or plan revision or portion
thereof.
(b) * * *
(1) Full and partial approval and disapproval. In the case of any
plan or plan revision on which the Administrator is required to act
under this paragraph (b), the Administrator shall approve such plan or
plan revision as a whole if it meets all of the applicable requirements
of this subpart. If a portion of the plan or plan revision meets all
the applicable requirements of this subpart, the Administrator may
approve the plan or plan revision in part and disapprove in part. The
plan or plan revision shall not be treated as meeting the requirements
of this chapter until the Administrator approves the entire plan or
revision as complying with the applicable requirements of this subpart.
(2) Conditional approval. The Administrator may approve a plan or
plan revision based on a commitment of the State to adopt and submit to
the Administrator specific enforceable measures by a date certain, but
not later than twelve months after the date of conditional approval of
the plan or plan revision. Any such conditional approval shall be
treated as a disapproval if the State fails to comply with such
commitment.
(c) The Administrator will promulgate, through notice-and-comment
rulemaking, a Federal plan, or portion thereof, at any time within
twelve months after:
(1) The State fails to submit a plan or plan revision within the
time prescribed or the State has failed to satisfy the minimum criteria
under paragraph (g) of this section as of the time prescribed in
paragraph (g)(1) of this section; or
(2) The Administrator disapproves the required State plan or plan
revision or any portion thereof, as unsatisfactory because the
applicable requirements of this subpart or an applicable emission
guideline under this part have not been met.
(d) The Administrator will promulgate a final Federal plan, or
portion thereof, as described in paragraph (c) of this section unless
the State corrects the deficiency, and the Administrator approves the
plan or plan revision, before the Administrator promulgates such
Federal plan.
* * * * *
(f) Prior to promulgation of a Federal plan under paragraph (d) of
this section, the Administrator will conduct meaningful engagement with
pertinent stakeholders and/or their representatives and provide the
opportunity for at least one public hearing in either:
* * * * *
(g) * * *
(1) General. Within 60 days of the Administrator's receipt of a
State submission, the Administrator shall determine whether the minimum
criteria for completeness have been met for a plan submission or
revision. Any plan or plan revision that a State submits to the EPA,
and that has not been determined by the EPA within 60 days after the
Administrator's receipt of a State submission to have failed to meet
the minimum criteria, shall on that date be deemed by operation of law
to meet such minimum criteria. Where the Administrator determines that
a plan submission does not meet the minimum criteria of this paragraph
(g), the State will be treated as not having made the submission and
the requirements of this section regarding promulgation of a Federal
plan shall apply.
(2) * * *
(ix) Documentation of meaningful engagement, including a list of
pertinent stakeholders or their representatives, a summary of the
engagement conducted, and a summary of stakeholder input received, and
a description of how stakeholder input was considered in the
development of the plan or plan revisions; and
* * * * *
(h) The requirements of this paragraph (h) apply to parallel
processing. A State may submit a plan requesting parallel processing
prior to adoption and to completion of public outreach and engagement
by the State in order to expedite review and to provide an opportunity
for the State to consider EPA comments prior to submission of a final
plan for final review and action. Under these circumstances and at the
discretion of the EPA, the following exceptions to the completeness
criteria under paragraph (g)(2) of this section apply to plans
submitted explicitly for parallel processing:
(1) The letter required by paragraph (g)(2)(i) of this section must
request that EPA propose approval of the proposed plan by parallel
processing;
(2) In lieu of paragraph (g)(2)(ii) of this section, the State must
submit a schedule for final adoption or issuance of the plan;
(3) In lieu of paragraph (g)(2)(iv) of this section, the plan must
include a copy of the proposed/draft regulation or document, including
indication of the proposed changes to be made to the existing approved
plan, where applicable;
(4) In lieu of paragraph (g)(2)(ix) of this section, the plan must
include documentation of the engagement conducted prior to the parallel
processing submittal and of any planned additional meaningful
engagement to be conducted prior to adoption of the final plan; and
(5) The requirements of paragraphs (g)(2)(v) through (viii) of this
section do not apply to plans submitted for parallel processing. The
exceptions granted in the preceding sentence apply only to EPA's
determination of proposed action and all requirements of paragraph
(g)(2) of this section must be met prior to publication of EPA's final
determination of plan approvability.
[[Page 80545]]
(i) The requirements of this paragraph (i) apply to calls for plan
revisions. Whenever the Administrator finds that the applicable plan is
substantially inadequate to meet the requirements of the applicable
emission guidelines in this part, to provide for the implementation of
the applicable requirements, or to otherwise comply with any applicable
requirement of this subpart or the Clean Air Act, the Administrator
shall require the State to revise the plan as necessary to correct such
inadequacies. The Administrator must notify the State of the
inadequacies and such plan revisions shall be submitted to the
Administrator within twelve months or as determined by the
Administrator. Such findings and notice must be public.
(1) Any finding under this paragraph (i) shall, to the extent the
Administrator deems appropriate, subject the State to the requirements
of this part to which the State was subject when it developed and
submitted the plan for which such finding was made, except that the
Administrator may adjust any dates applicable under such requirements
as appropriate.
(2) If the Administrator makes this finding on the basis that a
State is failing to implement an approved plan, or part of an approved
plan, the State may submit a demonstration to the Administrator it is
adequately implementing the requirements of the approved State plan in
lieu of submitting a plan revision. Such demonstration must be
submitted by the deadline established under this paragraph (i).
(j) The requirements of this paragraph (j) apply to error
corrections. Whenever the Administrator determines that the
Administrator's action approving, disapproving, or promulgating any
plan or plan revision (or portion 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. Such determination and the basis
thereof shall be provided to the State and public.
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10. Amend Sec. 60.28a by revising paragraph (a) to read as follows:
Sec. 60.28a Plan revisions by the State.
(a) Any significant revision to a State plan shall be adopted by
such State after reasonable notice, public hearing, and meaningful
engagement. For plan revisions required in response to a revised
emission guideline, such plan revisions shall be submitted to the
Administrator within fifteen months, or as determined by the
Administrator, after publication in the Federal Register of a final
revised emission guideline under Sec. 60.22a. All plan revisions must
be submitted in accordance with the procedures and requirements
applicable to development and submission of the original plan.
* * * * *
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11. Amend Sec. 60.29a by revising the introductory text to read as
follows:
Sec. 60.29a Plan revisions by the Administrator.
After notice and opportunity for public hearing in each affected
State, and meaningful engagement for any significant revision, the
Administrator may revise any provision of an applicable Federal plan
if:
* * * * *
[FR Doc. 2023-25269 Filed 11-16-23; 8:45 am]
BILLING CODE 6560-50-P